Dignity and the Right to Privacy

In one line

After 2017 the question in most of this module is not whether a woman is treated equally but who gets to decide about her, and that question has a constitutional name.

In the wording a student can write in an exam: dignity and privacy are the two values through which article 21 now reaches gender discrimination. In Justice K.S. Puttaswamy (Retd.) v. Union of India a Bench of nine held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and as part of the freedoms guaranteed by Part III, overruling M.P. Sharma and, to that extent, Kharak Singh. Privacy on that account has three dimensions, spatial, informational and DECISIONAL, the last comprising bodily integrity and reproductive choice, and an invasion of it must satisfy legality, a legitimate State aim, and proportionality. Dignity is the value the Preamble names and which article 21 has been read to guarantee, and article 51A(e) makes its protection a duty of every citizen by requiring the renunciation of practices derogatory to the dignity of women. Together they decided the recent cases in this module: Joseph Shine, Shayara Bano, Indian Young Lawyers Association, Shafin Jahan and the reproductive autonomy line.

Dignity

Where it appears. The Preamble resolves to secure to all citizens the dignity of the individual. Article 51A(e) requires every citizen to renounce practices derogatory to the DIGNITY OF WOMEN. And article 21's "life" has been read since the expansion of that article to mean life with dignity rather than mere animal existence.

What it does in an argument. Three things. It supplies a standard by which a practice can be condemned without pointing to a specific prohibition. It converts a question of treatment into a question of status. And it lets a court say that consent obtained in conditions of dependence is not the answer it appears to be.

Where it has decided cases in this module. The condemnation of the practice of parading and stripping in Kailas; the treatment of a prostitute's testimony in State of Maharashtra v. Madhukar Narayan Mardikar, where the Court held that even a woman of easy virtue is entitled to privacy and that no one may violate her person; the reasoning on instantaneous talaq in Shayara Bano; and the exclusion cases in [Temple Entry].

And its limit as an argument. Dignity is capacious, and a court can locate it on either side of a dispute, which is exactly what happened in the exclusion cases. Say so; it is the mark of a critical answer.

Puttaswamy

Facts. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, decided 24 August 2017 by a Bench of NINE judges. A challenge to the Aadhaar scheme raised the prior question whether the Constitution protects a right to privacy at all, because M.P. Sharma, decided by eight judges in 1954, and Kharak Singh, decided by six in 1962, had said it did not. A three-judge Bench referred the question in 2015 and the nine-judge Bench answered it.