How right to privacy fails Hadiya, put under house arrest by her father

What about the right to public?

 |  5-minute read |   03-09-2017
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Several young women in Kochi went to Hadiya's house bearing books and chocolates in the hope of meeting her, speaking to her and consoling her given that she has been put under house arrest by her family. The father does not allow them to meet her. She reportedly cries from the window saying she is being beaten up. The women protest and raise slogans against the house arrest outside her house.

The women leave and while they are at the bus-stop, an unnamed group of men come and begin assaulting the husband of one of the women who was with them (there is no fathomable reason for his presence). The police arrive because Hadiya's father has called them, accusing the women of trespass and the women are arrested. They are later released on bail.

This comes on the heels of the much-lauded privacy judgment. What is privacy here? Isn't the father defending his privacy by filing the complaint against the women trespassing? (A citizen has a right to safeguard the privacy of his home, his family, marriage, procreation, motherhood, child-bearing and education among other matters. No one can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages).This idea of the family as private realm that is inviolable is repeated ad nauseum in the privacy judgment.

The judgment talks of the "sanctity" of the family as the private sphere (Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he (sic) lives with his family, is his (sic) "castle"). Surely, Hadiya's father was just defending his castle?

Does Hadiya being beaten up also lie beyond the pale of interrogation because it is in the realm of the personal? The case lays bare the utterly notional and inflated idea of privacy that the Supreme Court so grandly pronounced.

On the ground, the family remains the most criminal of institutions denying any agency to women, children and sexual minorities. The sexual governance of girls and women begins in the family (Hadiya's father as the patriarchal head is the epitome and dispenser of this governance) and in interlinked in ever-widening chains to community (the unnamed men who attacked the man among the women), government agencies (the police, the Kerala high court) and the state (Kerala and India) that remains silent on the fate of Hadiya.

The US-trained lawyers and interns who cobbled together this sham of a judgment are aware of the feminist critique of privacy and quote Catherine MacKinnon (of all people) to illustrate it but then also say that women really need privacy, especially from the violences of the state.

But what when the law legitimises state violence and the invasion of one family playing custodian? The judgment waxes eloquent: "Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing"). What of the fact that that the patriarchal family head's right to privacy destroys Hadiya's personal intimacy, her marriage choice, her family life?

"The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual," says the judgment and are carried out in private space. Yet the fact of the matter is that nothing in that list is based on personal choice in a private space or carries only the person's sense of dignity in them. What the judgment, in its self-appointed loftiness, refuses to acknowledge is that the family, community and the state are all bound by the logic of sexual governance and work in tandem with each other. This sort of abstract legalese only shows how unmoored the law is from social realities.

hadiya_story-647_083_090317025411.jpgBy claiming privacy, we do not succeed in keeping the state at bay. 

What is wrong with the judgment is that in its portentous desire to hold on to some abstract idea of privacy, it inhabits an airy realm far from any of the realms that constitute India, where the idea of privacy, for most of us, means nothing at all.

The state is already in our lives in the same intimate way that the family is. By claiming privacy, we do not succeed in keeping the state at bay. They speak in the same voice. If a high court could decide that an adult woman making her own choice in marriage can and must be pushed back into her natal family and be controlled by it, the Supreme Court through the privacy law only solidifies that.

The abstract individual-citizen of the judgment has to be removed from all contexts of privacy if indeed she wants to retain independence and autonomy from the state. The family, community and the state are only varying forms of one another and independence has to be from all three.

Privacy in one opens doors to the others. Privacy was and is simply the wrong idea on which to base the opposition to Aadhaar or the family, community and state even if it sounds rather grand to our colonial and tone-deaf ears.

The poverty of our legal imagination is evident in its holding on to tired Western notions of privacy as the basis on which to fight the state. Fanciful rubbish about how one can be private in public too does not hold. It did not help the women who got arrested in Kochi.

The first step in the fight against Aadhaar, the family, the community and the state is the right to be public. The women outside Hadiya's house were exercising that right. That right is the one that has to be the basis of the legal and other struggles: the self as public, the public self.

Also read: Supreme Court ordering NIA to ‘probe’ Kerala woman’s conversion to Islam is insulting

Writer

Ashley Tellis Ashley Tellis @politicalrandi

The writer is an LGBT rights activist based in Chennai.

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