THE RIGHT TO SEXUAL PRIVACY :-
- Joseph Shine v. The union of India, the petition challenging the constitutional validity of the criminal prohibition on adultery under Section 497 of the Indian Penal Code, has now been referred to the Constitution Bench by the Supreme Court.
- The petition was admitted by the court with the preliminary observation that the provision attacks the independent identity of the woman and is archaic in its nature.
- However, there is much less discussion on another significant aspect of Adultery Law: The Right to Sexual Privacy.
The right to sexual privacy :-
- The right to privacy is valued and cherished for it involves the most intimate decisions and choices.
- The right to engage in sexual intercourse is an intrinsic part of the right to privacy.
- Privacy has to invariably contain the right to bodily integrity, self-determination and sexual autonomy.
How is adultery law affecting the right to privacy?
- By criminalising adultery, the state is, in fact, showing a paternalistic attitude by telling individuals how to lead their lives and what behaviour to adopt
- It carries moralistic undertones of imposing what living an ideal life means for the state
- Such an approach seriously undermines the underlying values of personal liberty
Upholding right to privacy
- In the celebrated privacy judgment in K.S. Puttaswamy case (2017), exercising the police power of the state in matters of private choices was repelled by the apex court
- SC judge had said that anybody would not like to be told by the state as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life
- It seems to follow that individuals must be free from the interference of the state in matters of their sexual choices, or even in choosing their sexual partner
- None of the European countries has criminalised adultery
- In most of South America, adultery is no longer a crime
- Many States in the U.S. have either repealed adultery laws or put them to disuse
- Following this global trend, in 2012, a working group of the United Nations called upon countries to do away with laws penalising adultery
Approach of the Supreme Court of India
- SC approach towards the right to sexual privacy has been ambivalent
- The judgment in Suresh Kumar Koushal case (2013) upholding the criminalisation of voluntary sexual intercourse between those of the same sex remains a serious blow to the right to sexual freedom
- Subsequently, in NALSA v. Union of India (2014), the Court said that the value of privacy is fundamental to those of the transgender community
- Reviewing law on adultery is perhaps the first occasion where the privacy judgment in Puttaswamy case is going to be doctrinally and forensically tested
- It is equally crucial that the right to sexual privacy forms a distinct and independent ground
ENABLING A LAW : ON RIGHTS OF DISABLED PERSONS :-
SC’s direction on providing public facilities to the disables
- The Supreme Court has directed(for the rights of the disabled) to the Central and State governments to provide full access to public facilities, such as buildings and transport, within stipulated deadlines
- The court has issued a series of orders: that
(1) all government buildings should be made accessible by June 2019
(2) half of all government buildings in the capital cities should meet accessibility norms by December this year
(3) the Railways should present a report in three months from December 15 on implementing station facilities
(4) 10% of government public transport must be fully accessible by March 2018
(5) advisory boards should be formed by the States and Union Territories in three months
Background of the issue
- People with a disability form 2.21% of India’s population according to the 2011 Census
- Disabled persons have had a law for two decades to enable their full participation in society, but successive governments have done little to realise those guarantees
What should be done?
On travel requirements of the disables
- It is eminently feasible, to aggregate the travel requirements of disabled people with the help of information technology and smartphones, and provide affordable shared transport using accessible vehicles
- Given the emphasis on smart cities and upgraded urban facilities, such schemes should be given the highest priority and start-up ideas roped in
- Railway stations and access to train carriages continue to pose hurdles for not just the disabled, but even elderly travellers
- The Railways should embark on an urgent programme to retrofit all stations
- And try simple solutions such as portable step ladders to help board and exit trains, since level boarding is not possible in most places
Is cost a hurdle?
- Cost(of providing facilities to the disables) is not the barrier to improving facilities; what is in short supply is the political will to change the design of public facilities and stick to professional codes
- Today India is relatively richer, and has passed a new law in 2016 to strengthen the rights of the disabled, should demonstrate the will to implement it