From ‘Right to equality’ to ‘Right to Constitutional remedies’. The constitution has provided us with all the rights to safeguard us from the arbitrary actions of different organs of the state. These rights not only let us enjoy our lives thoroughly without any kind of interference, but also establish a stability in the society we live in. But there is one aspect of all these rights, that all of us often ignore, and that is, what all rights would remain with us when all of us would be dead.
Many laws suggest that the dead do not have rights. The dead cannot marry, divorce or vote. The right to medical privacy sublimates at death, granting family members the ability to obtain sensitive information about the deceased’s medical conditions. And on the other, the courts and legislature have spent considerable time trying to protect the rights of the dead. Most significant requests like the will, burial requests, and organ donation are honoured even if they face the objections of the kin.
The aim of this article is to discuss why the law gives limited rights to the dead and not all of them. While it may be argued that the rights granted to the dead are an attempt to curb the behaviour of the living persons, such an argument falls short to be completely explanatory as it does not take into account the cultural aspects that are embedded in the population.
The inherited desire to fulfil the wishes of the dead does not spring purely out of a self-interested desire of making one’s own desires honoured at death. The courts decide this by recognising whether the individual is capable of making choice or not and since the dead can’t make real-time choices, the court has to take a stance on their behalf. While it is true that only a shred of rights survives death, whether that shred carries a right to privacy is a bigger question.
What is Privacy in accordance with law?
The right of the individuals to make personal decisions in regards to private affairs or the right of the individuals to lead their lives secluded from public scrutiny, whether such scrutiny comes from a neighbour's prying eyes, an investigator's eavesdropping ears, or a news photographer's intrusive camera. All this can be termed as the privacy of an individual. Privacy to an individual is a basic human right all over the world.
The European Convention on Human rights states that “everyone has the right to respect for his private and family life, his home and his correspondence”and according to the Universal Declaration of Human Rights (UDHR), “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor attacks upon his honoured reputation.” Black’s law dictionary defines privacy as “a condition of being free intrusion with one’s decisions.” Ultimately, Privacy is the desire of an individual to determine the extent he will expose himself to others.
Right to privacy comes with Birth and Goes with Death
In the much-celebrated judgment of Justice K.S. Puttaswamy (Retd.) & another v Union of India(2017) which extended the scope of Article-21 in Part-III of the constitution to include Right to Privacy in the umbrella of Right to life and personal liberty. The right to privacy is a natural and cherished right that is born with the person and expires with it. The right to life and personal liberty is considered incomplete without the right to privacy and without it, it is hard to conceive that an individual is enjoying a meaningful life with dignity. It is a right that every civilised society recognises in every human being. The right to privacy is a natural right inseparable from human existence. This right has been evolved by judicial interpretation on case to case basis.
The origin of the right to privacy can be emancipated from the expressions of the Preamble and the Constitution. The expressions liberty of thought, expression, belief, faith and worship” and “Fraternity assuring the dignity of the individual”. The dignity of an individual regardless of gender, race, religion, caste, and creed. Indeed, The right to privacy is a tributary of these expressions and rights flowing through them and in abutment.
The Right to Privacy: Can it be Inherited?
Recently the Madras High Court in the case of Deepa Jayakumar v. AL Vijay and ors (2021) ruled that “a deceased person’s right to privacy cannot be inherited.” while dismissing a plea against the release of biopics on late former Chief Minister of Tamil Nadu, J Jayalalitha. Accordingly, The right to privacy of a dead person cannot be inherited because the respect or reputation to which privacy highly depends vanishes at the death of the individual, and therefore it cannot be claimed to infringe the right to privacy of the kins of the dead.
According to the court, the privacy of the dead cannot be claimed as the privacy of the family or the heir as their own. The court while dealing with the issue pertaining to the film portraying the then CM in poor light held, Under the Article-19(1)(a), the right to freedom of speech and expression, an artists cannot be compelled to depict an event in any specific manner, the artists and filmmakers through the films reflect the incidents in a balanced manner, providing the critical appraisal to the social realities of the society which is a cornerstone in a democratic country.
Human beings are born with numerous rights granted by the constitution, they enjoy these rights throughout their lives and the right to privacy is one such right. The things change significantly after the death of the individual, and it raises a question as to what all rights would remain with the dead and what all would expire with his body. The Indian laws have maintained silence on this dissemination of rights.
The Right to privacy is a significant part of the fundamental rights and an inseparable part of the right to life and personal liberty of an individual. The Supreme Court in many instances has analysed its applicability on the dead persons and always came up with a view that the right to privacy is limited to the living individual.
In the absence of any enactment as of now and relying on the judicial decisions it can be concluded that the shred of rights of the dead does not carry the shred of privacy with it but, one can expect in the future that the scope of the right to privacy would be broadened to include the likes of the dead person.