New Delhi: An individual’s right to refuse life-prolonging medical treatment or terminate life is a freedom which falls within the zone of right to privacy, the Supreme Court said on Thursday.
Similarly, tapping of telephones and internet hacking of personal data is another area which falls within the realm of privacy, it said. Justice J. Chelameswar, who wrote a separate but concurring judgement, also touched upon other aspects like consumption of food and a woman’s freedom of choice on whether to terminate pregnancy.
“Concerns of privacy arise when the state seeks to intrude into the body of subjects. Corporeal punishments were not unknown to India, their abolition is of a recent vintage. Forced feeding of certain persons by the state raises concerns of privacy... An individual’s rights to refuse life-prolonging medical treatment or terminate his life is another freedom which fall within the zone of the right of privacy," justice Chelameswar said in his 44-page verdict. He, however, said he was “conscious of the fact" that this issue was pending before the apex court.
The Supreme Court recently termed as “sensitive" the issue of right to have a “living will" to refuse life support in the last days of an ailing person by declining to adjudicate it and leaving it for the government to take a call. “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy," he said. “I do not think that anybody would like to be told by the state as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life," justice Chelameswar said.
He apparently referred to the Aadhaar scheme in which biometric data of individuals is collected by the government. “Telephone tappings and internet hacking by the state of personal data is another area which falls within the realm of privacy. The instant reference arises out of such an attempt by the Union of India to collect biometric data regarding all the residents of this country," he said. He cited various examples and observed that the decision-making process regarding the freedom of association, travel and residence were purely private and fell within the realm of right of privacy.
“All liberal democracies believe that the state should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed," justice Chelameswar said. Insofar as religious beliefs are concerned, he said that “a good deal of the misery our species suffer owes its existence to and centres around competing claims of the right to propagate religion". He said fundamental rights were the only “constitutional firewall" to prevent the government’s interference with those core freedoms constituting liberty of a human being.
“The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21 (the right to life and personal liberty of the Constitution)," justice Chelameswar said. He also made it clear that no legal right, including right to privacy, could be absolute. “Every right has limitations. This aspect of the matter is conceded to at the bar. Therefore, even a fundamental right to privacy has limitations. The limitations are to be identified on a case to case basis depending upon the nature of the privacy interest claimed," he said.
He also referred to the importance of the Constitution and said it could not be seen as a document written to replace one legal regime by another. “It is a politically sacred instrument created by men and women who risked lives and sacrificed their liberties to fight alien rulers and secured freedom for our people, not only of their generation but generations to follow," justice Chelameswar said.
A nine-judge Constitution bench headed by Chief Justice J.S. Khehar has unanimously ruled that “right to privacy is an intrinsic part of right to life and personal liberty under Article 21 and entire Part III of the Constitution".