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Right to privacy

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a right against other individuals

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Right to privacy

  1. 1. THE RIGHT OFTHE RIGHT OF PRIVACYPRIVACY Another human need…….Another human need…….
  2. 2. INTRODUCTIONINTRODUCTION Intrusion 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 explicitlyThough it is true that the Indian Constitution does not explicitly guarantee this right as a fundamental right certainly the right to privacyguarantee 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 offrom 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.
  3. 3. What is right to privacy?What is right to privacy?  The right to privacy is implicit in the right to life and liberty guaranteed to the citizensThe 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". A citizen has a right toof 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, marriage, procreation, motherhood, child-safeguard the privacy of his own, his family, marriage, procreation, motherhood, child- bearing and education among other matters. None can publish anything concerningbearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whetherthe above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of thelaudatory 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 damages. Position may,person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy orhowever, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.voluntarily invites or raises a controversy.  The rule aforesaid is subject to the exception, that any publication concerning theThe rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon publicaforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes arecords including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes amatter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, oflegitimate subject 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 be carvedthe 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 assault, kidnapping,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 subjected to the indignity of herabduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in the press/medianame and the incident being publicised in the press/media
  4. 4. •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.
  5. 5. Definition of Right to privacyDefinition of Right to privacy The Hindu article appears to quote directly from the Bill. Every individual shallThe Hindu article appears to quote directly from the Bill. Every individual shall have a righthave a right to his privacy — confidentiality of communication made to, or, by him —to his privacy — confidentiality of communication made to, or, by him — including hisincluding his personal correspondence, telephone conversations, telegraph messages, postal,personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication; confidentiality of his privateelectronic mail and other modes of communication; confidentiality of his private or hisor his family life; protection of his honour and good name; protection from search,family life; protection of his honour and good name; protection from search, detention ordetention or exposure of lawful communication between and among individuals; privacyexposure of lawful communication between and among individuals; privacy fromfrom surveillance; confidentiality of his banking and financial transactions, medical andsurveillance; confidentiality of his banking and financial transactions, medical and legallegal information and protection of data relating to individual.information and protection of data relating to individual.
  6. 6. CASE LAWSCASE LAWS  It 1963 in the case ofIt 1963 in the case of Kharak SinghKharak Singh v.v. State of U.P.State of U.P. the Supreme Court had the occasion tothe Supreme Court had the occasion to consider the ambit and scope of this right when the power of surveillance conferred on the policeconsider the ambit and scope of this right when the power of surveillance conferred on the police by the provisions of the U.P. Police Regulations came to be challenged as being violative ofby the provisions of the U.P. Police Regulations came to be challenged as being violative of Articles 19(1)(Articles 19(1)(dd) and Article 21 of the Constitution. The Court repelled the argument of) and Article 21 of the Constitution. The Court repelled the argument of infringement of freedom guaranteed under Article 19(1)(infringement of freedom guaranteed under Article 19(1)(dd) of the Constitution, and the attempt to) of the Constitution, and the attempt to ascertain the movements of an individual was held not to be an infringement of any fundamentalascertain the movements of an individual was held not to be an infringement of any fundamental right. The minority judgment, however, emphasized the need for recognition of such a right as itright. The minority judgment, however, emphasized the need for recognition of such a right as it was an essential ingredient of personal liberty.was an essential ingredient of personal liberty.  Near about a decade later the Supreme Court seems to have realised the need for recognising theNear about a decade later the Supreme Court seems to have realised the need for recognising the right to privacy inright to privacy in GovindGovind v.v. State of M.P.State of M.P. wherein Mathew, J. as Lord Denning indicated envisagedwherein Mathew, J. as Lord Denning indicated envisaged its gradual development thus:its gradual development thus: "The right to privacy in any event will necessarily have to go through a process of a case-by-case"The right to privacy in any event will necessarily have to go through a process of a case-by-case developmentdevelopment
  7. 7. • 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.
  8. 8. The new Right to Privacy Bill, 2011The new Right to Privacy Bill, 2011 The following is based on the articles prepared by three newspapers- The Times Of India, TheThe following is based on the articles prepared by three newspapers- The Times Of India, The Deccan Chronicle and The Hindu:-Deccan Chronicle and The Hindu:-  The bill prohibits interception of communications except in certain cases with approval ofThe bill prohibits interception of communications except in certain cases with approval of Secretary-level officer – not below the rank of home secretary at the Central level and homeSecretary-level officer – not below the rank of home secretary at the Central level and home secretaries in state governmentssecretaries in state governments  Mandatory destruction of intercepted material by the service provider within two months ofMandatory destruction of intercepted material by the service provider within two months of discontinuance of interception.discontinuance of interception.  Constitution of a Central Communication Interception Review Committee (CCIRC) to examineConstitution of a Central Communication Interception Review Committee (CCIRC) to examine and review all interception orders passed (under all Acts?).and review all interception orders passed (under all Acts?).  CCIRC empowered to order destruction of material intercepted under the Telgraph Act.CCIRC empowered to order destruction of material intercepted under the Telgraph Act.  "unauthorised interception" (by whom?) punishable with a maximum of five years’ imprisonment,"unauthorised interception" (by whom?) punishable with a maximum of five years’ imprisonment, or a fine of Rs 1 lakh, or both, for each such interception. This makes it a cognizable, non-bailableor a fine of Rs 1 lakh, or both, for each such interception. This makes it a cognizable, non-bailable offense.offense.  Disclosure of legally intercepted communication by “government officials, employees of serviceDisclosure of legally intercepted communication by “government officials, employees of service providers and other persons” will be punishable with imprisonment up to three years. (It isproviders and other persons” will be punishable with imprisonment up to three years. (It is unclear whether this will be a cognizable offence or not).unclear whether this will be a cognizable offence or not).
  9. 9. Data Protection The 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 body to 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.
  10. 10. Video Surveillance The 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 Privacy The 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 Fraud In 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.
  11. 11. Presented by:- Navya Airachia Roopanshi Virang Anirudh Pratap Singh Shraddha Chauhan

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