After RTI - its Right to Privacy

The Right to Privacy is the next wave after the Right to Information Act. The right to privacy will affect the IT Act, e-governance initiatives, it may also have consequence on the various policies and PPP initiatives in e-Governance. This paper discusses privacy laws as they exist in their current form in India

1.Privacy as a concept is still evolving in India and it will take many years for the Indian state to come forward with a Privacy Regulation that protects the privacy of the citizens. However even though the Parliamentarians are silent on same, the Hon'ble Supreme Court has come forward to recognize the said right of citizen. Accordingly it was felt that the right to privacy was implicit in the right to life and liberty guaranteed to a citizen under Article 21 of the Constitution. Article 21 states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

2.India is a signatory to the International Covenant on Civil and Political Rights, 1966 . The Article 17 of the said covenant states that, “ No one shall be subject to arbitrary unlawful interference with his privacy family, human or correspondence, nor to lawful attacks on his honour and reputation. Every one has the right to the protection of the law against such interference or attacks."

3.Article 12 of the Universal Declaration of Human Rights, 1948 states that “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. “

4.The right to personal privacy is also protected through the application of tort and/or criminal law, e.g. malicious falsehood, trespass, nuisance. The tort of defamation operates to protect the right of a person to his reputation (in which case defences of truth and privilege could be argued).

5.Privacy in case of patients is reflected in the Code of Ethics Regulations, 2002 issued by MEDICAL COUNCIL OF INDIA which lays down section 2.2 and 6.6 which state that : 2.2 Patience, Delicacy and Secrecy : Patience and delicacy should characterize the physician. Confidences concerning individual or domestic life entrusted by patients to a physician and defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the laws of the State. Sometimes, however, a physician must determine whether his duty to society requires him to employ knowledge, obtained through confidence as a physician, to protect a healthy person against a communicable disease to which he is about to be exposed. In such instance, the physician should act as he would wish another to act toward one of his own family in like circumstances. Similarly section 6.6. which talks about Human Rights:states that the physician shall not aid or abet torture nor shall he be a party to either infliction of mental or physical trauma or concealment of torture inflicted by some other person or agency in clear violation of human rights.

6.Even in case of Press the norms of Journalist conduct have various section. The section 13 states that The Press shall not intrude or invade the privacy of an individual unless outweighed by genuine overriding public interest, not being a prurient or morbid curiosity. The section 16 states that The Press shall not tape-record anyone's conversation without that person's knowledge or consent, except where the recording is necessary to protect the journalist in a legal action, or for other compelling good reason. The section 17 states the Intrusion through photography into moments of personal grief shall be avoided. Further the conduct rule also states that Every mass medium must observe the terms of the final document of the international consultation of AIDS and human rights, and promptly report the violation of such rights protecting the basic human rights to life and liberty, privacy and freedom of movement.

7.The section 2 of the Protection of Human Rights Act, 1993 also gives a wide meaning to the "human rights" which means the rights relating to life, liberty, equality and dignity of the individual guaranteed under the Constitution or embodied in the International Covenants and enforceable by courts in India. "International Covenants" means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 1966 . And thus the Right to Privacy as defined above is also available as part of the protection of human rights if the interference in privacy is leading to violation of Human Rights

8.The principles of Privacy are also observed in Lawyer- Client relationship. The Indian Evidence Act provides that no advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as an advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted or to disclose any advice given by him to his client in the course and for the purpose of such employment.

9.Even the Right to Information Act also puts reasonable restriction in case of third party information. The Act states that where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:

10.Apart from above there are multiple Supreme Court Judgements which uphold the Right to Privacy of Citizens.
a. In R Rajgopal v State of Tamil Nadu (the Auto Shanker case), the Supreme Court held that every citizen has the right to safeguard his or her privacy and that nothing could be published on areas such as the family, marriage and education, ‘whether truthful or otherwise’, without the person’s consent. In this case, two aspects of privacy were recognized by the Court – (a) the tortuous law of privacy that affords an action for damages resulting from an unlawful invasion of privacy, and (b) the constitutional ‘right to be let alone’.

b. The right to privacy was also recognized as specially originating out of certain specific relationships like doctor-patient, husband-wife etc. In Mr. X v Hospital Z, the Supreme Court held that the disclosure of even true private facts had the tendency to disturb a person’s tranquility, generate complexes in him and even lead to psychological problems and therefore, the right to privacy was an essential component of the right to life as envisaged by Article 21 of the Constitution.

c.In Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court explained that a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of
judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated”. In essence the court disapproved the trial by media which infringes the privacy of citizens. The Right to a fair trial is absolute right of every individual within the territorial limits of India vide articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is more important as it is an absolute right which flows from Article 21 of the constitution to be read with Article 14. Freedom of speech and expression incorporated under Article 19 (1)(a) has been put under ‘reasonable restriction’ subject to Article 19 (2) and Section 2 (c) of the Contempt of Court Act. One’s life with dignity is always given a priority in comparison to one’s right to freedom of speech and expression.

d. In Gobind v. State of M.P. the Supreme Court laid down that “ privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test”

e. In State v. Charulata Joshi the Supreme Court held that “the constitutional right to freedom of speech and expression conferred by Article 19(1)(a) of the Constitution which includes the freedom of the press is not an absolute right. The press must first obtain the willingness of the person sought to be interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness”.

f. In Maneka Gandhi vs. Union of India case the court has observed that "procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to the substantive right itself. Thus, understood, "procedure" must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes."

g.In People’s Union for Civil Liberties (PUCL) v. Union of India, the Supreme Court held that the telephone tapping by Government under S. 5(2) of Telegraph Act, 1885 amounts infraction of Article 21 of the Constitution of India. Right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. The said right cannot be curtailed “except according to procedure established by law”. It was observed that conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law."

h. In District Registrar and Collector v. Canara Bank, it was held, that “exclusion of illegitimate intrusions into privacy depends on the nature of the right being asserted and the way in which it is brought into play; it is at this point that the context becomes crucial, to inform substantive judgment. If these factors are relevant for defining the right to privacy, they are quite relevant whenever there is invasion of that right by way of searches and seizures at the instance of the State.” If one follows the judgments given by the Hon’ble Supreme Court, three themes emerge: - (1) that the individual’s right to privacy exists and any unlawful invasion of privacy would make the ‘offender’ liable for the consequences in accordance with law; (2) that there is constitutional recognition given to the right of privacy which protects personal privacy against unlawful governmental invasion; (3) that the person’s “right to be let alone” is not an absolute right and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others;

i. In Smt. Prabha Dutt Vs. Union of India (UOI) and Ors. it was observed that constitutional right to freedom of speech and expression conferred by Article 19(l)(a) of the Constitution, which includes the freedom of the Press, is not an absolute right, nor indeed does it confer any right on the Press to have an unrestricted access to means of information. The Press is entitled to exercise its freedom of speech and expression by publishing a matter which does not invade the rights of other citizens and which does not violate the sovereignty and integrity of India, the security of the State, public order, decency and morality.

j. In Kaleidoscope (India) (P) Ltd. v. Phoolan Devi, the trial Judge restrained the exhibition of the controversial film Bandit Queen both in India and abroad. The trial court reached a prima facie view that the film infringed the right to privacy of Phoolan Devi, notwithstanding that she had assigned her copyright in her writings to the film producers. This was upheld by the Division Bench. The Court observed that even assuming that Phoolan Devi was a public figure whose private life was exposed to the media; the question was to what extent private matters relating to rape or the alleged murders committed by her could be commercially exploited, and not just as news items or matters of public interest. Thus, justice was rendered by preventing by intrusion of privacy into the life of the one and only Bandit Queen.