“Restitution of Conjugal Rights OR Deprivation of Privacy Rights”?

Marriage is defined as “the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex”[1]. Marriage is the union of a man and woman by law for mutual rights and discharge of obligations. This cluster of mutual rights is collectively called conjugal rights.

As per Hindu law, marriage is eternal, divine, and sacramental. According to the Hindu philosophy, the objectives of marriage are Dharma- righteousness, virtue and justice, Praja or Santhana – Procreation, and Rati- Pleasure. “Marriage is considered as a socio-legally sanctioned route to progeny, in obligation to ancestral debts and mandates.[2]

A positive remedy that was formulated to protect the institution of marriage by the Hindu Marriage Act is a restitution of conjugal rights. Though it was constituted a positive remedy for preserving the sanctity and affirmation, the provision does not adapt itself with changing times. Since the institution of marriage had several changes, only confusion and problems are popping out of this remedy.

The first case where this provision was declared to be unconstitutional was T. Sareetha v Venkata Subbaih[3]. In this case, the Andhra Pradesh High court had held restitution of conjugal rights as against right to privacy. This judgment was subsequently overruled in Saroj Rani[4] Case. But it should be noted that the right to privacy was not considered a fundamental right when these judgments were declared. But now the Honourable Supreme court had held that right to privacy is a fundamental right[5] under Art 21 of the constitution. Therefore, this puts the validity of the provision into question.

Article 21 states that “No person shall be deprived of his life or personal liberty except according to the procedure established by Law”. This is narrated in a negative style but entrusts the positive rights of life and personal liberty. Privacy is an element of Art 21 and privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation[6]. Therefore, sexual activity without the person’s will is only making “one’s body a vehicle for the procreation of another human being”, as stated in the T. Sareetha[7] case. This leads to surrender one’s body to the domination of another is a mental torture, degrading dignity and grossly violating the right of privacy.

A right of free choice is complete autonomy to decide how one’s body is to be sensed and how it is to be used of procreation of children. Forced marital cohabitation is a major violation of the right to privacy and this should never be carried on with a legal sanction and support from legislation. “A decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.[8]” Therefore, restitution of conjugal rights gives wide scope to degrade the integrity of one’s body and restricts the autonomy of decision making about oneself.

Marriage, procreation and sexual orientation are integral parts of the right to privacy that gets infringed because of this provision. Even the ancient Hindu law does not forcibly compel the wife to cohabit with her husband. In Bai Jiva v Narsingh Lalbhai[9] it was observed by the Bombay HC that, “Hindu law itself even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure as compulsion by the courts to force her to return against her will”.

Restitution of conjugal rights originated in England where marriage is considered as a contract and wife is a chattel supposed to be owned and possessed by the husband. The same started having its roots in India from the case of Monshee Buzloor V Shumsoonaissa Begum[10] in 1866. But in Britain itself, this remedy was abolished in 1970. It is clear that restitution of conjugal rights is a remedy that had never existed in ancient India; it was implemented in India from England even in England this had been abolished in 1970. Moreover, this remedy infringes the fundamental right of right to privacy. Therefore, it is high time for the legislature to amend this outdated unconstitutional provision for the protection of dignity and privacy rights.

[1] Black’s law dictionary, 4th edition, 1968

[2] 71st Report of the Law Commission- the Hindu Marriage Act, para 6.5

[3] T. Sareetha v Venkata Subbaiah, AIR 1983 AP 356

[4] Saroj Rani v Sudarshan Kumar Chanda, AIR 1984 SC 1562

[5] Justice K.S Puttaswamy and others v Union of India and anr

[6] ibid

[7] Supra note 3

[8] ibid

[9] ILR 1927 Bom 264

[10] 1866-67 (11) MIA 551


ABOUT THE AUTHOR

Sowjanya S

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Miss Sowjanya S is a third-year law student at School of law, Sastra deemed to be University, Thanjavur, Tamil Nadu where she is pursuing B.com LL.B.(Hons). She hails from Chennai where she had also completed her schooling. Research had always been a fascinating work for her.  She is a hardworking smart student who always has the curiosity to learn. She loves to brainstorm problems and find effective solutions.

 

Right to Privacy – A Fundamental Right

The Supreme Court of India’s judgment in Justice K.S. Puttaswamy (Retd) vs Union of India[1] was a milestone in the history of democratic India. The wordings of the judgement are as follows:

The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

The Right to Privacy in India has been developed through a series of decisions by the Supreme Court. Right to Privacy was never an explicit right i.e. it is not verbally stated in the Constitution of India. However, constitutional provisions must be read and interpreted in a manner established by the courts or in a manner which would enhance its conformity with treaties and conventions which is a signatory of.

The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed fundamental rights. This judgement was timely given when there was a serious outrage on linking of the aadhar cards to the bank accounts, mobile numbers and so on.

The public felt that this was a pure ground of discrimination as the aadhar card reviled all the personal details of an individual including their religion, caste etc. The government to this accusation clearly stated that aadhar was only a medium through which they are looking forward to improve the livelihood of the underprivileged, provide them with facilities and also introduce people who are not aware of the schemes started by the government for their development.

After this judgement, the Union of India, eroded the two decisions of the Supreme Court – the 8-judge bench decision in M.P. Sharma v. Satish Chandra[2], and the 6-judge bench decision in Kharak Singh v. The State of U.P[3], where they said search and seizure were not subject to be recognized under the fundamental right to privacy and in the other “right to privacy is not guaranteed under the Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which the privacy is invaded is not an infringement of a fundamental right guaranteed by Part III” respectively.

International conventions have also expressly recognized the right of privacy. Article 12[4] of the Universal Declaration of Human Rights , Article 17[5] of the International Convention on Civil and Political Rights , Article 8[6] of The European Convention on Human Rights explicitly provides for right to privacy as a fundamental right and an way to protect an individual’s dignity and integrity of his/her personal life.

All the 9 Judges in the 9 Judge Bench headed by Chief Justice JS Khehar unanimously agreed on the same point that the right to privacy was not an absolute right and it will be subjected to certain restrictions which are to be tested under Article 21[7] with the fair, just and reasonable standards.

In Maneka Gandi v. Union of India,[8] the expression ‘personal liberty’ saw the widest amplitude during those days which included the rights which were not explicitly mentioned in the article. The rule of Natural Justice was also applied and held that every person has a right to fair hearing and a right against bias. Now, this personal liberty would also include Right to privacy after the said judgement. There were a few judgements even before the Aadhar card case where the right to privacy was upheld[9].

The Bench hearing the Aadhar card case passed an interim order restricting compulsory linking of Aadhaar for benefits delivery, after the 9 Judge Bench had marked the beginning of Right to Privacy as a fundamental right. The decision is still awaited.

There are a lot of question which riddles and a few cases which have to be revisited by the Supreme Court after the said judgment, one of those would definitely be the NAZ FOUNDATION[10] case i.e. SECTION 377[11] of IPC. One of the main reasons why the case has to be revisited is because when all the citizens are guaranteed right to life, personal liberty and right to privacy as a fundamental right, the LGBT community deserves the same liberty and the same rights. When Article 15[12] talks about not discriminating citizens based on their caste, creed, sex, and religion, then criminalizing S.377 would be an infringement to a person’s enjoyment of his fundamental right. Also Article 14[13] which ensures right to equality and fair treatment of all the citizens would be breached.

Justice Shah holding the part of S.377 stated that a person’s sexual orientation remains his personal choice and is a matter of privacy and privacy in itself being a fundamental right, therefore choice of sexual orientation will also be a fundamental right. This judgment was later set aside by the Parliament and said that it was beyond the scope of the court’s jurisdiction.

[1] WRIT PETITION (CIVIL) NO 494 OF 2012

[2] 1954 SCR 1077

[3] 1964 (1) SCR 332

[4] Article 12 – Universal Declaration of Human Rights. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

[5] Article 17

  1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
  2. Everyone has the right to the protection of the law against such interference or attacks.

[6] Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.

[7] “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

[8] (1978) 1 SCC 248,

[9] PUCL v. Union of India, 1997 1 SCC 301 (2 judges), Mr. X v. Hospital Z, 1998 8 SCC 296 (2 judges).

[10]  Suresh Koushal v. Naz Foundation, 2014 1 SCC 1

[11] 377. Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.

[12] 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[13] 14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth


ABOUT THE AUTHOR

Deepa Karanam

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Deepa Karanam is currently a third-year student at Symbiosis Law School, Hyderabad. She is currently working as the president of the Legal Aid Centre at Symbiosis Law School, Hyderabad. Social work and charity is something she always looks up to, and the famous JFK saying going by ‘If not us, who? If not now, when?’ fascinates her to keep going and never wait for anybody to bring about a change in the society. An aspiring bureaucrat, her pass time has always been music because of its healing power.

Beginning of a new epoch for Muslim women

Recently with the verdict of the Supreme Court calling the practice of triple talaq as unconstitutional has paved a golden way towards religious reforms in the Muslim personal laws against the practices that were derogatory to a woman’s dignity. BUT this is just a beginning.  Much has to be done; though we cannot deny it is a very strong and historic beginning, one can say probably the process of reforms in Muslim personal laws has just begun and this is a very strong process and is very important because a process well begun is half done.

Triple talaq was a burning issue and a topic of discussion for the past many years. We were constantly bombarded with many debates in news channels as well as newspapers about its validity, and the injustice and the cruel practices followed causing nightmares to Muslim women. Incidents such as talaq via WhatsApp, Skype, letter, cell phones were shocking and made us wonder how technology could be used in this way as well.  As rightly being said by someone, when a new technology is invented you not only find how to use it in various ways but you also try to find how to misuse it in many ways as well.

The triple talaq controversy started when Shayara Bano approached the Court, for assailing the divorce pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed: “…in the presence of witnesses saying that I give ‘talak, talak, talak’, hence like this I divorce from you from my wife.” It was her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 be declared unconstitutional. And arguments put forth from her side to declare it unconstitutional were:

  1. Talaq-e-biddat, pronounced is not valid as it is not a part of Shariat.
  2. This practice of triple talaq is violative of the fundamental rights guaranteed to citizens of India under article 14, 15 and 21 of Indian constitution.
  3. It was also submitted that practice of triple talaq was not sacrosanct to the tenets of Muslim religion as it has already been denounced internationally.

From the arguments put forward by the advocate of Shayara Bano one can see that not only he gave constitutional reasons for declaring the practice violative of fundamental rights but also he was able to give religious as well international viewpoint against this inhuman practice.

Now all the eyes were on supreme court that whether the court will follow its old traditional course or take a new route, which will come in the history of supreme court as a historic and landmark judgement – and Yes, this time supreme court changed its course and held that NO BODY OF LAW CAN CLAIM A HIGHER AUTHORITY THAN THE CONSTITUTION OF INDIAsurely a landmark judgement.

One more uniqueness of the case was the bench of judges that headed the case and the various statements given by them. There were five judges of five faiths Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. Judges of five faiths heading a case where Muslim personal law was in question and verdict of declaring that practice as unconstitutional just shows how secular, impartial and beautifully extraordinary our Indian judiciary is, and Nemo est supra leges (NO ONE IS ABOVE LAW); not even religion.

If we look at the statements of various judges of the bench it clearly shows there was unity in disregarding the 1400-year-old talaq practice. Out of the five judges, three were totally in agreement to declare it unconstitutional like Justice Kurien Joseph said: “What is held bad in the Holy Quran cannot be good in Shariat, and in that sense, what is bad in theology is bad in law as well.” “There cannot be any Constitutional protection to such a practice” whereas former Chief Justice JS Khehar and Justice Abdul Nazeer deferred and said while triple talaq “may be sinful”, the court can’t interfere in personal laws, which have the status of fundamental right under the constitution. They were of the view that parliament should bring a law to end the practice.

Regarding the government’s view in the judgement, the government as well as opposition party has appreciated the verdict of the apex court and have agreed to the fact that legislature will bring a law to end the practice.

There is a great significance of this judgement for Muslim women and a great victory for them.  They have won the first and most important battle as triple talaq was a nightmare for Muslim women, and by declaring triple talaq as unconstitutional, the court has put a saddle on an unruly horse. The judgement of the Supreme Court has clothed her with dignity and strength.

KUDOS to women like Shayra Bano and others who have the courage and strength to come forward, and raise their voice against injustice, and were determined to get justice. It is truly said that there is no force more powerful than a woman’s determination to rise. For several decades she was suppressed, tortured in the hot water of patriarchal arbitrariness, but nobody knew she is like a tea bag; you can’t tell how strong she is until you put her in hot water and finally she fought back.

Now, what is to be seen is how far this fight goes? What is the next step? Is Uniform civil code the next step? All these questions remain unanswered. Nevertheless, until that time, let us just celebrate this first victory.

Talaq, Talaq, and Talaq is NO, NO, AND NO.


ABOUT THE AUTHOR

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DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

RTI – A powerful tool of Democratic India

Art. 19(1)(a) of the Constitution of India ensures that all the citizens of India shall have the right to freedom of speech and expression. It implies that every citizen has the right to express his/her views and opinions, openly and freely, without any fear or constraint, through any mode of his/her choice, even by way of silence. However, a wider interpretation of the same confers a powerful right on the citizens of India; a right which has time and again been helpful in holding the public authorities accountable and responsible for their actions – Right to information. The same has been conferred under Art. 21 of the Constitution, i.e., right to life and personal liberty, as citizens have the right to know in order to ensure a healthy democracy.

Though not expressed in Art. 19(1)(a) and Art. 21 of the Indian Constitution, the Judiciary has interpreted the right to have access to or receive information under the Fundamental Right of Freedom of Speech and Expression and Right to Life and Personal Liberty through various judgments, like  Union of India v. Association for Democratic Reforms and Another[1], S.P. Gupta v. Union of India[2], Dinesh Trivedi, M.P. & Ors. V. Union of India[3], People’s Union for Civil Liberties (PUCL) v. Union of India[4], Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of India[5], and many more.

But, it was in State of Uttar Pradesh v. Raj Narain[6] case that the Supreme Court, for the very first time, established that the right to know or receive information arises from the fundamental right of freedom of speech and expression.

To empower this interpreted right to know or receive information, to help in holding the public authorities accountable and to ensure transparency in the working of the public authorities, Right to Information Act, 2005 was enacted on the 15th Day of June, 2005 and came into force on the 12th Day of October, 2005, i.e., the 120th day of its enactment.

Sec. 3 of the Right to Information Act, 2005, confers on only the citizens of India the right to file the Right to Information (RTI) application in order to receive information. Here, ‘information’, as per the Act means to include any material in any form, like records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, etc., including the ones held in digital form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force[7]. And whatever information is received under this Act, we, as the citizens of India, have the right to inspect such records, documents and any material in any form and to take extracts, notes, certified copies and samples of such material including their digital formats[8].

For the purpose of providing information to persons requesting it, every public authority shall appoint a Public Information Officer and whenever information is asked for, the RTI application should be addressed to the concerned or appropriate Public Information Officer of the public authority from whom the information is sought[9].

But, just as there are restrictions on the fundamental right of freedom of speech and expression under Art. 19(2) of the Indian Constitution, there are restrictions on the kinds of information one can ask under the Right to Information Act, 2005. Sec. 8 of the Act exempts certain kinds of information from being asked in the RTI applications, which are related to the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, which is expressly forbidden to be published as its publication may lead to contempt of court, which would cause breach of privilege of the Parliament or the State Legislature, etc. However, such information may be disclosed if it is for the protection of the larger interests of the people; after all salus populi suprema lex esto[10].

The exemptions are not only with respect to kinds of information but also with respect to certain public authorities like the security and intelligence organisations – Intelligence Bureau, Directorate of Revenue Intelligence, Assam Rifles, etc. – as mentioned under the Second Schedule of the Act. But, if the information sought is relating to allegations of corruption and human rights violation, they shall be disclosed after the approval of the Central Information Commission [established under Sec. 12(1) of the Act], within a period of 45 days from the date of receipt of such request.

Every response to any RTI application shall be given within thirty days of the receipt of the request[11]. In case it is relating to the matter of a person’s life and liberty, the information shall be given within 48 hours of its receipt[12]. If the response to the RTI application is not received within the specified time, an appeal can be filed to the appellate authority appointed for the same in the concerned public authority[13].

By now, we know that Right to Information Act, 2005 is a powerful tool in the hands of the Indian citizens, which many citizens are unaware of even after over a decade of its enactment. RTI empowers the ordinary, common man to question the authority, irrespective of his or her social, economic or political background, and hold them accountable for their actions. Without the Right to Information Act, 2005, the right to access information under Art. 19(1)(a) and Art. 21 of the Indian Constitution would have remained incomplete because RTI is an instrument used to regulate this right.

[1] (2002) 5 SCC 294

[2] AIR 1982 SC 149

[3] (1997) 4 SCC 306

[4] AIR[2003] SC 2363

[5] 1995 AIR 1236, 1995 SCC (2)161

[6] A.I.R. 1975 S.C. 865

[7] Sec. 2(f) of the Right to Information Act, 2005

[8] Sec. 2(j) of the Right to Information Act, 2005

[9] Sec. 5 of the Right to Information Act, 2005

[10] Welfare of the people shall be the supreme law

[11] Sec. 7(1) of the Right to Information Act, 2005

[12] Sec. 7(1) of the Right to Information Act, 2005

[13] Sec. 19 of the Right to Information Act, 2005


ABOUT THE AUTHOR

Headshot - Vidhya Kumarswamy

VIDHYA KUMARSWAMY

Vidhya Kumarswamy is a Law student pursuing B.B.A. LL.B. (Hons.), has a craving for knowledge and passionate about writing just as she’s a passionate foodie. Also, she’s a blogger and an Otaku.

Homosexuals Too Have Rights – They are not demanding something ADDITIONAL!

We often say that there is gender inequality amongst men and women and that’s true. But what about the third gender that has been given a due recognition by Supreme Court of India[1]. This so called third gender is not even accepted by majority of the people in the society, talking about its dignity, rights and so called ‘equality’ is like a fairytale!

Even after getting a legal status conferred by the Apex Court they haven’t been given their due right in many states. Although we come to read and know about some of the transgender like Zara Sheikh[2], Rudrani Chettri[3], Kalki Subramanyam[4], Madhu Kinnar[5], Manabi Bandyopadhyay[6] , Padmini Prakash[7] and 23 other transgender who have been given jobs at Kochi metro who have achieved something but what about rest of such population.

In the case of Suresh Kumar Koushal v. Naz Foundation[8] the Hon’ble Supreme Court reversed the High Court’s judgment that held Section 377 of Indian Penal Code unconstitutional. In this case the Hon’ble Supreme Court quoted the case of R.M.D. Chamarbaugwalla v. The Union of India (UOI)[9] and asserted that the instead of declaring a legislative provision illegal, doctrine of Severability must be applied and valid portion must be separated from the invalid portion. So from the Supreme Court’s judgment on the rights of homosexuals and constitutionality of Section 377 it can be construed that there is a reasonable classification made on intelligible differentia that homosexuals are an exception to it (Section 377 IPC).

Despite having been given rights by Supreme Court, they aren’t getting what they too deserve. Till date it is very normal and regular to see these people begging at traffic lights, at religious places like temples, mosques, etc. Not only this they’ve to face ill-treatment by police authorities and public. This Eunush culture is present in our culture since the ancient times of Lord Rama. And, it was in that era that homosexuals were considered as the agents of GOD and gave blessing to people on pious occasions. But at present times they have to face hatred, abusive treatment, cruelty and sexual harassment[10]. Till November, 2014 thirty seven attacks have were reported against eunuchs in Hyderabad since March. Shockingly there were around 10 deaths, three gang rapes and five acid attacks[11].

The Hon’ble Court has left it on the competent legislature to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General[12].

But this does not end here only!

Despite the verdicts of Supreme Court this community is being harassed, blackmailed and tortured because of their genetic disorder and make them feel ashamed and embarrassed about their identities. This clearly implies that States are not able to comply with the orders of Supreme Court by not being able to providing its citizens their precious fundamental rights.

[1] National legal services authority v. UOI [WRIT PETITIONS (CIVIL) NO.400 OF 2012 & 604 OF 2013]

[2] India’s first transgender HR Professional in a MNC

[3] Delhi-based transgender activist and head of Mitr Trust, opened a modelling agency to help transgender models get work and recognition

[4] activist and author, established Sahodari Foundation that works for the empowerment of transgender persons in India

[5]  she fought mayoral elections in Raigarh, Chhattisgarh as an independent candidate and won

[6]  India’s first transgender principal a year ago

[7]  India’s first transgender TV anchor with a prime time show on a South Indian TV channel

[8] CIVIL APPEAL NO.10972 OF 2013

[9] AIR 1957 SC 628

[10] Jayalakshmi v. State, (2007) 4 MLJ 849

[11] http://www.deccanchronicle.com/141121/nation-current-affairs/article/eunuchs-face-assaults-rapes

[12] Suresh Kumar Koushal Case, supra


ABOUT THE AUTHOR

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TESU GUPTA

Tesu Gupta is a third-year B.A.LLB(H) student of Jagan Nath University, Haryana. She has participated in many moot court competitions and paper presentations. Passionate about law and legal research, her area of interest is Arbitration. She has won the intra-university moot court competition and received the ‘Best Presenter’ award.

 

Freedom of Expression vs. Honour: Your rights end where mine begin

Let’s share the story of a friend of mine:

She was born in a small and humble home of a little town, but she wanted to be somebody, to succeed in life, so she worked really hard for her dreams. That’s how she was able to go to school, but this wasn´t enough for her. She wanted to go to high school, but in her little town there were none.

Determinate to overcome her limits, she moved to a large city in order to continue with her studies and by the end of her final year she made up her mind: she wanted to be a teacher. This looked almost impossible, considering her economic background. Nevertheless, during those same years she did put in lots of efforts to improve herself and her community.

All those years of hard work were rewarded: her excellence awarded her with a scholarship so she was able to study her dreamed carrier. Years passed and she contributed a lot to the educational community. She even became the Principal of one of the biggest educational institutions of the city. Her humble beginnings were not an excuse for her.

Really inspirational right? But the story does not end here. Many people desired her position[1], and they were capable of doing anything following the famous phrase “end justifies means”. By using their connections, they were able to spread all kinds of infamies and lies about her, which by the magic of the sensationalist press, it was extended like wildfire which damaged her reputation and honour… Really unfair and sad, isn’t it?

There are a lot of rights involved in this story. The problem is how to balance them. On one hand, the Right to Honour and Reputation was damaged. Journalists claim that they have the right to freedom of the press and the one was who actually said something that wasn’t true to damage the good name of the woman, claims the right to freedom of expression. Yes! We all have rights. But there is a principle by which your right ends when other’s rights begin.

The art. 12 of the Universal Declaration of Human Rights, says that “No one shall be subjected… to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”. And the article 19 establishes “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”[2].  As you can see, there is a thin line between those rights.

If you read the websites of international organizations, you will find that they tend to protect more the right to freedom of expression, and they even recommend that “calumny and defamation”[3] should be removed from criminal law. Criminal Law penalties, besides punishing the wrongdoers, have a preventive purpose[4]: to avoid the repetition of the crimes through warning or intimidation[5]. “The object of civil sanction is the redress of wrongs by compelling compensation or restitution, the wrongdoer is not punished”[6]. That’s why there are people against protecting this right only with civil sanctions.

The Declaration of Principles on Freedom of Expression states that: “Protection of reputation should be guaranteed only through civil sanctions, in cases where the offended person is a public official or a public or private person who has engaged voluntarily in matters of public interest…” So if you want to contribute to your country by working in public function or you are involved in matters of public interest, just get ready. People will be able to damage your reputation easily, because civil sanctions are not as intimidating as criminal law penalties.People will tell you to be ready for the attacks and lies others are going to say about you. “It’s always like that”, “that’s how it works” and “you just have to ignore them”; with this phrases people tell you “DO NOT DEFEND YOUR RIGHTS”.

It’s true that a lot of politicians use this juridical figure to persecute journalists who publish acts of corruption that they have carried out[7]. But it must be with accurate information, because Freedom of Expression has its limits. And those limit should be clearly defined.

Freedom of Expression and the right to Honour and Reputation are human rights. They are confronted on many occasions, so mechanisms should be sought both to balance and protect these rights.

[1] Referred to the position of “principal of an educational institution”

[2] United Nations website. Link: http://www.un.org/en/universal-declaration-human-rights/

[3] These two juridical figures are mentioned according to the Paraguayan system, it may be some differences in the denomination or specific characteristics in other countries.

[4]Quoted in: Rivacova y Rivacova, Manual of Function and Application of Penalty, Ed. Depalma 1993, Pág. 18, of the book: Problems of the Penalty, Recife, 1958, Pag. 342

[5]Feuerbach.German jurist of the early nineteenth century. For him, the purpose of imposing a penalty lies in the foundation of the effectiveness of the criminal threat, since without this threat would be ineffective. Quoted in: en http://www.bahaid/lapluma/derecho/revista002/pena.htmream.com

[6] Link: http://www.diffen.com/difference/Civil_Law_vs_Criminal_Law

[7]Referred to politicians.


ABOUT THE AUTHOR

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ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.