By: Isabel Roy
INTRODUCTION
The conclusion to the highly referenced case of K.S. Puttaswamy v. Union of India read,
‘The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.’
The groundbreaking judgement formally recognized the aspect of privacy within the constitutional tenets of fundamental rights. It described the right to privacy as a right that protects an individual’s decision-making powers without any intervention by the State or non-State actors. The judgement made several references to the illustrious made in Harvard Law Review paper written by Samuel Warren and Louis Brandeis titled ‘The Right to Privacy’. However, a century after Warren and Brandeis laid down the understanding of the term ‘privacy’ in 1890, Anita Allen labelled the concept as an ‘unmistakable mark of male hegemony’. The assumptions underpinning the right to privacy as well as its margins defined by Courts lean toward the idea that privacy was specifically designed according to the experiences of a single gender. The time during which the right to privacy was contextualized was also marred by a prominent culture of patriarchy. The norms of privacy that were afforded to women as compared to men were at different degrees. A man’s privacy was tailored in a way that he achieves the highest development of personality for an individual whereas a woman’s privacy was limited to her modesty, her home, and her role in the society.
This paper aims to critique the concept of privacy against a feminist background. In Indian society, privacy, discretion, and personal space are notions that are supposedly borrowed from Western ideologies. The mould of a close-knitted joint family is the foundation at which our society functions, therefore, to be introduced to privacy as a right that dictates being left alone and a right to live a life without intrusion can be a little perplexing. Another argument is that privacy exists in India, however, the concept stands to be vastly different from the perception of privacy in other parts of the world. The paper argues that though privacy embraces autonomy and non-interference, the nature of privacy caters to the experiences and margins created for and by a specific gender group and has a disproportionate effect on the rest of the population. It also explores the idea of gender equity to be inculcated within the concept of privacy as an appropriate solution.
DEPICTING THE DISPROPORTIONALITY
Social and cultural norms greatly influence a woman’s role in Indian society. The way she speaks, dresses, and behaves is a part of traditional notions that have been practiced since time immemorial. Undoubtedly, huge developments have taken place that have slightly altered a woman’s position, but it has still not quite hit the mark. Young girls are accustomed to household work and are trained to be suitable wives for their husband’s households. Koops postulated that the typology of privacy includes ‘decisional autonomy’ as part of privacy. Mostly, women in rural India lack such decisional autonomy as there are still parts of the country plagued by misogynist social norms veiled as tradition.
An extension of such decisional autonomy exists in a woman’s reproductive rights. A topic that has garnered considerable traction recently is reproductive rights. The interconnection between reproductive rights and the right to privacy is a major aspect of feminist discussions. The right to make informed decisions related to the reproductive health of a woman is usually conferred by the husband, brothers, fathers, and other members of the family. Issues concerning her reproductive health such as pregnancy, abortion, menstruation, etc. are still a taboo. Rarely is a woman’s decision her own; especially in India. The past year was disappointing vis-a-vis the reproductive rights of a woman with Roe v. Wade being overturned in the United States of America. It was revealed that the repercussions of this decision would lead to arbitrary arrests and invasion of privacy when it comes to law enforcement agencies investigating claims of abortion or pregnancy-related matters. The unwarranted surveillance by the State concerning these issues unduly affects women.
“Draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”
In the 1870s, battering and assaulting the wife was considered to be a husband’s right in the American jurisdiction. The statement made by the judge suggests that family privacy is of utmost importance. What goes on in a household is a private matter that requires no state intervention. Though American courts eventually criminalised battering, the social premise that perpetuated a husband to strike his wife and considered it his prerogative still runs amok in India.
By far, the right to privacy being invoked in situations that arise within a home is an extremely questionable aspect of privacy. Locke’s theory of the public and private sphere deemed state intervention in the private sphere to be inappropriate. The feminist uprising against such a dichotomy was overwhelming in the United States of America but did little to change the paradigm. Instances of marital rape, domestic violence, harassment, assault, and other forms of vile crimes take place within the confines of four walls and the right to privacy automatically grants a free pass to the assailant. In India, the situation is similar, if not worse. With the reluctance to declare marital rape as a crime and the justification that the institution of marriage is so sanctimonious that state intervention is simply not acceptable, women are subjected to harsh treatment in their homes. Such treatment is not limited to the husband’s actions, the other family members have been known to take part. Such a marital shield that guards a husband runs absolutely against the wife’s liberties.
The disproportionality within the privacy context is also highlighted in the lives of transgender persons in India. The legislation that was bought in to protect the transgender community faced criticism for doing the exact opposite. Affirming and recognizing the ‘third gender’ in the NALSA judgement was a first step, but the self-recognition provision in the Transgender Persons (Protection of Rights) Act (2019) grants authority to an official to become the deciding authority on an individual’s identity. This shows insensitivity to the privacy of transgender persons and against inherent decisional privacy.
GENDER-EQUITABLE PRIVACY – CAN IT EXIST?
The ultimate goal of privacy is to ensure that individuals are allowed to make decisions that are true to themselves without the role of the State. But the above examples highlight that it is not the same for all gender identities. In these situations, where is the privacy we proudly speak of? It is imperative to acknowledge that the above issues have a common variable – gender. Thus, when there is an attempt to lay down an understanding of the complexities of privacy, the above issues are ignored as they do not affect the average man in society.
The feminist critique of ‘privacy’ always points towards the complexities of the term and its application across different individuals, locations, occupations, social groups, and other inter-sectional factors. Thus, women are not the only affected group in this context. Those belonging to gender-diverse groups that face trouble ‘fitting’ into the given construct are further subject to harm with the realities of perceived privacy. The historical narrow edges of the right to privacy need to be interpreted with gender-sensitive legal ideologies to promote a better understanding of the term.
It was suggested in an illuminating article in Boston Review wherein the author pondered over why precious human liberties such as essential rights and protections were being pushed into the concept of privacy; a concept that is noticeably undecided and unreliable. This paper agrees with the sentiment and holds that privacy is not the same for different gender groups. It cannot be said to afford the same level of autonomy to everyone. To be safe at home, workplace, or general surroundings; to have absolute control over one’s body and mind and to achieve and fulfill the goals and expectations of an individual must be ensured by looking at every variable involved. Gender-equitable privacy can exist, however, it may not be the solution to the problem wherein human liberties are at stake and may require a holistic approach.
The patriarchal structure cannot be broken down with the argument of unjustified privacy incursions, as privacy incursions are getting more widespread uncontrollably. In India, with the recent introduction of the Digital Personal Data Protection Act (2023), the right to privacy is nascent at the moment. The strengthening of a privacy framework is a pressing priority, however, the disproportionality showcased above must be identified and rectified at the outset. Gender-equitable privacy allows each individual to be on the same level and be afforded the same norms, but civil society needs to bring in changes to establish that. There needs to be a disruption of gender norms at the grassroots level. Further, gender-equitable privacy is the poster dream of privacy enthusiasts but violent crimes, marital rape, protection of trans communities, and domestic violence are issues wherein the disproportionality is strikingly apparent and needs to be addressed outside of a privacy forum for complete protection. Ever since it was bought in as a concept in the academic sphere, the right to privacy has evolved and it will keep evolving. Thus, there must be an earnest attempt to achieve both – the protection of gender identities as well as gender-equitable privacy in the country.
(Isabel Roy is a law undergraduate at School of Law, NMIMS Bengaluru. The author may be contacted via mail at isabelroyjohn@gmail.com)
Cite as: Isabel Roy, Equity & Privacy- A Delicate Balance, 31 October 2023 <https://rmlnlulawreview.com/2023/10/31/equity-privacy-a-delicate-balance/> date of access.
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