An assault on the right to privacy

By Kalpana Kannabiran

Privacy was declared as a fundamental right by the Supreme Court in August 2017. Yet, a year later, on August 28, we were witness to searches and arrests that have forced the court to remind the government that “dissent is the safety valve of democracy.”
This piece focuses on the specific derogations of the right to privacy in the case of the search and seizure operation at Professor K. Satyanarayana’s campus home in the English and Foreign Languages University in Hyderabad. At 8.30 a.m., on August 28, around 20 police personnel from Maharashtra and Telangana knocked on Mr.Satyanarayana’s door with what they claimed was a search warrant in Marathi, a language that he neither speaks nor understands. He was not informed of the charges against him. The police forced themselves into his house and occupied it for the next eight hours, questioning him and his wife Pavana on their dress, personal beliefs and marriage.
They searched the couple’s bedroom and opened letters that Mr.Satyanarayana and Ms.Pavana had written to each other — the Telangana police read them aloud and translated them for the Maharashtra police personnel. They questioned Mr.Satyanarayana on his caste identity and Ms.Pavana on her marriage to a Dalit, insisting on examining and commenting on the couple’s marriage certificate. They commented on the absence of ‘signs’ of marriage on her (sindoor and jewellery). They insisted that Mr.Satyanarayana keep the washroom door open and change his clothes in their presence. They barred entry to all and refused to permit the couple to step out of the house. One day before this, the couple’s landline stopped working and their mobile phones had interrupted reception. The police confiscated all the Professor’s research and teaching materials and his computers, including the one his seven-year-old daughter Tara used, and family photographs. Although Mr.Satyanarayana requested the police to complete the search before his daughter returned from school, to protect her from the trauma of the search, they refused to comply. What Mr.Satyanarayana lost that day is incalculable. It was a daylight heist of his professional assets put together over two and a half decades — e-books, papers, unpublished manuscripts, course materials and teaching resources. The last straw was when the police questioned him about his reading habits, his academic practice, and why he had books on Ambedkar, Mao and Marx.
When he finally got access to a Marathi translator around 5 p.m., Mr.Satyanarayana realised that the warrant had nothing to do with him. It only stated that his father-in-law, poet Varavara Rao, who another team of police personnel had already placed under arrest at his home, was residing with him. While they forcibly entered and searched Mr.Satyanarayana’s home, the police knew they did not have the legal grounds or the authority to enter or/and monitor his movements.
This tells a story of the total and absolute infringement of Mr.Satyanarayana’s right to privacy, dignity and personal integrity. My arguments here are immediately relevant to all those who were targeted on August 28, five of whom were arrested. Among those who had to go through humiliating searches were AnandTeltumbde, Stan Swamy, and Mr.Satyanarayana, all of whom are respected public intellectuals, Dalit pedagogues who have been instrumental in crafting radically new approaches to the understanding of anti-caste philosophies and have resisted the ongoing assault on higher education in enduring ways. I hope that in the context of these arrests and searches, the court will initiate a moral and material recuperation of dignity and materials in the difficult times we live in today, and uphold justice and the Constitution in the national interest.
The core value that the judgment is built around is dignity as the right to life. How can dignity be understood? The Preamble of the Constitution states: “We, the people of India, having solemnly resolved… to secure to all its citizens… Fraternity assuring the dignity of the individual and the unity and integrity of the nation.” Justice A.M. Sapre says in the privacy judgment: “The expression ‘Dignity’ carried with it moral and spiritual imports. It also implied an obligation on the part of the Union to respect the personality of every citizen and create the conditions in which every citizen would be left free to find himself/herself and attain self-fulfilment… Dignity of the individual was, therefore, always considered the prime constituent of fraternity, which assures the dignity to every individual… Unity and integrity of the Nation cannot survive unless the dignity of every individual citizen is guaranteed.”
Justice Sapre then goes on to observe that the right to privacy is a “natural”, “inalienable” right which “inheres in every human being by birth”, without which a meaningful life with dignity is not possible. The duty of care to be exercised by the state in its treatment of citizens is hinged on the right of citizens to be free of state intrusion and surveillance through domiciliary visits, and to be treated with care.
Justice J. Chelameswar affirmed that the “right to privacy consists of three facets i.e. repose, sanctuary and intimate decision” and includes “the freedom of certain groups to determine their appearance and apparel.” Justice R.F. Nariman observed that of the three aspects that are at the core of the fundamental right to privacy, “the privacy of choice, which protects an individual’s autonomy over fundamental personal choices”, is one. Because free speech is facing the biggest threat in India today, Justice S.A. Bobde’s words are apt: “Privacy must also mean the effective guarantee of a zone of internal freedom in which to think… the vigour and vitality of the various expressive freedoms guaranteed by the Constitution depends on the existence of a corresponding guarantee of cognitive freedom.”
Earlier cases reaffirmed by the Supreme Court in 2017 have held that the right to privacy includes the right to safeguard personal intimacies of the home, the family, marriage, child rearing and education. In the case of Mr.Satyanarayana then, there has been a gross violation of the sanctity of the home, marriage, expressive and cognitive freedoms, and bodily integrity through the assaultive gaze of the police even at private moments in daily routines. This violation was through surveillance, through deliberate public humiliation on the campus of an intellectual, a Dalit intellectual. What can be worse than this, and what reparations can the court order?