RIGHT TO PRIVACY: RECENT TREND

                                    

                                                                     BY- Adv.Md. Zeeshan Chand

                                                                     Email- zeeshanlawbhu@gmail.com

                                                                                                     

Chapter –I

 Introduction

             The law of privacy is recognition of 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.

         The essence of the law derives from a right to privacy, defined broadly as "the right to be let alone." It usually excludes personal matters or activities which may reasonably be of public interest, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right.

          Under the constitutional law, the right to privacy is implicit in the fundamental right to life and liberty guaranteed by Article 21 of the Constitution.[1] This has been interpreted to include the right to be let alone. The constitutional right to privacy flowing from Article 21 must, however, be read together with the constitutional right to publish any matter of public interest, subject to reasonable restrictions.

          Right to privacy is not enumerated as a fundamental right in the constitution. However, such right has been culled by the Supreme Court from Art. 21 and several other provisions of the constitution read with directive principle of state policy.

The movement towards the recognition of right to privacy in India started with Kharak Singh v. State of Uttar Pradesh and Others[2] , wherein the apex court observed that it is true that our constitution does not expressly declare a right to privacy as fundamental right, but the said right is an essential ingredient of personal liberty. After an elaborate appraisal of this right in Gobind v. State of Madhya Pradesh and Another[3] , it has been fully incorporated under the umbrella of right to life and personal liberty by the humanistic expansion of the Article 21 of the Constitution.

 In R. Rajagopal v. State of Tamil Nadu, the Supreme Court has asserted that in recent time’s right to privacy has acquired constitutional status; it is implicit in right to life and liberty guaranteed to citizens by Art. 21. It is “Right to be let alone”. A citizen has a right to safe guard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among others matters.

The right to privacy in India has derived itself from essentially two sources: the common law of torts and the constitutional law[4] In common law, a private action for damages for unlawful invasion of privacy is maintainable. The printer and publisher of a journal, magazine or book are liable in damages if they publish any matter concerning the private life of the individual[5] without such person's consent. There are two exceptions to this rule: first, that the right to privacy does not survive once the publication is a matter of public record and, second, when the publication relates to the discharge of the official duties of a public servant, an action is not maintainable unless the publication is proved to be false, malicious or is in reckless disregard for truth.

Chapter –Ii

Meaning and Definition of Privacy

 

Privacy has been derived from Latin word: privatus meaning thereby "separated from the rest, deprived of something, esp. office, participation in the government", in turn privatus has been derived from term privo "to deprive". Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively. The boundaries and content of what is considered private differ among cultures and individuals, but share basic common themes. Privacy is sometimes related to anonymity, the wish to remain unnoticed or unidentified 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 concept of privacy rests on the promise that "a certain private sphere of individual liberty will be kept largely beyond the reach of Government"[6] and it embodies the acceptance of the "moral fact that a person belongs to himself and not to others nor to society as a whole".

Gerety[7] defines privacy as "an autonomy or control over the intimacies of personal identity". He identifies three broad concepts in the legal definition of privacy-intimacy, identity and autonomy.[8] Bostwick[9] relies upon a threefold classification of privacy: the privacy of repose, the privacy of sanctuary and the privacy of intimate decision.

Solove[10] adopts a pragmatic approach and identifies necessary and sufficient conditions for the right to privacy. He divides privacy into six comprehensive (though not mutually exclusive) rights: (i) the right to be let alone; (ii) limited access to the self-the ability to shield oneself from others; (iii) secrecy-concealing certain matters from others; (iv) control over personal information; (v) personhood-the protection of one's personality, individuality and dignity; and (vi) intimacy-control over or limiting access to intimate relationships.

If the Government interferes with my right to speak to an audience in an open maidan, can it be said that my right to privacy has been infringed? The answer is in the negative. In such cases, my right to the freedom of speech is interfered with. However, if the Government interferes with my right to speak to my brother in the confines of my home, can I say that my right to privacy has been intruded upon? The answer must necessarily be in the affirmative. The right to privacy thus emphasizes upon the place in which the act occurs. It was this principle that prompted Douglas, J. to enunciate the repulsive notion of invading "marital bedrooms" for telltale signs of crime.[11] 9

However, if I go to a bazaar and speak to my father, and the Government prevents me from doing so, is my right to privacy infringed, in spite of the fact that the communication was made in an open area? The answer once more is in the affirmative. It thus appears that the right to privacy is hinged not only upon the place, but more specifically, upon an arena which by its very nature is secluded from access to the public. The nature of the act or the communication must be such as is inherently personal and private. Extending privacy protection to the spheres of marriage, procreation, contraception, family relationships, child-rearing and education is thus justified.

An attempt at defining privacy is of no use if the levels of abstraction do not translate into concrete specifics. Broadly speaking, privacy law deals with freedom of thought, control over one's body, peace and solitude in one's home, control of information regarding oneself, freedom from surveillance,[12] protection from unreasonable search and seizure,[13] and protection of reputation.

Chapter –i          ii

Types Of Privacy

 

The term "privacy" means many things in different contexts. Different people, cultures, and nations have a wide variety of expectations about how much privacy a person is entitled to or what constitutes an invasion of privacy.

Physical Privacy

Physical privacy could be defined as preventing "intrusions into one's physical space or solitude. Physical privacy may be a matter of cultural sensitivity, personal dignity, and/or shyness. There may also be concerns about safety, if for example one is wary of becoming the victim of crime or stalking.[14] Civil inattention is a process whereby individuals are able to maintain their privacy within a crowd.

Informational Privacy

Information or data privacy refers to the evolving relationship between technology and the legal right to, or public expectation of privacy in the collection and sharing of data about one's self.

            Various types of personal information are often associated with privacy concerns. For various reasons, individuals may object to personal information such as their religion, sexual orientation, political affiliations, or personal activities being revealed, perhaps to avoid discrimination, personal embarrassment, or damage to their professional reputations.

Financial Privacy

Financial privacy, in which information about a person's financial transactions is guarded, is important for the avoidance of fraud including identity theft.

Internet Privacy

Internet privacy is the ability to determine what information one reveals or withholds about oneself over the Internet, who has access to such information, and for what purposes one's information may or may not be used.

Medical Privacy

Medical privacy allows a person to withhold their medical records and other information from others, perhaps because of fears that it might affect their insurance coverage or employment, or to avoid the embarrassment caused by revealing medical conditions or treatments. Medical information could also reveal other aspects of one's personal life, such as sexual preferences or proclivity. A right to sexual privacy enables individuals to acquire and use contraceptives without family, community or legal sanctions.

Political Privacy

Political privacy has been a concern since voting systems emerged in ancient times. The secret ballot helps to ensure that voters cannot be coerced into voting in certain ways, since they can allocate their vote as they wish in the privacy and security of the voting booth while maintaining the anonymity of the vote.

Organizational Privacy

Governments agencies, corporations, groups/societies and other organizations may desire to keep their activities or secrets from being revealed to other organizations or individuals, adopting various security practices and controls in order to prevent this. Organizations[15] may seek legal protection for their secrets. For example, a government administration may be able to invoke executive privilege or declares certain information to be classified, or a corporation might attempt to protect valuable proprietary information as trade secrets.

Chapter –I          V

Right to Privacy

 

Under the constitutional law, the right to privacy is implicit in the fundamental right to life and liberty guaranteed by Article 21 of the Constitution[16] This has been interpreted to include the right to be let alone. The constitutional right to privacy flowing from Article 21 must, however, be read together with the constitutional right to publish any matter of public interest, subject to reasonable restrictions.

Meaning and Definition

The law of privacy is a recognition of 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.

In recent years there have been only few attempts to clearly and precisely define a "right to privacy." Some experts assert that in fact the right to privacy "should not be defined as a separate legal right" at all. By their reasoning, existing laws relating to privacy in general should be sufficient[17] Other experts, such as Dean Prosser, have attempted, but failed, to find a "common ground" between the leading kinds of privacy cases in the court system, at least to formulate a definition.[18] One law school treatise from Israel, however, on the subject of "privacy in the digital environment," suggests that the "right to privacy should be seen as an independent right that deserves legal protection in itself." It has therefore proposed a working definition for a "right to privacy":

The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.

The right to privacy in India has derived itself from essentially two sources: the common law of torts and the constitutional law[19] In common law, a private action for damages for unlawful invasion of privacy is maintainable. The printer and publisher of a journal, magazine or book are liable in damages if they publish any matter concerning the private life of the individual[20] without such person's consent. There are two exceptions to this rule: first, that the right to privacy does not survive once the publication is a matter of public record and, second, when the publication relates to the discharge of the official duties of a public servant, an action is not maintainable unless the publication is proved to be false, malicious or is in reckless disregard for truth.

Under the constitutional law, the right to privacy is implicit in the fundamental right to life and liberty guaranteed by Article 21 of the Constitution[21] This has been interpreted to include the right to be let alone. The constitutional right to privacy flowing from Article 21 must, however, be read together with the constitutional right to publish any matter of public interest, subject to reasonable restrictions.

According to recommendations of Venkata Challiah Commission:

It is proposed that a new article, namely, article 21-B, should be inserted on the following lines:

21-B.   (1)        Every person has a right to respect for his private and family life, his home and his correspondence.

            (2)        Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions on the exercise of the right conferred by clause (1), in the interests of security of the State, public safety or for the prevention of disorder or crime, or for the protection of health or morals, or for the protection of the rights and freedoms of others.

Unfortunately even after ten years of recommendation parliament could not dared to insert Art. 21 (B) as Right to Privacy and other tragedy is that even Right to Privacy has not been included in Art. 19 (2) as reasonable restriction to Art.19 (1)

Chapter –V

 Right to Privacy: Comparative outlook

 

To better understand the theme of right to privacy and development of it. We should take

a slight visit of evolution of right to privacy in various other countries.

England

The American law on privacy has evolved faster than the law in England.[22] One of the earliest cases in England, Albert v. Strange[23] involved the unauthorized copying of etchings made by Queen Victoria and her husband for their private amusement. The etchings, which represented members of the Royal family and matters of personal interest, were entrusted to a printer for making impressions. An employee of the printer made unauthorized copies and sold them to the defendant who in turn proposed to exhibit them publicly. Prince Albert succeeded in obtaining an injunction to prevent the exhibition. The court's reasoning was based on both the enforcement of the Prince's property rights as well as the employee's breach of confidence. This case is widely regarded as having inspired the development of the law of privacy in the United States.

Even as late as 1991, the law in England was found to be inadequate in protecting privacy. In that year, the Court of appeal decided Kaye v. Robertson.[24] The case concerned a well-known actor who had to be hospitalized after sustaining serious head injuries in a car accident. At a time when the actor was in no condition to be interviewed, a reporter and a photographer from the Sunday Sport newspaper unauthorized gained access to his hospital room, took photographs and attempted to conduct an interview with the actor. An interlocutory injunction was sought on behalf of the actor to prevent the paper from publishing the article which claimed that Kaye had agreed to give an exclusive interview to the paper. There being no right to privacy under the English law, the plaintiff could not maintain an action for breach of privacy. In the absence of such a right, the claim was based on other rights of action such as libel, malicious falsehood and trespass to the person, in the hope that one or the other would help him protect his privacy. Eventually, he was granted an injunction to restrain publication of the malicious falsehood. The publication of the story and some less objectionable photographs were, however, allowed on the condition that it was not claimed that the plaintiff had given his consent. The remedy was clearly inadequate since it failed to protect the plaintiff from preserving his personal space and from keeping his personal circumstances away from public glare. The court expressed its inability to protect the privacy of the individual and blamed the failure of common law and statute to protect this right.[25]

U.S.A

In the U.S.A., the need for a law to protect privacy was articulated as early as 1890 when an article titled "The Right to Privacy" was published by Warren and Brandeis[26] this article laid the intellectual foundations for the law on privacy.

"Recent inventions and business method call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls 'the right to be let alone'. Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of the home ... private devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house tops'.... The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.... The intensity and complexity of life attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by bodily injury. It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of an individual; and, if it does, what the nature and extent of such protection is...."

The most well-known American cases on privacy are Griswold v. Connecticut[27] and Roe v. Wade.

The US Supreme Court has found the rights of marriage, procreation, contraception, family relationships, child-rearing and education[28] to be indefeasible fragments of the substantive right to privacy. The fundamental choice of whether or not to beget a child forms the crux of this cluster of constitutionally protected decisions as "decisions whether to accomplish or to prevent conception are amongst the most private and sensitive".[29] The substantive right to privacy has been described as a freedom in making certain kinds of intimate decisions.[30] Protection has not only been extended to certain kinds of decisions but also to certain kinds of places.[31]

The turning point came in Griswold v. Connecticut[32] where the US Supreme Court considered the vires of a statute prohibiting the use of contraceptives by married couples. Douglas, J. in his momentous pronouncement, put forth the following proposition:

"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."[33]

In Eisenstadt v. Baird[34] a similar provision affecting unmarried couples was rendered unconstitutional albeit under the equal protection clause, as the evil would be identical and the under-inclusion invidious. The Court expounded, in its equally renowned pronouncement, upon the concept of privacy thus:

"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."[35]

In Roe v. Wade[36] the US Supreme Court considered the constitutionality of a statute criminalising abortion. The right to privacy was considered to be broad enough to encompass a woman's right to terminate her pregnancy owing to the intense emotional, mental, psychological and physical strain which it entails.[37] In a controversial decision, a similar provision was upheld in Webster v. Reproductive Health Services.[38] However, the original position was reaffirmed in Planned Parenthood v. Casey[39] where the Court elaborated the consequences of abortion:

"Abortion is a unique act. It is an act fraught with consequences for others; for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family and society ... The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."[40]

Similarly, Ridder & Woll find that:

"When we talk about women's rights, we can get all the rights in the world-the right to vote, the right to go to school-and none of them means a doggone thing if we don't own the flesh we stand in, if we can't control what happens to us, if the whole course of our lives can be changed by somebody else that can get us pregnant by accident, or by deceit, or by force."[41]

In Loving v. Virginia[42] the US Supreme Court struck down a law which prevented interracial marriages. However, the substantive right to privacy in the context of marriage suffered a substantial setback in Bowers v. Hardwick[43] where the US Supreme Court denied privacy protection to homosexual activity. The decision was reversed in 2003, in Lawrence v. Texas[44] where Kennedy, J. found homosexuals to have the same rights as heterosexuals, beginning, in his eloquent judgment, with:

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."[45]

In Skinner v. Oklahoma[46] the US Supreme Court struck down a statute which called for the sterilization of "habitual criminals", thus ensuring their inherent right of procreation, while in Stanley v. Georgia[47] the possession of obscene material in a man's house was condoned for the reason:

"If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional[48] heritage rebels at the thought of giving Government the power to control men's minds."[49]

India

After the delivery of landmark judgment known as Maneka Gandhi v. Union of India,[50] the scope of Art. 21 was enormously increased so that this Art. could include certain rights as fundamental rights. And Right to Privacy is one of those rights which have been evolved by The Supreme Court of India and which is implicit in Art. 21.

An attempt at defining privacy is of no use if the levels of abstraction do not translate into concrete specifics. Broadly speaking, privacy law deals with freedom of thought, control over one's body, peace and solitude in one's home, control of information regarding oneself, freedom from surveillance,[51] protection from unreasonable search and seizure,[52] and protection of reputation.[53] Indian jurisprudence has extended the ambit of privacy to the following zones which, though not mutually exclusive, can be analysed as follows:

1. Surveillance

The first privacy case in Indian jurisprudence was that of Kharak Singh v. State of U.P.,[54] where the Supreme Court considered the constitutionality of police regulations that permitted the police to keep a close watch on would-be criminals. However, like all unfettered power, the provision was misused. The aggrieved complained that the police would inter alia: (i) enter his house; (ii) knock and shout at his door; (iii) wake him up during the night; (iv) ask him to accompany them to the station; and (v) ask him to report his departure to the local constable. The most inhumane of all regulations under challenge was Regulation 236 which permitted the police to render domiciliary visits at night.

While Regulation 236 was struck down as being unconstitutional, Ayyangar, J. speaking for the majority, observed: (AIR para 20)

"The right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III."[55]

However, Subba Rao, J. while partly concurring with the majority, stated: (AIR para 31)

"It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. ... Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy."[56]

Thereafter, in Gobind v. State of M.P.,[57] the aggrieved complained that "his reputation had sunk low in the estimation of his neighbours"[58] as a result of similar activity. Mathew, J. after reasoned deliberation, delivered a learned judgment and observed that: (SCC paras 23-24)

"Privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values.

Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing. This catalogue approach to the question is obviously not as instructive as it does not give an analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as a unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty."[59]

However, the Court stated that the right to privacy was subject to "restrictions on the basis of compelling State interest".[60] Thus, the regulations were upheld since they applied to a limited class of citizens i.e. habitual criminals.

Similarly, in Malak Singh v. State of Punjab[61] surveillance was held to be intrusive and an encroachment upon the right to privacy and in Sunil Batra v. Delhi Admn.[62] the Supreme Court considered the question of whether two individuals, sentenced to death, were entitled to privacy and human rights. The Court found that though a minimum intrusion of privacy may have been inevitable, the guards were under an obligation to ensure that human rights and privacy standards were observed.

In People's Union for Civil Liberties v. Union of India (hereinafter the first PUCL case)[63], the constitutionality of "telephone-tapping" was under consideration. While recognizing that conversations on the telephone were of an intimate and confidential character, the Court held that tapping into conversations was unconstitutional unless brought about by a procedure established by law. The Court also found the concept of privacy "too broad and moralistic" for serious judicial consideration.[64]

2. Search and seizure: The Fourth Amendment

The Fourth Amendment of the US Constitution reads:

"The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The US Supreme Court had held unreasonable searches and seizures, without the issuance of a warrant on probable cause, to vitiate the principle of self-incrimination inherent in the Fifth Amendment of the US Constitution.[65] A similar argument was presented in M.P. Sharma v. Satish Chandra[66] with one sole difference: the petitioners did not challenge unreasonable search and seizure, but challenged the very process of search and seizure as derogatory to the principle of self-incrimination enshrined in Article 20(3) of the Constitution. While striking down this proposition,[67] the Supreme Court altogether deprecated the doctrine of the Fourth Amendment privacy by finding that: (SCR pp. 1096-97)

"When the Constitution-makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the (American) Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. ... Therefore, issue of a search warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed."[68]

Fifty years later, the Supreme Court appropriately allowed fragments of the Fourth Amendment privacy to percolate into the boundaries of constitutional protection in District Registrar and Collector v. Canara Bank[69] where the right of privacy was explored qua search and seizure. The Andhra Pradesh amendment of the Stamp Act, 1899 was challenged on the grounds that it permitted "any person" to "enter upon any premises", public or private, and "seize and impound" documents.

The Court defined the limits of legitimate privacy intrusion and stated that legislative intrusions could be tested using the doctrine of proportionality, administrative/executive intrusions had to be reasonable, while judicial intrusions were permissible upon the issuance of a judicial warrant on the premise of "sufficient reason" and necessity.[70] It admonishingly observed that "under the garb of the power conferred by Section 73 the person authorised may go on a rampage searching house after house" and "any number of documents may be inspected, may be seized and may be removed and at the end the whole exercise may turn out to be an exercise in futility".[71] It was stated that: (SCC para 53)

"Unless there is some probable or reasonable cause or reasonable basis or material before the Collector for reaching an opinion that the documents in the possession of the bank tend to secure any duty or to prove or to lead to the discovery of any fraud or omission in relation to any duty, the search or taking notes or extracts therefore, cannot be valid. The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality."[72] 

3. Disclosure of intimate details

Privacy cannot be the right to withhold all possible information regarding one's self from all possible institutions at all possible times. Such a construction would render nugatory the very concept of societal coexistence. Every day, we are required to disclose some or the other information about ourselves, be it in a tax return (where income is disclosed), in a university application (where marks are disclosed) in an insurance application (where medical information is disclosed), to a doctor (where intimate secrets are disclosed), etc. However, does the mere fact that I have parted with my income information in a tax return permit the Income Tax Department to disclose my income to the whole world? Or does the fact that I have given medical information to insurance companies permit them to relay the information to pharmaceutical companies?

The answer must necessarily be in the negative. Privacy is therefore not merely the right to control what kind of information is disclosed, but also the right to choose, control and limit to whom the disclosure is made. The fact of a disclosure to an institution does not indicate the acquiescence of its disclosure to the general public.

In addition, all individuals retain control over that aspect of their lives which is intimate and personal by its very nature, and over which no member of the public can have a legitimate claim. In contrast to the information given above (an income tax return is mandatory) this information can only be disclosed voluntarily.

In Neera Mathur v. LIC[73] the Life Insurance Corporation of India required married female candidates to disclose inter alia, in a form,[74] information regarding menstrual cycles, conceptions and pregnancies and abortions. The Supreme Court, without mentioning the right of privacy, found: (SCC para 13)

"The particulars to be furnished under columns (iii) to (viii) in the declaration are indeed embarrassing if not humiliating. The modesty and self-respect may perhaps preclude the disclosure of such personal problems like whether her menstrual period is regular or painless, the number of conceptions taken place; how many have gone full term, etc. The Corporation would do well to delete such columns in the declaration."[75]

Similarly, forms regarding the disclosure of religion, caste, community should not be made mandatory for admission into educational institutions, government posts (except where such disclosure is necessary for an affirmative action), etc., for these are personal matters, the compulsory disclosure of which tends to be offensive.

However, in Sharda v. Dharmpal[76], the Supreme Court considered the question of whether a party to a divorce proceeding could be compelled to take a medical examination. While acknowledging the importance of privacy and confidentiality, the Court found that the right to privacy was not absolute and a party could be asked to take a medical examination since in a matrimonial proceeding: (SCC para 76)

"If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter right to personal liberty as enshrined under Article 21 of the Constitution, then it may in most of such cases become impossible to arrive at a conclusion."[77]

This decision demonstrates that like all other fundamental rights, the right to privacy too is subject to reasonable restrictions.

4. The all-pervasive "public eye"

In R. Rajagopal v. State of T.N.[78] the Supreme Court considered the freedom of the press vis-a-vis the right to privacy of citizens. "Auto" Shankar, convicted of six murders and sentenced to death, had written his biography which he intended to get published in a Tamil weekly magazine entitled Nakheeran. In 300 pages thereof, he set out the close nexus between himself and several IAS, IPS and other officers, some of whom were his partners in crime. The Court developed a new test, modelled on the decisions of the US Supreme Court in New York Times v. Sullivan[79] and Time Inc v. Hill[80] However, with regard to privacy, the Court observed: (SCC para 26)

"26. (1) The 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 let alone'. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the 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 the person concerned and would be liable in an action for damages. The position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy."[81]

The Court thus echoed its findings in Gobind v. State of M.P.,[82] with a sole difference: the right to "family, marriage, procreation, motherhood, childbearing and education among other matters"[83] was considered exclusively to be a publishing or informational right. None can publish anything regarding these matters. As long as information is not disclosed regarding these matters, no harm was said to be done. However, does that then mean that the individual has no right of independence of action regarding these matters? Can the State interfere with the right of individuals in their personal matters as long as no information is disclosed? Does it mean, for example, that the State can interfere with my decision as to what higher education I should pursue (whether I study law, medicine or business), so long as that information is not published?

Fortunately, the Supreme Court qualified its observations by stating that: "the principles abovementioned are only the broad principles. They are neither exhaustive nor all-comprehending; indeed no such enunciation is possible or advisable. As rightly pointed out by Mathew, J. this right has to go through a case-by-case development."[84]

Nonetheless, endeavouring to enunciate the "broad principles" of privacy, this decision tends to have the effect of excluding the principle of substantive privacy from the ambit of constitutional protection.

In People's Union for Civil Liberties v. Union of India (hereinafter the second PUCL case)[85] the validity of the Representation of the People (Amendment) Ordinance, 2002 was under challenge. Shah, J. brought forth the decision with a poignant question: (SCC p. 418, para 2)

"2. There was an era when a powerful or a rich or a strong or a dacoit aged more than 60 years married a beautiful young girl despite her resistance. Except to weep, she had no choice of selecting her mate. To a large extent, such situation does not prevail today. Now, young persons are selecting mates of their choice after verifying full details thereof. Should we not have such a situation in selecting a candidate contesting elections? In a vibrant democracy-is it not required that a little voter should know the biodata of his/her would-be rulers, law-makers or destiny-makers of the nation?"

The conflict between the right to privacy of the official in the public eye and the right of the citizen to information was said to end in favour of the citizen, thereby serving the larger public interest.[86]

In People's Union for Civil Liberties v. Union of India[87] (hereinafter the third PUCL case) the constitutionality of various provisions of the Prevention of Terrorism Act, 2002, were challenged. Once again the Court found that: (SCC para 37)

"The criminal justice system cannot function without the cooperation of people. Rather it is the duty of everybody to assist the State in the detection of the crime and bringing criminals to justice. Withholding such information cannot be traced to right to privacy, which itself is not an absolute right. Right to privacy is subservient to that of security of State."[88]

Finally, in People's Union for Civil Liberties v. Union of India. (hereinafter the fourth PUCL case) the appellants sought the disclosure of information relating to safety violations in nuclear installations and power plants. Privacy had hardly a part to play in the decision, but the Court recognized it as one of the grounds on which the Government could withhold information.[89]

The cases that fall under this segment have further broadened the ambit of the reasonable restrictions which apply to the right to privacy. While the "larger public interest" and the "security of the State" were considered to be restrictions on privacy, the right itself was interpreted in its informational context. The substantive interpretation of privacy is yet to make a formal appearance in Indian legal pronouncement.

5. Marriage

Marriage is an institution the continuance of which ensures the perpetuation of society. It has been equated with the very concept of existence in Indian jurisprudence.[90] The institution revolves around certain fundamental decisions concerning when to marry,[91] whom to marry[92] and whether to marry at all.[93] It facilitates (but does not enforce) the exercise of procreation, and the questions of whether to have children at all,[94] and how many children to have[95] are, in themselves, fundamental choices.

Once the marriage bond is formed certain fundamental choices and fundamental decisions are required to be made about the new units of the family i.e. the children, when they cannot be said to make decisions for themselves. Fundamental choices regarding children may include the education of children i.e. which school the child should join, which courses the child should take, etc.,[96] the right to bring them up in their own manner, with the inculcation of desired values, etc. Of particularly growing interest is the right to privacy of the child, especially since the Constitution contains no "adults only" caveat.[97] Thus, the institution of marriage is virtually the progenitor of the notion of substantive privacy.

The institution of marriage is based upon mutual consent and for such consent to exist it is essential that both spouses are fully aware of each other's medical conditions, which alone can legitimately affect the fundamental decisions mentioned above.[98] This condition may be referred to as "informed mutual consent". It follows that if any medical condition is withheld from a spouse, the consent was obtained by fraud, and the marriage, in the least, is voidable.

These fundamental decisions associated with marriage are indefeasible elements of inviolable selfhood, and cannot be interfered with except for the reasonable restrictions appended below.[99] The right to marriage is therefore a part of the fundamental right to privacy, subject, like any other fundamental right, to reasonable restrictions.

In Mr 'X' v. Hospital 'Z’[100] (hereinafter the first marriage case), on the donation of blood, an individual, Mr 'X', was found to be HIV positive. This information was relayed by the hospital to his spouse, Ms 'Y', as a result of which the marriage was called off. The Supreme Court considered the right of privacy to be subordinated inter alia to the protection of the health and morals of others.[101] Without being fully aware of the medical condition of Mr 'X', Ms 'Y' would not be able to fully exercise her fundamental decision of marriage. There was a danger that Ms 'Y' too would contract the disease. That is not in the least to say that individuals with diseases cannot marry, but it implies that the marriage, like any other, must be based upon informed mutual consent. Thus, the Supreme Court found that: (SCC para 38)

"If that person is suffering from any communicable venereal disease or is impotent so that marriage would be a complete failure or that his wife would seek divorce from him on that ground, that person is under a moral, as also legal duty, to inform the woman with whom the marriage is proposed that he was not physically healthy and that he was suffering from a disease which was likely to be communicated to her."[102]

However, the Supreme Court went on to subordinate the right to marry of individuals with communicable venereal diseases, even when such marriage was based upon informed mutual consent. It thus stated: (SCC para 38)

"So long as the person is not cured of the communicable venereal disease or impotency, the right to marry cannot be enforced through a court of law and shall be treated to be a 'suspended right'."[103]

The effect of the right to marriage being held a "suspended right" did not mean that individuals with communicable venereal diseases could not marry, but worse still, it meant that if the State enacted a law preventing them from marrying, it could not be subject to challenge under the fundamental right. It must also be noted that if at all a fundamental right is to be suspended, the suspension must be warranted by the Constitution and cannot be brought about by external considerations.

This decision gravely affected the right to substantive privacy, affecting the right of individuals to make fundamental decisions associated with marriage. The pronouncement therefore came under review in Mr. 'X' v. Hospital 'Z'[104] (hereinafter the second marriage case), where the Court held that the question of whether individuals with communicable venereal diseases could marry did not arise for consideration, and the prior observations of the Supreme Court relating to the suspended right of marriage were struck down to that effect.

 

Report of NCRWC precisely defined Right to Privacy in following words:

21-B.   (1)        Every person has a right to respect for his private and family life, his home and his correspondence.

(2)        Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions on the exercise of the right conferred by clause (1), in the interests of security of the State, public safety or for the prevention of disorder or crime, or for the protection of health or morals, or for the protection of the rights and freedoms of others.

International Conventions

Internationally the right to privacy has been protected in a number of conventions. For instance, the Universal Declaration of Human Rights, 1948 (UDHR) under Article 12 provides that: 

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks." 

The UDHR protects any arbitrary interference from the State to a person’s right to privacy. Similarly, International Covenant on Civil and Political Rights, 1976 (ICCPR) under Article 17 imposes the State to ensure that individuals are protected by law against “arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.

Thus, ensuring that States enact laws to protect individual’s right to privacy. India has ratified the above conventions. The ratification of the Conventions mandates the State to take steps to enact laws to protect its citizens. Although, human right activists have periodically demanded that the State take adequate measures to protect human rights of the vulnerable in society, the right to privacy has received little attention.

Similarly, Article 16 of the Convention on the Rights of the Child (CRC) provides protection to a minor from any unlawful interference to his/her right to privacy and imposes a positive obligation on States who have ratified the convention to enact a law protecting the same. India does have safeguards in place to protect identity of minors, especially, juveniles and victims of abuse. However, there are exceptions when the law on privacy does not apply even in case of a minor. 

Article 8 of the European Convention on Human Rights reads as follows:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

  (2) There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder and crime or for the protection of health or morals

The right to privacy, therefore, is not an absolute right and does not apply uniformly to all situations and all class of persons. For instance, privacy with respect to a certain class of persons, like a person in public authority, affords different protection as opposed to private individual.

Chapter –VI

Right to Privacy: RECent trend

 

Right to privacy is basically recently developed phenomenon, in fact it is still developing. Now right to privacy is passing through a most crucial era that is the era of information and technology. Therefore I tried my best to bring about all that factors which affecting this cherished right.

Modern media and privacy

The development of the media in modern times has a special relevance to the evolution of the law of privacy. The media has made it possible to bring the private life of an individual into the public domain, thus exposing him to the risk of an invasion of his space and his privacy. At a time when information was not so easily accessible to the public, the risk of such an invasion was relatively remote. In India, newspapers were, for many years, the primary source of information to the public. Even they had a relatively limited impact, given that the vast majority of our population was illiterate. This has changed with a growth in public consciousness, a rise in literacy and perhaps most importantly, an explosion of visual and electronic media which have facilitated an unprecedented information revolution. Advances in computer technology and telecommunications have dramatically increased the amount of information that can be stored, retrieved, accessed and collated almost instantaneously. An enormous amount of personal information is held by various bodies, both public and private - the police, the income tax department, banks, insurance agencies, credit-rating agencies, stockbrokers, employers, doctors, lawyers, marriage bureaus, detectives, airlines, hotels and so on. Till recently, this information was held on paper; the sheer Vol. and a lack of centralization made it hard to collate with the result that it was very difficult for one body or person to use this information effectively. In the Internet age, information is so centralized and so easily accessible that one tap on a button could throw up startling amounts of information about an individual. This enables public authorities to keep a closer watch over the individual.

It doesn't end with public authorities. There are other Big Brothers watching everywhere.

·         Every time you log on to the Internet you leave behind an electronic trail. Websites and advertising companies are able to track users as they travel on the Internet to assess their personal preferences, habits and lifestyles. This information is used for direct marketing campaigns that target the individual customer. Every time you use your credit card you leave behind a trail of where you shopped and when, what you bought, your brand preferences, your favorite restaurant.

·         Employee privacy is under siege: employers routinely use software to access their employees' email and every move of the employee.

·         Field sales representatives have their movements tracked by the use of location-based tracking systems in new wireless phones.

Technology blurs the traditional boundaries between systems. Techniques such as data mining ensure that every bit of valuable information is extracted and logged. Data matching enables linkages to be made between the contents of previously uncorrelated databanks.

The move towards convergence will further blur traditional distinctions between activities, technologies and regulatory schemes. Information obtained by private agencies is used (and misused) not only by the private sector but is easily accessed by public authorities. Police and tax authorities the world over are known to rely on the private sector for information about suspects and tax evaders. Seemingly innocuous information disclosed in a specific limited environment may be collated and used in a completely unforeseen and startling context.⁷ Coinciding with this technological revolution is the imminent enactment of a law on freedom of information. The Freedom of Information Bill, 1992 creates rights of access to information relating to public affairs and proceeds on a presumption in favour of openness. While the enactment of this Bill will provide for greater transparency in public life, it will also bring into confrontation the right of the public to know and the right of the individual to be left alone.

Technology and privacy

The law on privacy has not kept pace with technological development. Even today, in no country does the right to privacy enjoy the status of a specific constitutional right. Privacy law has evolved largely through judicial pronouncement.

As technology has advanced, the way in which privacy is protected and violated has changed with it. In the case of some technologies, such as the printing press or the Internet, the increased ability to share information can lead to new ways in which privacy can be breached.

The Internet has brought new concerns about privacy in an age where computers can permanently store records of everything: "where every online photo, status update, Twitter post and blog entry by and about us can be stored forever," writes law professor and author Jeffrey Rosen.[105]

This currently has an effect on employment. Microsoft reports that 75 percent of U.S. recruiters and human-resource professionals now do online research about candidates, often using information provided by search engines, social-networking sites, photo/video-sharing sites, personal web sites and blogs, and Twitter. They also report that 70 percent of U.S. recruiters have rejected candidates based on internet information.[106] This has created a need by many to control various online privacy settings in addition to controlling their online reputations, both of which have led to legal suits against various sites and employers.[107]

The ability to do online inquiries about individuals has expanded dramatically over the last decade. Facebook for example, as of July 2010, was the largest social-networking site, with nearly 500 million members, or 22 percent of all Internet users, who upload over 25 billion pieces of content each month. Twitter has more than 100 million registered users. The Library of Congress recently announced that it will be acquiring — and permanently storing — the entire archive of public Twitter posts since 2006, reports Rosen.[108]

According to some experts, many commonly used communication devices may be mapping every move of their users. Senator Al Franken has noted the seriousness of iPhones and iPads having the ability to record and store users locations in unencrypted files,[109] although Apple denied doing so.[110]

Andrew Grove, co-founder and former CEO of Intel Corporation, offered his thoughts on internet privacy in an interview in 2000.[111]

Privacy is one of the biggest problems in this new electronic age. At the heart of the Internet culture is a force that wants to find out everything about you. And once it has found out everything about you and two hundred million others, that's a very valuable asset, and people will be tempted to trade and do commerce with that asset. This wasn't the information that people were thinking of when they called this the information age.

Right to Information Act

The RTI Act was designed to promote transparency in government, not to permit the invasion of the privacy of individuals who use government hospitals or who altruistically participate in government-funded research. The Act generally does not threaten the confidentiality of the doctor-patient or researcher-subject relationship.

Under section 8(1) entitled "What is not open to disclosure", the Act says that "(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individuals should not be disclosed." (7) In addition, the same section stipulates that "(e) information available to a person in his fiduciary relationship"-such as the relationship of a physician or researcher with a patient or subject-should not be disclosed "unless a competent authority is satisfied that the larger public interest warrants the disclosure of such information."

The Act does not grant others the right to request information about an individual that is generated within fiduciary relationships, even if the doctor or researcher is a government employee and the medical or research record is housed in a government institution, unless public interests outweigh the individual`s interest in the privacy of the information. Thus, the degree to which the RTI Act threatens patient or subject confidentiality depends greatly on what would count under the Act as a "public activity or interest" and as an "unwarranted invasion" of privacy.

Sting Operations

Television channels have started a series of investigative attempts with hidden cameras and other espionage devices. The advent of miniaturized audio and video technology, specially the pinhole camera technology, enables one to clandestinely make a video/audio recording of a conversation and actions of individuals. Such equipment generally has four components-- the miniaturized camera, often of a size of a 25 paisa coin or even smaller (pin top size), a miniature video recording device, a cord to transmit the signals and a battery cell. The use of the cord can be avoided through wireless transmissions.

In law enforcement, a sting operation is an operation designed to catch a person committing a crime by means of deception. A typical sting will have a law-enforcement officer or cooperative member of the public play a role as criminal partner or potential victim and go along with a suspect's actions to gather evidence of the suspect's wrongdoing. Now the moot question that arises is whether it is for the media to act as the ‘law enforcement agency’!

The carrying out of a sting operation may be an expression of the right to free press but it caries with it an indomitable duty to respect the privacy of others. The individual who is the subject of a press or television ‘item’ has his or her personality, reputation or career dashed to the ground after the media exposure. He too has a fundamental right to live with dignity and respect and a right to privacy guaranteed to him under Article 21 of the Constitution.

Public Records on the Internet

Description of issue.

One of the hallmarks of our democracy is open government. Most government agency and court records are considered "public" records, primarily so "we the people" can monitor our government. In the past, individuals accessed public records by traveling to the courthouse or to the government office and using the records there, a time-consuming and often expensive task. In recent years, however, a growing number of government agencies and court systems have made these records available on the Internet.

Upon first consideration, it might be thought beneficial for government records to be easily available to the public via the Internet. After all, our government is supposed to be accessible to citizens.

• But what happens when the full texts of divorce records are available to anyone with an Internet connection, complete with sensitive financial data and family histories?
• What about access to an individual's criminal records of years gone by, showing a crime for which the individual has long since paid his or her debt to society, and which may have been legally expunged?
• Will an employer have a forgiving attitude toward a 30-year-old whose criminal record shows a conviction for shoplifting when the applicant was 19 years of age?
• Will an employer overlook a DUI conviction even after the individual has lived free of alcohol for many years?
• Is one's bankruptcy cause for negative value judgments by employers, relatives and neighbors?
• Should stalkers be able to locate their victims just because that person votes or drives, thereby revealing the home addresses in public records?
• Should identity thieves be able to pluck Social Security numbers, dates of birth, and mothers' maiden names from public records posted on the Internet?

 Looking ahead.

Unless we are somehow transformed into a tolerant society, our "transparent society," to borrow a term from sci-fi writer David Brin, is going to pose significant problems for a large number of individuals. The full texts of criminal and civil court records, divorce decrees, bankruptcies, and more are slated to be available from government and information broker websites. Employers are likely to use such information to make adverse hiring decisions. Identity thieves will find their pot of gold at the end of the rainbow simply by clicking a mouse. And neighbors and relatives may learn more about us than we are comfortable with.

Georgetown University law professor Jeffrey Rosen wrote The Unwanted Gaze about just such a scenario. He explains the value of privacy protection as follows:

Privacy protects us from being objectified and simplified and judged out of context in a world of short attention spans, a world in which part of our identity can be mistaken for the whole of our identity. (p.115)

There are several potential drawbacks for posting public records online, especially the full texts of court records.

• Fewer individuals will choose to participate in government in order to prevent information about them from being posted on the Internet.
• Many will choose not to seek justice through the court system. Justice will only be available to those with the resources and know-how to seek private judicial proceedings.
• Individuals will experience shame and embarrassment, even discrimination, when details of their personal lives are broadcast in court records available on the Internet.
• Reputations will be destroyed because of errors.
• Data from electronic public records files will be used for secondary purposes that stray far from the original public policy purposes for which they were first created, that being government accountability.
• A particularly troubling consequence of untrammeled access to electronic public records is the loss of "social forgiveness." The 30 year-old who has turned his life around might be judged harshly for his transgressions at age 19.
• Our society will see a growing number of individuals who are disenfranchised for life. Large numbers will not be able to find employment because of negative information in court files - whether true or not - from years gone by. Or they will be relegated to lower-paying jobs in the service industries.

The solution is not to ban public records altogether from the Internet. Instead, records should be selectively redacted, for example, by removing Social Security numbers and financial account data. Instead of publishing the full texts of sensitive proceedings such as divorce cases, on the Internet, just the index information should be published. Certain categories of case files, family court records for example, should be available at the court house and not online. These and other solutions must be sought in order to prevent the negative consequences of publishing public records online, but without losing sight of the need for access to public records in order to provide oversight of our government.  

 Financial Privacy

Description of issue.

As a result of the federal Financial Services Modernization Act, banks, insurance companies, and brokerage firms are now able to affiliate with one another under one corporate roof. This law, known as Gramm-Leach-Bliley (GLB) after its sponsors, was implemented in 2001.

Credit card companies, banks, insurance companies, and brokerage firms may share their respective databases with one another -- called affiliate sharing -- but they cannot sell customer data to third parties without providing an opt-out notice to their customers.

Looking ahead.

Unless legislation is passed at both the federal and state levels to strengthen the Financial Services Modernization Act, the process of affiliate sharing will enable these merged corporations to assemble customer data files of unprecedented scope. Some financial institutions have more than 2,000 affiliates spanning a broad array of businesses.

While "junk" mail, e-mail, and telemarketing solicitations are a likely result of widespread affiliate sharing of customer data, privacy advocates are even more concerned about the potential for harmful uses of data merging and data profiling:

• Decisions on one's credit worthiness might hinge on medical information gleaned from insurance company data.
• A scam artist might use one's profile as a risk-taking investor to pitch get-rich-quick schemes.
• Elderly individuals with cash-rich portfolios could be vulnerable to fraud artists' promises of lucrative returns on risky investments.

The GLB Act contains a provision that enables state legislatures to pass stronger privacy provisions. Indeed, several states have debated privacy bills that allow for an opt-in for third party data sharing, thereby setting the default at no sharing unless the customer says "yes." In contrast, the GLB standard is opt-out.

           The California legislature passed the Financial Information Privacy Act that requires an “opt in” by customers before a financial institution can sell personal information to third parties. Customers are given the ability to “opt out” of the sharing of personal information with company affiliates.

            Given the high percent of the population favoring strong privacy protection -- 80% to 90% in most polls -- state legislatures and Congress are expected to grapple with this issue for years to come. The financial services industry is likely to exert considerable pressure on Congress to pass an amendment to GLB that prohibits states from enacting stronger privacy measures.  

Medical Records Confidentiality

Description of issue.

It is not an exaggeration to state that our video rental records have had more privacy protection than our medical records in the past. The Clinton Administration's Health and Human Services Department (HHS) attempted to rectify this situation by developing privacy regulations as required by the passage of HIPAA, the Health Insurance Portability and Accountability Act.

           The HIPAA regulations, effective in April 2003, made significant strides for American healthcare consumers, especially in requiring healthcare institutions to give patients notice of their information practices, and in enabling individuals to gain access to their own medical records. But some of the privacy provisions have been rolled back due to pressure from the healthcare industry, in particular the patient consent requirements. Consent is not required for information sharing involved in treatment, payment, and operations.

During the first 5 years of HIPAA enforcement, HHS did not assess a single civil penalty in response to well over 30,000 complaints. The agency claims to focus on voluntary compliance and correction by covered entities.

In July 2008, for the first time since the privacy rules went into effect in 2003, the HHS entered into a resolution agreement with a covered entity requiring the organization to pay $100,000.

Looking ahead.

Most individuals consider their medical information to be among the most sensitive of any information about them. And many are under the mistaken impression that the Hippocratic oath still holds true today.

Whatsoever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets. Hippocrates, 4^th Century B.C.

But in truth, one's medical information is an open book in our far-flung healthcare system-from medical providers, to insurance companies, to self-insured employers, to laboratories, and to payment companies, medical transcriptionists, pharmacies and pharmacy benefits systems, government regulators, and more.

It remains to be seen whether HHS will depart from its current policy of voluntary compliance and begin to take a more aggressive approach in enforcing the HIPAA regulations.

Genetic Privacy

Description of issue.

Genetics is the science of differences and can be used to categorize people, stigmatize them, or subject them to social or economic discrimination. Persons being tested aren't the only people with an interest in the test results. Family members and potential mates, employers, insurers, the press and the government all may desire information about a person's genetics. Hence, genetic information raises a host of privacy issues.

The use of genetic data to discriminate in both employment and health insurance is of growing concern to consumers, healthcare professionals, and policymakers alike. In 2001, U.S. News & World Report reported that the railroad company Burlington Northern secretly conducted genetic tests on employees who had filed worker's compensation claims for carpal tunnel syndrome. The company's intention was presumably to be able to reject some claims because of genetic predisposition to the condition, despite the fact that predisposition to this ailment is questionable. (Dana Hawkins, "The dark side of genetic testing," U.S. News & World Report, Feb. 19, 2001).

Another key issue is determining when disclosure of genetic information should be permitted in order to protect third parties from harm. For example, can a physician over a patient's objection reveal a positive test result for an inherited disorder to the patient's children, on the ground that disclosure is necessary to enable the children to protect themselves?

A number of states have enacted legislation to prohibit health insurers from collecting or using certain types of genetic information, but this is not a complete solution. Most of these laws cover only limited types of genetic information and apply only in limited settings. They also do not address the problem of employment discrimination.

On the federal level, the Genetic Information Nondiscrimination Act of 2008 (GINA) was designed to prohibit the improper use of genetic information for insurance and employment purposes. GINA prohibits insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic disposition to developing a disease in the future. The legislation also bars employers from using genetic information when making employment decisions. Unfortunately, the legislation does not go far enough in enabling personal control over genetic testing results. For a more detailed analysis of GINA.

Looking ahead.

Notwithstanding the potentially valuable information that genetic testing may provide, we must be wary of the potential threat to our privacy. There are no simple solutions. As biotechnology and computer technology advance, substantial privacy issues will continue to arise.

The challenge of protecting health information is compounded by the increasing reliance upon digital data. Medical records are shifting from largely paper-based systems to electronic health records (EHRs). Ultimately, a person’s EHR may include all of their medical information from "cradle to grave." In a paper-based system, privacy is mainly protected by fragmentation and chaos. Because the system is fragmented, it can be difficult or impossible to compile an individual’s records from multiple providers over extended periods.

The number of genetic tests and the number of people taking them will increase significantly in the coming years. EHRs will make it easier to disclose genetic information widely. As the U.S. and other countries contemplate better ways to deal with genetic information, policymakers are seeing that protecting privacy is neither cheap nor easy. Improved security measures can keep information from being disclosed without authorization, but restricting the scope of authorized disclosures is equally important. It is essential, and challenging, to decide which individuals and entities have a right to which information and for what purposes.

Effective legislation should, at minimum, include four elements, according to experts. First, it should address the underlying difficulties in gaining access to health insurance and carefully balance the rights of employers and employees. Second, legislation should limit nonmedical uses of predictive health information, including for life insurance, disability insurance and long-term care insurance. Third, any legislation should limit the scope of disclosures, penalize wrongdoers and provide remedies for people harmed by wrongful disclosures. And fourth, EHRs should be designed so that they can limit disclosures to relevant health information. Tackling these matters will provide an effective first step toward shaping the future of medical privacy. (Mark A. Rothstein, "Tougher Laws Needed to Protect Your Genetic Privacy", Scientific American, August 19, 2008

Chapter –ViI

Right to Privacy: RECent cases

 

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.

 

Recent cases in India

In Kaleidoscope (India)(P) Ltd. v. Phoolan Devi[112] 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.

People's Union for Civil Liberties v. Union of India[113] involved a challenge to Section 5(2) of the Telegraph Act, 1885 which permits the interception of messages in cases of public emergency or in the interest of public safety. The Supreme Court held that the right to privacy, which was part of the fundamental right to life guaranteed under Article 21, included the right to hold a telephone conversation in the privacy of one's home or office. It was held that telephone-tapping, a form of "technological eavesdropping" infringed the right to privacy. Finding that the Government had failed to lay down a proper procedure under Section 7(2)(b) of the Act to ensure procedural safeguards against the misuse of the power under Section 5(2), the Court prescribed stringent measures to protect the individual's privacy to the extent possible.

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 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 fianc‚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.

This case may be compared with the English case, X v. Y[114], from the late eighties. A newspaper reporter acquired information about two doctors practising in the National Health Service despite having AIDS. The information was acquired from hospital records and was supplied by employees of NHS. Despite the plaintiffs having obtained an injunction against the use of any confidential information from hospital records, the second defendants, owners of a national newspaper published an article written by the defendant reporter titled "Scandal of Docs with AIDS" and threatened to disclose the identity of the doctors. While recognizing the public interest in having a free press and informed public debate, the Court took the view that this was outweighed by the public interest that victims of AIDS should be able to resort to hospitals without fear of disclosure and breach of confidence by employees of the hospital. The Court felt that a breach of confidentiality would make patients reluctant to come forward for treatment and counselling and this, in turn, would lead to a spread of the disease, which was contrary to public interest. Even over ten years before the X v. Y[115] type of case arose before the Supreme Court in India, the English Court showed far more zealousness in protecting the privacy of AIDS victims.

Most Recent Cases

IN THE SUPREME COURT OF INDIA

“Decided On: 04.07.2011”

Appellants: Ram Jethmalani and Ors.
Vs.
Respondent: Union of India (UOI) and Ors.[116]

Ratio Decidendi:

“Right to privacy is an integral part of right to life, a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner.” “Revelation of bank account details of individuals, without establishment of prima facie grounds to accuse them of wrong doing, would be a violation of their rights to privacy.” “State cannot compel citizens to reveal, or itself reveal details of their bank accounts to the public at large, either to receive benefits from the State or to facilitate investigations, and prosecutions of such individuals, unless the State itself has, through properly conducted investigations, within the four corners of constitutional permissibility.”

 

IN THE SUPREME COURT OF INDIA

“Decided On: 11.05.2011”

Appellants: Amar Singh
Vs.
Respondent: Union of India (UOI) and Ors.[117]

Case Note:

Constitution - Right to privacy - Respondent No. 7 was intercepted Petitioner's conversation on phone by monitoring them and recording them - Hence, this Petition - Whether, orders for interception was unconstitutional - Held, affidavit filed by Petitioner in support of his Petition, was not at all modeled either on order XIX Rule 3 of the Code of Civil Procedure, or Order XI of the Supreme Court Rules, 1966 - Appellant had to disclose his source of information so that other side got fair chance to verify it - However, Appellants did not disclose any information on which Appellants were founded - When matter had come up for contested hearing, he withdrawn his allegations against Respondent No. 7 - Moreover, Petitioner made statement that Anurag Singh edited and tampered some of conversations of Petitioner - Petitioner also admitted that he relied on information from same Anurag Singh to file detailed affidavit in support of his Petition - Therefore, it appeared that Petitioner was shifting his stand as per his convenience - It was no where mention that Petitioner gave statement under Section 161 of Code of Criminal Procedure in connection with investigation arising out of FIR lodged - Therefore, it was clear that Petition was frivolous and was speculative in character and it was attempt by Petitioner to mislead Court - Petition dismissed.

Ratio Decidendi:

"Court shall protect right to privacy of individual only in accordance with constitutional privileges."

Chapter –ViIi

Right to Privacy: an analytical outlook

 

As per my opinion right to privacy in existing society is a myth. Below mentioned controversies are enough to establish that in this techno-friendly era this right rarely survives.

Analysis of Right to Privacy Bill, 2011

“The Government proposes to bring out a legislation that will provide protection to individuals in case their privacy is breached through unlawful means. For the purpose it is working on ‘Right to Privacy’ Bill. The drafting of the legislation is at a very preliminary stage and details of the legislation are yet to be finalized.” (Ministry of Personnel, Public Grievances & Pensions, Right to Privacy Bill, Release ID: 74743)

Ø  The full fledge analysis of Right to Privacy bill, 2011 is being provided in the annexure attached to this project.

Ratan Tata and Neera Radia Controversy

Tata group chairman Ratan Tata moved the Supreme Court seeking to restrain the broadcast and publication of purported conversations between him and lobbyist Niira Radia who is under investigation in the 2G spectrum allocation case.

The petition, filed through corporate lawyer Ryan Karanjawala, said that the tapes could be used for investigative purposes but should not be made public as it “infringed” on his “right to privacy”.

This is possibly the first time a high-profile industrialist has moved the Supreme Court seeking to protect his privacy. Actress Monica Bedi had earlier moved the top court on this ground after her purported photographs in a prison shower were published. The court had then restrained all publications from publishing the photographs.

But in Tata’s case, the tapes are already in public domain. At best, the court can restrain any repeat publication of the transcripts of the tapes.

The tapes are part of the 5,851 calls intercepted allegedly by the income tax department and the enforcement directorate as part of investigations into the 2G scandal. Tata’s petition may also prompt the government to take action to prevent any more leaks. The government today ordered a probe to establish how the contents of the tapes were leaked.

Tata has also demanded that the court direct the government to take action against those who were responsible for the leaks.

The purported conversations give the impression that Tata was not too keen on having DMK leader A. Raja as telecom minister, expressing his preference for Dayanidhi Maran.

Tata Teleservices was one of the contenders for 2G licence and Radia handled the company’s public relations.

In his petition, Tata contended that intercepts of the conversations between Radia and him violated his right to privacy.

The Supreme Court had earlier held that the right to privacy was part of the right to life guaranteed by the Constitution. Tata said that the recorded conversations should have been used for investigation alone and should not have been published.

His petition said that he was not challenging the government’s right to investigate the 2G scam but only the unauthorized publication of the transcripts.

The Radia tapes feature purported conversations she had with several journalists, politicians and industrialists, apparently trying to lobby for cabinet berths for particular parties. The tapes have been circulating on the Web and have been published by two magazines.

Raja has had to step down in the aftermath of the scam. The CBI has already registered a case against unknown companies and individuals. However, the Supreme Court has panned the agency for dragging its feet on the probe.

Reacting to Tata’s petition, the counsel for the Centre for Public Interest Litigation, an NGO that has called for court monitoring of the CBI probe, said he would contest the Tata plea.

“We are seriously considering filing an application in the Supreme Court to ensure that there is no injunction against these tapes and these recordings are put out in public domain,” lawyer Prashant Bhushan said. “These are not private conversations. These are conversations between a lobbyist and her clients... bureaucrats, journalists and ministers. These show glimpses of all kinds of fixing and deal-making and show how the whole ruling establishment functions. There is enormous public interest in putting these tapes out. It is absurd for Mr Tata to say that this is an invasion of his privacy,” he said.

Monika Bedi Controversy

The Supreme Court barred the possible telecast or publication of Bollywood starlet Monica Bedi's photographs, allegedly shot surreptitiously during her stay in the women's ward of Bhopal jail.

While banning the possible telecast of Bedi's "obscene" photographs, the bench headed by Chief Justice K G Balakrishnan also directed the information and broadcasting ministry to communicate the apex court order to various news channels for compliance.

The bench, which included Justice Tarun Chatterjee and Justice R V Raveendran, banned the possible publicising of Monica's photographs on her petition, seeking court intervention to protect her right of privacy and right to life with dignity.

The girlfriend of extradited mobster Abu Salem moved the apex court through her counsel K T S Tulsi under Article 32 of the constitution, invoked when the Fundamental Right of an individual is violated.

Bedi approached the court a day after Zee TV telecast her "objectionable and obscene" photographs, which was released to the media by an opposition leader of Madhya Pradesh.

A Congress leader of the state had released the photographs contending that the security arrangement inside the Bhopal Jail was so fragile under the Bharatiya Janata Party government in the state that one can even photographs women even in the jail's bathroom.

Without acknowledging if Monica's photographs, allegedly shot in the jail with hidden camera were genuine or morphed, Tulsi said that the possible telecast or publication of these photographs would impinge upon his client's right to privacy and her fundamental right to life which included the right to live with dignity.

In her petition, Bedi said that in case these photographs were found genuine and were indeed shot with hidden camera, it called for a high level-probe into how it was shot inside the jail.

"If the photographs are found to be genuine, the official responsible for the security of the jail deserves to be dealt with sternly," Monica said in her petition.

She was acquitted by a Bhopal court in a passport forgery case on July 16 and was released July 25 from a Hyderabad jail after getting bail from a court there in a similar case.

Blackberry Controversy

Today BlackBerry caved in to the demands of the government and agreed to install a server in India. It seems the Indian government is uncomfortable with any kind of private communication. It wants to know everything and calls those who disagree traitors.

It’s shocking to see the support that the government has. Many have congratulated the administration for “being firm” and “not bowing down.” As if being an arrogant, overbearing jerk somehow validates your worth. This adolescent prick waving by the government to show their strength only highlights its insecurity. By telling me that everything I say and write has to be monitored, it’s asking me to trust them completely. Is that even possible?

 

It’s astounding how some people can criticize the government no end on one hand, and at the same time demonstrate a touching degree of faith in Big Brother. Hello split personality!

The Indian Supreme Court has ruled several times that privacy is a Constitutional Right in India. Now we’re expected to believe that giving it up and letting bureaucrats scan my life will bring me some sort of security. But will it? In reality, the chances of me being killed in a terror attack are fifty time lesser than being hit by lightning! So to prevent this miniscule number of deaths, the citizens of a free country are expected to give up their right to confidential communication? It’s absurd on the very face of it.

Moreover, we should remind ourselves of India’s nature. Freedom comes with risks. I’m willing to take the risk of dying in a terrorist attack if I’m allowed my civil liberties. I don’t want to hide away in closed rooms and have all my communications monitored. That’s not life worth living. And when we became independent in 1947, we decided to take that risk.

India isn’t a country for the feeble hearted. It’s not a place where you can be secure and get offended by every little thing. If you want foolproof security, go to another country. Some ultra nationalists claim that the Indian government had the right to demand concessions from BlackBerry because China and Saudi Arabia had them. What a comparison! What proud company we keep…

Let’s remember the quote of Benjamin Franklin. One that has been repeated very often these days and which is still ignored.

‘Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.’

Naz Foundation Case[118]

The most significant development outside search and surveillance issues is the new decision of the High Court of Delhi in the Naz Foundation Case (2 July 2009). The case was public interest litigation brought by the NGO, Naz Foundation to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), which criminally penalizes what is described by the section heading as ‘unnatural offences’ (‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal …’), therefore in the Court’s interpretation effectively criminalizing sex other than heterosexual penilevaginal.

The Delhi High Court initially dismissed the application as an ‘academic challenge’, but was required by the Supreme Court in 2004 to re-examine the matter.

The petitioners argued ‘to the effect that the prohibition of certain private, consensual sexual relations (homosexual) provided by Section 377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right to life and liberty under Article 21 [which] can be abridged only for a compelling state interest which, in its submission, is amiss here’. As the Court noted ‘A rather peculiar feature of this case is that completely contradictory affidavits have been filed by two wings of Union of India. The Ministry of Home Affairs (MHA) sought to justify the retention of Section 377 IPC, whereas the Ministry of Health & Family Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts.’ The Court concluded that ‘it is clear that the thrust of the [MHA’s] resistance to the claim in the petition is founded on the argument of public morality. Though the MHA has referred to the issue of public health and healthy environment, the affidavit has not set out elaborately the said defence.’

The key passage in the Court’s finding that Sec.377 breached the right of privacy is: The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfillment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21. Section 377 IPC denies a person's dignity and criminalizes his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.

The Court then disposed of claims that this invasion of privacy was justified within the

exception to Article 21: While it could be “a compelling state interest” to regulate by law, the area for the protection of children and others incapable of giving a valid consent or the area of

non-consensual sex, enforcement of public morality does not amount to a “compelling state interest” to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others.

… it is not within the constitutional competence of the State to invade the privacy of citizens lives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalization of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable. The state interest “must be legitimate and relevant” for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable.

The nature of the provision of Section 377 IPC and its purpose is to criminalize private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalize conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity.

In addition, the Court held that s377 violated Article 14 (equality before the law) and its

more particular expression in Article 15 (prohibiting discrimination on the grounds of sex). It found that sexual orientation is a ground analogous to sex, and that discrimination on the grounds of sexual orientation violates Article 15. While some constitutional rights are only of ‘vertical’ application (against State actions), ‘Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15’.

The Court therefore held that s377 violated Articles 21, 14 and 15 of the Constitution, insofar as it criminalizes consensual sexual acts of adults in private. Because of the doctrine of

Severability, it ‘will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors’ [under 18].

 

The Naz Foundation Case therefore takes the protection of privacy under the Indian Constitution beyond issues of search and surveillance. The broadest statement of the Delhi High Court’s approach is where, following its review of Indian case law to date on protection of privacy, it states ‘The right to privacy thus has been held to protect a “private space in which man may become and remain himself”. The ability to do so is exercised in accordance with individual autonomy’. If such an expansive approach was adopted by the Indian Supreme Court, it is capable of developing in the direction of something like the ‘right to informational self determination’ of the German Constitutional Court.

Recently chief minister of J&k taken the name of rape victim in the assembly but before this matter get hyped he apologized publicly.

Chapter –ix

conclusion

 

The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is enjoined from derogating from them. It also includes the responsibility of the State to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others.

The right to privacy in India has failed to acquire the status of an absolute right. The right in comparison to other competing rights, like, the right to freedom of speech & expression, the right of the State to impose restrictions on account of safety and security of the State, and the right to information, is easily relinquished. The exceptions to the right to privacy, such as, overriding public interest, safety and security of the State, apply in most countries. Nonetheless, as the paper demonstrates, unwarranted invasion of privacy by the media is widespread. For instance, in the UK, Sweden, France and Netherlands, the right to photograph a person or retouching of any picture is prohibited unlike, in India where press photographers do not expressly seek consent of the person being photographed, if he/she is in a public space.  In France, not only is the publication of information is prohibited on account of the right to privacy, but the method in which the information is procured also falls within the purview of the right to privacy and could be violative. This includes information or photograph taken in both public and private spaces. Privacy within public spaces is recognized, especially, “where there is reasonable expectation of privacy.” The Indian norms or code of ethics in journalism fail to make such a distinction between public and private space. Nor do the guidelines impose any restrictions on photographing an individual without seeking express consent of the individual. 

The Indian media violates privacy in day-to-day reporting, like overlooking the issue of privacy to satisfy morbid curiosity. The PCI norms prohibit such reporting, unless it is outweighed by ‘genuine overriding public interest’. Almost all the above countries prohibit publication of details that would hurt the feelings of the victim or his/her family. Unlike the UK, where the PCC can pass desist orders, in India the family and/or relatives of the victims are hounded by the media.

In India, the right to privacy is not a positive right. It comes into effect only in the event of a violation. The law on privacy in India has primarily evolved through judicial intervention. It has failed to keep pace with the technological advancement and the burgeoning of the 24/7 media news channels. The prevalent right to privacy is easily compromised for other competing rights of ‘public good’, ‘public interest’ and ‘State security’, much of what constitutes public interest or what is private is left to the discretion of the men.

references

 

BOOKS:

·         Seervai., H.M., “Constitutional Law of India: A Critical Outlook”, 3^rd Edition, Vol: 2, 2008.

·         Jain., M.P., “Constitutional Law of India”,6th Edn.,2010,Nagpur:lexis nexis,butterwords.

·         Shukla., V.N., “Constitution of India”., 10^th Edition, Rd. by Singh., M.P.,Reprint-March,2007, Eastern Book Company: Lucknow.

·         De., D.J., “Interpretation and Enforcement of Fundamental Rights”., Eastern Law House: Kolkata, 2000.

ARTICLE:

·         THE SUBSTANTIVE RIGHT TO PRIVACY: TRACING THE DOCTRINAL SHADOWS OF THE INDIAN CONSTITUTION by Abhinav Chandrachud

ü  Cite as : (2006) 3 SCC (Jour) 31

·         The Right to Privacy in the Age of Information and Communications
by Madhavi Divan

ü  Cite as : (2002) 4 SCC (Jour) 1

·         Privacy and the Right to Information Act, 2005 by N N Mishra, Lisa Parker, L Nimgaonkar, S N Deshpande.

·         Privacy & Media Law

Posted by Prasad Krishna at Jul 19, 2011 05:35 PM | Permalink

Filed under: Publications, Internet Governance, Privacy

INTERNET:

      http://www.google.co.in

      http://www.wikipedia.com

      http://www.practicallawyer.com

      http://www.manupatra.com

 

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[1]   (1994) 6 SCC 632, 649-50 R.Rajagopal v. State of Tamilnadu.

[2]   AIR 1963 SC 1295

[3]   (1975) 2 SCC 148

[4]  There are also a few statutory provisions contained in the Code of Criminal Procedure Section 327(1), the     Indecent Representation of Women (Prohibition) Act, 1980 (Sections 3 and 4), the Medical Termination of Pregnancy Act, 1971 Section 7(1)(c), the Hindu Marriage Act, 1955 (Section 22), the Special Marriages Act, 1954 (Section 33), the Children Act, 1960 (Section 36), and the Juvenile Justice Act, 1986 (Section 36), all of which seek to protect women and children from unwarranted publicity.

[5]  This would include his family, marriage, procreation, motherhood, child-bearing, education etc.

[6]   Thornburgh v. American College of Obstetricians & Gynecologists, 476 US 747, 772 (1986).

[7]   Gerety,

[8]   Ibid.

[9]   Bostwick,.

[10] Daniel J. Solove, "Conceptualizing Privacy", (2002) 90 CAL. L. REV. 1087, 1088 (hereinafter Solove).

[11]   Griswold v. Connecticut, 381 US 479, 485 (1965)

[12]   The early Indian privacy cases dealt exclusively with police surveillance of habitual criminals. See e.g. Kharak Singh v. State of U.P., AIR 1963 SC 1295 (challenging Chapter XX of the U.P. Police Regulations which placed possible criminals under surveillance); Gobind v. State of M.P., (1975) 2 SCC 148 (challenging the validity of Regulations 855 and 856 of the M.P. Police Regulations, which permitted the police to keep an uncomfortable surveillance on individuals suspected of perpetrating crime).

[13]   The Fourth Amendment of the US Constitution provides a safeguard from unreasonable search and seizure, and no search can be carried out without a warrant issued on probable cause. The Supreme Court has not allowed Fourth Amendment developments to percolate into the Indian Constitution. See M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 (rejecting the premise that search and seizure violates the principle of self-incrimination embedded in Article 20(3) of the Constitution). But see District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 (finding the Andhra Pradesh Amendment to Section 73 of the Stamp Act, 1899, to be unconstitutional since it permitted search and seizure on private premises). See infra I.B.2. Search and Seizure: The Fourth Amendment.

[14]   Security Recommendations for Stalking Victims.

[15]   Kyllo v US.,121 US 354 (2003).

[16]   (1994) 6 SCC 632, 649-50.

[17]   Privacy in the Digital Environment , Haifa Center of Law & Technology, (2005) pp. 1-12.

[18]   Ibid.

[19]   There are also a few statutory provisions contained in the Code of Criminal Procedure Section 327(1), the Indecent Representation of Women (Prohibition) Act, 1980 (Sections 3 and 4), the Medical Termination of Pregnancy Act, 1971 Section 7(1)(c), the Hindu Marriage Act, 1955 (Section 22), the Special Marriages Act, 1954 (Section 33), the Children Act, 1960 (Section 36), and the Juvenile Justice Act, 1986 (Section 36), all of which seek to protect women and children from unwarranted publicity.

[20]   This would include his family, marriage, procreation, motherhood, child-bearing, education etc.

[21]   (1994) 6 SCC 632, 649-50.

[22]   Ironically, it was by borrowing from the English case-law and creatively interpreting it that the law in America developed. And yet, the law of privacy in England has lagged far behind, inviting serious criticism from commentators.

[23]   (1849) 1 Mac & G 25 : 41 ER 1171

[24]   (1991) FSR 62

[25]   Hopefully, the Human Rights Act in 1998 which imposes a positive obligation to act in accordance with the European Convention on Human Rights will have a positive effect on the development of the law in the U.K.

[26]   4 Harv L Rev 193.

[27]   381 US 479 (1965)

[28]   Roe v. Wade, 410 US 113 (1973).

[29]   See Meyer v. Nebraska, 262 US 390 (1923); Pierce v. Society of Sisters, 268 US 510 (1925); Prince v. Massachusetts, 321 US 158 (1944).

[30]   Carey v. Population Services International, 431 US 678, 685 (1977). See also Washington v. Glucksberg, 521 US 702 (1997) (dealing with the question of autonomy and suicide).

[31]   See supra fn 14.

[32]   Bowers v. Hardwick, 478 US 186, 204 (1986) (Blackmun, J. dissenting).

[33]   381 US 479 (1965)

[34]   Ibid., at 485-86

[35]   405 US 438 (1972)

[36]   Ibid., at 453

[37]   410 US 113 (1973)

[38]   Ibid., at 153

[39]   492 US 490 (1989)

[40]   100 505 US 833 (1992)

[41]   101 Ibid., at 852

[42]   Ridder & Woll, supra fn 88 and 78.

[43]   388 US 1 (1967)

[44]   478 US 186 (1986)

[45]   539 US 558 (2003)

[46]   Ibid., at 562

[47]   316 US 535 (1942)

[48]   Ibid

[49]   394 US 557 (1969)

[50]   AIR 1978 sc 597.

[51]   The early Indian privacy cases dealt exclusively with police surveillance of habitual criminals. See e.g. Kharak Singh v. State of U.P., AIR 1963 SC 1295 (challenging Chapter XX of the U.P. Police Regulations which placed possible criminals under surveillance); Gobind v. State of M.P., (1975) 2 SCC 148 (challenging the validity of Regulations 855 and 856 of the M.P. Police Regulations, which permitted the police to keep an uncomfortable surveillance on individuals suspected of perpetrating crime)

[52]   The Fourth Amendment of the US Constitution provides a safeguard from unreasonable search and seizure, and no search can be carried out without a warrant issued on probable cause. The Supreme Court has not allowed Fourth Amendment developments to percolate into the Indian Constitution. See M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 (rejecting the premise that search and seizure violates the principle of self-incrimination embedded in Article 20(3) of the Constitution). But see District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 (finding the Andhra Pradesh Amendment to Section 73 of the Stamp Act, 1899, to be unconstitutional since it permitted search and seizure on private premises). See infra I.B.2. Search and Seizure: The Fourth Amendment

[53]   Solove.

[54]   AIR 1963 SC 1295

[55]   Ibid., at 1303

[56]   Ibid., at 1306

[57]   (1975) 2 SCC 148

[58]   Ibid., at 150

[59]   Ibid., at 156.

[60]   Ibid., at 157.

[61]   (1981) 1 SCC 420

[62]   (1978) 4 SCC 494. For more discussion on the topic, See Richard Gruner, "Government Monitoring of International Electronic Communications: National Security Agency Watch List Surveillance and the Fourth Amendment", (1978) 51 S. CAL. L. REV. 429; Mark Jonathon Blitz, "Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World that Tracks Image and Identity", (2004) 82 TEX. L. REV. 1349

[63]  (1997) 1 SCC 301. It must be noted that surveillance does not merely refer to physical surveillance. It has been defined as a "police investigative technique involving visual or electronic observation or listening directed at a person or place". See Black's Law Dictionary, (5th Edn., 1979) p. 1296. It therefore follows that "telephone-tapping" is a form of surveillance. See also V.R. Krishna Iyer, Freedom of Information, (1990), p. 129

[64]  Ibid., at 311. See also R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 (stating that evidence obtained by telephone-tapping could be used in a court of law).

[65]   "Nor shall (any person) be compelled in any criminal case to be a witness against himself...." (sic). See generally Boyd v. United States, 116 US 616 (1886) (considering the seizure of 35 cases of plate glass by the Collector); Weeks v. United States, 232 US 383 (1914) (considering the seizure of papers by the police, which showed the accused to have sent lottery tickets through the mail); Olmstead v. United States, 277 US 438 (1928) (Brandeis, J. dissenting that it would be a lesser evil for criminals to go free than for the Government to "play an ignoble part" by tapping phone conversations); Katz v. United States, 389 US 347 (1967) (finding that tapping into a telephone conversation would amount to a search and seizure and all the Fourth Amendment safeguards would apply); Terry v. Ohio, 392 US 1 (1968) (considering a confrontation on the street between a policeman and citizens to amount to a search and seizure); Stanley v. Georgia, 394 US 557 (1969) (finding that the State had no business to tell a man what books to read in the privacy of his home). However, a particular author finds these developments to be "initially plausible but ultimately misguided": Akhil Reed Amar, "Fourth Amendment First Principles", (1994) 107 HARV. L. REV. 757. See also Carol S. Steiker, "Second Thoughts About First Principles", (1994) 107 HARV. L. REV. 820 (justifying the principles of the Fourth Amendment on the grounds that "individual liberties entail social costs").

[66]   1954 SCR 1077 : AIR 1954 SC 300. See also R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471, supra fn 46

[67]   Ibid., AIR at 304-06. The Supreme Court considered the decision of the US Supreme Court in Boyd v. United States, 116 US 616 (1886), and found that (SCR p. 1091): "what that decision really established was that the obtaining of incriminating evidence by illegal search and seizure is tantamount to the violation of the Fifth Amendment"

[68]   Supra fn 48, AIR at 306

[69]   (2005) 1 SCC 496. See also ITO v. Seth Bros., (1969) 2 SCC 324 (dealing with a similar question regarding Section 132 of the Income Tax Act, 1961).

[70]   Ibid., at 515

[71]   Ibid., at 525

[72]   Ibid., at 523

[73]   (1992) 1 SCC 286

[74]   Ibid., at 288. (a) Are you married-Yes (b) If so, please state: (i) Your husband's name in full and occupation; (ii) State the number of children, if any, and their present ages; (iii) Have the menstrual periods always been regular and painless and are they so now? (iv) How many conceptions have taken place? How many have gone full term? (v) State the date of last menstruation; (vi) Are you pregnant now? (vii) State the date of last delivery; (viii) Have you had any abortion or miscarriage?

[75]   Ibid., at 289

[76]   (2003) 4 SCC 493

[77]   Ibid., at 523

[78]   (1994) 6 SCC 632

[79]   376 US 255 (1964) (permitting the criticism of official conduct).

[80]   385 US 374 (1967) (finding no fault to lie as long as the statement was not made with actual malice, with knowledge that it was false, or with reckless disregard of whether it was false or not)

[81]   (1994) 6 SCC 632, 649-50

[82]   (1975) 2 SCC 148, (finding that "Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing"). See supra I.B.1. Surveillance

[83]   Incidentally, the US Supreme Court has defined the right as that of marriage, procreation, contraception (as opposed to "motherhood"), family relationships, child "rearing" as opposed to child "bearing" and education

[84]   (1994) 6 SCC 632, 650

[85]   (2003) 4 SCC 399. For a discussion on the first PUCL case see supra I.B.1. Surveillance

[86]   Ibid., at 471

[87]   (2004) 9 SCC 580

[88]   Ibid., at 603

[89]   (2004) 2 SCC 476

[90]   Ibid., at 479

[91]   Kesavananda Bharati v. Union of India, (1973) 4 SCC 225, 873 (Mathew, J.). For definitions of marriage by the US Supreme Court, see Skinner v. Oklahoma, 316 US 535, 541 (1942); Griswold v. Connecticut, 381 US 479, 486 (1965); Loving v. Virginia, 388 US 1, 12 (1967)

[92]   This decision is subject to a minimum prescription imposed by the State.

[93]   The State can enumerate prohibited relations, in order to prevent persons of the same family from marrying one another. The decision cannot however be made on the consideration of dowry.

[94]   The State can impose a restriction on the number of persons one can marry, depending upon the collective conscience of a society.

[95]   This question cannot be based upon any considerations of the sex of the child, particularly when the child in the womb is a female, in order to prevent manifestations of female infanticide.

[96]   The State can impose restrictions on the maximum number of children one can have depending upon the population policy

[97]   This decision should not be confused with whether to educate the child at all, which is not in the hands of the parents, but rather, in the hands of the State as parens patriae. This right is also subject to child labour laws.

[98]   Susan P. Stuart, "Fun with Dick and Jane and Lawrence: A Primer on Education Privacy as Constitutional Liberty", (2004) MARQ. L. REV. 563, 565

[99]   While appearance, habits, income, personality, etc. may all be factors which determine consent, medical ailments (e.g. whether a person is a lunatic, etc.) can fundamentally affect this decision. The Hindu Marriage Act, 1955 states that when a person is unable to consent to marriage, owing to lunacy, etc., no marriage can take place

[100]   Supra fn 76-81

[101]   (1998) 8 SCC 296.

[102]   Ibid., at 306

[103]   Ibid., at 308

[104]   Ibid., at 308

[105]   Rosen, Jeffrey. "The Web Means the End of Forgetting" New York Times, July 19, 2010

[106]   Ibid.

[107]   Ibid.

[108]   Ibid.

[109]   Popkin, Helen A.S., "Gov't officials want answers to secret iPhone tracking" MSNBC, "Technology", April 21,    2011

[110]   "Apple denies tracking iPhone users, but promises changes", Computerworld, April 27, 2011

[111]   "What I've Learned: Andy Grove", Esquire magazine, May 1, 2000

[112]   AIR 1995 Del 316

[113]   (1997) 1 SCC 301

[114]   Interestingly, although the identity of the parties was concealed, a law journal which first reported the judgment disclosed the names of the parties. This was subsequently rectified by the publication of an apology and the rectification of names. But the damage to the privacy of those concerned had already been done.

[115]   (1988) 2 All ER 648.

[116]   MANU/SC/0711/2011.

 

[117]   MANU/SC/0596/2011.

[118]