“The views represented in this opinion piece do not necessarily represent those of the Willy Brandt School of Public Policy”
Right to privacy is as a human right recognized under Article 12 of the Universal Declaration of Human Rights1 issued by the United Nations on December 10, 1948, of which India is a signatory. Many of these rights received the status of fundamental rights under the Indian constitution in 19502. However, “privacy” was not explicitly mentioned under any of those fundamental rights. Since then, the debate about the Right to Privacy being a fundamental right has been a heated one. The Right to Privacy got a legal recognition through several Supreme Court of India (SC) rulings, but its recognition as a fundamental right is still open. All previous SC benches with less than nine judges ruled against such recognition. That discussion is important because no government can frame a law, not even a constitutional amendment, in India in contravention of a fundamental right. This principle, also known as Basic Structure Doctrine of the Constitution, was made clear in the historical judgment by the 13-judge SC bench in Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr3. The judgment states, “Though the power to amend the Constitution under Article 368 is a vast one; it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution.” On August 24, 2017, a bench with nine judges of the SC in the case Justice K S Puttaswamy (Retd.) and Anr. Versus Union of India and Ors4 declared that the Right to Privacy is a fundamental right, intrinsic to life and liberty; therefore, it comes under Article 21 of the Constitution. Quoting Chief Justice Subba Rao from the case Golak Nath v State of Punjab5, the bench writes: “‘Fundamental Rights’ are the modern name for what has been traditionally known as ‘natural rights’” Justice S A Bobde writes: “Privacy, with which we are here concerned, eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man.” This definition of privacy by Justice S A Bobde explains why the recognition of privacy is a significant step and a necessary right.
The conflict between Religion and Privacy
Religion plays a major role in individual’s lives. That might be true in some cases even if he or she does not practice any religion. Religious scholars and priests, many times backed by religious texts, issue opinions in almost all the areas of an individual’s life. Depending on the religion, the rules and norms may be rigid or flexible. A person is unlikely to face obstacles if he or she chooses to do something that is in line with the teachings of a respective religion. The opposite might occur if a person goes against religious teachings.
Expectations from an individual’s life in Hindu families could be attributed to four stages of Ashramadharma — brahmacharya (bachelor), grihastha (family), vanaprastha (leaving everything at an old age and departing to the forest) and sannyasa (ascetic)6. All these stages are expected to be reached within a certain age. If someone pursues studies beyond expected age limit of brahmacharya stage, then he or she is likely to face pressure against it as the family would be waiting for an individual to marry and fulfill his or her duties under grihastha stage. People often succumb to the pressure. That is a clear case of unauthorized intrusion of a family in a person’s life through religious teachings. There are various such incidents in Hindu families. Fatwas issued by powerful Islamic clerics against an individual for doing something perceivably un-Islamic could have a serious effect on a person’s standing within the community.
These issues require a sensitive approach through continuous education within the community as they are hard to be legally addressed. Active participation of civil society is necessary to bring awareness on a larger scale. The importance of the right to privacy must be taught in the primary education. Mediums such as television, films, must be involved to deliver the message to masses in the easiest possible way. If done properly, it might show results in a societal behavioral change in the long run. These measures must be pursued on a regular basis. Consider, for instance, the taboo against homosexuality in India. After many such sustained measures, change in attitude towards homosexuality is visible. For instance, Rashtriya Swayamsevak Sangh’s (a Hindu right-wing organization) leaders have softened their stand on it7.
However, there are areas where the legal route could help people in addressing privacy issues. In 2009, Section 377 — introduced under British rule in 1861 making same-gender sex illegal — of the Indian Penal Code (IPC) was struck down by the High Court (HC) of Delhi in Naz Foundation vs. Government of NCT Of Delhi8, which was later struck down by the SC in 2012. However, the recent petition to revert the 2012 judgment is pending in the SC. Now, there is hope from this case, especially after the SC’s comments in Justice K S Puttaswamy (Retd.) and Anr. Versus Union of India and Ors, noting, “The rights of the lesbian, gay, bisexual and transgender (LGBT) population cannot be construed to be “so-called rights”… This is an inappropriate construction of the privacy-based claims of the LGBT population. Their rights are not “so-called” but are real rights founded on sound constitutional doctrine.” Further, it states that “since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding”. There was no concept of divorce in Hindu marital norm, and couples had to remain in marriage against their will. However, The Hindu Marriage Act, 19559, gave an option of divorce for Hindu couples. In case of Muslim women, in 2017, the SC struck down the practice of instant triple talaq (divorce) as unconstitutional in Shayara Bano versus Union of India and Ors10. Instant triple talaq is a practice in Islam where husband divorces wife against her will by saying “talaq, talaq, talaq” instantly without the proper due procedure. Though prohibited among Catholics, abortion is legal in India giving women an option of pro-choice, which comes under Right to Privacy.
However, there are still many areas where personal laws require serious reforms. On the one hand, marital rape is not recognized as a crime in India and, on the other hand, the polygamy — husband marrying more than one wife — without the consent of the other wives within the Muslim personal law continues to be legal in India. Any other kind of polygamy or polyandry — wife marrying more than one husband — is prohibited under other religious personal laws. Polygamy or polyandry per se is not against the concept of privacy if the consent of all the wives or husbands, respectively, is taken. These issues must be given due diligence, and laws must be enacted to address them.
Sometimes the cost of doing something against religious teachings is very harsh, brutal and inhumane. One could get killed, banished, outcast, lynched, among others. 251 honor killings were reported in India in 2015, and these could be attributed to inter-caste marriages, inter-religious marriages, intra-gotra (roughly translated to the clan) marriages, among others11. Even dietary habits could kill you as happened in the case of Mohammad Akhlaq in 2015 who was killed by the Hindu fringe mob over alleged rumors of beef (cow meat) consumption in Dadri, Uttar Pradesh12. This was a case of vigilantism. Even if someone does something illegal, it is the state’s prerogative to look after the matter. No one has the right to enter anybody’s private space without the respective person’s permission or legal warrant. Despite the presence of several strict laws, the law enforcement is key.
Religion within the Right to Privacy
Even practicing religion is a completely personal and private matter. In Justice K S Puttaswamy (Retd.) and Anr. Versus Union of India and Ors, Justice Chelameswar’s judgment said, “… the freedom of the belief or faith in any religion is a matter of conscience falling within the zone of purely private thought process and is an aspect of liberty.” This privacy should not only give freedom to practice a certain religion but also do it in a manner the individual feels comfortable, even if it is not in line with the traditions and norms – especially in an era when people are exposed to modern ideas from the West and still somehow are committed to religious practices.
Another important aspect of it is religious conversion. “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion…,” says Article 25 (1) of the Constitution, clearly making a scope for religious conversions. However, over the decades, several states have limited the scope of mass conversions through various regulations and a vetting process saying that the steps were taken to protect and maintain public order as mandated under Article 25. These laws were made assuming the vulnerability of group converts, especially women, lower castes, and tribals13. States assume that mass conversions are being done through allurement and coercion, not through personal choice. Yes, there is a likelihood of community pressure or societal pressure on an individual when whole family or group converts, and s/he might succumb to it, against one’s privacy to practice religion. However, there seems to be little empirical evidence to suggest mass conversions occur through allurement or coercion. In fact, fringe groups often use these laws as shields.
When a group of religious fringes takes an interest in an individual’s religious practices, there is a very high chance of disturbance in public order, having the potential to escalate into a major riot. In fact, all issues discussed in this article have the potential to be given a communal angle. However, the problem deepens when these fringes receive the political patronage. Patronages continue if political parties win elections following such public disorders.
Effect on policy:
The state needs citizen information for governance and delivery of public services, including the efficient implementation of the public distribution system (PDS) for the poor. However, the question is about the nature of information, the extent of the information and manner of the information dissemination. If a religiously conservative government possesses a disproportionate amount of information, then there is a high chance of misuse of that information. The government might become a threat to the security of individuals belonging to a certain religious minority. There might be a regular intrusion into their privacy from the state machinery, or some people may be framed under wrong criminal charges. There might even arise a possibility of discriminatory delivery of public services and PDS. These concerns are more valid when a system like UIDAI or Aadhaar — an identification system that uses biometrics — is made compulsory in almost all the government platforms. It becomes even more dangerous when all the non-state actors also deliver services only through Aadhaar. This makes easy for the government to know about almost everything about any citizen. Concerns are more when there is low cybersecurity, and thus, in turn, the threat of data breach is high14. In Puttaswamy (Retd.) and Anr. Versus Union of India and Ors. The SC said, “… We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state…”. This is what is the need of the hour.
- Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr, Writ Petition (civil) 135 of 1970
- Justice K S Puttaswamy (Retd.) and Anr. versus Union of India and Ors, Writ Petition (Civil) No. 494 of 2012
- Golak Nath v State of Punjab, (1967) 2 SCR 762
- Chakkarath, Pradeep. (2005). What can Western psychology learn from indigenous psychologies? Lessons from Hindu psychology. 31-51.
- Naz Foundation vs Government Of Nct Of Delhi, Writ Petition (C) No. 7455 of 2001
- Shayara Bano versus Union of India and Ors, Writ Petition (C) No. 118 of 2016
- Laura Dudley Jenkins. (2008). Legal Limits on Religious Conversion in India. 1-19