The Government of India has dropped a draft bill which recognised the right to privacy as an integral part of the fundamental right to personal liberty embodied in Article 21 of India’s Constitution. It says: “No person shall be deprived of his life or personal liberty except according to law.” The SC provided flesh and blood to the bare bones of Article 21.
The term “life” means something much more than “mere animal existence”. It includes “the right to live with dignity”. The law must be one which does not violate other fundamental rights; for example the right to freedom of speech. The procedure it prescribes must be fair and reasonable and not arbitrary.
In 1994, the SC ruled: “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 left alone’. A citizen has a right to safeguard the privacy of himself, his family, marriage, motherhood, child-bearing and education.” “None can publish anything concerning the above matters without his consent. If he does so, he would be violating the right to privacy of the person and would be liable for damages. The position may, however, be different if a person voluntarily thrusts himself into controversy.”
There is another exception. “In the case of public officials, it is obvious, the right to privacy, or for that matter the remedy of action for damages, is simply not available for acts and conduct relevant to the discharge of their duties.” It is, therefore, safe to say that the right to privacy is recognised in India. But the court’s rulings do not grapple with the issues that have arisen of late partly as a result of technical innovations (bugging devices, telephoto lenses and similar things) and partly to paparazzi aggressiveness. The court was concerned with the intrusion by the state. The state is not the only offender.
It is, therefore, odd that the government recently contended that the right to privacy is not a fundamental right. The draft bill, prepared after extensive consultations, sought to safeguard the citizen against misuse of personal information and data by the government or private agencies.
The law has progressed far enough to expose the falsity of the government’s claim that the right to privacy is not a fundamental right. It is recognised to be so in every democracy. Article 8 (11) of the European Convention on Human Rights says: “Everyone has the right to his private life, his home and his correspondence.”
No right is absolute but is subject to the rights of others. British law on privacy grew up through court rulings.
In 2001, in the case brought by Michael Douglas and Zeta Jones, the court of appeal said that it could “recognise privacy itself as a principle drawn from the fundamental value of personal autonomy”. They had given exclusive rights to publish photographs of their wedding to a magazine. But another magazine acquired secretly taken pictures which it intended to publish. The court ruled that while their right to privacy had, indeed, been violated, but “by far the greater part of that privacy has already been traded and fails to be protected”.
The court refused to grant the couple an injunction to restrain publication of the photos. In 2011, the SC held that the right to privacy of bank accounts did not override public interest in the disclosure to the petitioners of information secured by the Government of India from Germany, of documents on undisclosed wealth deposited by Indians in German banks.
Superior courts the world over have grappled with the problem of reconciling the right to privacy with the public’s right to know through the press. Codification is difficult; but enunciation of guidelines is not. A good model to draw on is the Code of Practice drawn up by the erstwhile press complaints commission in Britain.
It says: “(i) Everyone is entitled to respect for his or her private life, home, health and correspondence. A publication will be expected to justify intrusions into any individual’s private life without consent. (ii) The use of long lens photography to take pictures of people in private places without consent is unacceptable.”
But this is subject to three exceptions in the public interest: “(i) Detecting or exposing crime or a serious misdemeanour. (ii) Protecting public health and safety. (iii) Preventing the public from being misled by some statement or action of an individual or organisation.”
The writer is an author and lawyer based in Mumbai
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