Renewed debate on privacy underlines need for a clear-cut law
Samir Sachdeva | January 6, 2011
The Radia tapes has once again thrown open the debate on privacy. Ratan Tata has approached the Supreme Court seeking to protect his privacy but the subject is not new to India. The apex court has dealt with the issue of privacy and phone tapping in a number of cases. It has also given guidelines on phone tapping which have taken the form of rules under the Indian Telegraph Act, 1885.
But, unlike many countries, there is no specific legislation on privacy in India. The executive and the legislature have always been shy on the same, though the department of personnel and training (DoPT) has now made a half-hearted effort by circulating an approach paper on the right to privacy.
The need for a privacy law is also underlined with the civil society raising the red banner privacy concerns vis-à-vis the prestigious unique ID project as well as sting operations on politicians, actors and religious leaders.
The concept of privacy protection exists in multiple rules, guidelines and even the constitution. The Supreme Court has recognised the right to privacy as implicit in the right to life and liberty guaranteed to a citizen under article 21 of the constitution. In the R Rajgopal v State of Tamil Nadu (the ‘Auto Shanker case’), the apex 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 the People’s Union for Civil Liberties (PUCL) vs. Union of India, it held that the telephone conversation as an important facet of a man's private life and therefore right to privacy would certainly include telephone conversation in the privacy of one's home or office.
The article 17 of the international covenant on civil and political rights, 1966, to which India is signatory, 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.” Article 12 of the Universal Declaration of Human Rights, 1948, states a similar intent. 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 a doctor –patient relationship the code of ethics regulations, 2002, issued by the Medical Council of India (MCI), lays down that 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. Even the Press Council of India norms of journalistic conduct have sections like those numbered 13, 16 and 17 which ask a journalist not intervene in the privacy of individuals. The norms say that the press shall not tape-record anyone's conversation without that person's knowledge or consent, prohibit photography into moments of personal grief and more. In a 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 of his employment as an advocate.
Even the right to information act (RTI) also puts reasonable restriction in case of third party information.
So the intent of protecting an individual privacy already exists in various codes, rules, laws and even the constitution. Despite that the individual privacy is every day intruded by actors of the state and there is a genuine need in form of privacy act to protect individual privacy. The state may tap phones by following the due process of law but leaking the transcripts to media is a clear violation of privacy of individual and violators need to be booked and investigated for same.
As part of various e-governance projects the government through private players is capturing a lot of digital information about the citizens. Though the provisions within the Information Technology Act talk about data protection but the same act expands the scope for the government to tap the electronic medium and infringe the privacy of citizens.
The government may be doing it under the grab of public interest or following due process of law but the question remains to what extent the government may intrude into an individual’s life. And not only the government, but private organisations, media houses and political opponents too are using the legal and illegal means to infringe privacy. A recent case of the agencies accidently snooping the conversation of the Bihar chief minister in Delhi is an example of the undue process followed by the actors of the state. These incidents need to be curbed and we definitely need to codify the illegal intrusion into life of individuals through legislation. A legal instrument to check the wrongful invasion of privacy by government, private sector and individuals is therefore the need of the hour.
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