27 Sep 2018 5:00 AM GMT
The Supreme Court has dismissed a writ petition filed by a wife, who banking on the privacy judgment of the constitution bench had contended that she is entitled to be left alone and cannot be subjected to a decree for restitution of conjugal rights.Mr Naphade along with Advocate Ms. Fauzia Shakil submitted that “the judgment of Saroj Rani needs to be revisited in light of the right...
The Supreme Court has dismissed a writ petition filed by a wife, who banking on the privacy judgment of the constitution bench had contended that she is entitled to be left alone and cannot be subjected to a decree for restitution of conjugal rights.
Mr Naphade along with Advocate Ms. Fauzia Shakil submitted that “the judgment of Saroj Rani needs to be revisited in light of the right to privacy judgment.”
Relying on the C. Judgment in Puttaswamy case , it was argued that a “woman has the right to be left alone and a woman’s right to sexually autonomy and spatial privacy is part of her right under Article 21.”
To this Justice Lalit remarked that “the facts of the case do not justify interference because the s.9 petition filed by the husband of the Petitioner is still pending and no action under O21 Rule 32 has been taken against the Petitioner”.
The bench said said “you don’t want to go to him but want to maintain your status of being married”.
Mr Naphade vehemently submitted that the mere concept of restitution of conjugal right is violated of Article 21 and The Court when faced with a question of infringement of fundamental rights should ignore these technicalities.
Further contention with reference to the provisions of Order XXI, Rules 32 and 33 of the Civil Procedure Code, was that in consequence to the decree of restitution of conjugal rights, the properties can be attached in execution.
While dismissing the writ petition as ‘premature’, the bench comprising Justice UU Lalit and Justice Mohan M. Shantanagoudar observed: “We have gone through the contents of the writ petition. As of now, a petition for restitution of conjugal rights has been filed by the husband of the petitioner. In our considered view, the matter is purely pre-mature at this juncture. We, therefore, refuse to entertain this writ petition.”
The following observations in the privacy judgment was heavily relied upon by the senior counsel: “Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably inter-twined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.”
Read the Order Here