Can privacy even be a ‘thing’ without freedom, choice, rights and respect? For most of us the tension between social norms and privacy is familiar. But the law? Doesn’t it try to uphold a set of ideals? So, what parts of life does the law recognize privacy in?
A quick look shows that sometimes the law intervenes in private life – as with the recently read down Section 377. At other times it looks away from violent parts of private life – as in the case of marital rape.
What determines the difference? Often vahi purani cheezein which we are struggling with in social relations – conservative attitudes, especially to gender and sexuality. Our private parts are always intertwined with our public lives and the question of rights therefore is intertwined with the question of equality and respect.
Here’s a quick dekko that reveals this maamla.
Striking down of Section 377
In 2018, the Supreme Court said that the protection of sexual orientation and the right to choose a sexual partner were fundamental rights. For the first time, law saw as private and valid the sexual relationship between consenting adults of any sexual identity or orientation, not only heterosexual ones. Compulsory baat- partners should be of the age of consent , matlab, 18 years or above.
Reading down of Section 497
In 2018, the Supreme Court decriminalised adultery. Previously, a man who had consensual sex with a married woman, without her husband’s permission, could go to jail. Matlab, though sex outside marriage is a societal taboo, it is not illegal and is seen as the private matter of between consenting adults, to be resolved under civil law (of marriage and divorce, for instance) in case of conflicts. It also recognises women’s sexual autonomy, instead of seeing them as the wards of their male relatives.
The Transgender Persons (Protection of Rights) Act 2019
According to the act, trans people need to apply for an identity certificate to a District Magistrate (DM), which certifies them as trans. If they want to change their gender identity to male or female on government-issued cards, the rules require them to produce a surgery certificate issued by a Medical Superintendent. Moreover, the act has ambiguous examination details and gives power to the DM to verify or reject the “correctness” of the medical certification. Not only does this violate the right to self-identify, but is also an invasion of privacy.
Surrogacy (Regulation) Bill 2020
The bill decides that only a certain kind of woman – married and with a child or widow or divorcee (of Indian origin only) and performing a selfless act, meaning not charging a fee – can be a surrogate. Instead of protecting women’s reproductive rights and leaving the choice of being surrogates or not to women, thereby respecting their private right to bodily autonomy, the bill makes a decision on their behalf.
The Information Technology Act
According to Section 67 of this Act , publishing “obscene” information in electronic form, or images containing sexual acts, is a crime. It brings under the scanner even material made with consent. So a sexy selfie or a video sent with consent can be a crime too!
Section 66E in the IT Act
Most cases of non-consensual image circulation since 2009 were booked under the obscenity laws (section 292 of the IPC, and Section 67 as above) – filmmaker and activist Bishakha Datta points out in this video. Very few were charged as per Section 66E of the IT Act, which punishes violation of privacy and recognizes consent.
So by using the lens of obscenity instead of the lens of consent, to determine a crime, the law frequently takes away individual agency – more often women’s or queer people’s. Thus it favours morality and ignores privacy.
Porn ban of 2015
There are no laws in India that are against watching pornography in private, though making and distributing pornographic material is a crime. But in 2015, the government blocked over 800 porn and file-sharing websites, and has made renewed efforts to block porn sites in 2018 and 2019. Perhaps here too the lens of consent would protect any forcible making or viewing of porn while leaving private morality alone.
The Personal Data Protection Bill 2019
Section 35 of the proposed bill gives all government agencies unrestrained access to the personal data of citizens, as and when it is seen to relate to state security or ‘friendly’ foreign relations. It lets the State breach privacy without stating purpose or necessity. Yaniki personal information available on devices may be misused- as seen in the recent case when snooping against activists, lawyers, and journalists was reported by Whatsapp.