THE RIGHT OF THE RIGHT OF PRIVACYPRIVACY

Another human need…….Another human need…….

INTRODUCTIONINTRODUCTIONIntrusion upon privacy is gradually becoming the order of the day. It hasIntrusion upon privacy is gradually becoming the order of the day. It has therefore become a matter of great concern. Human urge is to keeptherefore become a matter of great concern. Human urge is to keep things, which are private, away from the public gaze. There is a right tothings, which are private, away from the public gaze. There is a right to live, but is there a right to privacy? If there is, what is the scope andlive, but is there a right to privacy? If there is, what is the scope and parameters of this right? What do we do about it in case there isparameters of this right? What do we do about it in case there is breach thereof? breach thereof? Though it is true that the Indian Constitution does not explicitly Though it is true that the Indian Constitution does not explicitly guarantee this right as a fundamental right certainly the right to privacy guarantee this right as a fundamental right certainly the right to privacy or, the right to be left alone, should be accepted as an individual right.or, the right to be left alone, should be accepted as an individual right. The courts' treatment of this right is a matter of paramount importanceThe courts' treatment of this right is a matter of paramount importance because of growing invasions of this right in areas that remained awaybecause of growing invasions of this right in areas that remained away from the purview of courts. It also assumes importance because of from the purview of courts. It also assumes importance because of frequent violation of this right by the State on grounds which are notfrequent violation of this right by the State on grounds which are not bona fide. bona fide.

What is right to privacy?What is right to privacy? The right to privacy is implicit in the right to life and liberty guaranteed The right to privacy is implicit in the right to life and liberty guaranteed

to the citizens of this country by Article 21. It is a "right to be left alone". to the citizens of this country by Article 21. It is a "right to be left alone". A citizen has a right to safeguard the privacy of his own, his family, A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a thrusts himself into controversy or voluntarily invites or raises a controversy. controversy.

The rule aforesaid is subject to the exception, that any publication The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the for comment by press and media among others. We are, however, of the opinion that in the interests of decency Article 19(2) an exception must opinion that in the interests of decency Article 19(2) an exception must be carved out to this rule, viz., a female who is the victim of a sexual be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnapping, abduction or a like offence should not further be assault, kidnapping, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised subjected to the indignity of her name and the incident being publicised in the press/mediain the press/media

•There is yet another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and the Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

• So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

• Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.

• There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.

Definition of Right to Definition of Right to privacyprivacy

The Hindu article appears to quote directly from the Bill. Every The Hindu article appears to quote directly from the Bill. Every individual shall have a rightindividual shall have a right

to his privacy — confidentiality of communication made to, or, to his privacy — confidentiality of communication made to, or, by him — including his by him — including his

personal correspondence, telephone conversations, telegraph personal correspondence, telephone conversations, telegraph messages, postal, messages, postal,

electronic mail and other modes of communication; electronic mail and other modes of communication; confidentiality of his private or his confidentiality of his private or his

family life; protection of his honour and good name; protection family life; protection of his honour and good name; protection from search, detention orfrom search, detention or

exposure of lawful communication between and among exposure of lawful communication between and among individuals; privacy fromindividuals; privacy from

surveillance; confidentiality of his banking and financial surveillance; confidentiality of his banking and financial transactions, medical and legaltransactions, medical and legal

information and protection of data relating to individual.information and protection of data relating to individual.

CASE LAWSCASE LAWS It 1963 in the case of It 1963 in the case of Kharak SinghKharak Singh v. v. State of U.P.State of U.P. the Supreme Court the Supreme Court

had the occasion to consider the ambit and scope of this right when the had the occasion to consider the ambit and scope of this right when the power of surveillance conferred on the police by the provisions of the U.P. power of surveillance conferred on the police by the provisions of the U.P. Police Regulations came to be challenged as being violative of Articles Police Regulations came to be challenged as being violative of Articles 19(1)(19(1)(dd) and Article 21 of the Constitution. The Court repelled the ) and Article 21 of the Constitution. The Court repelled the argument of infringement of freedom guaranteed under Article 19(1)(argument of infringement of freedom guaranteed under Article 19(1)(dd) of ) of the Constitution, and the attempt to ascertain the movements of an the Constitution, and the attempt to ascertain the movements of an individual was held not to be an infringement of any fundamental right. individual was held not to be an infringement of any fundamental right. The minority judgment, however, emphasized the need for recognition of The minority judgment, however, emphasized the need for recognition of such a right as it was an essential ingredient of personal liberty. such a right as it was an essential ingredient of personal liberty.

Near about a decade later the Supreme Court seems to have realised the Near about a decade later the Supreme Court seems to have realised the need for recognising the right to privacy in need for recognising the right to privacy in GovindGovind v. v. State of M.P.State of M.P. wherein Mathew, J. as Lord Denning indicated envisaged its gradual wherein Mathew, J. as Lord Denning indicated envisaged its gradual development thus: development thus:

"The right to privacy in any event will necessarily have to go through a "The right to privacy in any event will necessarily have to go through a process of a case-by-case developmentprocess of a case-by-case development

• R. Rajagopal v. State of T.N. during 1994.

In this case the right of privacy of a condemned prisoner was in issue. One Auto Shankar, a condemned prisoner, wrote his autobiography while confined in jail and handed it over to his wife for being delivered to an advocate to ensure its publication in a certain magazine edited, printed and published by the petitioner. This autobiography allegedly set out close nexus between the prisoner and several officers including those belonging to IAS and IPS some of whom were indeed his partners in several crimes. The publication of this autobiography was restrained in more than one manner. It was on these facts that the petitioner challenged the restrictions imposed on the publication before the Supreme Court.

The new Right to Privacy The new Right to Privacy Bill, 2011Bill, 2011

The following is based on the articles prepared by three newspapers- The The following is based on the articles prepared by three newspapers- The Times Of India, The Deccan Chronicle and The Hindu:- Times Of India, The Deccan Chronicle and The Hindu:-

The bill prohibits interception of communications except in certain cases The bill prohibits interception of communications except in certain cases with approval of Secretary-level officer – not below the rank of home with approval of Secretary-level officer – not below the rank of home secretary at the Central level and home secretaries in state governments secretary at the Central level and home secretaries in state governments

Mandatory destruction of intercepted material by the service provider Mandatory destruction of intercepted material by the service provider within two months of discontinuance of interception. within two months of discontinuance of interception.

Constitution of a Central Communication Interception Review Committee Constitution of a Central Communication Interception Review Committee (CCIRC) to examine and review all interception orders passed (under all (CCIRC) to examine and review all interception orders passed (under all Acts?). Acts?).

CCIRC empowered to order destruction of material intercepted under the CCIRC empowered to order destruction of material intercepted under the Telgraph Act. Telgraph Act.

"unauthorised interception" (by whom?) punishable with a maximum of "unauthorised interception" (by whom?) punishable with a maximum of five years’ imprisonment, or a fine of Rs 1 lakh, or both, for each such five years’ imprisonment, or a fine of Rs 1 lakh, or both, for each such interception. This makes it a cognizable, non-bailable offense. interception. This makes it a cognizable, non-bailable offense.

Disclosure of legally intercepted communication by “government officials, Disclosure of legally intercepted communication by “government officials, employees of service providers and other persons” will be punishable with employees of service providers and other persons” will be punishable with imprisonment up to three years. (It is unclear whether this will be a imprisonment up to three years. (It is unclear whether this will be a cognizable offence or not).cognizable offence or not).

Data ProtectionThe Bill adds muscle to the newly introduced Data Protection Rules under the IT Act, by creating an overarching statutory regime for Data Protection.Thus, the bill forbids "any person having a place of business in India but has data using equipment located in India" from collecting or processing, using or disclosing "any data relating to individual to any person without consent of such individual". I assume that there will be exceptions to this section. The wording of this section seems to preclude its application to the government (unless you can interpret the ‘government’ to mean ‘a person having a place of business in India’. I have no views on the likelihood of that argument.The bill evidently authorizes the establishment of an oversight body called “Data Protection Authority of India” that will investigate complaints about alleged violations of data protection. The following appear to be the functions of this bodyto monitor development in data processing and computer technology; to examine law and to evaluate its effect on data protection to give recommendations and to receive representations from members of the public on any matter generally affecting data protection. to investigate any data security breach and issue orders to safeguard the security interests of affected individuals whose personal data  has or is likely to have been compromised by such breach.

Video SurveillanceThe bill includes a very interesting prohibition on "closed circuit television or other electronic or by any other mode", except in certain cases as per the specified procedure.No further details are provided about the exceptions or the procedure and one expects the devil to be in the details.

Bodily PrivacyThe bill prohibits "surveillance by following a person".This innocuously worded provision has the potential to effect sweeping changes in the criminal administration of this country (if it is even applicable to the state police machinery) . Currently, Police Acts in the various states contain no provisions that enable a person to challenge the surveillance imposed on them. This new section could provide a powerful new shield to the victims of police harassment.

Impersonation and Financial FraudIn a section apparently dealing with identity theft, the Bill criminalises inter alia "posing as another person when apprehended for a crime" and "using another’s identity to obtain credit, goods and services".I think the first (at least) is unnecessary since it is already covered by the crime of Impersonation under the IPC.

Presented by:-Navya Airachia

Roopanshi Virang

Anirudh Pratap Singh

Shraddha Chauhan