By Jivesh Jha/Mridu Iyer (Dehradun, India)–
While offering a broader interpretation of right to life and liberty, the Constitutions of member states of South Asian Association for Regional Cooperation (SAARC) unanimously declare that none of the other rights would have any utility and existence without the very existence of right to life & liberty.
The statutes maintain that right to privacy is implicit in right to liberty. The fundamental documents clarify that if right to privacy is not embedded within the ambit of liberty, then what else can be there?
Highlights:
- Indian constitution lacks express enactment for right to privacy
- Privacy Bill, 2011 became a story so far in India
- India and Bhutan Constitutions worded with procedure established by law under Right to Life & liberty
- Life and liberty cannot be suspended at any pretext in South Asia
- No suspension of right to life even during emergency
- Privacy within the meaning of life & liberty
- No death penalty in Nepal, Bhutan, and Sri Lanka
The Indian Constitution provides that right to life and liberty shall be inviolable. Article 21 of the Constitution which does not employ the expression ‘state’ allows the scrutiny of private actions that violate right to life and personal liberty. The mandate of Article 21 is to forbid the denial of life and liberty, except according to the procedure established by law is applicable against all entities whether state or private. Moreover, Article 21 avows that every right to live a dignified life would be fundamental rights. The said arrangement is of intrinsic value as it shows a deep commitment of state towards all the natural rights.
Noted, right to life and liberty is available to not only citizens but also to every person [i.e., citizen and non-citizen] respiring on the India soil. The said arrangement is in consonance with Article 3 of UDHR and Article 6(1) and 9(1) of ICCPR. Meanwhile, similar arrangement has been ensured under Article 32 of Bangladeshi Constitution.
“Our Constitutional law in the directive principle of state policy and in the preservation of fundamental rights provided that the state shall direct its policy towards securing that the citizens have the rights to life, living livelihood,” held the Supreme Court of Bangladesh while pronouncing a landmark judgment in the case of Ain O Salish Kendra (ASK) Vs Government of Bangladesh (1999).
Similarly, Article 14 of Pakistani charter beginning with the marginal note of ‘Inviolability of dignity of man, etc.’ provides that the dignity of man and, subject to law, the privacy of home, shall be inviolable.
“The right to life and liberty envisaged under the Constitution of Pakistan should not be construed in a restricted and pedantic manner. Life has a larger concept which includes the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights,” held the Supreme Court of Pakistan in the leading case of ‘The Employees of Pakistan Law Commission Vs. Ministry of Workers.’
In the similar breathe, the SC of Pakistan in the case of Ms. Shehla & Others Vs. WAQPDA observed that “the word ‘life’ does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death and life includes all such amenities and facilities which a person born in a free country is entitled to enjoy.”
“All persons shall have the right to life, liberty and security of person and shall not be deprived of such rights except in accordance with the due process of law,” reads Article 7(1) of Bhutanese Constitution.
Unlike Bhutanese statute, Article 21 of the Indian Constitution is worded with ‘procedure established by law’ and the provision reads, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
In the case of Sunil Batra Versus Delhi administration (AIR 1978), the honorable Supreme Court was of the opinion that the expression “procedure established by law” meant the same thing as the phrase “due process of law” used in the American Constitution. “Truly our constitution has no ‘due process clause’ as the VIII amendment (of the American Constitution) but in this branch of law, after Maneka Gandhi’s case the consequence is the same,” observed much-admired Justice Krishna Iyer while pronouncing the judgment of Sunil Batra’s case.
Further, “the mere prescription of some kind of procedure is not enough to comply with the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable not fanciful, oppressive or arbitrary; otherwise, it should not be on procedure at all and all the requirement of Article 21 would not be satisfied. What is fair or just? A procedure to be fair or just must embody the principles of natural justice. Natural justice is intended to invest law with fairness and to secure justice,” the highest court of land in India held while dispensing the landmark case of Maneka Gandhi Versus Union of India (AIR 1978). The Court stressed on the need of observing law as reasonable laws, ‘not mere an enacted piece of law.’
Now it is submitted on all fronts that the Indian legal system has imported the American concept of ‘due process of law’ into Indian Constitution.
In the similar vein, the Maldivian, Nepali, Pakistani, Bangladeshi and Afghani charter also incorporates right to life and liberty under Article 21, Article 16, Article 14, Article 32 and Article 24, respectively. But the statutes lack the expression “procedure established by law” or “due process of law.”
“With the incorporation of the expression ‘procedure established by law’ or ‘due process of law’ the rights of persons are protected to an extent,” opined Dr Nidhi Saxena, faculty of International Law at Sikkim University, Gangtok. She maintained that the substantial justice would always remain in question in absence of the phraseology of ‘due process of law’ or ‘procedure established by law.’ “It appears that the south Asian states, save for India and Bhutan, are little serious in acknowledging natural justice. The insertion of the phrase ‘due process of law’, of course, irrigates universal justice.”
“When men are pure, laws are useless; when men are corrupt, laws are broken,” added Dr Saxena, while paraphrasing philosopher Benjamin Disraeli. “With ensuring no space for ‘due process of law’, the legislatures of SAARC states, except India and Bhutan, have attempted their best to rub salt over the raw wounds caused on justice seekers.”
However, Article 16(c) (6) read with Article 21 provides that right to life and liberty can be curtailed in Maldives in order to protect the tenets of Islam. The clause may impact on the rights of persons and may be used as justification to uphold legislation which currently appears to be discriminatory towards the persons following other religious faiths.
Standing on a different footing, the Sri Lankan constitution lacks any express provision relating to life and liberty. However, the Constitution under Article 13 beginning with a marginal note of “Freedom from arbitrary arrest, detention and punishment, and prohibition of retrospective penal legislation,” provisions, “Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge ofthe nearest competent court according to procedure established by law and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.”
- Right to life & liberty: A judicial interpretation in Nepal
Like India, the Supreme Court of Nepal has also taken initiative to cement the walls of right to life and liberty through ample judicial activism.
In case of Surya Prasad Dhungel Vs Godawari Marble Industries Pvt. Limited (BS 2052), the honorable Apex Court held that the right to live in a clean and healthy environment falls within the ambit of right to life and liberty envisaged under Article 30 of the Constitution. “Human life would be in danger in a polluted environment,” the highest court of land in Nepal observed.
While offering a broader canvas for right to life, in the case of Yogi Narharinath Vs Prime Minister Girija Prasad Koirala (BS 2054), the Apex Court struck down the decision of the then His Majesty Government to provide a piece of land in Devghat areas of Chitwan for constructing a medical college. The Court argued that the establishment of medical institution in the Devghat areas would ultimately pose a threat to clean and green environment.
In the landmark case of Sapna Malla Pradhan Vs Office of Prime Minister and Council of Ministers (2006), the honorable SC pronounced that rape was an unpardonable criminal offence and inhuman act which directly undermines the individual freedom and dignity of a woman. The further observed that it’s a crime not only against the victim woman but also against the whole civilized society. “A woman engaged in flesh trade is also a human being and she is entitled to avail all the rights like other persons by virtue of being a human being,” the Apex Court ruled. In this case, the SC struck down the Constitutional validity Section 7 of Muluki Ain (General Code) dealing with Rape on the ground of being ultra vires to the Constitution of Nepal.
- Right to privacy: A subject of right to life and liberty
The advent of modern technologies and social media outlets, which have made the invasion of privacy easier than ever before, has made the debate very significant.
Privacy as the state of being free from intrusion or disturbances in one’s private life or affair,” held the Apex Court of India while defining the term privacy in the case of Sharda Vs. Dharampal (2003).
Although right to privacy has not been enacted expressly in Indian Constitution, the right has been availed to all persons as a matter of fundamental right (FR) through robust development of judicial activism, thereby broadening the scope of Article 21, which deals with the person (citizen and non citizen)’s Right to Life and Liberty. Similarly, the archrival Pakistan also ensures right to privacy within the meaning of right to life. However, the express provision for the right to privacy [Article 14⦌ is available in Pakistani charter unlike India.
In Govind Vs State of Madhya Pradesh (1975), the Supreme Court (SC) ruled that many of the FRs of the citizen can be described as contributing to right to privacy. “Assuming that the FR explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a FR, the fundamental rights must be subject to restriction on the basis of compelling public interest,” observed the SC.
In Maneka Gandhi Vs Union of India (1978), the SC, while adopting a Triple Test for any law interfering with personal liberty, observed, “The law and procedure authorizing interference with personal liberty and right to privacy must also be right, just, and fair and not arbitrary, fanciful, or oppressive.”
In R Rajagopal Vs State of Tamil Nadu, the Apex Court was called upon to decide to decide if a person’s right to privacy allowed him to prevent another person from publishing someone’s biography. “The right to privacy is implicit in the right to life & liberty guaranteed by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education, among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerning and would be liable in an action for damage.”
This case is popularly known as Auto Shankar’s case. The question before the Court was whether a Tamil Magazine has an inherent right to publish the autobiographical diary of convicted murderer Auto Shankar.
The judgment noted that as a signatory to the UDHR and ICCPR, 1996, India had acknowledged Right to Privacy, which is a part of these instruments.
However, India still does not have a law to protect privacy. The Privacy Bill was a serious attempt in 2011 but suffered from lacunae as the proposed law got struck in inter˗ ministry tussles.
Similarly, Article 28 of Nepal Constitution expressly enacts that right to privacy shall be inviolable. In Sapna Malla Pradhan’s case (2006), the SC of Nepal held that the privacy had to be maintained from the very beginning in questions where the rape victims, HIV infected persons, or children are one of the parties to the suit. The Court was of the opinion that privacy must be maintained till the final disposal of the lawsuit where a party to the suit is a rape victim, prostitute, HIV infected person or a child.
Like the SC of Nepal, the Apex Court of India in the case of State of Maharastra Vs. Madhukar Narayan held that right to privacy is available to a woman of easy virtue and no one can invade her privacy. A police inspector visited the house of one Banubai in uniform and demanded to have sexual intercourse with her. On refusing, he tried to have her by force. She raised a hue and cry. When he was prosecuted he told the Court that she was lady of easy virtue and therefore her evidence was not relied. The court rejected the argument of the applicant and held him liable for violating her right to privacy under Article 21 of the Indian Constitution.
Meanwhile, the Constitution of Bangladesh under Article 43 expressly declares that every citizen shall have the right to privacy of his correspondence and other means of communication.
The Constitution of Maldives, Bhutan, Sri Lanka, and Afghanistan has also made express enactment for right to privacy within the ambit of FR under Article 24, 7(19), 14 and 38, respectively.
However, the idea of right to privacy would be implicit in right to life and liberty when any question is interpreted beneficially or liberally.
- Who coined the term right to privacy?
The right to privacy, as we know it today, was first floated by Warren and Brandeis in 1890 in the Harvard Law Review. In the journal article the duo argued that as civilization advances the right to be left alone and to have personal space untouched becomes a necessity.
- RTI: Is it a threat to privacy?
In recent times, the conflict between a citizen’s right to know (through Right to Information (RTI) Act) and others’ right to privacy has engaged attention. “While there is an utmost need of maintaining a fine balance between right to privacy and right to information, the state should ensure that the right to know should definitely be confined if revelation of information encroaches upon someone’s personal privacy,” further said Dr Saxena.
- Magna Carta: The Source of Right to liberty
The right to life and liberty breathing under Article 21 of Indian Constitution or Article 16 of Nepali Constitution has been influenced from Magna Carta, the great charter signed between King John and great barons of England in 1215. Clause 39 of this agreement says, “No free man shall be taken or imprisoned, or dispossessed or outlawed or exile or in any way ruined, nor will we go or send against him except by the lawful judgment of his peers or by the law of the land.”
The Bill of Rights (which is the collective name for the first ten amendments brought in the US Constitution) relies heavily on Magna Carta, and Clause 39 is the forerunner of the fifth and 14th amendment Act of American Constitution.
Thus, the right to life and liberty enshrined under the Constitutions of South Asian states ultimately relies on Magna Carta and Bill of Rights. The robust judicial activism in South Asia cemented the walls of FR and rolled out that all the natural rights required to live a dignified life falls within the ambit of Right to life & liberty.
- Existence of right to life & liberty: A substantial requirement
Denial of right to life means denial of other rights, “Because none of the other rights would have any utility and existence without the very existence of right to life & liberty. So, it’s the most important right of the humankind as it ensures survival of life with human dignity,” said Alok Kumar Yadav, faculty of International Law at HNB Gahrhwal Central University.
The South Asian Constitutions have succeeded in knocking the walls contrary to life and liberty or privacy by implanting fair corpus of fundamental rights. The charters of Nepal, Sri Lanka, and Bhutan believe that right to life and liberty would have a little substantial value unless death penalty is abolished.
The fundamental documents clarify that these rights ‘shall not’ be put in suspended animation at any pretext—even amid national or state emergency. So, right to life and liberty or privacy is a non-negotiable right in South Asia which cannot be limited or curtailed in any given situation.
Published on: October 25, 2016
The authors can be reached at [email protected] & [email protected] (Ms. Iyer holds LL.M. (Constitutional Law) from IMS Unison University and Mr. Jha is a contributing writer for NFA)