The Right to Privacy in India: Concept and Evolution

Copyright © 2016 by Gaurav Goyal and Ravinder Kumar.

ISBN:        Hardcover          978-1-4828-6867-8

                 Softcover           978-1-4828-6866-1

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Contents

Acknowledgement

Preface

Introduction

Privacy & The Right To Privacy Defined

Evolution Of The Concept

Constitutional Aspects- India, United States & United Kingdom

Right To Privacy Under Constitution Of India

Right To Privacy Studied In The Light Of Various Other Rights

Statutory Provisions For Safeguard Of Privacy

Right To Privacy Vis-À-Vis Right To Information

Uid A Boon Or A Sham- Comparative Study In Light Of Right To Privacy

Advancement In Technology And Its Relevance To Right To Privacy

Media And The Right To Privacy

Analysis Of The Privacy Bill And Suggestions Thereof

Conclusion

Bibliography

Notes

Acknowledgement

T his book is based on the early concept and subsequent evolution of the Right to Privacy in India. I am grateful to a number of people, without the efforts and inputs of those; this book would not have materialized.

First and foremost, I would like to thank (Retd.) Mr. Justice D. Murugesan for sharing his knowledge and the invaluable inputs with me.

I am grateful to my father for being encouraging and supportive in all my endeavors.

Finally, I am grateful to my family and friends for their eternal support without which this book would not have seen the light of day.

-Gaurav Goyal

Acknowledgement

I am grateful to Mr. Akshit Goyal, Student, The West Bengal National University of Juridical Sciences, Kolkata, for the valuable contribution he made as a researcher for the book. He also helped me in editing the book.

I am also grateful my family for their eternal support without which this book would not have seen the light of day.

-Dr. Ravinder Kumar

Preface

T he phenomenon that the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis . Then the right to life served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, came recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -- the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term property has grown to comprise every form of possession -- intangible, as well as tangible. ¹

Personal Liberty which to some extent is also termed as privacy is a dynamic and evolving concept. The realm of this right is expanding and is under constant supervision as the society and the culture grows.

The purpose of penning down this book the constant development of the right to personal space i.e. personal liberty or privacy and to analyze the changing dimension of the right guaranteed under article 21 of the Indian Constitution. The right under Article 21 is available to every citizen regardless of which class, section of society he or she belongs to.

The realm of personal liberty has been extended to include the well organized legal education, with specialization in different branches of law, through the adequate number of law colleges with proper infrastructure including expert law teachers and staff, like our own college for example. Such a development has given the required personal space to every student to grow as a student and also a human being and to realize the value of every right guaranteed under the constitution and how relevant it is to the society.

In this book we have tried to compare the present day scenario with what was followed during the times of Ramayana and Mahabharata and also the rules of arthshastra in light of present day statutes.

In the past several years, invasions of privacy by the news media have become a routine part of the coverage of public figures. At the same time, this type of news gathering and reporting has come under increasing criticism by the news audience as well as by media critics. Questions are raised about the appropriateness and purpose of revealing information the subjects of such reports would prefer to keep private. Competing claims are made about the importance and value of privacy, on the one hand, and the public’s desire and need to know, on the other. What is needed is a way to compare these competing claims in the evaluation of invasions of privacy that is grounded in fundamental ethical concepts and principles. In this study three models are provided for the ethical analysis of privacy invasion by the news media. The models are described generally and thereafter specifically applied to news reporting which invades the privacy of public figures.

I have carefully structured my topic to The Right to Privacy: Does it give the right to invade someone’s privacy and the jurisprudence behind the right.

I have tried to compare the right to privacy in respect of several problems that a man faces day to day. Also I feel that this is important for me, because the society that we live in has a constant habit of invading one’s privacy without any authorized channel or prior permission.

Every day, we come across cases, at least I do, where the private space of either the parents or the children is invaded by either of the two, if this is not enough then we have our cribbing neighbors to poke into every aspect of our life. At work, the co-workers are always interested in knowing what is going in your life, even if it doesn’t concern them. Though some term it as genuine concern, but then again there should be a line which the people should not cross when interacting with others around them.

Introduction

P rof. Westin maintains that man’s need for privacy is rooted in his animal origins and that man and animals share basic mechanisms for claiming privacy among their fellows. ²

Privacy in the words of Spencer³ is the continuous adjustment of internal relations to external relations. Adjustment means that in some way an organism related its inner and overt behavior to the requirements of the surroundings. It does not necessarily mean mechanical or scientific adjustments; it means the adjustment that a human is required to make in order to make his behavior socially acceptable for the society and for others around him.

Though many have argued that privacy is more of an interest and not a right and can be invaded for social good, I however have an opposite stance. Privacy is an absolute right, yet it has its limitations to the extent that this right doesn’t allow us to mess up someone’s personal space. This right is absolute to the extent that the person to him it is conferred should be able to enjoy the right without any alien interference, by alien I mean unauthorized interference.

While critics have argued that privacy laws in India are notoriously weak because of the absence of a comprehensive legislation, the reality is somewhat different. I would argue that this unquestioned assumption is based on a paradigm that does not take into consideration that the conception of privacy in India is quite different from the Western conception of the same right.

Firstly, the Indian perception of the word ‘privacy’ refers to privacy in terms of personal space and subjects. Secondly, even in the West it is not clear what is protected, what is believed to be protected, what is actually protected and what is not protected in terms of privacy. In the course of this book, I will further argue that one’s private sphere is subjective and depends on one’s culture, environment and economic condition.

Social patterns and values today are too diverse, decentralized, and purposefully dissimilar to provide a foundation for general rules of discourse at the level of specificity required for the protection of privacy. This does not imply that a legal concept of privacy should be disregarded; instead, protection can be defined as specifically or as generally as the legislature chooses by taking into consideration the cultural context and allow its contours to fit within the social and economic conditions. It is important that we explore these foundations for the purposes of identifying the assumptions, assessing its justifications, and analyzing the paradoxical effects of India’s privacy policies.

It is 30 years since a Congress Member of Parliament, V.N. Gadgil, suggested an Act for the protection of privacy, designed, no doubt, to curb press exposure of the wrongdoings of politicians. In reality, it is all but impossible to draft a statute that strikes a fair balance between people’s right to know and the protection of a person’s privacy. In India, as in the United Kingdom, there is no tort of privacy. India’s law of torts (that is, civil wrongs punishable in damages) is based on case law, English and foreign. However, the Supreme Court of India has inferred right to privacy from the ones explicitly guaranteed. Article 21 of the Constitution contains a guarantee of personal liberty and it is obvious that personal liberty also involves the right to privacy.

One of the most important ingredients of Article 21 is the expression ‘Personal Liberty’. This expression is of the widest amplitude and it includes various kinds of rights like. Right to locomotion, Right to travel abroad, Right of a prisoner to speedy trial

To the same effect are the following observations of Webster: "Liberty is the creation of law, essentially different from the authorized licentiousness that trespasses on right, it is a legal and refined idea, the offspring of high civilization, which the savage never understand, and never can understand. Liberty exists in proportion to wholesome restraint;