Tuesday, October 19th, 2021 21:40:23

Sex, Lies And Videotape The Right To Privacy In India

Updated: April 10, 2010 11:24 am

In the recent cases of Swami Nithyananda and Prof SR Siras, the individual’s right to privacy has been violated in the name of “public morality”. But the Delhi High Court’s landmark judgment decriminalising homosexuality has clearly said that the right to liberty, dignity and privacy of individuals cannot be restrained by the notion of public morality

The discourse over privacy in India has been circumscribed by views on morality and what is seen as acceptable to Indian morals and values. Two recent incidents illustrate the complexities of this debate.

            The first is the widely publicised suspension of Professor SR Siras, who was a Reader in the Department of Modern Indian Languages at the Aligarh Muslim University (AMU). Sixty-four-year-old Siras had taught for nearly 20 years at AMU, and was on the verge of retirement. The professor was with a friend (who was an autorickshaw driver) within the confines of his home when three men suddenly appeared from the next room and forcibly photographed Professor Siras, claiming they were from the press. Within a few minutes of this, a group of officials from AMU entered the house. This group included the proctor, media adviser and public relation officer of AMU, clearly showing that this was a set-up in which the AMU authorities were involved. Those who have been following events within AMU are not surprised by this incident. AMU has instituted a moral police force called the “Local Intelligence Unit” that is paid to keep tabs on students and teachers.

            In January 2010, an AMU research scholar, Irfan Khan, who was in a consensual relationship with Asma Firdous, was suspended from the university on grounds of “moral turpitude, intimidation and assault”. Though Irfan Khan and Asma Firdous had got married a day before the filing of the FIR, the university authorities chose to go ahead and suspend him. Irfan and Asma approached the Allahabad High Court, which ruled that both Irfan Khan and his wife had married out of free will. Despite this, AMU authorities have refused to withdraw the suspension of Irfan Khan, because they believe that marrying of one’s own free will against parental consent amounts to moral turpitude and violates the moral code set by the AMU authorities.

            Ironically, the incident involving Professor Siras took place a few months after the Delhi High Court decriminalised homosexuality in India and talked at length about both the right to dignity and the right to privacy of lesbian, gay, bisexual and transgender (LGBT) persons. The Delhi High Court, in its judgment quoted the South African Constitutional Court: “The right to privacy recognises that we all have a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy. If, in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy.” The high court, in its widely discussed judgment, not only affirmed the right of same sex partners to have consensual sex within the privacy of their home, but also went on to affirm ‘decisional’ privacy of LGBT persons, linking their right to privacy to the right to autonomy and sexuality.

            While the debate around the AMU action was framed as one of homophobia and moral policing, the question of the right to privacy is an important element in this discussion. When a state-funded university has persons on its payroll to snoop on and watch students and faculty, it reflects poorly on the culture of instituted moral policing and the complete disregard for the right to privacy of the large community of students and teachers there.

            The second incident, which involved very different

circumstances, is the case of Swami Paramahamsa Nithyananda, allegedly caught on camera in a ‘compromising’ position with Tamil actress Ranjitha. While there are a number of theories circulating about who planned this expose, it was clearly done without his knowledge. While the controversy in this case may have to do with the swami’s public face as a man of God and the faith that a large number of persons have placed in his divinity, it does not take away from the fact that his privacy was violated. Such was the fury that erupted after the tapes were played on Sun TV, that the actress had to go into hiding and his ashram was attacked by a mob.

            The broader right to privacy has evolved from being a tort law to an integral part of Article 21 jurisprudence. In the Kharak Singh and Gobind Singh cases, the Supreme Court was deciding on the validity of regulations that allowed domiciliary visits by the police. It held that the right to privacy derives from an English Common Law maxim which asserts that “Every man’s house is his castle”. The majority of judges in this case located ‘privacy’ as an aspect of the right to liberty protected under Article 21 of the Constitution. However, the boundaries of the legally protected right to privacy seem to dissolve when the violation of the right is seen through the lens of moral turpitude. Legal researcher Saptarshi Mandal, in a recent piece, has pointed out that the analytical framework developed by the courts in India is insufficient to explain how criminal law views privacy in regulating sex. Thus, while the state intervenes in cases of adultery to protect sexual access to the wife from third party interference, in cases of marital rape the state will not intervene. Law protects only what is considered “legitimate” private sex, ie sex within marriage.

            An example of how these rigid codes of morality play out was the controversy over Tamil actress Khushboo’s statements relating to pre-marital sex, in 2005. Khushboo, in an interview to the news magazine India Today said that it was all right for girls to have pre-marital sex as long as they took care to avoid unwanted pregnancies and sexually transmitted diseases. These comments were carried in a Tamil magazine and created a storm in Tamil Nadu. Twenty-three cases related to obscenity and defamation were filed against her, and she was slammed by most of her fellow actors and political parties in Tamil Nadu. She was forced to apologise for her remarks.

            Besides laws like the obscenity law and Section 377 of the Indian Penal Code (the law that until recently criminalised homosexuality), which are premised on a certain conservative morality inherited from British times, a number of laws in India have the word ‘morality’ inbuilt in their very provisions. For instance, contract law (Section 23 of the Indian Contract Act) declares contracts that have an “immoral object” to be void. This is one of the provisions used to stigmatise sex workers. Draconian legislations like the provisions of the Immoral Trafficking Prevention Act (IPTA) that allow for search without warrants have been held to be constitutional by Indian courts since “future cohabitation” is declared immoral. Thus, in sex work (and until recently in homosexual sex) the private nature of the sexual act was considered irrelevant. The right to free speech under Article 21 is qualified by reasonable restrictions, one of which is ‘public morality’. This provision has been used by the Supreme Court to uphold provisions of the Cinematograph Act that justify pre-censorship of cinema.

            By making a distinction between “constitutional” and “public morality”, the Delhi High Court has provided one route through which the ‘morality’ argument could be circumvented. The high court has clearly said that the right to liberty, dignity and privacy of individuals cannot be restrained based on the notion of ‘public morality’. The court has based its view of constitutional morality on liberal democratic ideals underlining the Indian Constitution. It remains to be seen if this logic is used constructively by other courts and in public discourse, to protect the right to privacy of individuals like Professor Siras and Swami Nithyananda.

Infochange

By Siddharth Narrain

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