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Right To Privacy: Does It Exist?

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By 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.

Sources:

1 Quote by John Perry Barlow
2 Quote by Ayn Rand (1943)
3 964 (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.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

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A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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