“WOMEN AND THE RIGHT TO INDIVIDUAL AUTONOMY” BY: - KASHNI
“WOMEN AND THE RIGHT TO INDIVIDUAL AUTONOMY”
AUTHORED BY: - KASHNI[1]
Pursuing
LL.M. (3Years), Campus Law Centre, University of Delhi
Contact-
9013971909
Address-
402/71, 2nd Floor, Rosary School Road, Dhirpur, Delhi-110009.
Abstract
The Hon’ble Apex Court in its recent landmark case declared
Privacy to be a Fundamental Right per se. While elaborating what privacy means,
the right to have individual autonomy was held to be an essential component of
privacy. This judgment was immediately interpreted to be of far reaching
consequences especially upon rights of the LGBTQ community and a wide array of
women’s rights. This article seeks to discuss what the significance of personal
autonomy is when it comes to women in India, keeping in mind the social, legal
and cultural contexts they are subject to and whether law alone is enough to
help achieve these rights.
Introduction
The Indian society has
been undeniably infected with archaic patriarchal notions for a significant
amount of time. Over that period these ideas got deeply socialised into the
mind-sets of the people- both men and women alike, unquestioned, which led the
Indian society to not only become a male dominated society but also gave birth
to a systematic discrimination against and unfair suppression of the female
segment therein. This problem was however recognised by law makers who tried to
tackle it by introducing various legislative and policy measures that thrived
to provide women an equal status in the society by aiming to safeguard them
against discriminatory and oppressive societal practices and norms and at the
same time attempting to uplift them and bring them at par with the status
enjoyed by the male population.
However, it was soon
realised that merely engraving these rights in the letter of law was not
enough. There was still a huge gap left between the actual practice and what
the law aimed at achieving. Despite firmly concretising the rights of women and
the promise of equality, it was disheartening to see that the actual
realisation of these was still a far-fetched dream, mainly owing to the reason
that these ideas were still not accepted by the male driven society which
continued to deprive women of their fair share.
This is where the role of
the judiciary can be said to be a crucial one which is the very theme that this
paper seeks to explore. The judicial organ has time and again proved its
importance, especially when it comes to interpreting the law to give the
citizens the desired protection and benefit of the laws which would have
otherwise resulted in a futility of the efforts of the law makers that in the
absence of proper implementation would only go into vain. Through this research
the author would study the approach of the judiciary in this regard and how far
has it been successful in its attempts to battle the patriarchal norms,
bringing the ideals envisioned by the lawmakers into reality and minimise the
gap between theory and practice.
Meaning and scope of the ‘Right to
Individual Autonomy’
When we speak of
autonomy, it refers to a kind of freedom. Thus, individual autonomy would mean
to be a certain freedom over oneself. This freedom can be of thought, actions,
beliefs, expression, way of life, and so on and so forth. So an individual can
be said to be free in the true since, when they have the freedom or autonomy to
be themselves, without any interruption of extraneous forces or considerations.
In a way, individuals, in
their entirety, can be summed as a culmination of the decisions made by such
individuals for themselves. These
decisions are conscious or subconscious choices that are made every living
moment. These choices may range from the most miniscule ones like what to eat,
how to dress, where to go, etcetera, and may go upto life altering ones like-
what career to choose, who to marry or whether to even get married at al or
not. But what if one is not able or
rather allowed t make these choices? What if the decisions that one makes, are
mostly influenced by external manipulative forces? Would such decisions be
attributable to such individual as their own? And then can it be said that that
individual is able to manifest their true self? And most importantly, can they
be said to be free? The answer is no.
What can be gathered from these questions is that individual autonomy
eventually boils down to the ability to make one’s own choices, motivated and
inspired by one’s own belief systems and thoughts alone and not those of
others. It is this capability which is the essential test of true freedom.
In India, the Apex Court has interpreted the Right
to Individual Autonomy to be a component of Right to Privacy[2]. The concept of privacy
has been defined quite simply as the right of individuals to be left alone.
Also, it has been described as the right of the individual to make personal
choices and to assert their identities.
(i)
privacy in relation to the physical body, such as restrictions
placed on movement, surveillance of movements, etc.
(ii)
privacy in relation to
private information and materials of an individual; and
(iii)
the privacy of choice that is the freedom to make one’s most
intimate and personal choices. [4]
Further, Justice
Chandrachud eloquently stated, “…The best decisions on how
life should be lived are entrusted to the individual. ……The duty of the state
is to safeguard the ability to take decisions – the autonomy of the
individual – and not to dictate those decisions.” [5]
According to Article 21, liberty enables the individual to choose
what to eat, how to dress, or what faith he or she will follow. It was further
held tat it is both a negative as well as positive oigation of the state to
take all necessary steps to protect the liberty of its individuals.[6]
Significance of the right to
individual autonomy
with respect to women
After having gone through
the above definitions and interpretations of what “autonomy” is, it can be
safely stated that the concept is not something relatable for the average
Indian woman. Infact, the absence of autonomy and control over one’s own life
decisions is quite an apparent and omnipotent theme running throughout the
lives of majority of women across India. This handicap is particularly more highlighted
when seen in contrast to the relative freedom enjoyed by the opposite gender
(here, the male gender). This disparity and inequality of status between men
and women can be easily traced to the patriarchal setup, deeply rooted at the
core of the Indian society and has been sadly so, came to be known as a
peculiar feature of it.
Hindrances to Autonomy of Women
Social and cultural practices: Eugene
Ehrlich distinguished between societal norms and legal norms.
He recognized the inadequacy of legal theories
that viewed law merely as a sum of statutes and court
decisions. He argued that
legal theories that recognized law only as a sum of statutes and
court rulings gave an incomplete picture of the legal
reality of a community. Eugene
Ehrlich distinguished between societal norms and legal
norms, noting that legal theories that view law as only a series of
statutes and
court cases fail to capture the reality of
a society in law.
"Living law" is the one that regulates social life and it is often
very different from the norms for decision applied by courts, and may sometimes
attract far greater cultural authority than can be found in the courts. Norms
such as these are known as the "living law," and he believes that it
is often the "living law" that regulates social life and that its
norms may be very different from the norms in use by courts, and may sometimes
attract far greater cultural authority than lawyers could ever comprehend.
Drawing context from this
theory a very similar parallel can be drawn about the Indian society. It seems
that the legal norms and societal norms of conduct differ from each other due
to which the rights of women get compromised. It must be noted that not all
these informal norms have legal acceptance and usually never withstand the test
of law in courts, however, it cannot be denied that they indeed govern the day
to day life of individuals and affect the minutest decision made by them. The
practice of dowry, bride burning, honour killings, etc. are only a few examples
to start with. Nevertheless, these societal norms or norms of conduct end up
having an overbearing effect upon the rights of women which have been
guaranteed not only by the constitution of India but several other
international instruments.
Non conformity with
societal norms is often met with social sanctions such as – not being a
desirable candidate for marriage, disapproval from society at large, withdrawal
of support from family or spouse, attack on one’s character (subjection to
character assassination), social stigmatization and ostracization,
Morality and women’s autonomy: the expression of sexuality in
general has been and still is an uncomfortable subject for the Indian society.
That discomfort has been comforted by putting restrictions on the expression of
sexuality and the restriction is imposed by establishing sexuality as a moral
sin or wrong in the eyes of the society at large and thereby inducing an
indirect discouragement through fear of societal disapproval. Such disapproval
takes a different dimension in case of women, as their “chastity” has been one
of the major virtues defining their existence and in weighing them on “scales
of morality” of the society.
While it is important as
a society that we prevent and reprimand every wrong committed against women,
especially those violating their dignity and bodily integrity, it is also crucial
to let them exercise an authority over themselves and make their own decisions
and choices. While it is the duty of the society to protect its members from
any wrong, it is certainly not their right to interfere with the personal
autonomy and individuality of any member in the name of such protection. Such
non-legal encroachments upon the autonomy of women amounts to the violation of
the sacrosanct fundamental rights guaranteed by the Constitution or India under
Articles 19(1)(a) and 21. This unnecessary interference and focus on “Chastity” by self- proclaimed vigilantes
of women’s honour has led to a point where the chastity of women is not anymore
as something of their own to keep but has become the “property” of others to
protect. The chastity element has attained a distinct identity, separate from
its holder and so much so that instead of questioning the moral compass of the
violators of such “chastity”, the society has started using the chastity of the
woman as a measure of their virtuousness and ironically enough, made it a
matter of dignity and honour of the society at large. It is because of such
instances that women often find liberation in exaggerated expression of their
sexuality through art, vocalization and other mediums.
Regressive and outdated legislations: While it is still understandable as
to why the society is finding it difficult to come out of its archaic values
which have been a part of their socialization from generation to generations,
it is hard to comprehend that why such informal and unconstitutional norms that
exhibit a blatant inequality prima facie, still find place in the statute books
of law in a welfare state like India, which has time and again sweared its
allegiance to the Rule of Law and Principles of Natural Justice. Survival of
regressive laws discriminating against women is almost a betrayal on part of a
welfare state like India towards its citizens.
One of the most patent
violations of autonomy and privacy of women is seen in Section 375 of the Indian
Penal Code, 1860, which carves out an exception for “marital rape” i.e., non- consensual sexual intercourse by a husband
with his wife. This exception was initially extended only for women above 15
years of age, which meant it was an offence if committed against girls below 15
years, but this was later extended upto the age of 18 years by the Supreme
Court[8],
on the grounds of arbitrary distinction between married girls of different age
groups. However, the court categorically clarified that this decision of the
division bench would not be applicable to married girls over and above the age
of 18 years as that was not in issue before it. But despite this, while delving
into the reasons for extending the age limit, the court laid down the
foundation for unconstitutionality of the exception of marital rape.
The above-said exception
suffers with various anomalies such as, legitimising of child marriage,
violation of international instruments such as CEDAW[9]
and CRC[10]
and inconsistency with other national legislations[11]
which penalise sexual intercourse with a minor and sexual abuse, respectively.
Most importantly, the exception disregards the fundamental rights embodied in
Articles 14 and 21 by creating arbitrary distinction between women suffering
the same wrong, on the basis of marital status and age. [12]The
right to consent, or indeed to refuse consent, to sexual intercourse is innate
to a person's sexual autonomy and bodily integrity. Hence, it is a fundamental
personal right, entitled to state protection.
Another example of an
overlooked legislation is the provision of Section 9 under the Hindu Marriage
Act, 1954, which gives the remedy of restitution of conjugal rights to a person
whose spouse has deserted them or withdrawn from their society without any reasonable
excuse. This remedy has been under the constitutional radar twice as it was
contended to be violative of Articles 14 and 21 of the Constitution of India.
He question first came before the SC in the case of Sareetha v. T.Venkatasubbaiah[13],
wherein the petitioner was an actress and due to her work engagements had
to live separate from her husband for five years. She contended that the remedy
not only stopped women from choosing their careers, but was also often used as
a coercive tool for securing sexual cohabitation in the name of “marital
obligations”. While in the said case, the court agreed with the petitioner and
declared the provision to be unconstitutional, the decision was later reversed
by another bench in the case of Saroj Rani vs. Sudarshan Kumar Chadha[14].
There the court opined that the remedy of restitution of conjugal rights was to
prevent breakdown of marriage and the defence of reasonable excuse had been
clearly given by the statute. It is submitted that this interpretation of the
SC is erroneous and only strengthens the patriarchal notions.
Other contributing
factors include unequal treatment at
work place, unsafe environment due to physical and sexual vulnerability, fear
of violence from within or outside the family, societal stigmatisation, fear of
social ostracization, lack of education and awareness of rights, lack of
economic independence, burden of societal expectations and family
responsibilities, victim blaming, Pre- set gender roles and norms, internalised
misogyny, glorification and idealisation of subordination of women in media by
sexist stereotyping of women to be submissive, dependent, needy and incompetent
and many more.
Special Role of Judiciary in realisation of Rights of Women
and Asserting their Autonomy
In the Puttuswamy case[15]
keeping the dignity of an individual as one of the core rights guaranteed by
the Constitution, the court developed that jurisprudence around right to
privacy and held individual autonomy to be included in such a right. However,
when it comes to women, this is not the first time that the courts have
attempted to secure their autonomy in making decisions pertaining to their own
life. Although scattered, various attempts have been made in the past of this
nature in the form of securing reproductive rights[16],
right to choose a life partner[17],
right to get married[18],
right to bodily integrity[19],
protection from sexual harassment[20],
right to maintenance[21]
and the list goes on. [22]
The Court in the Puttaswamy
case[23]
as well referred to several previous key decisions around women’s autonomy over
their bodies and sexuality as part of the right to privacy, including the right of women to work during at night[24], protection of reproductive rights[25], the right to bodily integrity[26], the rights of unwed mothers[27]and
the right to decide regarding marriage, children and the choice of a family
life.
According to the Court,
these were matters of one's most intimate and personal choices and essential in
the pursuit of happiness, which is grounded in autonomy and dignity. Specific
references to protections of one's sexuality, sexual orientation and gender
identity were also made in this regard. Hon’ble Mr. Bobde, J. held that- “the right to privacy is confined not only to
intimate spaces such as the bedroom or the washroom but goes with a person
wherever he or she is”.
The Way Forward
The broad delineations of the rights of privacy given by the
Supreme Court is one of the most impactful and promising contributions to
feminist jurisprudence till now and is already witnessing the huge potential it
has for the advancement of women’s rights, as it is being used to challenge the
criminal law exemption to marital rape and to
challenge the constitutionality of outdated family laws that
restrict women’s rights.[28]
A positive impact of the judgment can already be seen in the Medical
Termination of Pregnancy (Amendment) Act, 2021- which has now given even
unmarried women the right to access medical assistance to terminate an unwanted
pregnancy. It can however not be ignored that the legislature deprived these
women of such a basic fundamental right to personal autonomy, healthy life and
dignity for almost half a decade.
This right to individual
autonomy is an umbrella right that encompasses various human rights within
itself. It helps an individual assert their individuality and make their own
choices. The right to live a life of liberty, free of any undue interference be
it from the State or the society, is the fundamental right of every human being
and the key to a dignified life. It can be said to be an inalienable human
right and hence a part of the values comprising of the Basic Structure[29].
While making laws for the
benefit of women and giving them wide interpretations are crucial for upholding
rights of women, but the real autonomy of women lies in the exercise of the
rights. The biggest hindrance that is recognised is the informal structure of
the society constructed by socio- cultural norms prevailing in the society
which can only be battled through gradual initiatives of bringing reforms at
grass root levels. Scrapping down regressive, outdated and demeaning
legislations, gender sensitization, imparting of sex education amongst
adolescents by discussing the scientific and psychological aspects and not
socialising it as a moral compass into those young minds, refraining
inappropriate objectification and representation of women in media and State
along with NGOs to conduct legal awareness drives are a few suggestions to
begin with.
In the end, the right to
individual autonomy, is nothing but the right to choose; it is when one ceases
to have a choice, it cannot be said that they are free in the true sense of the
word. Every individual, including women, have the right to freely make choices
and assert their individuality. “Choice” lies at the bottom of every democratic
nation; any interruption that hinders such a choice is undemocratic and is liable
to be eliminated by the state and the society at large.
[3] “The
Indian Supreme Court Declares the Constitutional Right to Privacy” by Jayna
Kothari, (OxHRH Blog, 4 October 2017) available
at: https://ohrh.law.ox.ac.uk/the-indian-supreme-court-declares-the-constitutional-right-to-privacy/
[accessed on April 10, 2021]
[8] Independent Thought v. Union of India, W.P. (Civil) No. 382 of
2013, decided on October 11, 2017 (Madan B. Lokur and Deepak Gupta, J.J.)
[9] The Convention on the Elimination
of all Forms of Discrimination Against Women , 1979. It was signed by India in 1980 and ratified in 1993.
[11] Such as- Protection of Children
from Sexual Offences Act, 2012 (POCSO Act) and the Protection of Women from
Domestic Violence Act, 2005 (PWDVA),
[12] Socio-Legal Review, “Independent Thought v. Union of India and the
Unconstitutionality of Marital Rape”, Nov 6, 2017, available at: https://www.sociolegalreview.com/post/independent-thought-v-union-of-india-and-the-unconstitutionality-of-marital-0is%20not%20rape%E2%80%9D
[accessed on April 7, 2021]
[13] AIR 1983 AP 356
[14]
AIR 1984 SC 1562, (1984) 4 SCC 90
[20] Vishaka & Ors. v. State of Rajasthan & Ors. (1997), Delhi Domestic Working Women's' Forum v,
Union of India & Ors. (1994)
[21] V. Tulasamma & Ors v. Sesha Reddi (Dead) By L. Rs (1977), Daniel Latifi v. Union of India (2001).
[22]International Women’s Day: 30 SC
Judgments on Women’s Empowerment, available
at: https://www.livelaw.in/know-the-law/landmark-decisions-of-the-supreme-court-that-changed-the-course-for-women-in-india-153592?infinitescroll=1 [accessed on April 13, 2021]