‘Right to Privacy’ needs the Sentinel of ‘Fundamental Prohibitions’
In its 547-page judgment that declares privacy to be a fundamental right, the Supreme Court has overruled verdicts given in the M.P. Sharma case in 1958 and the Kharak Singh case in 1961, both of which said that the right to privacy is not protected under the Indian constitution.
The Judgment has two components, which need to be talked about. First is regarding personal privacy. It says, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place.”
The second is regarding Informational Privacy, which says: “Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data. Since the Union government has informed the Court that it has constituted a Committee chaired by Hon’ble Shri Justice B N Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt with appropriately by the Union government having due regard to what has been set out in this judgment.”
While there cannot be two opinions regarding the Informational Privacy and the people have rightly pointed towards the misuse of Adhar Card data by the Government, what requires debate is the first part about the Personal Privacy.
The judgment may lead to dangerous effects on the very life and healthiness of life, the Judgment claims to be upholding. The absolute privacy in personal sexual and food habits has caused and will continue to cause such a huge damage to life and healthiness of life that they cannot be allowed just because the market forces benefit from this liberty.
The time has now proved that the most glaring deficiency of almost all the prominent systems is that they emphasize only upon fundament rights, underscore fundamental duties and altogether ignore fundamental prohibitions. This two-dimensional approach is inadequate in maintaining order in society. Besides, it is inherently dangerous, as it unleashes forces of evils and exploitation. No society can maintain order and tranquility unless it has its sets of restrictions. Its members must not only claim for their own rights, but must also be duty-bound to help in its survival and development and they must not be in a position, even if they want, to do what is expressly detrimental for society. A three-dimensional approach is therefore mandatory if the totally paralyzed and redundant legal system has to be rejuvenated. The two-dimensional constitutions, without any express provisions of fundamental prohibitions, guarantee rights only for the strong and those rights of the weak that the strong seek to exploit. The three-dimensional approach, on the contrary, with explicit Fundamental Prohibitions, is a guarantee for the rights of all the members of society including the weak and the underprivileged. Fundamental Prohibitions must be aimed at ensuring Individual Health, Family Peace and Social Order, which may very well be understood to be the three essential components of Peace.
The modern approach is influenced by economic fundamentalism that seeks to commercialize both strengths and weaknesses of human beings. In order to commercialize weaknesses, it is necessary that “prohibitions” should be totally prohibited and greater emphasis should be given to rights not duties.
If life and healthiness of life are the most important objectives of the System, people should not be allowed by the system to get exposed to substance or practices that seriously endanger life and health. As I have been arguing in my coming book, “Economics First or Health First: Dynamic Paradigm of Health”, the onus of maintaining health is not merely on the individuals. The System has to be health-protective and must be ready to confront all such practices, private or public, that can substantially endanger life and healthiness of life. The System must not just keep an eye on the threats coming from weapons, crimes, terrorism and wars and civil wars but must also confront the orientations and choices that bring death, destruction and chaos.
If we examine the Global Burden of Deaths and Diseases, it is not difficult to conclude that the biggest threats to life do not come from terrorism, wars and civil wars but from personal choices and orientations. Alcohol, drugs and Sexual practices especially promiscuity, prostitution and homosexuality are responsible for most of the deaths that can be saved through human efforts. And Sexual orientations even leave intoxication far behind. “Sexual Revolution” espoused by the modern social systems has brought nothing but death and chaos. I will like to quote from my book, “The Killer Sex”: “Revolution implies an extraordinary change. But the change is not always the antibiotic that kills the infection and treats the disease. Instead it may be the hypnotic that sedates, addicts and slowly poisons. For any colossal transformation to be valuable, it has to be for the better. If huge changes do not end into salubrious fruition, they have no credentials to be called a Revolution. “Sexual Revolution” is in truth the nadir of human behaviour. It has proved to be not the antibiotic but the hypnotic. It has heralded nemesis of individual’s peaceful existence, family’s peaceful sustenance and society’s peaceful countenance. It has derailed everybody from the right course, nailed every institution and failed every development; it has only bailed the merchants. It has made humanity look ludicrous; it has thinned to almost non-existence the demarcating line between human and animal. It has sacrificed abiding happiness at the altars of instant fun; and has crucified health on the cross of wealth. It has made character moribund by slaughtering the inspector of conscience that sustained it. It has pierced childhood, hanged womanhood and polluted manhood. It has snatched the apron of shyness that used to adore and protect woman, and has made her “adore” the lingerie of shamelessness. It has transfigured man from a lover and protector of woman to mere usurper. It has made love without sex to look abnormal and ridiculous but sex without love to appear natural and admirable. It has reduced love to lovemaking, and has made lovemaking a perpetual captive of unadulterated lust. It has trounced parenthood and transfixed childhood. It has buried fatherhood and sickened motherhood. It has bulldozed the world converting it into huge rubble of solace and brought mankind to the verge of total collapse. Sexual Revolution is the python that must be trapped at the earliest and killed without delay.
“Sexual Revolution has taught us that sex is not for life but life is for sex. That sex must overrule every other consideration and overcome every obstacle in its way. If it is the custodian of Law, it must learn to behave; if it is the inspector of Religion, it has to be dismissed; and if it is the police of morality, it has to be confronted. It has made us believe that sex must not necessarily be between a human and a human; it can be between a human and an animal. That sex must not always require two sexes; it may be between a man and a man, and between a woman and a woman. That sex must not have to be between two adults: it may be between an adult and a child. That sex may not unfailingly involve those who are not linked by blood; it may involve a mother and a son, a father and a daughter and a brother and a sister. That sex should not always be limited to two individuals; many may join simultaneously. That sex must not necessarily use organs that are naturally meant for it; any organ that can be penetrated is fit for coitus. That sex must not necessarily be enjoyed away from the public gaze; it may be performed in front of their staring eyes and exhilarating hearts and brains. That sex must not necessitate any formal declaration; any two consenting individuals can have it without warranting any social or legal sanction. That, in extreme circumstances, sex does not even require consent; if one is smart enough to hoodwink Law or bold enough to face it, one may even rape without fearing too much. That sex does not have to be for fulfilling one’s legitimate physical and psychological desires; it may also be for filling one’s coffer. That sex need not be the corollary of love; it may be purchased or sold in the market. That whatever comes in the way of sex must be mercilessly got away with even if it is a human-in-making. In nutshell, Sexual Revolution has convinced us that sex knows no bounds. The old saying must be redefined thus: everything is fair in love, sex and war.”
As a result of alcohol and drugs and promiscuity and homosexuality, more than 70 million people die including the deaths of 50 million foetuses through induced abortions, which are the direct result of the “Freedom of choice”.
“Freedom of choice” has become more associated with death than life and there cannot be any wisdom in granting freedom of bad choices. “Freedom of choice” must be limited to freedom of good choices only, and the best definition of “good” will be: what is good for health is good and what is bad for health is bad.
Fundamental Prohibitions as part of Fundamental Principles of the Constitution are essential for the sustenance and improvement of individual’s health, family peace and social order. For maintenance of peace in general and health in particular, a three-dimensional system comprising Fundamental Rights, Fundamental Duties and Fundamental Prohibitions must be implemented in theory and in practice. This has to be realised and duly recognised that no system can sustain itself without its set of Prohibitions. Prohibitions must be aimed at not serving the interests of the vested interests but the individual, family and social peace. Anything that seriously hampers health must be banned, any socio-economic development that endangers health must be rejected and any cultural values that seriously violate any component of health must be campaigned against.
If the impact of different items and practices on health is made the chief criteria, it will not be difficult to determine which items and practices must come under “Fundamental Prohibitions.” Alcohol, Smoking, Drugs, gambling and unhealthy sexual practices (including prostitution, promiscuity and homosexuality) are undoubtedly the biggest killers of human beings and biggest tormentors of human families and society. These cannot be permitted in any civilised society. A society that permits them can be anything but not civilised.
If the Courts and Judges realise that Life, healthiness of life and not the healthiness of the forces of economics are to be the topmost priority, it will not be difficult for them to suggest that while “Right to Privacy” is essential, it needs to have the sentinel of “Fundamental Prohibitions” to make it really meaningful for the mankind.
Dr Javed Jamil is India based thinker and writer and Head of Chair in Islamic Studies & research, Yenepoya University, Mangalore, with over a dozen books including his latest, “Muslim Vision of Secular India: Destination & Road-map” and “Qur’anic Paradigms of Sciences & Society” (First Vol: Health), “Muslims Most Civilised, Yet Not Enough” and Other works include “The Devil of Economic Fundamentalism”, “The Essence of the Divine Verses”, “The Killer Sex”, “Islam means Peace” and “Rediscovering the Universe”. Read more about him at http://www.worldmuslimpedia.com/dr-javed-jamil. Facebook page: https://www.facebook.com/javedjamil2015; alsohttp://javedjamil.blogspot.in/. He can be contacted at doctorforu123”yahoo.com.