On October 27, a three-member Bench of the Supreme Court reiterated in the Pegasus case an earlier judgment on the right to privacy. On August 24, 2017, a nine-member Bench of the court had ruled that the right to privacy was a fundamental right. Privacy, the court held, is normative insofar as it forms a part of the eternal values of life, liberty and freedom. It is also a descriptive concept inasmuch as it signifies that every individual possesses a bundle of entitlements: the right to personal intimacy, the sanctity of family life, and the right to sexual orientation.
Privacy, which draws boundaries between the public and the private, is, however, one of the most contested concepts in political theory. Originally, Greek thinker Aristotle had distinguished between the polis, or the public sphere of political deliberation, and the oikos, or the domestic sphere. Whereas Athenian-born propertied males were members of the polis, women, slaves and aliens were banished to the private sphere. By the seventeenth century, the right to privacy was seen as an integral part of the liberal philosophy of individualism.
The modern individual possesses the right to life, to liberty and to private property. These three basic rights, which sought to limit the power of absolutist states, were buttressed by the right to privacy.
In the public sphere, the government protects the right of the individual to liberty. But it cannot interfere in the private sphere of the household. The notion of privacy, which emerged as a sub-set of the right to liberty, acknowledges the competence of the individual to manage his life according to the principles of self-determining rationality. The right to be left alone is central to human dignity.
Perceive the irony: privacy is integral to autonomy and human dignity. But what we term the private can be a dank, dark and claustrophobic space; the site of male domination, the space where women (who lack substantive rights) are subjected to degradation, unequal property rights and sexual and child abuse.
Since the private sphere fell outside the provenance of state intervention, gender injustices were simply not catapulted to the centre-stage of politics, which was increasingly dominated by rights talk.
This could have been foretold because till the first half of the twentieth century, women in many countries of Europe were not granted the right to franchise. In India, women got the right. They continue to suffer multiple injustices, rendered invisible by the belief that the household falls within the private sphere. Data, from the National Family Health Survey-2015-16, tells us that every third woman since the age of 15 has faced domestic violence. In most cases, the perpetrator of domestic violence is the husband or other male relatives. The average Indian woman is 17 times more likely to face sexual abuse from her husband than from others.
What we call the private is not the binary opposite of the power-laden public sphere. It is not the domain of unreflective emotions. It is the site of oppression. This is not to brush away the idea of the private. We need to be protected from the intrusive gaze of the state. But we also need to comprehend that the private can provide a ready cover for unimagined brutalities inscribed upon the bodies of women and children.
Moreover, the confidence that the private protects individuals from untrammelled state power has petered out. The Pegasus case provides us with yet another instance of relentless state control of thoughts, opinions and lives through surveillance technologies.
We have the basic right to withhold information that might compromise us in the public eye. This is an essential part of our right to dignity. But it is precisely dignity that is massively violated by unwarranted searches, eavesdropping and phone-tapping.
Where is the boundary that protects the private? An unguarded message to our friends on our mobile can land us in jail. Resourceful agents of the state can invent messages we never sent out.
Finally, increased surveillance, facial-recognition techniques and data-mining are used by governments to name and shame citizens who dare protest against discriminatory policies. The boundary between the public and the private is further eroded.
The foundation of Gandhi’s civil disobedience movement was the ability of human beings to make moral judgments on whether laws were legitimate. Today, whatever the government decides is ‘moral’.
In early 2020, banners carrying photographs, names and addresses of persons who participated in the December 2019 protests against the Citizenship Amendment Act in Uttar Pradesh were put up at prominent road-crossings in Lucknow. The police had documented the personal details of every citizen who formed part of the protest, and presented these details for public consumption and vicarious thrills.
The move was not only illegal, it was deeply humiliating. None of the protestors had been judged guilty of any offence. Still, they were named and shamed and held liable to pay compensation for damage to public property.
In the process, our right to withhold information about ourselves to curious outsiders, or our basic right to privacy was rendered null and void
The establishment of boundaries between different spheres of human interaction, systems of classification, and schemes of categorisation is specific to political modernity.
Today, many lines between different sites of human action have been rendered irrelevant by modern technologies and ruthless governments. One of the casualties is the right to privacy, neutralised by invasive governments and malevolent vigilantes.
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