The Indian Constitution along with various other legislations has protected the rights of individuals, it has ensured right to equality, right to freedom and variousother rights whichenables us to live a dignified life. All these rights protect us from interference by state organs and the harmony of rights and duties assigned to people bring stability in the society. However, one important question needs to be answered is, what happens to our rights when we die.
Laws are generally silent on the rights od the dead and suggest that they do not have rights, for example in matters of marriage, divorce, voting, etc. While courts have been keen on protecting the rights of the dead, especially in regards to will, organ donation, etc.
This article will try to give a plausible explanation as to why the dead have been invested with limited rights, in the light of available rights to the dead, do they have the right to privacy?
What is right to privacy?
Black’s law dictionary defines privacy as “the right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.”
Right to privacy stands intrinsic to humans. There is no certain definition of privacy. Right to privacy means an individual’s right to take independent decisions, conduct affairs protected from public gaze, confidentiality, no meddling with one’s body or property or information without one’s consent, etc. Privacy is a very broad concept to be defined strictly, it is subjective and differs according to what every individual understands of it. Right to privacy has been observed as a basic human right.
“Right to privacy comes with birth, goes with death”
The landmark judgment of JusticeK.S.Puttaswamy(Retd) vs Union Of India, has established that right to privacy forms a part of the Article 21 right to life and personal liberty which is a fundamental right guaranteed to citizens under Part III of the Indian Constitution. It is a natural and cherished right, inseparable to human existence. It is the responsibility of the state to recognize and ensure this basic human right of privacy to every individual equally and without any discrimination on the grounds race, colour, sex, religion, caste and creed.
A definition of privacy can be found only in legal dictionaries but what is the extent of right to privacy and what is reasonable for harmonious and peaceful for co-existence is decided by the courts on a case-to-case basis.
Justice Sapre in the Puttuswamy case mentions that right to privacy is a tributary flowing from the analysis of the expressions of “liberty of thought, expression, belief, faith and worship” and “fraternity assuring the dignity of the individual” in the Preamble to the Indian Constitution. The other expression of fundamental rights also indicates to the core of the right to privacy, i.e., individual freedom against all kinds of interference, especially those coming from the state.
Can the right to privacy be inherited?
A very recent judgement ofin the case of DeepaJayakumar v. AL Vijay and ors, Madras High Court has held that right to privacyof a dead person is not an inheritable right. In this case, J Deepa claimed right to privacy against the release of her aunt late former Chief Minister of Tamil NaduJ Jayalalitha’s biopic. The court reasoned that the personality and reputation to which the right to privacy is attached comes to an end with the person’s demise, eventually right to privacy also doesn’t last. Hence, the right to privacy of a dead can’t be claimed by the legal heirs.
The court while dealing with another yet related issue in the case also talked about the right to freedom of speech and expression under Article 19(1)(a) and commented that artistic expression can’t be directed to come out in a specific way, however, the manner of expression should be a balanced one and based on true facts, there is no harm in presenting the socio-political realities, such creative expression in a judicious manner in fact strengthens the pillars of democracy.
Human rights are those which are invested in humans as soon as they take birth and one of such rights is the right to privacy. Right to privacy is a fundamental right and falls under the umbrella of right to life and personal liberty. However, the status of rights changes in a person’s lifetime and after their death. There is no specific legislation that deals with the rights of the dead, nor any other enactments talk about it. In such cases, court gives its interpretation as and when needed, analyzing the judicial decisions in relation to right of privacy, it can be said that this right is limited to one’s lifetime. Whatever rights the dead have (will, burial requests, etc.), all of these are honored by the courts, in order to either regulate the behavior of living individuals or because dead are incapable of making choices and courts act on their behalf to fulfil their interests. Although the legislations are currently silent on the extension of right to privacy to the dead, but it maybe reasonable, justified and fair to extend the scope of right to privacy because it is intimately connected to dignity and respect a person enjoys in their lifetime and after death. In future, with changing circumstances in the society, the parliament and judiciary may recognize the need for such an extension and do the needful to protect the interests of all.
“This blog is authored by Aditi Kundu, a first-year student of Hidayatullah National Law University, Raipur.”
WRIT PETITION (CIVIL) NO. 494 OF 2012.
The Hindu. 2017. Right to privacy comes with birth, goes with death, writes Justice Sapre. [online] Available at: <https://www.thehindu.com/news/national/right-to-privacy-comes-with-birth-goes-with-death-says-judge-sapre/article19552827.ece> [Accessed 8 July 2021].
O.S.A.No.75 of 2020.