A nine-judge bench of the Supreme Court has ruled that privacy is a fundamental right. Here are the arguments given by each of the nine lordships.
In a historic judgement on 24 August 2017, a nine-judge Constitution bench of the Supreme Court has unanimously declared privacy as a fundamental right guaranteed under Article 21 and Part III of the Constitution of India.
Headed by the Chief Justice of India, J S Khehar, the nine-judge bench overruled the previous two judgments delivered by a six-judge bench and an eight-judge bench of the Supreme Court, which had ruled that privacy was not a fundamental right.
The court has declared that right to privacy is protected as an intrinsic part of right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
Here is what the judges said in the 547-page verdict:
Justice D Y Chandrachud
In his judgement, Justice D Y Chandrachud said information technology today governs virtually every aspect of our lives and the task before the court was to impart constitutional meaning to individual liberty in an interconnected world.
“While we revisit the question whether our constitution protects privacy as an elemental principle, the Court has to be sensitive to the needs of and the opportunities and dangers posed to liberty in a digital world,” Justice Chandrachud wrote in his judgement, possibly referring to the debate around Aadhaar.
The judgement, most detailed of the nine judgements, cites decisions in multiple cases such as M P Sharma v Satish Chandra and Kharak Singh v State of Uttar Pradesh. It also weighs in on verdicts given in the United States, Canada and South Africa in cases related to right to privacy, and also discusses the definition of privacy under European Convention on Human Rights and the European Charter. He has also taken into consideration various criticisms of the privacy doctrine.
Following a detailed analysis, Justice Chandrachud concluded that life and personal liberty are inalienable rights and inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty, he writes, are the foundational pillars of the Indian Constitution.
“Life and liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within,” Justice Chandrachud writes, adding that privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.
Justice J Chelameswar
In his judgement, Justice J Chelameswar has answered these questions.
- Is there any fundamental right to privacy under the Constitution of India?
- If it exists, where is it located?
- What are the contours of such a right?
“The text of the Constitution is silent in this regard. Therefore, it is required to examine whether such a right is implied in any one or more of the Fundamental Rights in the text of the Constitution,” he writes, answering the questions.
“I am of the opinion that for answering the present reference, this Court is only concerned with the question whether SUBJECTS who are amenable to the laws of this country have a Fundamental Right of Privacy against the State,” he adds.
Justice Chelameswar says the state should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. However, he has also said that no legal right, including the fundamental right to privacy, can be absolute.
“The limitations are to be identified on case to case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles (even if only slightly differently across some of them). Having emphatically interpreted the Constitution’s liberty guarantee to contain a fundamental right of privacy, it is necessary for me to outline the manner in which such a right to privacy can be limited,” he writes, elaborating his point.
Justice S A Bobde
In his judgement, Justice S A Bobde says privacy 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.
“The first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal liberty’ and life itself. Liberty and privacy are integrally connected in a way that privacy is often the basic condition necessary for exercise of the right of personal liberty. There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy,” he writes in his judgement.
Justice R F Nariman
Citing multiple cases, Justice R F Nariman has said the fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India.
“M P Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they indicate to the contrary, stand overruled. The later judgments of this Court recognizing privacy as a fundamental right do not need to be revisited. These cases are, therefore, sent back for adjudication on merits to the original Bench of 3 honourable Judges of this Court in light of the judgment just delivered by us,” he writes in his judgement.
Justice Abhay Manohar Sapre
Justice Abhay Manohar Sapre has endorsed the judgements written by Justices Chelameswar, Bobde, Nariman and Chandrachud in this case.
Justice Sapre writes that right to privacy is part of the fundamental right of a citizen guaranteed under Part III of the Constitution. However, he also states that it is not an absolute right and is subject to certain reasonable restrictions.
He writes that right to privacy has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his right.
Justice Sanjay Kishan Kaul
Justice Kaul, in his judgement, writes that right to privacy is a fundamental right and protects the inner sphere of an individual from both state and non-state interference, allowing an individual to make autonomous life choices.
He states that right to privacy is embedded in Part III of the Constitution and highlights that it can’t be absolute.
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INTRODUCTION
Since most of the early scholars, researchers and historians were men, many aspects of society did not find a place in history books. For example, child-birth, menstruation, women’s work, transgenders, households etc. did not find much mention.
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Rather than building a holistic picture of the past, some select aspects such as polity and the different roles of men became the central focus of history writing. Women were confined to one corner of the chapter where a paragraph or two was devoted to the ‘status and position of women’.
Even the details of these paragraphs were hardly different from each other. This made it look like as if history (and thereby society, polity, economy and all culture) belonged to men while women were only a small static unit to be mentioned separately. Of course, there were some exceptions, but these were however rare. This practice is being corrected now and the roles and presence of women are being read into all parts of historical questions.
SOURCES FOR UNDERSTANDING GENDER HISTORY
Sources are the bases of history writing. From simple pre-historic tools to abstruse texts, everything can be utilized to understand life and roles of women in history. The presence as well as the absence of women from sources needs to be duly noticed, deliberated and argued upon and only then to be theorised upon.
Certain objects being directly related to the lives of women or depicting the ideas of the female principle are of central importance. These include but are not limited to female figurines, art objects, texts attributed to or authored or compiled by women, monuments created by or for women, various objects relating to their lifestyle, objects associated with women on account of their cultural roles and so on.
It has been rightly pointed out by Uma Chakravarti that much of the gender history written in early phase was a ‘partial view from above’. This referred to the utilization of select textual sources and focused only on relational identity of women. There were, however, a few exceptions.
GENDER HISTORIOGRAPHY
Amongst the many narratives propagated to denigrate Indian civilization and culture by the British colonial rulers, the condition of Indian women became a point of central reference. Various social evils that made the life of women miserable were pointed out and efforts were also made to introduce ‘reforms.’ Sati, child-marriages, imposed widowhood, polygamy, dowry, educational and economic inequality, purdah (ghoonghat) and many other practices prevailed during the colonial period that made the life of women difficult and pitiable.
Some practices affected women of higher social and economic households while others led to misery for poorer women. Many social reform movements were started in the 19th century to address these issues and contributions were made by Indian reformers as well as British officials and other Europeans.
Women in India came to be treated as a homogeneous category and over generalisation became the norm. While many communities in India practised widow remarriage and did not practise (much less forced) sati and while some practised divorces or separation, the image of the Indian woman who had been subjugated as woman, wife and widow became a dominant theme in history writing.
Secondly, a western vision was placed over the non-western societies and hence interpretations were far removed from the context. For example, notion of stridhan was equated with dowry and little regard was paid to the provisions regarding its use and ownership by women.
The huge social stigma that came along with the selling of jewellery of the household (one of the main components of stridhan) was paid no attention to. Similarly, penal provisions listed by ancient texts for misappropriation of women’s property were not even looked into.
During the Paleolithic age, hunting and gathering was norm. However much importance was given to Hunting than gathering in all literature of history. Studies, however, show that hunted prey formed only 35% of the diet while gathering fruits and other edible material supplied the major portion. Gathering of food resources was ordinarily done by women. Since gathering was an important activity, more than hunting for game, it could point to significant role playing by women.
The gendered understanding of Harappan civilization is being built upon and various archaeological remains have been studied in this respect. The female figurines, idols of pregnant women, the statue of the ‘dancing girl’, various pieces of jewellery and personal belongings that have been discovered at various sites and offer useful insights on the public and private lives of women and men.
The statue of a girl obtained from Mohanjodaro has been called a ‘dancing girl’ on grounds of familiarity with the institution of devadasis in the later times. Such backward looking explanations are problematic.
There is a wide variety of terracotta female figurines that have been found at different sites right from the pre-Harappan times. Women figures are found suckling a baby, holding utensils, kneading dough, nursing infants, carrying objects like drums, seated figures for board games, with steatopygia (fat deposition on the hips and elsewhere), with floral head-dresses and in many other forms.
Even figurines of pregnant women are quite common. However, most of these have been uncritically associated with fertility, religiosity and reproductive ideas, and have been passed off as representations of the Mother Goddesses. While some of them were votive objects, others are held to be toys or other utilities. The focus on female form has been so stereotypical that women have been seen as associated only with home, hearth, fertility, sexuality and divinity. So much so that sometimes even male figurines in assumed womanly roles were classified as female figurines.
POSITION OF WOMEN IN EARLY INDIA
The first literary tradition in the Indian subcontinent (and the oldest in the world) is that of the Vedic corpus. From the four Samhitas to the Upanishads, we find many interesting references to women in various roles. Some of these women have left their mark on the cultural heritage to this day and are remembered in various ritual and social contexts. Their names, stories, some highly revered hymns, and other interesting facets are mentioned in the Vedic corpus.
The Vedic literature has been classified as Early Vedic and Later Vedic. The Rigvedic society and polity seems to be teeming with life and agro-pastoral economy was enmeshed in close kinship ties. Women as well as men participated in society, economy and polity. Some of the most revered hymns including the gayatri mantra are ascribed to women.
Various natural phenomena are depicted as Goddesses and they are offered prayers. While quantitative analysis highlights the predominance of Indra, Agni, Varuna and other male gods, the power and stature of the goddesses is equally well established.
Women participated in all three Vedic socio-political assemblies viz. Sabha, Samiti and Vidhata. They had access to education and were even engaged in knowledge creation. They could choose to be brahmavadinis with or without matrimony.
Hence, there is no reason to believe that they were only confined to home and hearth. T. S. Rukmani attempts to understand if women had agency in early India. Her work has highlighted many interesting details. The author acknowledges the fact that though the patriarchal set up put women at a loss, there were instances where women found space to exercise their agency.
She points out that though the texts like the Kalpasutras (Srautasutras, Dharmasutras and Grhasutras) revolved around the ideology of Dharma and there was not much space to express alternative ideas, still these works also find some leeway to express ideas reflecting changed conditions.
For example, there is a statement in the Apastamba Dharmasutra that one should follow what women say in the funeral samskaras. Stephanie Jamison believes that in hospitality and exchange relations, women played an important role. She says that the approval of the wife was important in the successful completion of the soma sacrifice. In another study it has been shown that women enjoyed agency in deciding what was given in a sacrifice, bhiksha to a sanyasin. The men had no authority in telling her what to do in these circumstances.
Vedic society was the one which valued marriage immensely. In such contexts, Gender Perspectives if a woman chose not to marry, then it would point to her exercising choice in her decision to go against the grain and remain unmarried.
Mention may be made of Gargi. She was a composer of hymns and has been called a brahmavadini. This term applies to a woman who was a composer of hymns and chose to remain unmarried, devoting herself to the pursuit of learning.
Similarly, in the case of Maitreyi, she consciously opts to be educated in the Upanishadic lore and Yajnavalkya does not dissuade her from exercising her choice.
The statement in the Rigveda that learned daughters should marry learned bridegrooms indicates that women had a say in marriage. Though male offspring is desired, there is a mantra in the Rigveda, recitation of which ensures the birth of a learned daughter.
Altekar refers to the yajnas like seethayagna, rudrayajna etc. that were to be performed exclusively by women. Some of the women were known for their exceptional calibre, for example, from the Rigveda Samhita we find mention of women like Apala, Ghosha, Lopamudra, Gargi, Maitreyi, Shachi, Vishwavara Atri, Sulabha and others.
Women have not only been praised as independent individuals but also with reference to their contributions towards their natal or marital families.
The Later Vedic literature shows the progression towards a State society with a change in the organization of the society and polity. The chief comes to be referred to as bhupati instead of gopati. However, within the twelve important positions (ratnis) mentioned, the chief queen retains a special position under the title mahisi.
The importance of the chief queen continued as gleaned from several references to them in the Epics, Arthashastra and even in coins and epigraphs from early historical times.
The other Samhitas also refer to women sages such as Rishikas. The wife is referred to as sahadharmini. Brahmanas or the texts dealing with the performance of the yajna (Vedic ritual), requires a man to be accompanied by his wife to be able to carry out rituals.
For example, Aitareya Brahmana looks upon the wife as essential to spiritual wholesomeness of the husband. However, there is a mention of some problematic institutions as well.
Uma Chakravarti has pointed towards the condition of Vedic Dasis (female servant/slave) who are referred to in numerous instances. They were the objects of dana (donation/gift) and dakshina (fee).
It is generally believed that from the post Vedic period the condition of the women steadily deteriorated. However, Panini’s Ashtadhyayi and subsequent grammatical literature speak highly of women acharyas and Upadhyayas.
Thus, the memory and practice of a brahmavadini continued even after the Vedic period. The Ramayana, Mahabharata and even the Puranas keep the memory of brhamavadini alive.
Mention may be made of Anasuya, Kunti, Damyanti, Draupadi, Gandhari, Rukmini who continued to fire the imagination of the poets. Texts show that the daughter of Kuni-garga refused marriage because she did not find anyone worthy of her.
The Epics also mention women whose opinions were sought in major events. For example, after the thirteen years of exile, while debating upon the future course of action regarding the restoration of their share, the Pandavas along with Krshna asks Draupadi for her views. Similarly, when Krishna goes to the Kaurava’s court to plead the case of Pandavas, Gandhari is called upon to persuade her sons to listen to reason.
Since a woman taking sanyasa was an act of transgression, one can explore women’s agency through such instances. In the Ramayana, Sabari, who was the disciple of Sage Matanga, and whose hermitage was on the banks of river Pampa was one such sanyasin.
Such women find mention in Smriti literature and Arthashashtra. Kautilya’s prohibition against initiating women into Sanyasa can make sense only if women were being initiated into sanyasa. He advises the king to employ female parivrajakas as spies.
Megasthenes mentions women who accompanied their husbands to the forest, probably referring to the Vanaprastha stage. Another category of literature called Shastras that comprises of sutras (aphorisms) and the smriti texts (‘that which is remembered’) becomes important in the postVedic period.
These textual traditions cover many subjects relating to the four kinds of pursuits of life referred to as purusharthas (namely dharma, karma, kama and moksha). In all these texts we find very liberal values and freedom for both women and men.
The setting up of a household is seen as an ideal for men as well as women (though asceticism for learning is equally praised for both). For example, Apastambha Sutra opines that rituals carried out by an unmarried man do not please the devatas (divinities). Similarly, Manusmriti provides that ‘for three years shall a girl wait after the onset of her puberty; after that time, she may find for herself a husband of equal status. If a woman who has not been given in marriage finds a husband on her own, she does not incur any sin, and neither does the man she finds’
Thus, we see that women enjoyed choice in matters of matrimony. It is interesting to note that unmarried daughters were to be provided for by the father. In fact, daughter is stated to be the object of utmost affection. Should a girl lose her parents, her economic interests were well looked after. It was provided that from their shares, ‘the brothers shall give individually to the unmarried girls, one-quarter from the share of each. Those unwilling to give will become outcastes’
With regards to defining contemporary attitude towards women, Apastambha Sutra prescribed that ‘All must make a way for a woman when she is treading a path.’ Later Dharmashastra also makes similar statements.
Yagnavalkyasmriti mentions that ‘women are the embodiment of all divine virtues on earth.’ However, there are several provisions that look problematic.
On one hand, we have reverence assigned to the feminine (divine and worldly) and important roles being played by them, on the other hand we have questionable provisions and descriptions like right to chastise them through beating or discarding.
The post-Vedic phase from 6th century BCE onwards is also rich in literary traditions with ample depictions of women. Interestingly, we have an entire body of literature that is ascribed totally to women who became Buddhist nuns. These are referred to as Therigathas i.e. the Songs of the Elder Bhikkhunis (Buddhist Women who joined the Sangha).
The Arthashastra Gender Perspectives gives us information on women who were engaged in economic activities of various kinds. They formed a part of both the skilled and the unskilled workforce. They were into professional as well as non-professional employment.
Some of their vocations were related to their gender, while the others were not. There were female state employees as well as independent working women. Similarly, some of them were engaged in activities which though not dependent on their biological constitution are nonetheless categorized as women’s domain, e.g. domestic services etc. Some of them were actual state employees, while some others were in contractual relations with the State. For example, we have female bodyguards and spies in the State employment.
Jaiswal suggests that these women perhaps came from Bhila or Kirata tribe. Female spies were not only to gather information and relay it to proper source, but also to carry out assassinations. However, a closer look at the text shows that there were different classes of female spies engaged for different purposes. Amongst others ‘women skilled in arts were to be employed as spies living inside their houses’. Others were required to work as assassins. Some were to the play the roles of young and beautiful widows to tempt the lust of greedy enemy.
We also have various Buddhist and Jaina traditions giving us some glimpses of the ideas and institutions of the times. Apart from the orthodox (Vedic and Brahmanic) and heterodox normative tradition we have many popular texts like the Epics in Sanskrit and Jatakas in Pali.
Even Prakrit language has many interesting narratives and poetic texts. The Therigatha by the Buddhist nuns are an interesting literary source that provides us with a glimpse of various women who attained arhantship or similar other stages of Realisation.
The deliberation on the age and deterioration of the body by Ambapali, the non-importance of sensual or bodily pleasures by Nanda, Vimla and Shubha etc points towards the intellectual and spiritual engagements and attainments of women.
It is interesting to note that an absolutely contrary picture is presented by the Jatakas wherein more often than not, women are depicted as evil. It is important to note that women were given an evil aura mostly in their roles as wives or beloveds.
Both the texts and the archaeological remains have been studied by various scholars and opposing interpretations are not rare. For example, on one side Sita (from Ramayana) and Draupadi (from Mahabharata) have been seen as victims of the patriarchal order; on the other hand, they are also represented as selfwilled women.
Draupadi after the game of dice presents herself as a forceful and articulate woman. It’s her wit that saves her husbands from becoming slaves of the Kauravas. Her incensed outrage at the attack on her modesty, her bitter lamentations to Krishna, her furious tirade against Yudhishthira for his seeming inability to defend her honour and many more such instances show her to be an aggressive woman. This persona is juxtaposed to her representations as an ideal wife elsewhere. However, Draupadi is never idealised as a perfect wife who endures the most severe trials without complaint. This honour is reserved for Sita in the Ramayana. She is also presented as a victim like Draupadi and voices her concern at her fate openly. However, her aggression is directed inwards as indicated by her action against the self which culminate in her union with the mother Earth.
Are the limited number of hymns ascribed to the Vedic women a signifier of their general status? Are the goddesses merely representational with no connection to the ideas and behaviour towards women? Did only princesses choose their spouses? Are the warrior women an exception? Such searching questions need to be addressed with due diligence.
While women studies are a good development there is a need to expand the horizons to include other varieties of human existence. We have narratives of fluid sexuality in various texts. The one year of Arjuna’s life spent as Brihallana and rebirth of Amba as Shikhandi are some interesting instances. The artefacts found at the site of Sheri Khan Tarakai include visibly hermaphroditic figurines. There is a need to understand the notions of the feminine, masculine, neuter, and other forms of gender and sexual identities. These will have ramifications for understanding the ideas of conjugality, family, community, society and even polity and spirituality.
CONCLUSION
Human civilisations were built by men as well as women, however, history writing has a huge male-bias. Women were confined to questions of status and position that were largely evaluated in terms of their roles in the domestic sphere.
Their treatment as wives and widows became a central focus of most research alongside their place in ritual or religious context. This made them peripheral to mainstream history. This was questioned by various scholars from time to time and led to the development of gendered understanding of history. Focusing attention on women’s history helps to rectify the method which sees women as a monolithic homogeneous category. Writing gender history has helped in building an image of the past that is wholesome and nuanced.