Privacy and the right to intimate choices

By Thulasi K. Raj

The judgment of the Supreme Court in Justice (Retd.) K.S. Puttaswamy vs. Union of India was the first comprehensive verdict on the right to privacy in India. While earlier judgments such as Rajagopal or Gobind discussed certain aspects of this right, in Puttaswamy, the court’s pronouncement was categorical, laying down definite principles and different contours of the right to privacy. The judgment in Puttaswamy will have – and in some cases, has already had – significant influence on various issues including state surveillance, data collection and retention and rights of sexual privacy. In this blog, I will focus on Puttaswamy’simpact on the right to intimate choices including marriage.

Among other things, the Supreme Court in Puttaswamy has made two aspects clear. First, the right to privacy is part of the right to liberty and dignity under part III, especially Article 21 and certain freedoms under Article 19 of the Constitution. Secondly, it located the right to intimate choices as part of the right to privacy. We shall see how this has enabled the courts to decide certain cases. (See here the Privacy High Court Tracker by CCG, used to identify the cases. The tracker “is a resource consisting of decisions on the constitutional right to privacy passed by all High Courts in India.”).

At various places in the judgment, there is agreement that privacy necessarily must protect the right to intimate choices. The court said – “The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual” and that “privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” Importantly, the oft-quoted right to be left alone was interlinked with the right to choose who enters one’s house, whom to live with and “what relationship” to live in. (Justice Kaul, para 78).

With this background, some cases from the Privacy Tracker are worthwhile studying. In Safiya Sultana and Ors. vs. State of U.P. and Ors., the writ petition was moved by the petitioner in the Allahabad High Court claiming that she is in the illegal custody of her father and she would like to live with her husband. During the deliberation, the court took up the issue of the requirements under the Special Marriage Act, 1954 (SMA) which make it difficult for couples to register their marriages.

The SMA is a secular law, meaning it can be used by persons belonging to any religion (or no religion at all). Persons belonging to the same religion, such as two Hindus also can marry under the SMA, as many often choose to. The petitioners argued that the provisions requiring notice before marriage and subsequent publication must be read as directory, instead of mandatory. They pointed out that “any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage.

Section 5 of the SMA provides that the couple intending to marry must give a notice in writing to the marriage officer before thirty days. According to section 6, the notice will be displayed for the public and the details of the notice entered into in the Marriage Notice Book, which is open for inspection by any person. Section 7 enables persons to object to the marriage on violation of certain conditions. In a society where agency of women in particular is curtailed and love-marriages often violently resisted, it is not difficult to see how these provisions can have significant dignity implications. While agreeing with the petitioners, the court noted that “society has no role to play in determining our choice of partners.”

Intimate choice consists of a bundle of rights where both privacy and autonomy interact: the right to choose a partner, the right to marry or not to marry, the right to choose a live-in relationship, the right to keep details of the marriage or nature of the relationship private. It becomes too ‘costly’ for young people to exercise the right to privacy and choice since there is constant invasion. Essentially, the actions of other persons and their possible access to your personal information impact your decisions on how to lead your life. The provisions of the SMA provide for this type of invasion by enabling the private details to be accessible to public. It went beyond the legitimate purpose of the state in securing the details of marriages in its register.

The court held that that giving and publication of notice under these provisions of the SMA shall be voluntary and not mandatory. Sections 5 and 6 were read down to this extent. The court directly relied on Puttaswamy to ascertain “the ability to make decisions on matters close to one’s life.” It also relied on Common Cause vs. Union of India and Anr. which said that “our autonomy as persons” is also founded in our ability to decide “whom to love and whom to partner.” This according to the High Court, is a protected entitlement of the Constitution. Hence, the court located “a right to a union” under Article 21. This union includes but is not exhausted by marriage. Neither the state nor other persons can intrude upon this right.

Moreover, according to the court, the provisions, if read as mandatory do not fulfil the three-tier test recognised by Puttaswamy while determining validity of laws (of legality, necessity and strict proportionality). The requirements of notice and publication apply only under the SMA, in comparison to other personal laws on marriage. “There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the Act of 1954…”

Often, in addition to the SMA provisions, various States have made specific rules, guidelines or checklists for registration of marriages under the Act. One such checklist was the matter in issue before the Punjab & Haryana High Court. In this case, the Haryana government had issued a marriage checklist with 16 requirements to be fulfilled for registration. The petitioners argued that requirements such as notice to parents of the couple, publication of proposed marriage in a national newspaper violate their right to privacy. The court held that such a requirement violates the right to privacy and asked the state to modify the checklist.

In Salamat Ansari vs. State of UP and Others, a FIR was lodged against the accused for the offence, inter alia, of kidnapping a woman under the Indian Penal Code, 1860. The petitioners argued that the woman in question and the accused were married and hence the FIR, registered by the father of the woman must be quashed. The court relied on the ‘choice’ jurisprudence emerging out of Puttaswamy, Shakti Vahini vs. Union of Indiaand Shafin Jahan vs. Asokan K.M, that an adult person’s choice on whom to marry is not a territory for the court or the state to intervene. The court quashed the FIR reiterating no offences were made out and the case was simply of individuals choosing to live together.

In Monika Mehra vs. State and Ors., the petitioners, who were a married couple approached the Jammu and Kashmir High Court seeking directions for adequate security on grounds of facing threats to their life. By relying on Supreme Court jurisprudence on the rights to privacy and choice, the court allowed the prayer for adequate protection of life and liberty of the petitioners.

There are few aspects binding these cases together. The first is the choice-privacy intersection. In Puttaswamy, this link was clearly explained. How an artist or a musician expresses herself is illustrative of how “privacy facilitates freedom and is intrinsic to the exercise of liberty.” Therefore, privacy and choice are not mutually exclusive or disjoint. One facilitates the growth of another and infringement of the one can constitute infringement of the other. In the context of the SMA, burdensome requirements violating privacy rights, such as publication of intended marriage force a person to make corresponding choices of partner or marriage.

The second is that all cases reflect that the right to privacy is vulnerable when exercised in a society that does not seriously value it. The provisions in SMA, for instance are used by vigilante groups to invade privacy at a large scale. For example, online applications of inter-faith couples under the SMA were publicised on the internet by certain groups in Kerala. The provisions, when functional in a peculiar socio-political context can be more burdensome, as different from a less intrusive social climate. Requirements such as notice of intended marriage to the parents aim to infringe the intimate zone of privacy. This is also the motivation behind criminal charges of kidnapping as in Salamat and Monika, filed to intimidate persons who have made free and independent choices, and ascertained their right to self-determination. Ultimately, the Puttaswamy judgment has played an important role in shaping the right to intimate choices for future cases and one can hope that it continues to do so.

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