Right to privacy

 

Right To Privacy-Permissible Restriction
Intrusion into privacy may be by- (1) Legislative Provision (2) Administrative/Executive order (3) Judicial Orders. Legislative intrusion must be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose the Court can go into proportionality of the intrusion vis-à-vis the purpose sought to be achieved. (2) So far as administrative or executive action is concerned it has to be reasonable having regard to the facts and circumstances of the case. (3) As to judicial warrants, the Court must have sufficient reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or seizure necessary for protection of the particular State interest. In addition, as stated earlier, common law did recognise rare exceptions for conduct of warrantless searches could be conducted but these had to be in good faith, intended to preserve evidence or intended to prevent sudden anger to person or property.

The Privacy Bill, 2011
The bill says, “every individual shall have a right to his privacy — confidentiality of communication made to, or, by him — including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication; confidentiality of his private or his family life; protection of his honour and good name; protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; confidentiality of his banking and financial transactions, medical and legal information and protection of data relating to individual.”

The bill gives protection from a citizen's identity theft, including criminal identity theft (posing as another person when apprehended for a crime), financial identify theft (using another's identity to obtain credit, goods and services), etc.

The bill prohibits interception of communications except in certain cases with approval of Secretary-level officer. It mandates destruction of interception of the material within two months of discontinuance of interception.

The bill provides for constitution of a Central Communication Interception Review Committee to examine and review the interception orders passed and is empowered to render a finding that such interception contravened Section 5 of the Indian Telegraphs Act and that the intercepted material should be destroyed forthwith. It also prohibits surveillance either by following a person or closed circuit television or other electronic or by any other mode, except in certain cases as per the specified procedure.

As per the bill, no person who has a place of business in India but has data using equipment located in India, shall collect or processor use or disclose any data relating to individual to any person without consent of such individual.

The bill mandates the establishment of a Data Protection Authority of India, whose function is to monitor development in data processing and computer technology; to examine law and to evaluate its effect on data protection and to give recommendations and to receive representations from members of the public on any matter generally affecting data protection.

The Authority can investigate any data security breach and issue orders to safeguard the security interests of affected individuals in the personal data that has or is likely to have been compromised by such breach.

The bill makes contravention of the provisions on interception an offence punishable with imprisonment for a term that may extend up to five years or with fine, which may extend to Rs. 1 lakh or with both for each such interception. Similarly, disclosure of such information is a punishable offence with imprisonment up to three years and a fine of up to Rs. 50,000, or both.

Further, it says any persons who obtain any record of information concerning an individual from any officer of the government or agency under false pretext shall be punishable with a fine of up to Rs. 5 Lacs.

Right To Privacy And Search And Seizure
The right of privacy on one hand and power of the State of search and seizure on the other hand has been the subject matter of judgments not only in India but also in other countries as well. The Supreme Court referred to American case laws under the Fourth Amendment to the US Constitution. The Court also referred to Universal Declaration of Human Rights, European Convention of Human Rights, other treaties and constitutional provisions and held that the State cannot have unbridled right of search and seizure. In particular, it pointed out that all public records could always be inspected but it will not be open to Collector under the impugned amended Section 73 of the Indian Stamp Act, 1899 to direct the production of records held with banks. These records are copies of private documents. The right to privacy is to protect the documents which are with the banks. Unless there is reasonable cause or material to believe that such documents may lead to a discovery of fraud such documents cannot be inspected. The Court struck down S. 73 giving uncontrolled power to Collector to authorize “any person” to take notes or extracts from such documents. Even the rules framed under the Act did not provide sufficient guidelines or safeguards as to how this power could be exercised. The Supreme Court referred to US judgments on this subject. It preferred to follow the minority view in Miller’s case and took the view that majority decision was incorrect. It also referred to various articles and comments which have taken the view that majority judgement was wrong the Court held that documents or copies thereof given to the bank will continue to remain confidential. The fact that they are given to bank voluntarily will not mean that they cease to be private records as mentioned above.

Tapping of Telephone
Telephone tapping constitutes a serious invasion of an individual’s right to privacy. Is it constitutionally permissible in India? If so, within what limits and subject to what safeguards?

The questions posed above have been fully considered by the Supreme Court in People’s Union for Civil Liberties v. Union of India. In this case Public Interest Litigation was filed protesting rampant instances of phone tapping of politician’s phones by CBI. The court ruled that ‘telephone conversation is an important facet of a man’s private life’. The right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. So, tapping of telephone is a serious invasion of privacy. This means that telephone tapping would infract Article 21 unless it is permitted under the procedure established by law. The procedure has to be “just, fair and reasonable”.

The Court laid down exhaustive guidelines to regulate the discretion vested in the State under Section 5 of the Indian Telegraph Act for the purpose of telephone tapping and interception of other messages so as to safeguard public interest against arbitrary and unlawful exercise of power by the Government. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the Act. “Occurrence of any public emergency” or in interest of public safety” are the sine qua non “for the application of provisions under section 5(2) of the Act unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said legislation. The Court said public emergency would mean the prevailing of sudden condition or state of affairs affecting the people at large calling for immediate action. The expression ‘public safety’ means the state or condition of grave danger or risk for the people at large. When either these two conditions are not in existence, the Court said, the Central Government or the State Government or the authorised officers cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interest of sovereignty and integrity of the country. In other orders, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of the country or the security of the State or friendly relations with foreign States or public order or for preventing for incitements to the commission of an offence it cannot intercept the message or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires.

The Court has laid down the following procedural safeguards for the exercise of power under Section 5(2) of the Indian Telegraph Act-
· An order for telephone tapping can be issued only by the Home Secretary of the Central Government or the State Governments. In an urgent case, the power may be delegated to an officer of the Home Department of the Central and the State Governments not below the rank of Joint Secretary.

· The copy of the order shall be sent to the Review Committee within one week of the passing of order.

· The order shall, unless renewed, cease to have effect at the end of two months from the date of issue. The authority making the order may review before that period if it considered that it is necessary to continue the order in terms of Section 5(2) of the Act.

· The authority issuing the order shall maintain the record of intercepted communications, the extent the material to be disclosed, number of persons, their identity to whom the material is disclosed.

· The use of intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) the Act.

· The Review Committee shall on its own, within two months, investigate whether there is or has been a relevant order under section 5(2) of the Act.

· If on investigation the Review Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, shall set aside the order. It can also direct the destruction the copies of the intercepted material.

· If on investigation the Review Committee comes to the conclusion that there has been no contravention of the relevant provision of the Act, it shall record the finding to that effect.

The Court noted that with the growth of highly sophisticated communication technology the right to hold telephone conversation in the privacy of one’s home or office without interference is increasingly susceptible to abuse. In view of this, the Court’s ruling laying down detailed guidelines for the exercise of power under the relevant Act is timely and of historic importance.

Divorce Petition: Husband Tapping Conversation Of His Wife With Others Seekingto Produce In Court, Violates Her Right To Privacy Under Article 21
In Rayala M. Bhuvneswari v. Nagaphomender Rayala the petitioner filed a divorce petition in the Court against his wife and to substantiate his case sought to produce a hard disc relating to the conversation of his wife recorded in U.S. with others. She denied some portions of the conversation. The Court held that the act of tapping by the husband of conversation of his wife with others without her knowledge was illegal and amounted to infringement of her right to privacy under article 21 of the Constitution. These talks even if true cannot be admissible in evidence. The wife cannot be forced to undergo voice test and then asked the expert to compare portion denied by her with her admitted voice. The Court observed that the purity of the relation between husband and wife is the basis of marriage. The husband was recording her conversation on telephone with her friends and parents in India without her knowledge. This is clear infringement of right to privacy of the wife. If husband is of such a nature and has no faith in his wife even about her conversations to her parents, then the institution of marriage itself becomes redundant.

Prisoner’s Privacy Rights
The protection of Article 21 is available even to convicts in jail. The convicts are not by mere reason of their conviction deprived of all their fundamental rights which they otherwise possess. Following the conviction of a convict is put into a jail he may be deprived of fundamental freedoms like the right to move freely throughout the territory of India. But a convict is entitled to the precious right guaranteed under Article 21 and he shall not be deprived of his life and personal liberty except by a procedure established by law.

The question of the right to be let alone again came on the front in the case of R. Rajagopal vs. State of T.N also known popularly as the Auto Shankar Case. A prisoner had written his autobiography in jail describing the conditions there and the nexus between prisoners and several IAS and IPS officers. He had given the autobiography to his wife so that she may publish it in a particular magazine. However, the publication was restrained in various matters and the question arose whether anyone has the right to be let alone and particularly in jail.

In R. Rajagopal vs. State of T.N.,(1994) Right to Privacy held to be implicit in Article 21. “It is the right to be left alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among many other matters. In this case right of a prisoner to privacy recognised.

Conflict Between: Right To Information
&
Right To Privacy

In India the Constitution does not expressly recognise the right to privacy. But after the case of Kharak Singh v. State of U.P the Supreme Court for the first time recognised the right to privacy which is implicit in the Constitution under Article 21. The Court held that the right to privacy is an integral part of the right to life, but without any clear cut laws, it still remains in the gray area. The view was based on the conclusion that the infringement of a fundamental right must be both direct as well as tangible that the freedom guaranteed u/a 19(1)(a)- a right to freedom of speech and expression was not infringed upon by a watch being kept over the movement of the suspect.

In R. Rajagopal v. State of T.N., the apex Court held that the right to privacy is a ‘right to let alone’. No one can publish anything concerning the above matters without his consent, whether truthful or otherwise whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in the action of damages.

In Mr. X v. Hospital Z, it was held that where there is a clash of two fundamental rights, as in the instant case, namely, the appellant’s right to privacy as a part of right to life and other person’s right to lead a healthy life which is her fundamental right u/a 21, the right which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral consideration cannot be kept at bay and judges are not expected to sit as mute structures of clay as in Hail, known as Courtroom but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”.

Voicing concern over vexatious use of RTI Act, Prime Minister Manmohan Singh said the citizens’ to know should definitely be circumscribed if it encroaches on an individual’s privacy. He said “there is a fine balance required to be maintained between right to information and the right to privacy, which stems out of the fundamental right of life and liberty. The citizen’s right to know should definitely be circumscribed if disclosure of information encroaches upon someone’s personal privacy. But where to draw a line is a complicated question.”

Recently in one of the most controversial case Ratan Tata went to Supreme Court against the publication of intercepts of his conversation with Neera Radia who handles the corporate communication for the group. Tata holds that as Radia’s phones were tapped by government agencies especially for investigating a possible offence the recorded conversations should have been used for that purpose alone. Ratan Tata has submitted his petition before Supreme Court asking to protect his right to privacy. But given that freedom of information laws have at their core the purpose of disclosure, exemptions are strictly construed, and it has been said that the public right to know should prevail unless disclosure would publicise intimate details of a highly personal nature. The Radia tapes so far published public issues, but not personal life of Tata. These conversations would be available to every citizen under the RTI Act because the only objection that one could raise would be on the ground of 8(j) of RTI Act which says-information which relates to personal information, the disclosure of which has no relationship to any public activity on interest. It also says “or which would cause unwarranted invasion of the privacy of the individual unless the public authority is satisfied, unless the information officer is satisfied that the larger public interest justifies the disclosure of such an information.”

In that case a preliminary question that should be asked is whether Tata’s conversations would be revealed through an RTI, or whether his conversations would fall under the exemption of personal information found in section 8(j). It is interesting to note the structure of this exemption. By the use of word “or” the legislation suggests that unwarranted invasion of individual privacy may trigger the exemption, even if the information has a relationship to public activity or interest. But the added caveat says that the larger public interest could justify the release of even purely private information.

By the use of the word “or” the legislation suggests that unwarranted invasion of individual privacy may trigger the exemption, even if the information has a relationship to public activity or interest. But the added caveat says that the larger public interest could justify the release of even purely private information. In addition, what constitutes “personal” information has not been defined in the legislation.

However, according to expert legal opinion, the Supreme Court of India is well within its rights to allow disclosure of conversation details between Ratan Tata and Nira Radia.

Later Developments In Right To Privacy
Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into any sphere of activity. The conferment of such a right has become extremely difficult with the advancement of technology and the social networking sites. But the other side of the picture is that right to privacy of a person includes the right to seclude personal information. The extent to which the realm of privacy of each person should remain is subjective, which might differ from person to person. The recognition of right to privacy can also be seen in the S. 43 of Information Technology Act which makes unauthorised access into a computer resource invoke liability.

Today, each person is a press, taking in view the emergence of blog spots and social networking sites. Many a times, the right to privacy may come in conflict with the right to press the right to press is a right derived from Article 19 (1) (a) in particular. The right to expression of a person may come in conflict with the right to privacy of another person. The question, where there is a conflict, which should prevail over the other, is well explained by bringing in the concept of ‘public interest’ and ‘public morality’. The publication of personal information of an individual without his consent or approval is justified if such information forms part of public records including Court records. Each case is distinct and each right is special.

Any right derived from Article 19 can be derived from Article 21 too, under the wide interpretation of ‘personal liberty’. Though the Court generally applies the test of ‘public interest’ or ‘public morality’ in case of conflict between two derived rights, another interpretation is also possible. A right derived under Article 21 is superior to a right derived under Article 19, since the state enacting law in contravention of such right can be saved under the reasonable restrictions under 19(2) to (5). The position was different in the Pre-Maneka era, when Article 21 was not a source of substantive right.

The right to privacy may come in conflict with the investigation of police in several aspects. Narco-analysis, polygraph test and brain mapping tests, in application, make unwarranted intrusion into the right to privacy of a person. The Supreme Court was acknowledging the individual right to privacy by declaring these tests inhuman and unconstitutional. The Supreme Court in