This article has been written by Priyamvada Singh, pursuing LLB(H) from School of Law, Galgotias University. Here, she makes a comprehensive analysis of the Right to Privacy and its application on one’s own body.
In a civilised world, privacy is the utmost right of a man. One of the thirty articles providing for every human being’s fundamental rights, in the United Nations Declaration of Human Rights, is the Right to Privacy. Though not legally binding, these articles have formed the basis of many nations’ laws. However, the topic of Right to Privacy has always been the lacunae of many heated debates. In the light of judicial decisions/decrees, the right to privacy is protected as an intrinsic part of life and personal liberty enshrined under Article 21 of Indian Constitution. Article 21 of the Constitution of India provides for it as a Fundamental Right, to be provided to every citizen.
Privacy is an essential ingredient of modern dignity. It is linked to other freedoms, like that of association, and speech. The latter two are essential for the development of any democratic nation. The lawmakers of India have viewed this right to be indisputably mandatory, and consider that every person has the right to lead their life according to their wishes. However, this has not always been the case. The breach of privacy can be caused in multiple ways. Even when someone says blasphemous things about the other- it may be counted as a breach of privacy. In this article, we shall look at how Right to Privacy applies to one’s body. Unfortunately, even in the times of today, one’s right to privacy over his/her own body is often brought into question.
Women And Privacy: A Discussion
In the modern age, technology has taken over almost every aspect of our lives. While this is a welcome change, it comes with its own set of limitations. The internet culture and the easy access of it from around the world have enabled people to put various parts of their lives online, sometimes crossing the threshold of right, over to the wrong. The need for marketing has grown manifolds and has resulted in people desperate to trade attention for anything. Social media websites like Facebook and Twitter allow access to basic information provided by its users to almost everybody who chooses to click on their profile names. This is the default setting and the customisation is to be done by each person, in the privacy setting section. When people are not aware of their online security this much, it leads to undesirable consequences.
India has no specific laws for privacy against data leakage. However, the Information Technology Act and the guidelines issued by the Reserve Bank of India provide provisions for data protection of people. They involve a set of laws, and policies to be incorporated, in order to prevent intrusion into users’ personal data, and its subsequent thefts or misappropriation. When the question of the constitution arises, there is no fundamental right to privacy per se. However, Article 19(1)(a) provides for the Freedom of Speech, and Article 21 talks about the Right to Life and Personal Liberty. Even though they are subject to the restriction placed by the government, they still provide the right to privacy, albeit in an adjacent manner. The Honorable Supreme Court recently saw the case of Justice KS Puttaswamy(Retd) and Anr v.Union of India and Ors. In its landmark judgement, the Apex Court asserted that barring a few reasonable restrictions, the Right to Privacy is, in fact, a fundamental right.
Thus, the following have been brought into legislation by the Information Technology Amendment Act, 2008:
- Section 66A – Punishment for sending offensive messages through communication service, etc. (This provision had been struck down by the Hon’ble Supreme Court as unconstitutional on 24th March 2015 in Shreya Singhal vs. Union of India).
- Section 66B – Punishment for dishonestly receiving a stolen computer resource or communication device.
- Section 66C – Punishment for identity theft.
- Section 66D – Punishment for cheating by personation by using a computer resource.
- Section 66E – Punishment for violation for privacy.
- Section 66F – Punishment for cyber terrorism.
- Section 67 – Punishment for publishing or transmitting obscene material in electronic form.
- Section 67A – Punishment for publishing or transmitting of material containing sexually explicit acts, etc, in electronic form.
- Section 67B – Punishment for publishing or transmitting of material depicting children in sexually explicit acts, etc, in electronic form.
- Section 69 – Powers to issue directions for interception or monitoring or decryption of any information through any computer resource.
- Section 69A – Power to issue directions for blocking for public access of any information through any computer resource.
- Section 69B – Power to authorize to monitor and collect traffic data or information through any computer resource for cybersecurity.
- Section 72A – Punishment for disclosure of information in breach of lawful contract.
- Section 79 – Exemption from liability of intermediary in certain cases.
- Section 84A –Modes or methods for encryption.
- Section 84B –Punishment for abetment of offences.
- Section 84C –Punishment for attempt to commit offences.
Bodily autonomy is essentially the ability to choose. It means that one has the right to choose how they want to use their body, and function it- without the fear of repercussions from someone else. Jurists and thinkers have often termed it to be a fundamental right. Body Autonomy further branches out to the concept of ‘Consent’. Consent is the mutual participation of all parties involved in any kind of sexual encounter, without any influence or coercion by the other/s. The absence of consent may amount of rape/ molestation/ harassment. Further, Body autonomy also metes out family planning, viz: whether or not they want to have a kid(s), how many, etc. it is also deeply rooted in the sexual identity of any individual, and their belief/non-belief in the binary form of sexual identity. Thus, laws regarding body autonomy pertain to abortion laws, marriage laws, gender identity laws, and even laws related to medicine, amongst others. The doctrine of body autonomy emerges from the right to life and personal liberty. The latter ingrains in itself the right to privacy, which in turn branches out to body autonomy. The Apex Court time and again has talked extensively about this autonomy.
India v. The World
Article 40 of the Irish Constitution guarantees its citizens their personal rights. Even though bodily integrity is not a written or codified law in their constitution, it is an inferred right. This means that through precedents, or other laws it has been inferred that bodily integrity is their right, and shall be taken care of by the government. In the case of Ryan v Attorney General it was pronounced that “you have the right not to have your body or personhood interfered with. This means that the State may not do anything to harm your life or health. If you are in custody, you have a right not to have your health endangered while in prison“.
The United States Constitution does not provide for any position by the government on personhood. However, the U.S. Supreme Court has often upheld the right to privacy to its citizens, thus in turn protecting bodily integrity. In 1965 the case of Griswold v. Connecticut came to light. The U.S. Apex Court supported women’s rights to obtain methods of birth control sans the consent of their spouse. This has indirectly provided women with reproductive autonomy by way of precedence. However, the doctrine of body autonomy is not provided without restrictions. By way of prohibition of drugs and euthanasia, or the requirement of usage of helmets and seatbelts in a vehicle, the country presses for the government to infringe upon a person’s activities in a reasonable manner.
Right to abort a pregnancy
Earlier this year, an important and long-due amendment to an existing provision was made. It was the 1971 Medical Termination of Pregnancy Act (MTPA). This act allows the termination of a pregnancy as a reproductive right. The Act also acknowledges abortion to be secondary to gender justice. India is now amongst the few countries to acknowledge that and join the progressive club. Earlier, the maximum term of pregnancy to be aborted was 20 weeks(roughly 5 months); with the amendment, this bar has been raised to 24 weeks (approximately 6 months). This term has to include rape/assault survivors minors, and women who are differently-abled. This Act only applied to a married couple earlier. However, after the amendment, unmarried couples can opt for it, too. This amendment has set the foundation for a new, forward-thinking India, that allows humans to make their own decisions, instead of having the law looking over them.
The Act is even more welcome in the times of today when developed countries like the United States have been bringing under their scrutiny cases like Roe v. Wade(1975). In the aforementioned case, the Apex Court of USA, in 1975, had concluded that a woman has the right to abortion with minimal restrictions from the state. However, the now conservative US SC is now demanding that doctors performing abortions must get their admission privileges from nearby hospitals.
Even other developed countries, like Ireland, that is a part of the European Union(EU) has joined the pro-choice bandwagon in 2018. Pro-choice is the term used to define people who believe that pregnancy is the individual right of a woman, and advocate for minimal restrictions placed on the same by the government. This is opposed to pro-life belief, that advocates for any pregnancy to be carried to term, regardless of how it was conceived, and whether the parent(s) desire it. The followers of this belief allege that life begins at fertilisation, and that abortion is murder. They also demand abortions be considered punishable offences. India has placed no time limit for abortions when cases of fetal abnormalities or morbid pregnancies come forward.
India v. The World
The United States of America
Twenty-two states in the U.S. have banned abortion, however, the specified gestational limits are different, ranging from 13 weeks to 25 weeks. However, states like Alabama do not have any laws for abortions to be carried out. As soon as the egg is fertilised, it is mandatory for the pregnancy to be carried to term.
Just last year, nine states passed bills for abortion bans in the US. These are : Arkansas, Georgia, Louisiana, Kentucky, Mississippi, Missouri, Ohio, Utah, and Alabama. Activists for gender justice and pro-choice believers have been protesting and fighting for these bills to not to come into effect and become the law.
In Germany, the gestational age of the pregnancy is calculated on the basis of the first day of her last menstrual cycle. Abortion may be carried out, but not beyond 14 weeks of gestational limit.
In Brazil, abortion is a penal offence which attracts up to three years of incarceration. The two exceptions to this law are rape survivors or morbid pregnancies. A majority of the cases filed under abortion offences in Brazil, are done by doctors and other healthcare professionals, who were approached by women to terminate their pregnancy.
In France, abortion is legal, only if two physicians certify that it is of morbid nature to the woman, or if the child has an incurable disease. The gestational limit of pregnancy is placed at 12 weeks, from conception. However, if the date is unclear, then 14 weeks from the first day of the last menstrual period is taken into account.
Abortion is permitted on request in Canada. The gestational limit to terminate a pregnancy varies, depending on strict regulatory mechanisms.
In Sri Lanka, abortion is legal only if the pregnancy is of morbid nature. However, the offence of causing a miscarriage of a woman is taken very seriously, and lead up to three years of incarceration of the convict. A data suggests that 12.5% of the maternal deaths in that country are because of mishaps during illegal abortions. Maternal mortality due to illegal methods is the third biggest issue in that country today.
Right to Refuse Medical Treatment
Another aspect of body autonomy is to have the right of saying ‘no’ to medical treatment(s). Around the world, many countries allow for the patient to reject medical treatment, provided that he has been given all information regarding his illness and the treatment, and he has given informed consent.
Countries like Canada are having heated debates about this topic and whether patients’ autonomy should be given credit in the due course of treatment. Allowing patients autonomy is essential in cases where they want treatment due to religious reasons, or to prevent prolonged pain by using the end-of-care treatment, or even financial reasons. However, critics suggest that it must not ever be allowed when a person’s disease is a threat to the society, or if s/he is of altered mental status, or a minor. The refusal must only be granted, provided that the person in question understands the consequences of his actions and is liable for them solely.
McFall v. Shimp
In the United States, the case of McFall v. Shimp from 1978 serves as a precedent over the right to refuse donation of body organs. A Pennsylvania court had asserted that a person cannot be forced to donate bone marrow, even if such a donation would save another person’s life.
Right to Refuse Medical Research
The Declaration of Helsinki lays the foundation stone of valid consent, for medical research. This declaration asserts that participants in medical studies must be aware of their role in a study, should have their personal information protected, and should be able to withdraw at will. Most developed nations have either modelled their medical legislation based on this declaration. Other nations have formed their legislations around it.
Right to Consensual Homosexual Activity
The right to privacy over one’s own body also extends to the right of a person to have a consensual sexual relationship(s) with whoever s/he pleases. The world has come far from the time when anti-sodomy laws existed even in developed nations, in order to provide the government with the power to regulate the activities happening inside the four walls of a house. However, thanks to the activists of the LGBTQ+ community, times have changed however there is still a long road to be paved.
India v. The World
Below are the list of countries, and who penalise same-sex intercourse. Countries like Afghanistan provide for the death penalty on such cases, in other countries provision of incarceration and/ or fine is given:
- ANTIGUA & BARBUDA
- COOK ISLANDS
- PAPUA NEW GUINEA
- SAINT KITTS AND NEVIS
- SAINT LUCIA
- SAINT VINCENT AND THE GRENADINES
- SAUDI ARABIA
- SIERRA LEONE
- SOLOMON ISLANDS
- SOUTH SUDAN
- SRI LANKA
- THE GAMBIA
- UNITED ARAB EMIRATES
However, in the case of India, progressive thinking is evident. The rights of the LGBTQ+ community were expanded exponentially in 2018. In the case of Navtej Singh Johar v. Union of India (2018), the Apex Court, led by then Chief Justice of India Dipak Misra, decriminalised homosexual relations of consensual nature by striking down a part of Section 377 of the Constitution of India. This led to the right of people of the aforementioned community to marry, and or have consensual relations without any legal repercussions- regardless of the gender, sex, orientation, or identity.
Right to privacy extends to the concept of bodily integrity, the self-ownership of one’s own mind and body, and the decision of choosing how one wants to function. This concept is inviolable for the right of privacy to remain intact in a constitution. Conventions and treaties like the Universal Declaration of Human Rights and Convention on the Rights of Persons with Disabilities only further this. Not just limited to physical integrity, but these international papers even acknowledge mental integrity and advocate against torture and inhumane/ degrading punishments, and slavery/ bonded labour/ forced labour. Although we have arrived miles from where we started, as Robert Frost once said, there’s still ‘miles to go before I sleep’.
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