Saturday, August 19, 2017

The right to privacy as an inherent, natural, universal, and inviolable fundamental human right guaranteed by the Constitution of India - By Seema Sapra

The right to privacy is an inherent, natural, universal, and inviolable human right also recognized as such by international law. It is inherent in the very concept of a human right to life and liberty. It is a natural right inherent in the very fact of being human. Natural human rights are not bestowed by the State. They exist because of the intrinsic nature of the human spirit, of human person-hood, of human endeavor, and the human experience. Without these natural human rights, human beings would not be able to live as human beings live. The right to privacy is also part of the fundamental human right to life and liberty guaranteed under Article 21 of the Constitution of India. 

Human beings are independent and self-autonomous. They are autonomous physical and conscious beings. Being human means having the ability and the right to live your life according to the individuals’ choices, desires, needs and wants. A  human person has the right to choose the kind of life he wants. Being human means being free to live your life with liberty, dignity, and privacy. The right to free speech and the right to freedom of conscience and thought guaranteed as fundamental human rights under the Indian Constitution also point to the inviolability of an individual’s right to choose. 

Now of course, the State can restrict all rights of man but in democratic, liberal societies which are based upon respect for fundamental human rights, the State can encroach upon fundamental rights only to serve legitimate purposes and objectives of public interest and constitutional governance and additionally the State must do so in the least restrictive and most reasonable way possible. This principle narrowly limiting the power of the State to restrict the fundamental human rights of Indian citizens runs through all of Part III of the Indian Constitution containing the chapter on fundamental rights. 

Human persons have the right to live their own lives without intrusion or interference or restriction by the State unless such restrictions are imposed by reasonable laws and are necessary for legitimate public interest and governance objectives. Human persons have the right to personal space and to personal lives. Humans are not born to serve a preordained existence, like bees for instance. The essence of being human and of living the human existence is to be free. To be free to be different. To be free to be self-contained. To be free to pursue your own self-determined destiny. The very evolution of the human civilization is based upon human persons daring to be free, daring to dream of and then daring to achieve what was thought impossible, upon human persons breaking barriers, climbing obstacles, doing what no man has ever done before and going where no man has ever gone before. To live the human experience, human persons have always asserted their natural human right to their own spaces, whether it be personal, social, family, work-related, recreational, spiritual, mental or in any other aspect or endeavor of human life. This is the human right to privacy. The right to be let alone. The right against unwelcome forceful intrusion. Without this right, human persons can neither exercise their right to liberty nor their right to human dignity nor can they live out their self-determined destiny. 

Humans in modern, civilized and right based societies also normatively expect that the State will protect them from malicious and harmful interference, obstruction and intrusion into their lives by other individuals. Thus, modern States make laws to protect a person’s body, property, home, reputation, right to work, etc. Similarly, the State must also enact laws to protect a person’s human right to privacy. 

Obviously, there are spaces where the right to privacy can be enforced and where it cannot. A person can expect privacy in his home, his office, his private communications, in record-keeping by the State, etc. But a person cannot undress on a highway and then claim that passersby violated his privacy by seeing him naked. 

Just like the right to life, the right to privacy has no limit. The State cannot dictate to a man how a man should live his life, if the man breaks no law. The State also has no right to tell a man how private or public he should be in his actions. The State can only intrude on a person’s privacy under very strict conditions, i.e, for legitimate, constitutional objectives necessary for public interest and constitutional governance, and then too only through laws made by Parliament which are fair, reasonable and least restrictive.  

The right to privacy is a stand-alone natural human right right. It is also a part of the human right to life and the human right to liberty. And it is a part of all other fundamental rights guaranteed under the Indian Constitution. Indian citizens have the right to privacy in the practice of religion. They have the right to privacy in what they read, write, think, say, or do until they decide to make it public. The State cannot intrude unless the strict conditions that justify State intrusion exist. 

The Supreme Court of India in the expected nine-Judge Constitution Bench ruling on the right to privacy will need to spell out in the abstract the strict conditions which would justify State invasion into the right to privacy of Indian citizens. These conditions should be at least as stringent as those prescribed in Article 19(2) of the Constitution of India, if not more stringent. However, the contours of the right to privacy and its detailed multiple meanings can only be fleshed out on a case-by-case basis where the facts of each case will determine the nature of the right and whether the State has unconstitutionally and unlawfully restricted the right in the facts of that case. 

No comments:

Post a Comment