Guest Post: Decisional Autonomy and Group Privacy – on the Karnataka High Court’s Hijab Judgment

[This is a guest post by Shreyas Alevoor.]


The ongoing Hijab controversy raises interesting questions about the limits of expression and privacy. The Karnataka High Court’s judgement begins by recognizing that one’s attire is an aspect of decisional autonomy and privacy, as set out in the Supreme Court’s judgement in KS Puttaswamy vs. Union of India. However, it then goes on to hold that the right to privacy is not of much significance in this matter [pg. 99], as a “substantive right [of privacy] metamorphizes into a kind of derivative rights in [qualified public] spaces” [pg. 100].

How the High Court chose to (not)engage with the privacy question has been discussed previously on this blog, but I want to make a few observations here. In Part I of this post, I argue that the High Court’s judgement is premised on an incorrect understanding of decisional autonomy as a facet of privacy. In Part II, I argue that Puttaswamy recognizes claims of privacy by groups, and such a claim can be successfully used as an alternative to the Essential Religious Practices (ERP) test.  

Decisional autonomy

Privacy is a recognition of the sovereignty of the individual. Decisional autonomy then becomes an exercise of sovereignty by the individual against “legislative or popular” morality. In Puttaswamy, Chandrachud, J.’s majority opinion defines it as “intimate personal choices, as well as choices expressed in public such as faith and modes of dress”, and notes that “personal choices governing a way of life are intrinsic to privacy”. It follows that decisional autonomy (as an aspect of dignity) is valuable only if it allows for the full expression of one’s personality, and in all spheres of an individual’s life and not merely the personal. Furthermore, it is crucial to note that the reasons for wearing a Hijab can range anywhere on a spectrum between choice and coercion, with it being virtually impossible to determine where on the spectrum a particular individual’s wearing of the Hijab lies.

Puttaswamy recognizes only very limited grounds for limiting the right to privacy – reasonableness under Art. 14, grounds provided under Art. 19, substantive due process under Art. 21, and compelling state interest. In the present judgement, all of this is brushed under the carpet, with the reasoning that the right to privacy is not engaged sufficiently. The word ‘autonomy’ appears only five times in the operative part of the judgement, and is almost always qualified by the statement “subject to reasonable regulation”. However, the only hint of a compelling state interest found is that of maintaining positive discipline and decorum within the classroom [pg. 105].

The High Court then goes on to defer to the wisdom of the Executive [pg. 121], and holds that the Government Order had proven a loose nexus between the “wearing of Hijab and the ‘law and order’ situation” [pg. 119], contrary to the requirement of proving a rational nexus.

In my previous post, I had argued that the challenge in this case is to balance freedom of expression and decisional autonomy on one hand, and the larger public interest of protecting public order and morality on the other; and on balance, the former should prevail over the latter. Here, I borrow from John Dewey and propose an alternative argument: that as social beings, the good of the individual (i.e., privacy) does not have to necessarily conflict with larger public interests. Dewey claims that rights should be valued based on “the contribution they make to the welfare of the community”, or else, individual rights in most cases would be trumped by the social interests. Indeed, there exists a social value in protecting the decisional autonomy to express oneself – that of promoting secular and democratic values – which is explicitly recognized in Nariman, J.’s concurring opinion in Puttuswamy:

82. The core value of the nation being democratic, for example, would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed.

As also by the majority in Puttaswamy [pg. 263]:

Privacy protects heterogeneity and recognizes the plurality and diversity of our culture.

Reading group privacy into Puttaswamy

Without delving into its nuances, group privacy at its simplest not only seeks to protect the personal privacies of its individual members (derivative privacy), but also the privacy of a group as a group which shares common visions and goals (inferential or strong privacy).

There is reason to believe that Puttaswamy recognizes claims of privacy by groups.

The criticism of the Suresh Koushal judgement by the majority in Puttaswamy provides an excellent starting point. It considers how a general right to privacy intersects with gender and sexual orientation to create a “private space which protects elements crucial to gender identity” [pp. 169]. Here, we must also consider the implications of privacy intersecting with religious identity (which is a personal identity characteristic like gender). These implications are briefly considered in Bobde and Chelameswar, JJ.’s concurring opinions. Importantly for our purposes, the majority also held that the LGTBT community cannot be denied the right to privacy merely because it is a “minuscule fraction of country’s population” [pp. 126].

Bobde, J.’s concurring opinion notes that privacy “constitutes the springboard for the exercise of freedoms” under Art. 19:

31. … A peaceful assembly requires the exclusion of elements who may not be peaceful or who may have a different agenda. The freedom to associate must necessarily be the freedom to associate with those of one’s choice and those with common objectives.

33. The right of privacy is also integral to the cultural and educational rights whereby a group having a distinct language, script or culture shall have the right to conserve the same.

43. Exercising privacy is the signaling of one’s intent to these specified others – whether they are one’s coparticipants or simply one’s audience – as well as to society at large, to claim and exercise the right.

From Chelameswar, J.’s concurring opinion:

39. The choice of appearance and apparel are also aspects of the rights of privacy. The freedom of certain groups of subjects to determine their appearance and apparel (such as keeping long hair and wearing a turban) are protected not as a part of privacy but as a part of their religious belief. Such a freedom need not necessarily be based on religious beliefs falling under Art. 25.

Consider then the following line of argument:

  1. Decisional autonomy as a facet of privacy enables one to “preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices” against majoritarian diktats.
  2. The general right to privacy intersects with deep personal identity characteristics (like gender and religion) to create a space where elements crucial to that identity are protected.
  3. The right to privacy includes right to form groups (and also exclude people from the group), which have the right to preserve and promote their symbols of identity – language, culture, and forms of appearance and apparel in both private and public spaces.
  4. The right to privacy cannot be denied to a group merely because they are “minuscule”.

I would suggest that this is a better alternative to the ERP test. Among other things, the ERP test denies agency to smaller sects or dissenting groups within a religion which may not follow the practices of the majority. In the present case, the High Court held that the claimants had failed to meet the ‘threshold of pleadings and proof’, as they had not shown how long the petitioners had worn the Hijab; and if Islam would “lose its glory and cease to be a religion” if one does not wear the Hijab – without considering the possibility that there may be a group within Islam which deems the wearing of Hijab an essential to their identity. This is especially problematic in a diverse country like India, where cultural and religious practices differ across lines of class, caste and region.

Conclusion

The silver lining in the High Court’s order in the Hijab controversy is that it lays bare the problems with the ERP test. It also shows that cases involving questions of identity treated as mere thought experiments. This should be one of them good problems for the Supreme Court – it has an opportunity to update its discrimination, free speech and privacy jurisprudence, and hopefully, do away with the ERP test entirely.

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