ByÂ Shailza Sharma:
There was a time when relying on the Government to protect your privacy was like asking a peeping Tom to install your window blinds. Civilization is the progress of mankind towards a society of privacy. Nevertheless, today in India the most ‘fundamental’ right to life contained in Article 21 of our Constitution has been broadened to include the right to enjoy life and also to be left alone. The ambit of our privacy can be stretched to various types which include privacy of an individual’s physical being from any type of bodily harm, privacy of the person to have control over his/her life and the freedom to have opinions e.t.c., the individuals also have privacy regarding their communication with others using any form of communication and lastly the recently developed the right to privacy of personal data.
Human rights are the basic rights and freedoms to which all human beings are entitled. The right to privacy forms a very basic part of the human rights which is also embodied in the article 8 of the European Convention on Human Rights that guarantees the right to respect for private and family life, one’s home and correspondence and the article 12 of Universal Declaration on Human Rights (1948) reads “No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation. Everyone has the right to the protection of the law against such interferences or attacks.”
It is very important in an autonomous or democratic state to respect the individuality and privacy of a citizen as it forms the very basis of a civilized society. Privacy is something that upholds a person’s dignity and its protection is the least that can be expected out of an institution. But the government should also keep a proper check on the amount of privacy being guaranteed as its excess may lead to inciting people to commit illegal activities.
The Indian Constitution does not include any unequivocal law pertaining to privacy in our country. The case of Kharak Singh vs. State of UP3 in 1964 laid down the foundations of privacy rights in India. Even though, as such there have been no intelligible rights of privacy but the same were enunciated by their incorporation in Article 21 of the Constitution which reads “No person shall be deprived of his life and personal liberty except according to procedure established by law”. Further, in the case of Maneka Gandhi vs. Union of India a seven judge bench had ruled to widen the scope of article 21 of the constitution to include all those rights which cover the personal liberty of a man. The preamble of our constitution assures the dignity of an individual. This decision was upheld in Gobind vs. State of Madhya Pradesh. Sometimes the necessity or vitality of a person’s right to be informed may violate the right to privacy or the right to be left alone of another person. The Supreme Court has defined privacy as ‘the state of being free from intrusion or disturbance in one’s private life or affairs’. Other than the inclusion of right to privacy under the ambit of Article 21 of the Constitution it can also be included under the tort law which awards damages for the tortuous act of invasion of an individual’s privacy.
Law is the projection of an imagined future upon reality. This saying holds true in the case of Naz Foundation vs. Government of NCT of Delhi. For years the LGBT (lesbian, gay, bisexual and transgender) have been discriminated against due to their sexual preferences and gender differences. Section 377 criminalises the unnatural carnal intercourse against the order of nature. The appellant has charged the respondents on the basis of violation of the rights of LGBT under the following articles:
Article 14: Equality before the law
Article 15: Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth
Article 19(1)(a) and 19(1)(d): Freedom of speech and expression and right to freedom of movement
Article 21: Protection of life and personal liberty
The ideologies of Indian society regarding the LGBT community have been very anachronistic. Their conception of homosexuality is very limited in comparison to the Western perspective where in most of the countries homosexuality is seen as a part of an individual’s existence. By criminalising the acts of homosexuality the basic rights of the LGBT community have been curtailed, their basic right of equality before the law has been violated. Also provisions of section 377 of the IPC have been used to discriminate against them by harassing and abusing the situation of their helplessness. Further, the NGOs have also observed that due to the criminalisation of Section 377 of the IPC, it has been very difficult to cater to the needs of HIV infected LGTB as they remain underground due to the fear of being incarcerated.
The liberty to make the choice pertaining to the sexuality of an individual lies with the individual himself, the taking away of such liberty which forms an important part of the nature and lifestyle of the person is against constitutional morality. Ultimately, the High Court ruled in favour of Naz foundation and the provisions which criminalised the consensual sexual act between homosexual adults have been declared unconstitutional and the act of homosexuality has been decriminalised.
This case shows that the privacy laws in India are still very primitive at least regarding the sexuality of an individual, this calls for the existence of a fundamental Right to Privacy in India. This right only exists de facto in our country. The need for this right is evident in the harassments and the abuse of many sections of the society and also the invasion of their rights which are very personal and form the basis of their individuality.
Privacy is an entity that should be the monopoly of an individual. No one except that individual should be the judge of the limits to be imposed on the invasion of his/her privacy except of course in cases where the privacy of one person may infringe upon the right to information or any other fundamental rights of another. So, to conclude if everyone minded their own business, the world would go round a deal faster than it does.
1Â Quote by John Perry Barlow
2Â Quote by Ayn Rand (1943)
3Â 964 (1) SCR 332 (Kharak Singh vs. State of UP)
4 1978 (1) SCC 248 (Maneka Gandhi vs. Union of India)
5 1975 (2) SCC 148 (Gobind vs. State of Madhya Pradesh)
6 As in the case of Mr. X vs. Hospital Z (1998 (8) SCC 296)
7 Quotes by Robert M. Cover
8 Naz Foundation vs. The Government of NCT of Delhi
9 Lewis Caroll: Alice in the Wonderland
The writer is a Contributor of Youth Ki Awaaz.