Right to Privacy – Now Public!

Alan Westin who defined privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” explained that “just as a social balance favoring disclosure and surveillance over privacy is a functional necessity for totalitarian systems, so a balance that ensures strong citadels of individual and group privacy and limits both disclosure and surveillance is a prerequisite for liberal democratic societies. The democratic society relies on publicity as a control over government, and on privacy as a shield for group and individual life.”

It was, therefore, surprising to have the former Attorney General assert that privacy is not a Fundamental Right. Privacy is a guarantee of due process providing an assurance that the government operates within the law and guarantees a fair procedure.

In fact whether the Constitution was read as a textualist would (Justice Scalia defined textulaism as an interpretation “guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time”) or whether it was construed as a Living Constitution that favours a broad not a conservative or mechanical approach “not condemning civilized society to remain under the regimen of its barbarous ancestors” the conclusion is inescapable that privacy is in fact guaranteed by the Constitution.

Privacy can be best understood by identifying an “intruder”. N A Moreham,Senior Lecturer in Law, Victoria University of Wellington in a scholarly article on privacy quoted Stanley Ben who described an intruder as one who “fails to show a proper respect for persons; he is treating people as objects or specimens — like “dirt” — and not as subjects with sensibilities, ends, and aspirations of their own, morally responsible for their own decisions, and capable, as mere specimens are not, of reciprocal relations with the observer. These resentments suggest a possible ground for a prima facie claim not to be watched, at any rate in the same manner as one watches a thing or an animal. For this is to “take liberties”, to act impudently, to show less than a proper regard for human dignity.”

Denial of privacy thus robs one of dignity. But the right to live with dignity has been held to be a core constitutional value by our Supreme Court and guaranteed by Article 21. And as privacy is an assurance of dignity the guarantee of privacy cannot but be implicit in the Constitution.

Even otherwise as Edward Bloustein says: “The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality …. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones” Visibility itself provides a powerful method of enforcing norms and as Westin tellingly puts it “naked to ridicule and shame they will be put in control of those who know their secrets.” As Moreham said freedom of expression – again guaranteed by the Constitution – would lose much of its value if people do not have the chance to learn to think for themselves and have anything unique, creative and controversial to express. Similarly freedom of action and belief – also guaranteed by the Constitution – will be lost where one is kept under the spotlight and on the stage in perpetuity robbing life of its spontaneity sparkle and exuberance, pillaging imagination of its resourcefulness, curbing individual genius and even idiosyncrasies, and enforcing conformity.

The right to privacy though unspecified is yet clearly reflected in the language of the Constitution and the existing state of law also clearly showed that the society believed that such a right existed. Merely being alive and alert to this fact even without being activist was sufficient to acknowledge the same.

The utter incongruity of the exercise of constituting a Bench of Nine Judges to decide if Privacy was a Fundamental Right at the instance of the Government which denied the proposition is apparent in the wholehearted endorsement of the decision as a vindication of its stance. What then was the need to rely upon the judgments on M.P.Sharma and Kharak Singh to insist that larger benches of the Supreme Court had held privacy not to be Fundamental Right, insisting that the framers of the Constitution had expressly excluded the right from the list of Fundamental Rights and asserting that the right was merely a common law right – an argument of the Attorney General which sat rather uncomfortably with that of the Additional Solicitor General that the right was recognized in different statutes? It could have been conceded that Sharma and Kharak Singh did not lay down the law correctly, that on a contemporaneous not historical exposition of law the want of explicit inclusion of privacy as a Fundamental Right could not be considered decisive and that a common law right was elevated to the status of a Fundamental Right and clearly emerged from the guarantee of Article 21 and other facets of freedom guaranteed by Part III of the Constitution.

Split verdicts often create doubts about verdicts and are open to criticism of policy and expediency trumping law. The Supreme Court spoke in one voice in recognizing the right to privacy. The unanimous decision of the Supreme Court is a momentous moment in India’s legal history decisively showing that existence of the right to privacy as an undisputed reality and vindicating India’s position as a confident, mature and vibrant liberal democratic state.

WOMEN IN ANCIENT INDIA

“The spirit of Indian culture”, said Radhakrishnan, “does not deny to Indian women the opportunity for spiritual development and intellectual eminence.” There has yet been much misinformed criticism of the position of women in Indian society. The issue has been beautifully addressed in a delightful book Great Women of India. The book, amongst other topics, examines the early Vedic and the Brahman-Upanishadic Age that is till about 500BC.

In early Vedic period writes R.C.Majumdar girls like boys underwent upanayana ceremony at an early age, perhaps about eight, and began Vedic studies.The Ashwalayana Grihya-sutra says that on namakarana or christening both boy and girl should be given two names – an ordinary name to be revealed to all and a secret name to be revealed to the teacher at the time of upanayana. The Atharva Veda says that a maiden wins a young husband through brahmcharya or Vedic studentship! And the White Yajur Veda there is what Roma Chaudhuri says, “a beautiful and catholic message which permits all equally to receive Vedic knowledge.”

Women performed the Harvest Sacrifice – Sitayajna as also the Rudra sacrifice (to ensure fecundity among cattle) where many vedic verses were recited and Harihar in the commentary Agrahayanikarma said men and women all are equally entitled to utter mantras. Even while taking part in daily and periodical sacrifices along with her husband said Anant Sadashiv Altekar “the duty to chant the Saman hymns fell on the wife who made the first brick for the sacrificial altar and participated in the consecration of the fire and offering of the oblations.” When Bali went to fight Sugriva Tara (wife of Bali) performed sacrifices to secure his victory.

Teaching by women was also common. Gargi was one of the eight scholars who challenged Yajnavalkya and the only one amongst them who had the courage to question him twice. Arundhati, the wife of the sage Vasishtha was an acharya. Acharya and Upadhyaya were terms specially coined for women teachers. During the daily rishitarpan – offering of water-libation to sages, water is offered to three women sages too – Gargi, Vadava and Sulabh.

Women were of two types sadyovadhus or those who were to become brides soon or brahmavadinis or those who discourse about Brahman and were entitled to initiation, sacrifice to Fire and study of Vedas. They like the boys wore the external signs of studentship and performed the daily prescribed duties. The Rig Veda has hymns composed by as many as twenty seven brahmavadinis.

Interestingly there also were women warriors. Vadhrimati and Vishpal are mentioned by the female seer Ghosha in the Rig Veda. And Mudgalani drove her husband’s chariot in battle chasing the enemies out.

Women had a role in the political sphere too apparent in sage Vasishtha trying to dissuade Sita from accompanying Lord Ram to the forest with the proposal that she should reign over the kingdom in the Lord’s absence. And in Mahabharat Gandhari showed she was very well versed in philosophy implicit in what Chaudhuri described as the “immortal saying”-Yato Dharmastato Jayah (victory pertains only to the side of the right) refusing to wish success even to her own son Duryodhana in battle.

The equality provided to women with men in all spheres of life from the Rig-Vedic age itself makes it ludicrous and indeed illogical to suggest as came to suggested subsequently that Hinduism warranted treating them as being inferior to or in any way and in any field less than men.