In KPuttaswamyv Union of India (2017), a nine-judge bench of the Supreme Court held that the right to privacy is a fundamental right and that, at its core, it means the “right to be let alone.”
Privacy defined through patriarchal notions
Gender structures our imagination of what is private and what is not. For example, sexual relations are generally considered to be private matters.
Sex outside marriage, such as in adultery or sex work, is denied the same level of privacy protection as sex within marriage.
After Suresh KumarKoushal v Naz Foundation 2014, homosexual behaviour is also within the purview of public regulation. Taken together, these examples indicate that the understanding of privacy in the context of sexual activities is based on sexual (hetero)normativity.
Spatial privacy will exacerbate discrimination
Feminist scholarship has debunked the notion that there is any natural distinction between the realms of the public and the private.
Notions of privacy that shield certain spaces (such as the home) and relationships (such as marriage) from state scrutiny can leave persons within these spaces and relations vulnerable to discrimination, coercion, and abuse.
Conceptions of the home as a place of “sanctuary” and “repose” obliterate lived experiences of women for whom these spaces are often sites of oppression and violence.
Spatial privacy supposes privacy for all which is practically not the case
Spatial notions of privacy also presuppose that everyone has access to private spaces. This may not be the case for many due to economic inability, or for same-sex, inter-caste, or interfaith couples.
In these situations, the private space of the home can be stifling in its control, whereas the public sphere might be a place of relative anonymity and therefore, of relative autonomy.
Decisional and Informational privacy help women control their own lives
On the other hand, the move away from spatial and relational framings of the right to privacy, to decisional and informational privacy, has opened up new vistas for women’s rights and empowerment.
By grounding the right to privacy in individual autonomy and control over vital aspects of one’s life, this right empowers women to question social and legal structures that limit their ability to exercise control over their bodies, minds, and lives.
By and large, the Puttaswamy judgment embraces this notion that privacy is grounded in individual self-determination.
Scope for affirmative action for women opened further
If the right to privacy exists to protect the individual’s control over vital decisions affecting their lives, then non-intervention might not be sufficient to achieve this end.
There may be need for affirmative action by the state to enable a person to effectively exercise autonomy in making fundamental personal decisions.
Surveillance of women not addressed
In addition to the social surveillance of women, providing public officials control over a wealth of information about an individual can render such persons vulnerable to active coercion, through acts like stalking or extortion.
In a social context where society judges women for their sexual and reproductive choices, mandatory disclosure of such information may not only constrain women in making such choices, but also in accessing safe and legal reproductive health services.
The Puttaswamy judgment does not directly address the constitutionality of surveillance mechanisms.
The plurality judgment finds privacy to be an “intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity.”