Question: Mr John Varghese, Bangalore

Recently the Supreme Court gave a unanimous ruling on right to privacy. What is right to privacy? What all rights are implied in it? Does it give a woman right to abortion? Does it give a person the right to die? [Right to euthanasia etc.]? What are your comments on the Supreme Court’s verdict and its implications? Does the verdict come against the moral teaching of the Church?

Dr GEORGE THERUKAATTIL MCBS 

A definite legal definition of ‘privacy’ is not available. Some legal experts tend to define privacy as a human right enjoyed by every human being by virtue of his or her existence. It depends on no instrument or charter. Privacy can also extend to other aspects, including bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or move or think. In short, the right to privacy has to be determined on a case-by-case basis. Privacy enjoys a robust legal framework internationally. Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons against “arbitrary interference” with one’s privacy, family, home, correspondence, honour and reputation. India signed and ratified the ICCPR on April 10, 1979, without reservation. Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognises the respect for private and family life, home and communications. Article 8 mandates protection of personal data and its collection for a specified legitimate purpose. In general, we can say the right to privacy is an element of various legal traditions to restrain Government and private actions that threaten the privacy of individuals.

The Context of the Verdict
The recent Supreme Court’s verdict came in the context of the Central Government’s Aadhaar scheme, which collects personal details and biometrics to identify beneficiaries for government welfare schemes. A bunch of petitions was filed in the Supreme Court in 2015 terming Aadhaar a breach of privacy. The petitioners argued that Aadhaar enrolment was the means to a “totalitarian state” and an open invitation for personal data leakage.

This nine-judge Bench, led by Chief Justice of India J.S. Khehar, for the first time, is engaged in an intense debate with legal scholars and prominent lawyers on whether or not privacy is a fundamental right in the Constitution. The Government argues that right to privacy is not expressly included in the Constitution as the founding fathers rejected the idea of inclusion of privacy as a fundamental right. But petitioners insist that the recognition of privacy as a fundamental freedom is an essential deterrent against intrusion into personal space and data by State [Government] and private players in a technologically dynamic society.

The apprehension expressed by the Supreme Court about the collection and use of data is the risk of personal information falling into the hands of private players and service providers. The apprehension is best expressed in the words of Justice Chandrachud on the nine-judge Bench: “I don’t want the state to pass on my personal information to some 2,000 service providers who will send me WhatsApp messages offering cosmetics and air conditioners… That is our area of concern. Personal details turn into vital commercial information for private service providers.” Both the Government and Service Providers collect personal data. This adds to the danger of data leakage.

The Implications of the Verdict
The implications of the verdict span from women’s reproductive choice and choice of food or faith to euthanasia. Neither the State nor private persons have any business to intrude. “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.” The judgment’s observation comes when the Supreme Court is seized with the cases of numerous women who are fighting for their right to reproductive choice. These women and girl children, including victims of rape, are fighting a battle for the right to abort their foetuses. Abortion is legally barred if the pregnancy has crossed 20 weeks.

Similarly another burning issue in the Supreme Court is a person’s right to active euthanasia. This is a crime under attempt to suicide. A person who helps a terminally ill person to take his/her own life is booked under abetment to suicide. An individual’s right to refuse life prolonging medical treatment or terminate his/her life is another freedom which falls within the zone of the right of privacy.

Through this verdict the Supreme Court condemns any State intrusion into what a person should “read or think” as a “conditioning process” of the masses’ thoughts. This is interpreted as a violation of privacy. “Insofar as religious beliefs are concerned, a good deal of the misery our species suffer owes its existence to and centres around competing claims of the right to propagate religion.” The freedom of the belief or faith in any religion is a matter of conscience falling within the zone of purely private thought process and is an aspect of liberty. An individual’s political belief form part of his freedom of conscience and comes under the fundamental right to life and liberty of which privacy is a core value.

Again, a judge from the nine-judge bench said that it is not for the State to decide what a person “should eat or wear.” This judgment will have a telling effect on the ongoing litigation into beef slaughter and consumption bans by certain State Governments. The Apex Court on 25th August, a day after the privacy judgment, said the beef ban in states like Maharashtra have to be reconsidered in the light of the nine-judge bench verdict upholding privacy as an inherent, natural and fundamental right.

Comments on the Verdict
At a time when India is reeling under religious fanaticism and fundamentalism and RSS with their Nazi style cultural police is dictating terms to people concerning their food and the cow-vigilantes lynching even the suspected beef-eaters in public and minorities in India selectively hunted out, beaten and hanged because of their religion, the Supreme Court’s verdict is a slap on the face of Modi-Sha-RSS and their mercenaries. This landmark verdict will have a profound impact upon our legal and constitutional area for years to come.

It is true that right to privacy is not explicitly written about or protected in the Constitution, but the nine-judge Supreme Court Bench delineates very carefully how privacy must be presupposed to make sense of Article 19 (freedom of expression, association, residence and occupation), as well as Article 21 (right to life and personal liberty). This landmark judgment will impact the interplay between privacy and transparency and between privacy and free speech; it will impact State surveillance, data collection, and data protection, LGBT rights, the legality of food bans. While citizens battle the Government’s bid to impose Aadhaar as a universal identification system, the Hindu Right attempts to enforce a beef ban and make “cow protection” mandatory, criminalisation of same-sex love continues, and personal information is usurped by social media and technology companies, this ruling becomes a strong foundation on which to shore up our endangered core freedom.

As the great American Jurist William O Douglass said years ago, “The right to be alone is indeed the beginning of all freedom.” That precious little thing called privacy, which is not included in the Constitution of India, has finally found its rightful place among the fundamental rights of the Indian citizen.

While privacy has been upheld as a fundamental right, arising out of Article 21, the Supreme Court has concluded that it is linked to all the other rights. This will profoundly change how fundamental rights are interpreted. Right to privacy is founded on the autonomy and dignity of the individual. “It enables individuals to preserve their beliefs, thoughts, expression, ideas, ideologies, preferences and choices against social demands of homogeneity.” Justice Rohinton Nariman stated that apart from the privacy of one’s home and protection from unreasonable searches and seizures, privacy was now extended to protecting an individual’s interests in making vital personal choices such as the right to abort a foetus, right of same sex couples, right to procreation, contraception, etc.

The Court, however, said that just like the other fundamental rights, the right to privacy was not absolute. Any restriction on it would require the existence of a law, a legitimate need, and a proportionality between the aim and the means. An important ramification of the Supreme Court’s ruling is that the Government will have to be careful while framing laws or policies that impose restrictions on citizens as it can violate privacy as a fundamental right. An activist lawyer, Prashant Bhushan, pointed out that the Surrogacy (Regulation) Bill, which does not allow unmarried persons to have surrogate children, as an instance of violation of privacy. Another instance is the DNA Profiling Bill, which aims at setting up a DNA databank to be used as evidence during trials and to identify missing or unidentified persons, has been criticised for not meeting the required standard of privacy.

Many centuries ago, the Greek philosopher Plato came up with the theory called the “Myth of the Metal.” According to it, God created man unequally, with different metals – gold, Silver, Iron or bronze – assuming hierarchy in the souls of men. So, a man with gold would be destined to become a philosopher king, while one with bronze or iron would be relegated to the role of a common worker.

By upholding the right to privacy as a fundamental right, it is this right that the Supreme Court has protected, in the process reawakening the spirit of democracy. This is because, at its heart, the right to privacy is about choice. By giving an individual the right to decide her own food preferences, the right to take her life, the right to sexual orientation or the right to abort a child, you empower her by giving her the freedom of choice. In other words, you infuse democracy with dynamism. But that choice comes with responsibility. By surrendering information willingly to Corporations and Governments, we inadvertently promote that totalitarian state that Plato advocated and Aristotle warned against. All States become authoritarian or totalitarian if allowed to encroach on our autonomy and invade our very being. In an electoral democracy, ironically, the vote itself can be distorted as a warrant for such encroachment — by both State and non-state entities, Governments and Corporations equally — into the innermost regions of what the Supreme Court calls our “repose,” “sanctuary,” and “intimate decision.” Through this verdict the Court cleansed its own institutional reputation by choosing constitutional morality over majoritarian morality. With their jurisprudence on privacy, the justices have emerged as champions of personal liberties. It will be considerably harder now for the Government to get into our eyeballs and fingertips, our bank accounts and cell phones, our bedrooms and kitchens, our minds (whose freedom is guaranteed by Article 19) and bodies (whose freedom is guaranteed by Article 21).

Another good thing is that the Supreme Court has interpreted our Constitution to protect the rights, specifically in the areas of marriage, procreation, abortion, private consensual homosexual activity, and medical treatment. But when the Government enacts them through amendment of the Constitution, the personal rights in these areas, being not absolute, it cannot restrict them. It can restrict them only as long as the restrictions meet tests of compelling State interests, each involving a balancing of an individual’s right to privacy against the compelling State interests that include protecting national sovereignty and security, public morality and the health of its citizens and improving the quality of life, etc. as specified in Art.19 (2) of our Constitution.

Right to Privacy and Moral Teaching of the Church
And as to your last query, whether the verdict is against the moral teaching of the Church on abortion and euthanasia, my answer is that it is not. The Court is affirming through this verdict what the Church teaches on the sanctity of formed conscience, which is the last word in our decisions in the areas of marriage, procreation, abortion, private consensual homosexual activity, and medical treatment. Right to privacy actually means that a person has the right to make conscientious decisions without any external pressure or influence.

There are many definitions on conscience. But I think everybody will agree that it is the voice of the inner being of humans in the context of right and wrong. It is irrespective of religion or traditions. It is there in every human being the most cultured and the least cultured. The basic voice of conscience tells us that we have to do good and avoid evil. Though this basic principle is common to all human beings, the particularity of the context can change the identity of the good and evil to a large context. So conscience is a kind of critical voice within which, one can assess the morality of a concrete situation. This means that according to one’s particular situation one has to form one’s conscience in such a way that one becomes conscious of what is good or evil in his /her particular situation. Let me conclude my answer to your last question by quoting what Pope Francis says regarding this: “Instead of helping people to form conscience the Church should not substitute their conscience with laws and regulations” [cf. Pope Francis’ Apostolic Exhortation: Amoris Laetitia, nos 34-35].