The Right To Privacy – In the Age Of Today

INTRODUCTION

Privacy is the ability of an individual or group to seclude information about themselves and thereby reveal themselves selectively. The boundaries and content of what is considered private differs between cultures and individuals, but shares basic common themes. Privacy is sometimes related to anonymity, the wish to remain unnoticed in the public realm. When something is private to a person, it usually means there is something within them that is considered inherently special or personally sensitive. The degree to which private information is exposed therefore depends on how the public will receive this information, which differs between places and over time.

And in the age of today, right to privacy is the most carefully guarded rights, where vast amounts of personal information is provided, used, traded and even stolen. And thus law of privacy recognitions the individual’s right to be let alone and to have his personal space inviolate. The need for privacy and its recognition as a right is a modern phenomenon. It is the product of an increasingly individualistic society in which the focus has shifted from society to the individual. In early times, the law afforded protection only against physical interference with a person or his property. As civilization progressed, the personal, intellectual and spiritual facets of the human personality gained recognition and the scope of the law expanded to give protection to these needs.

People often think of privacy as some kind of right. But unfortunately, the concept of a ‘right’ is a convoluted way to start analyzing the idea of privacy, because a right is usually equated with a kind of absolute standard. It would be more useful to think about privacy as a facet of an individual’s personality that one would want to harbor exclusively for themselves.

Meaning of Privacy

The term “privacy” has been described as “the rightful claim of the individual to determine the extent to which he wishes to share of himself with others and his control over the time, place and circumstances to communicate with others. It means his right to withdraw or to participate as he sees fit. It also means the individual’s right to control dissemination of information about himself; it is his own personal possession” Another author defines privacy as a ” ‘zero relationship’ between two or more persons in the sense that there is no interaction or communication between them if they so choose” The concept is used to describe not only rights purely in the private domain between individuals but also constitutional rights against the State. The former deals with the extent to which a private citizen (which includes the media and the general public) is entitled to personal information about another individual. The latter is about the extent to which government authorities can intrude into the life of the private citizen to keep a watch over his movements through devices such as telephone-tapping or surveillance.

Drilling down to a deeper level, privacy turns out not to be a single interest, but rather has several dimensions:

o Privacy of the person

Sometimes referred to as ‘bodily privacy’ this is concerned with the integrity of the individual’s body. Issues include compulsory immunization, blood transfusion without consent, and compulsory provision of samples of body fluids and body tissue, and compulsory sterilisation.

o Privacy of personal behaviour

This relates to all aspects of behavior, but especially to sensitive matters, such as sexual preferences and habits, political activities and religious practices, both in private and in public places. It includes what is sometimes referred to as ‘media privacy.

o Privacy of personal communications

Individuals claim an interest in being able to communicate among themselves, using various media, without routine monitoring of their communications by other persons or organizations. This includes what is sometimes referred to as ‘interception privacy'; and

Privacy of personal data

Individuals claim that data about themselves should not be automatically available to other individuals and organizations, and that, even where data is possessed by another party, the individual must be able to exercise a substantial degree of control over that data and its use. This is sometimes referred to as ‘data privacy’ and ‘information privacy’. Merged and can only be ignored at ones own peril.

Reasons for not maintaining privacy

It has been reasoned that privacy discourages information sharing between individuals which in turn can lead to mistrust and intolerance amongst people and perpetuate false information. If information can be shared widely, then facts can generally be verified through many different sources and there are less chances of inaccuracies. It has also been reasoned that privacy can perpetuate stigma and intolerance. The reasoning behind this is that restrictions on information about people can inhibit and discourage collection and finding of data that is required for an accurate analysis and discussion on the causes and root of the stigma and intolerance. Philosophers often ask how people can learn to accept each other if they cannot know about each other.

Issues have also been raised that privacy can encourage criminal activity as it makes it easier for criminals to hide their unlawful activities.

More pragmatically, privacy sometimes is not maintained because there is a benefit provided by disclosure. For example, a potential employer is given a résumé/CV in order to evaluate someone’s appropriateness for employment. Or, contact information, e-mail addresses most often, are provided in exchange for access to some useful information, like a “white paper”

Nature of Right to privacy

Any discourse on privacy right is meaningless unless we are aware about the nature of the privacy right. It is generally misunderstood that the right U/A 21 is not available against private persons. This is based on the premises that the protection of Fundamental Rights is available only against the “might of the State” and not against private individuals.
This is, however, not the correct proposition as the Constitution of India itself contains provisions like Articles 17, 23 etc which can be invoked against private persons. It must be noted that the human beings cannot exist without their existence being recognized and accepted. That is why we all possess certain basic “Human Rights”, “Fundamental Rights” and “Constitutional Rights”. These rights safeguard, if not absolutely than partially, the interests that are natural with the existence of human beings. If these rights are violated, that violates and interferes with the very right to exist of the human beings. Thus, these rights have been given paramount importance and are recognized as sacrosanct and inviolable. These rights are safeguarding the interest of public at large; hence they deserve to be interpreted liberally and purposefully in favour of the right holders. The court in interpreting the Constitution enjoys a freedom, which is not available in interpreting a statute.

International Status of Right to privacy

The Concept of Right to Privacy was first time recognized in United States around 1890’s where the legal experts felt a need to conserve “individual privacy”. Later this right occupied a significant place in international document as it became a part of Universal Declaration for Human Rights in 1948. Privacy is thus now fundamental human right which is recognized by the UN Declaration of Human Rights, the International Covenant on Civil and Political Rights and in many other international and regional treaties. Privacy underpins human dignity and other key values such as freedom of association and freedom of speech. It has become one of the most important human rights issues of the modern age.

Right to privacy is under Article 12 of Universal Declaration states:

“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”.

Apart from Universal Declaration Right to privacy is contained in Article 17(1) of the International Covenant on Civil and Political Rights (1966) (I.C.C.P.R) . According Article 17(1): “No one shall be subjected to arbitrary unlawful interference with the family, home or correspondence, or to unlawful attacks on his honor and reputation.”
Further Article 17(2) further provides that every one as the right to protection against such interference of attacks.

The law of privacy in India

Privacy under Constitutional law

The Constitution of 1950 does not expressly recognize the right to privacy, but India has given its ratification to both of the covenants on Human Right (i) International Covenant on Civil and Political Rights (1966):and (ii) International Covenant on Economic ,Social, and Cultural Rights(1966); on March 27 ,1979. Thus internationally India has given its consent to be bound by the provisions of the said two International Treaties. Though the concept of Right to privacy was first time recognized by the Supreme Court in 1964, In Kharak Singh v State of U.P , where it was held that there is a right of privacy implicit in the Constitution under Article 21 of the Constitution, which states, “No person shall be deprived of his life or personal liberty except according to procedure established by law. But yet India has not incorporated them into its municipal law. A pertinent question therefore, arises if all or how far the provisions of the said two International Covenants are applicable in India. And answer to this question depends on the relevant provisions of the India Constitution and the interpretation of the Supreme Court thereof.

But since the Constitution is organic and living in nature. And that the interpretation of the Constitution of India or statutes changes from time to time. Thus for this reason with passage of time, law has changed. And new rights have found out within the constitutional scheme. Hence with this in recent times, however, this right has acquired a constitutional status. Part III of the Constitution of the India which confers upon the individual basic human rights called the Fundamental Rights. This right conferred upon the individual under Part III , of the Constitution are called ‘Fundamental Rights’ because they are not being secured by the ordinary law but the Constitution which is supreme law of the land. Since they are secured by the Constitution they cannot be changed or modified by the ordinary process of legislation. They can be changed or modified amendments.

Right to privacy is though not enumerated as fundamental right in part III of the Indian Constitution, the Supreme Court has held it to be included in Article 21,since right to life and personal liberty enshrined in Article 21 of Constitution is considered to be widest amplitude and several unremunerated rights fall within the ambit of Article 21.

Therefore, it would not be correct to contend that the above mentioned right have not been incorporated in Indian Constitution in recent times.

Case laws in India on Right to Privacy

As earlier discussed that right to privacy was first time discussed in Kharak Singh v State of U.P .But the court in Gobind v. State of M.P the Court went further than Kharak Singh and upheld the impugned regulation which authorized domiciliary visits in its entirety.

The Supreme Court touched upon the rights of the individual to privacy vis-a-vis invasions by journalists in Sheela Barse v. State of Maharashtra , Prabha Dutt v. Union of India and also in State through Supdt., Central Jail, N.D. v. Charulata Joshi In all these cases journalists sought permission from the Court to interview and photograph prisoners. Although the issue of privacy was not directly dealt with, the Court implicitly acknowledged the right to privacy by holding that the press had no absolute right to interview or photograph a prisoner but could do so only with his consent.

Similar in R. Rajagopal v State of T.N , popularly known as “Auto Shanker case” is a watershed in the development of the Indian law of privacy. The Supreme Court for the first time has discussed the right to privacy in the context of the freedom of the press. The Supreme Court held that the press had the right to publish what they claimed was the autobiography of Auto Shankar insofar as it appeared from the public records, even without his consent or authorisation. However, if the press items went beyond the public record and published his life story, that might amount to an invasion of his right to privacy. Similarly, the government and prison officials who sought to protect themselves against possible defamation (by ostensibly seeking to protect the privacy of the incarcerated prisoner), did not have the right to impose a prior restraint on the publication of the autobiography; their remedy, if at all, could arise only after the publication.

The Court recognized two aspects of the right to privacy:

(1) the tortious law of privacy which affords an action for damages resulting from an unlawful invasion of privacy, and

(2) the constitutional right “to be let alone” implicit in the right to life and liberty under Article 21. A citizen has the right to safeguard his own privacy, that of his family, marriage, procreation, motherhood, child-bearing, education etc. and no person can publish anything relating to such matters without the consent of the person concerned.

The Court acknowledged two exceptions to this rule: first, where the matter has become a matter of public record, the right to privacy no longer subsists. Second, public officials are not entitled to claim privacy when the act or conduct in question relates to the discharge of their official duties. Even where the publication is based upon facts found to be untrue, the public official is not entitled to protection unless it is shown that the publication was made with reckless disregard for truth. It is sufficient for the publisher to show that he acted after a reasonable verification of facts.

Recent cases in India

Privacy-related issues have recently cropped up in a variety of cases, ranging from biographical films to telephone-tapping to the right of confidentiality of an HIV-infected person and virginity test.

The question whether virginity test violates the right to privacy was discussed in Surjit Singh. V. Kawaljit Kaur where the Punjab and Haryana High Court has held that allowing medical examination of a women for her virginity amounts to violation of her right to privacy and personal liberty enshrined under Article 21 of the Constitution, In this case the wife had filed a petition for a decree of nullity of marriage on the ground that the marriage has never been consummated because the husband was impotent. The husband had taken the defence that the marriage was consummated and he was not impotent. In order to prove that the wife was not a virgin the husband filed the application for her medical examinations. The Court held that allowing the medical examination of a woman’s virginity violates her right to privacy under Article 21 of the Constitution. Such an order would amount to roving enquiry against the female who is vulnerable even otherwise. The virginity test cannot constitute the sole basis, to prove the consummation of the marriage.
Further does the disclosure by a hospital of the medical condition of an AIDS patient to his fiancé’ amount to a breach of the patient’s privacy? This question was arose in Mr ‘X’ v. Hospital ‘Y’ The Supreme Court was confronted with the task of striking a balance between two conflicting fundamental rights: the AIDS patient’s right to life which included his right to privacy and confidentiality of his medical condition, and the right of the lady to whom he was engaged to lead a healthy life. The Supreme Court concluded that since the life of the fiancé’e would be endangered by her marriage and consequent conjugal relations with the AIDS victim, she was entitled to information regarding the medical condition of the man she was to marry. There was, therefore, no infringement of the right to privacy.

Need for a Privacy Statute

There exists in India an impending need to frame a model statute which safeguards the Right to Privacy of an individual, especially given the emergence of customer-service corporate entities which gather extensive personal information relating to it’s customers. It’s evident that despite the presence of adequate non-mandatory, ethical arguments and precedents established by the Supreme court of India; in the absence of an explicit privacy statute, the right to privacy remains a de facto right, enforced through a circuitous mode of reasoning and derived from an expansive interpretation of either Constitutional law or Tort law.

The urgency for such a statute is augmented by the absence of any existing regulation which monitors the handling of customer information databases, or safeguards the Right to Privacy of individuals who have disclosed personal information under specific customer contracts viz. contracts of insurance, credit card companies or the like. The need for a globally compatible Indian privacy law cannot be understated, given that trans-national businesses in the services sector, who find it strategically advantageous to position their establishments in India and across Asia. For instance, India is set to emerge as a global hub for the setting up and operation of call centers, which serve clients across the world. Extensive databases have already been collated by such corporates, and the consequences of their unregulated operations could lead to a no-win situation for customers in India who are not protected by any privacy statute, which sufficiently guards their interests. Even within the present liberal global regulatory paradigm, most governments would be uncomfortable with a legal regime, which furthers commercial interests at the cost of domestic concerns.

Conclusion

In conclusion, the issue that remains to be addressed, is that in an age of revolutionized communications, privacy is clearly under siege but lawmakers have shown scarce concern on the issue. While in many other countries, there are now a variety of statutes in place that seeks to protect these rights, Indian laws on the subject lag far behind.

So far the law of privacy has been relegated to a penumbral status and has never enjoyed the status of a well-defined right. It is time our lawmakers enacted laws to protect privacy rather than laws that license intrusion into private affairs. At the same time, it is also necessary to preserve the tenuous balance between the right of the individual to be let alone and the fundamental right to free speech, expression and information.