The two BJP governments at the Centre and in Maharashtra appear to be imposing a skewed morality on its citizens by dictating what is right and wrong. The government declared before the Supreme Court that the right to privacy was not a fundamental right when the converse is true because the apex court has recognised the right to privacy as flowing from the right to life and liberty guaranteed by Article 21 of the Constitution, as far back as in 1963.
A three-judge bench of the Supreme Court, which was hearing several petitions challenging the move to make Aadhaar cards mandatory for obtaining government services, referred the issue to the Chief Justice of India for a larger bench to pronounce whether the right to privacy is a fundamental right or not, considering that all democracies accept it as one.
Privacy is a vital ingredient for human beings to mature into adulthood without their youthful indiscretions being made public like that of cricketer Mohammed Azharuddin who divorced his first wife to marry model and actress Sangeeta Bijlani in 1996 and was later rumoured to be linked with a badminton player. Azhar too must be left alone.
Ministers and jurists confuse law with morality even though the two are not identical. It is true morality influences legislation but both change with changing circumstances. And so, when the Malvani police recently barged into hotel rooms to arrest cavorting couples, they were breaking the law. The Bombay Police Act, enacted in 1951, punishes obscene acts in public but not in private. Any nation which prevents coitus between consenting adults in private is a rogue state.
But what is privacy? It is the right to be left alone and secure in our homes from intrusion by the state. The mandate of the state is to preserve law and order. Not to dictate to its citizens what to eat, how to dress or whether to engage in coitus or not in hotel rooms.
The concept of privacy was articulated in 1890 by two American lawyers, Charles Warren and Louis Brandeis, in an era when journalists barged uninvited into wedding receptions to pander to the salivating masses. Warren and Brandeis published an article in the Harvard Law Review titled The Right to Privacy which is still available on the internet. They defined privacy as an inalienable right to keep matters such as romance, pregnancy, child-rearing, divorce and death away from public gaze.
This notion spread rapidly across Europe with newsmen in the U.K. refraining from reporting on the liaison between King Edward VIII and the American divorcee Wallis Simpson when this was common knowledge across the Atlantic in 1936. King Edward VIII abdicated the throne for his lady love which made global headlines, except in the U.K.
In the 1960s, U.S. President John F. Kennedy bedded Marilyn Monroe after her stunning birthday performance for him which left many men drooling and Monroe swooning in Kennedy’s bed. Private details of Kennedy’s philandering with various women and his Mafia links were never publicised in the 1960s because his privacy was sacrosanct.
In India, the Supreme Court first recognised the right to privacy in 1963 in Kharak Singh versus state of U.P. when Justice Subba Rao wrote a learned dissenting judgment that a man’s home was his castle where he was free from all intrusions by the state. Strangely, 12 years later, in Govind versus state of MP, the judges refused to come to Govind’s rescue, proving that judge-made law is never static but erratic.
In 1995, in R. Rajagopalan versus State of Tamil Nadu, the apex court again held that the right to privacy flowed from Article 21, which guaranteed everybody the right to life and liberty and consequently must encompass the personal intimacies of home, family, marriage, motherhood, procreation and child-rearing. Hence, the apex court recognised privacy as a fundamental right, although the Constitution did not contain the word “privacy”.
The court went a step further by stating there could be no prior restraint on the Tamil magazine Nakheeran from publishing the life story of Auto Shankar, a notorious convict who was to be hanged, if the editor obtained facts from the official records. But if he went beyond that and published a 300-page autobiography, purportedly written by the convict himself, then the editor would be violating his right to privacy. Apparently, the apex court felt that even convicted murderers had a right to privacy.
Strangely, in 2015, the BJP government has done a volte-face by stating that the right to privacy is not a fundamental right, even though the Supreme Court had recognised it in 1963. The absence of a right to privacy would convert India into a police state, legalising unlawful entry into people’s homes and paving the way for eavesdropping on intimate telephone conversations and emails exchanged between citizens who are not endangering state security.
Privacy is a sacred right all over the world and India needs a new law to protect its 1.5 billion citizens from intrusions by the state.
