The Evolution of Privacy and Revolution in Bodily Autonomy: A Quantum Leap in Constitutional Law

Alby Stephan K[1], Kavya Das R[2] & Jeevan [3]

Introduction

“Over himself, his body and mind, the individual is sovereign,” said James Straut Mill, while laying down the fundamentals of his harm principle. The basis of the most fundamental of human rights, like the right to life, liberty, privacy, and identity is the autonomy of the individual over his own body and mind. The autonomy over mind, including freedom of thought and expression, and over the body, ranging from right to food and dressing style to reproductive and sexual liberty, is essential for an individual’s self-identification and self-determination.

Throughout human history, the right to bodily autonomy has remained one that was invaded the most by the societies in their attempts to curb mono-cultural societies based on norms of uniform bodily conduct. Even in the contemporary world, such interventions by state and society are not rare, even in democratic regimes. For example, the former communist regime in Czechoslovakia targeted Romany gypsy women for sterilization because of their race. In the 1970s, the Indian government has carried out an aggressive population control program that includes forced sterilization and childbirth quotas. In China, the one-child policy is enforced, particularly at the provincial and district levels, through coerced abortions and sterilizations, and severe economic sanctions. More often, however, private actors carry out such practices. Forced virginity exams in Turkey and forced child marriage in Nigeria are primarily imposed by family members for the purpose of controlling women’s sexual activity, preserving women’s virginity for marriage, and maintaining the family’s reputation in the community.

The restrictions on bodily autonomy also produce indirect consequences like the World Health Organization has estimated that each year 500,000 women die from pregnancy-related causes.  This startling and distressing statistic becomes even more dramatic when it is realized that unsafe abortion associated with unwanted pregnancy “causes some 25-50% of [maternal] deaths, simply because women do not have access to family planning services they want and need, or have no access to safe procedures or to humane treatment for the complications of abortion.

In the present age, with the growth of technology that enables us to make advanced interventions in the human body, like technology for abortion, surrogacy, genetic engineering and sex reassignment surgeries, the perils of state intervention in bodily autonomy are extreme and possibilities of the individual in governing his body once allowed is very promising. Thus it becomes necessary to safeguard this right against state machinery.

Bodily Autonomy in Indian Tradition

India being a multi-cultural society was very inclusive and tolerant in matters of faith and thoughts since ancient times. This presents a stark contrast with western history which is almost just the history of the blood-red battle of ideas and faiths. However, in the modern age, the western societies have taken leaps and bounds in securing an individual’s right to govern his own body, whereas Indian traditions had placed heavy constraints upon individual’s bodily autonomy. The Indian history has witnessed women being executed in medieval age for uncovering her face and oppressed caste women in Kerala restricted from covering their breasts has been persecuted for doing so.

Even in the independent era we have witnessed forced sterilizations of government to virginity tests ordered by courts. The legal regime and even The Constitution of India are not very active in safeguarding or even recognising this basic human right.

Indian Legal Regime and Bodily Autonomy

The Constitution of India in its Preamble speaks of freedom of thought and expression and even right to a religious faith which is not a man’s basic need but fails to mention anywhere in the constitution a right to determination of one’s physical self. In independent India, our constitution and courts have successfully protected freedom of ideas and expression, that is, the autonomy of mind against the power of the state in an exemplary way.

However, our legal system places many restrictions upon and warrants state in many interventions upon bodily autonomy. Our penal laws embody many such restrictions inherited from Victorian English morality and our family laws inherit such norms of religions. Our laws had criminalised acts like same sex relations &bestiality[4], Adultery[5], Elopement[6], Polygamy[7], sex with minors[8], Euthanasia, etc. In matters like prostitution, abortion, surrogacy, etc. our laws are very abstract, incomplete and neutral. The Prevention of Immoral Trafficking Act only criminalises running brothels and remains neutral to the legal status of prostitution. The Medical Termination of Pregnancy Act leaves the discretion to allow abortion to medical practitioners without proper guidelines.

Many of these laws where influenced by traditional norms and to an extent by existing social conditions on post-independent India. The absence of recognition of bodily autonomy in the constitution as a right and the fact that constitution subjects Fundamental Rights to public policy and morality has prevented courts from waving a red flag to invasive laws. However, the recent changes in the public consciousness and quantum leaps in constitutional law has made a judicial trend in favour of bodily autonomy.

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A Paradigm Shift n Law: Evolution of Privacy and Revolution in Bodily Autonomy

Many factors have contributed to a changing judicial trend and public consciousness in favour of bodily autonomy. Firstly the growth of technology and inadequacy of laws governing matters like abortion, surrogacy, and sex reassignment surgeries has raised demand from the legal fraternity of legislative intervention failing which courts will be forced to step in. Secondly, the increased right wing tendencies in politics and state intervention in private life have contributed to growing awareness as to safeguarding individual liberties. Thirdly, the increased judicial activism and evolution of privacy as a fundamental right has warranted a judicial review of laws invasive of bodily autonomy. Though the judgement focuses more on informational privacy, the role of bodily autonomy as a fundamental right included in the right to life can no longer be disregarded.

There were previously many Indian judgements that have applied the concept of bodily autonomy on different issues.

The Common Cause case[9]speaks of bodily autonomy in the context of assisted suicide.

“It is asserted that every individual is entitled to take his/her decision about the continuance or discontinuance of life when the process of death has already commenced and he/she has reached an irreversible permanent progressive state where death is not far away. It is contended that each individual has an inherent right to die with dignity which is an inextricable facet of Article 21 of the Constitution. That apart, it is set forth that right to die sans pain and suffering is fundamental to one‘s bodily autonomy and such integrity does not remotely accept any efforts that put the individual on life support without any ray of hope and on the contrary, the whole regime of treatment continues in spite of all being aware that it is a Sisyphean endeavour, an effort to light a bulb without the filament.”

Marimuthuv. The Inspector of Police[10] speaks of reproductive autonomy of women:

“The right to autonomy to the woman and to decide what to do with their own bodies, including whether or not to get pregnant, and if pregnant whether to retain the pregnancy and to deliver the child, i.e. the right to motherhood is towards their empowerment and it is in accordance with the International Covenant on Human Rights. Considering the right to life, which includes the right to beget life and the right to dignity, the right to autonomy and bodily integrity, the foetus cannot be ordered to be aborted against the wishes of the victim girl.”

B.K.Parthasarathiv. Government of A.P.[11] speaks of reproductive autonomy as an essential component of privacy:

“The right to make a decision about reproduction is essentially a very personal decision either on the part of the man or woman. Necessarily, such a right includes the right not to reproduce. The intrusion of the State into such a decision making process of the individual is scrutinised by the constitutional Courts both in this country and in America with great care.”

This notion is reflected in the recent judgements decriminalising adultery and homosexuality. The judgement of the case Joseph shine versus union of India sets a trend by which judiciary starts to view sexual acts that wrong marital relations as civil offences rather than criminal, a notion that was overwhelmed by the gender equality aspect of the judgement, which is clearly in tune with the right to bodily autonomy. This development puts the criminality of acts like polygamy and elopement also in dispute.

The judgement in the case of Navtej Singh Johar v. Union of India[12] puts forward a notion that sex life is a matter of utmost privacy to be regulated by law and consensual sexual relations are warranted by the right to self-determination. This notion puts the validity of laws that criminalise sex by minors, bestiality and decriminalise marital rape, rape by women on men, etc. challenged. When the fundamental rights to privacy warranted a review of laws invasive of bodily autonomy, these judgements clearly indicate and trend in constitutional law that is protective of sexual autonomy.

Sexual Norms and Bodily Autonomy in Indian Law

Sexual autonomy is one of the basic aspects of privacy, liberty and bodily autonomy. It can be rightly said that the primary liberty of an individual is in sex life, dominating the same can lead to dominating the individual completely. In a patriarchal system, women are completely subjugated just by suppressing heir sexual and reproductive choices. Similar will be the case when the state is allowed to dominate an individual’s sex life. The U.S Courts have long back recognised sexual autonomy as a matter of utmost privacy and the prime manifestation of bodily autonomy.

In Meyer v. Nebraska[13], the Supreme Court declared for the first time that the liberty guaranteed by the Due Process Clause of the Fourteenth Amendment includes: “not merely freedom from bodily restraint but also the right of the individual.., to marry, establish a home and bring up children.” The constitutional right of privacy actually surfaced several decades later.

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In Poe v. Ullman[14]the Supreme Court confronted challenges by a married couple and their physician to the constitutionality of a Connecticut Law criminalizing the use of contraceptives. Because the law had not been enforced in over eighty years, the Court dismissed the case for lack of a justifiable controversy. 

Dissenting from the Court’s decision, Justice Harlan would have struck down the statute as “An intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life. He grounded his dissent in previous decisions protecting a “private realm of family life which the state cannot enter”, arguing that “it is difficult to imagine what is more private or more intimate than a husband and wife’s marital relations.”

However, one of the rights least protected in India is that of sexual autonomy. The human society has since time immemorial considered sex life of individuals as a matter of collective interest as it is an act that sustains the species. Thereby the sex life of persons was restricted and regulated under the institution of family which acts as the base of the society. We need to analyse whether complete sexual autonomy is a right that can be afforded in Indian society at present or any society at any time of history.

Arguments For and Against Absolute Sexual Autonomy

The advocacy of absolute sexual autonomy is a far cry under the present Indian legal regime and puts a large number of legal provisions into dispute. This include the laws that criminalise polygamy, prostitution, bestiality, sex by minors etc. the most basic argument in favour of sexual autonomy is that the sexual drives and orientation of an individual is not subject to his will to be legally regulated, and the fulfilment of the same is the basic need and repression of same leads to an unhealthy psychological state. It is an act of extreme privacy, not to be interfered with and most of such regulations are practically unenforceable despite our efforts.

One fundamental argument raised against decriminalising homosexuality by the intervener in the case of Navtej Singh[15]is that: “It is also the case of the intervener that if Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally effected.”

One fundamental reason why sex life is regulated by societies since time immemorial is that it forms the base of the family. The family being base of society and the upbringing institution of next generations, all the societies have enforced two basic norms in some level, prevention of sexual outlets outside marriage and enforcement of marital exclusivity. However, we live in an age when the concept of marriage is redefined and procreation is no longer treated as its basic object. The issue of same-sex marriage also stirs this basic debate.

The current trend in Indian law, however, does not condemn sexual relations outside marriage. Though the protection of the institution of marriage remains a strong public policy interest, still live-in relations are recognised by courts and practices like prostitution are viewed with lenience by legislatures.

The decriminalising of adultery also shows the new trend of treating acts against marital obligations as a private and not public wrong, and this notion will warrant polygamy also as a civil wrong and not an offence.

The argument of public morality is in a way related to the first argument, the morality of public to a big extend rise from the conditioning of new generations by families and hence such moral concepts are naturally in tune with the sanctity and predominance of family. However, the courts have now redefined public morality as fundamentally based on constitutional morality and not morals of masses or governments. This brings in the crisis that our constitution being very vague and not in a single ideological line, which integrates the Gandhian, socialist & liberal ideas. The constitutional morality is also thereby left to the interpretation of courts.

Another fundamental argument against absolute sexual autonomy is that sexual acts shall be regulated in tune with the order of nature. Man being an animal capable of moving beyond natural instincts, sexual autonomy left unchecked will invite practices against the order of nature.

“The Court further observed that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter category cannot claim that Section 377 IPC suffers from the vice of arbitrariness and irrational classification. The Court further observed that while reading down Section 377 of the Indian Penal Code, it cannot be overlooked that only a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender and in last more than 150 years, less than 200 persons have been prosecuted under Section 377 of the Indian Penal Code which cannot, therefore, be made a sound basis for declaring Section 377 IPC ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

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This argument poses some serious disputes. Firstly, even the scientific community isn’t able to clearly define the natural sexual orientations of all men. The acts against the natural sexual orientation of the majority can’t be treated as against the order of nature. Besides, a man by nature is a polygamous animal and monogamy and celibacy are proven unnatural. This clarifies that no state can impose a sexual conduct that is clearly in tune with the order of nature.

Related to this is another argument that sexual acts against the order of nature expose society to various diseases. The intervener in the case of Navtej Singh[16] points to the fact that MSM is more prone to HIV than heterosexuals.

Anand Grover, learned Senior Counsel in his submissions, highlighted the vulnerability of MSM and transgender persons. According to a study published by the Global Commission on HIV and the Law, MSM was found to be 19 times more susceptible to be infected with HIV than other adult men.

This argument is very significant. It is not possible for the law to legally ban every sexual act that is unhealthy. On the contrary, even under the title of absolute sexual autonomy, it is not wise to allow free sex by people infected with sexually communicable diseases. The law has to find a mid-way in this regard.

“Section 377 has a significant detrimental impact on the right to health of those persons who are susceptible to contracting HIV – men who have sex with men (MSM) and transgender persons. The Global Commission on HIV and the Law has noted the impact of Section 377 on the right of the health of persons afflicted with or vulnerable to contracting HIV:

“The law and its institutions can protect the dignity of all people living with HIV, and in doing so, fortify those most vulnerable to HIV, so-called “key populations”, such as sex workers, MSM, transgender people, prisoners, and migrants. The law can open the doors to justice when these people’s rights are trampled. However, such laws can also be disadvantageous, physically and mentally by actions of isolation and discrimination.

There are two other arguments that show the existing social condition in India is not ripe for affording absolute sexual autonomy. It is a universal law that in any society with large economic and social disparity, affording absolute liberty will lead to the weaker classes being exploited. This is true not only in case of a free market economy. Legalising prostitution, commercial surrogacy or human drug experimentation in India will lead to people being forced into the same by economic necessity and exploited by rich. Also, it is notable that the state has to limit bodily autonomy to counter certain social evils. This includes restricting pre-natal diagnosis to counter sex selection, minor sex to counter child marriage, paid sex to prevent flesh trade, etc. These arguments show that in a country with majority economically, socially and culturally underdeveloped, it is unfavourable for them to grant absolute bodily autonomy.

Conclusion

In an age when advanced technology that enable mankind to redesign his own biology is developing every day, the possibility for self-determination of individuals afforded with bodily autonomy is endless, whereas the potential for abuse if the state allowed to intervene in same is terrifying. Mankind often does not recognise the sovereignty of an individual over his body as strongly as he recognises that of a person over his home or a people over their territory. The constitutional law of India is taking quantum leaps in safeguarding liberty and privacy fuelled by judicial activism, however, the right of bodily autonomy has not attained the same momentum.

The notion of bodily autonomy shall extend along with evolving laws and growing technology. Time is ripe to liberate from the invasion of laws armed by traditional moralities, a man’s first adobe and sovereign territory, his body.


[1] 9th Semester, BBA LLB, School of Legal Studies, CUSAT, Kochi

[2] 9th Semester B.Com LLB, School of Legal Studies, CUSAT, Kochi

[3] 3rd Semester, BBA LLB, School of Legal Studies, CUSAT, Kochi

[4] The Indian Penal Code, 1860, Section 377

[5] The Indian Penal Code, 1860, Section 497.

[6] The Indian Penal Code, 1860, Section 498.

[7] The Indian Penal Code, 1860, Section 494 and 495.

[8] The Indian Penal Code, 1860, Section 376.

[9] Common Cause Vs. Union of India and Others, Writ Petition (Civil) No. 1088 of 2017

[10] W.P(MD) No.12212 of 2016.

[11] B.K.Parthasarathi v. Government of A.P. 2000 (1) ALD 199.

[12] Navtej Singh Johar & Ors. v. Union of India, (2018) 1 SCC 791.

[13] Meyer v. Nebraska, 262 U.S. 390 (1923)

[14] Poe v. Ullman, 367 U.S. 497 (1961)

[15] Supra note 13

[16] Supra note 13