Volume 28 - Issue 24 :: Nov. 19-Dec. 02, 2011
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
COVER STORY
A case for privacy
A.G. NOORANI
A case for privacy
A.G. NOORANI
The strongest protection possible must be given for the right to privacy in any statute or scheme, including the UID project.
IT is 30 years since a Congress Member of Parliament, V.N. Gadgil, suggested an Act for the protection of privacy, designed, no doubt, to curb press exposure of the wrongdoings of politicians. In reality, it is all but impossible to draft a statute that strikes a fair balance between people's right to know and the protection of a person's privacy. In India, as in the United Kingdom, there is no tort of privacy. India's law of torts (that is, civil wrongs punishable in damages) is based on case law, English and foreign. However, the Supreme Court of India has inferred right to privacy from the ones explicitly guaranteed. Article 21 of the Constitution contains a guarantee of personal liberty and it is obvious that personal liberty also involves the right to privacy.
The Supreme Court ruled in Kharak Singh's case in 1962 that the right to privacy is not a guaranteed right under our Constitution though it struck down domiciliary visits at night as being violative of “personal liberties”. A minority, comprising Justices K. Subbarao and J.C. Shah, held that the right to privacy was “an essential ingredient of personal liberty”. In the Nakheeran case [ R. Rajagopal vs State of Tamil Nadu (1994) 6 SCC 632], the court said:
“The right to privacy is implicit in the right to life and 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, procreation, motherhood, child-bearing and education, among other matters. No one 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.”
There is another aspect to the right to privacy. India is a party to the United Nation's International Covenant on Civil and Political Rights. Article 17 of the Covenant states that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference and attacks.” India ratified the Covenant on March 27, 1979. The instrument of ratification contains reservations to some of the other provisions of the Covenant, but not to Article 17. This is a treaty obligation enforceable internationally through the Human Rights Committee set up by the Covenant. India has to file periodic reports on its observance of the Covenant and successive Attorneys General have been grilled by the Committee's members on the pathetic state of India's reports.
In U.S. and U.K.
Even in the United States and Britain, legal recognition to privacy came in slow stages. It began with an article in 1890 in the Harvard Law Review by Louis D. Brandeis and his friend and law partner, Samuel Warren. Entitled “The Right to Privacy”, it was widely noticed. In 1928, as a judge of the Supreme Court, Brandeis gave a vigorous dissent upholding this right, which he called “the right to be let alone”. This was in Olmstead vs U.S., the famous telephone tapping case. The majority ruled that evidence, thus obtained, was admissible in courts. The ruling has suffered much battering since.
English common law recognised no right to privacy. Committees were set up to consider legislation on the right to privacy, only to find that no easy solution was possible. Reconciliation of this right with the freedom of speech is not an easy task. However, the Human Rights Act, 1998, “incorporates” as British law the “European Convention for the Protection of Human Rights and Fundamental Freedoms” signed in 1950. Article 8(1) of the Convention says that “everyone has the right to respect for his private and family life, his home and his correspondence”. Clause (2) carves out permissible restrictions, which are “necessary in a democratic society” in the interests of national security, for the prevention of crime, etc. Several cases have since been decided in English courts, which are of direct relevance to us. English cases are citable in our courts.
Data Protection Act
In 1998, Britain enacted the Data Protection Act, which lays down the principles and establishes a hierarchy of officials. Data controllers are subject to the jurisdiction of the Information Commissioner. It says: “Data controllers must also abide by the data protection principles. They are, in brief, (a) the data must be processed fairly and lawfully and only for one of the prescribed purposes. For data concerning ‘sensitive' matters, there is a narrower group of specified purposes; (b) it must be adequate, relevant and not excessive for the purpose; (c) it must be accurate, and where necessary, kept up to date; (d) it must not be kept for longer than is necessary; (e) it must be processed in accordance with the rights of data subjects; (f) appropriate technical and organisational measures must be taken against unauthorised or unlawful processing and against accidental loss or destruction of or damage to the data; (g) it must not be transferred out of the EEA [European Economic Area] unless the country to which it is taken or sent gives adequate protection for the rights of data subjects.
“The Commissioner can serve an enforcement notice if she is satisfied that a data controller has contravened any of these principles. An individual who suffers damage because a data controller has contravened any requirement of the Act is entitled to claim compensation. The special provisions for journalistic material gives exemption from: the data subjection principles (except those concerning security of data); data subject access rights; the rights of data subjects to prevent data processing; the rights of data subjects to correct inaccuracies; and rights concerning automated decision-making” (see Media Law, by Geoffrey Robertson, QC and Andrew Nicol, QC, Penguin, 4th Edition, pages 278-279).
Any law on data protection enacted by the Parliament of India will be tested on the anvil of Article 19. Section 32 of the British Data Protection Act provides “public interest” exemptions for “journalistic, literary or artistic material”. The test in each case is public interest. Public interest is a concept entirely different from material in which the public would be interested.
In 2004, the Supreme Court of India decided a case in which the right to privacy was involved. It concerned Section 73 of the Indian Stamp Act, 1899, and its amendment by Andhra Pradesh in 1986. As amended in 1986, it read:
“Every public officer or any person having in his custody any registers, books, records, papers, documents or proceedings, the inspection whereof may attend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorised in writing by the Collector to enter upon any premises and to inspect for such purposes the registers, books, records, papers, documents and proceedings, and to take such notes and extracts as he may deem necessary, without fee or charge and if necessary to seize them and impound the same under proper acknowledgement.
“Provided that such seizure of any registers, books, records, papers, documents or other proceedings, in the custody of any bank be made only after a notice of 30 days to make good the deficit stamp duty is given.”
The Supreme Court ruled in Kharak Singh's case in 1962 that the right to privacy is not a guaranteed right under our Constitution though it struck down domiciliary visits at night as being violative of “personal liberties”. A minority, comprising Justices K. Subbarao and J.C. Shah, held that the right to privacy was “an essential ingredient of personal liberty”. In the Nakheeran case [ R. Rajagopal vs State of Tamil Nadu (1994) 6 SCC 632], the court said:
“The right to privacy is implicit in the right to life and 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, procreation, motherhood, child-bearing and education, among other matters. No one 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.”
There is another aspect to the right to privacy. India is a party to the United Nation's International Covenant on Civil and Political Rights. Article 17 of the Covenant states that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference and attacks.” India ratified the Covenant on March 27, 1979. The instrument of ratification contains reservations to some of the other provisions of the Covenant, but not to Article 17. This is a treaty obligation enforceable internationally through the Human Rights Committee set up by the Covenant. India has to file periodic reports on its observance of the Covenant and successive Attorneys General have been grilled by the Committee's members on the pathetic state of India's reports.
In U.S. and U.K.
Even in the United States and Britain, legal recognition to privacy came in slow stages. It began with an article in 1890 in the Harvard Law Review by Louis D. Brandeis and his friend and law partner, Samuel Warren. Entitled “The Right to Privacy”, it was widely noticed. In 1928, as a judge of the Supreme Court, Brandeis gave a vigorous dissent upholding this right, which he called “the right to be let alone”. This was in Olmstead vs U.S., the famous telephone tapping case. The majority ruled that evidence, thus obtained, was admissible in courts. The ruling has suffered much battering since.
English common law recognised no right to privacy. Committees were set up to consider legislation on the right to privacy, only to find that no easy solution was possible. Reconciliation of this right with the freedom of speech is not an easy task. However, the Human Rights Act, 1998, “incorporates” as British law the “European Convention for the Protection of Human Rights and Fundamental Freedoms” signed in 1950. Article 8(1) of the Convention says that “everyone has the right to respect for his private and family life, his home and his correspondence”. Clause (2) carves out permissible restrictions, which are “necessary in a democratic society” in the interests of national security, for the prevention of crime, etc. Several cases have since been decided in English courts, which are of direct relevance to us. English cases are citable in our courts.
Data Protection Act
In 1998, Britain enacted the Data Protection Act, which lays down the principles and establishes a hierarchy of officials. Data controllers are subject to the jurisdiction of the Information Commissioner. It says: “Data controllers must also abide by the data protection principles. They are, in brief, (a) the data must be processed fairly and lawfully and only for one of the prescribed purposes. For data concerning ‘sensitive' matters, there is a narrower group of specified purposes; (b) it must be adequate, relevant and not excessive for the purpose; (c) it must be accurate, and where necessary, kept up to date; (d) it must not be kept for longer than is necessary; (e) it must be processed in accordance with the rights of data subjects; (f) appropriate technical and organisational measures must be taken against unauthorised or unlawful processing and against accidental loss or destruction of or damage to the data; (g) it must not be transferred out of the EEA [European Economic Area] unless the country to which it is taken or sent gives adequate protection for the rights of data subjects.
“The Commissioner can serve an enforcement notice if she is satisfied that a data controller has contravened any of these principles. An individual who suffers damage because a data controller has contravened any requirement of the Act is entitled to claim compensation. The special provisions for journalistic material gives exemption from: the data subjection principles (except those concerning security of data); data subject access rights; the rights of data subjects to prevent data processing; the rights of data subjects to correct inaccuracies; and rights concerning automated decision-making” (see Media Law, by Geoffrey Robertson, QC and Andrew Nicol, QC, Penguin, 4th Edition, pages 278-279).
Any law on data protection enacted by the Parliament of India will be tested on the anvil of Article 19. Section 32 of the British Data Protection Act provides “public interest” exemptions for “journalistic, literary or artistic material”. The test in each case is public interest. Public interest is a concept entirely different from material in which the public would be interested.
In 2004, the Supreme Court of India decided a case in which the right to privacy was involved. It concerned Section 73 of the Indian Stamp Act, 1899, and its amendment by Andhra Pradesh in 1986. As amended in 1986, it read:
“Every public officer or any person having in his custody any registers, books, records, papers, documents or proceedings, the inspection whereof may attend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorised in writing by the Collector to enter upon any premises and to inspect for such purposes the registers, books, records, papers, documents and proceedings, and to take such notes and extracts as he may deem necessary, without fee or charge and if necessary to seize them and impound the same under proper acknowledgement.
“Provided that such seizure of any registers, books, records, papers, documents or other proceedings, in the custody of any bank be made only after a notice of 30 days to make good the deficit stamp duty is given.”
The Supreme Court Bench, comprising R. Lahoti and A. Bhan, surveyed the case law in the U.S. and in India, but not in the U.K. It held:
“The impugned provision in Section 73 enabling the Collector to authorise ‘any person' whatsoever in respect, to take notes or extracts from the papers in the public office suffers from the vice of excessive delegation as there are no guidelines in the Act and, more importantly, the Section allows the facts relating to the customer's privacy to reach non-governmental persons and would, on that basis, be an unreasonable encroachment into the customer's rights. This part of Section 73 permitting delegation to ‘any person' suffers from the above serious defects and for that reason is, in our view, unenforceable. The state must clearly define the officers by designation or state that the power can be delegated to officers not below a particular rank in the official hierarchy, as may be designated by the state.”
Besides, the AP amendment of 1986 permitted inspection being carried out by the Collector by having access to documents that were even in private custody; that is, custody other than that of a public officer. It empowered invasion of the home of the person in whose possession the documents “tending” to or leading to the various facts stated in Section 73 were in existence. Section 73 was devoid of any safeguards as to probable or reasonable cause or reasonable basis or materials. It, therefore, violated the right to privacy both of the house and of the person. The court referred to the R. Rajagopal case wherein the learned judges held that “the right to personal liberty also means life free from encroachments unsustainable in law”, and such a right flowed from Article 21 of the Constitution.
Right to privacy was upheld again by the Supreme Court of India in another judgment most recently: Ram Jethmalani vs Union of India. Delivered by Justices P. Sathasivam and H.L. Gokhale, it read:
“Right to privacy is an integral part of right to life. This is 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…. [A]s constitutional adjudicators we always have to be mindful of preserving the sanctity of constitutional values, and hasty steps that derogate from fundamental rights, whether urged by governments or private citizens, howsoever well meaning they may be, have to be necessarily very carefully scrutinised. The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values…. An inquisitorial order, where citizens' fundamental right to privacy is breached by fellow citizens is destructive of social order. 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….
“…There is an inherent danger in making exceptions to fundamental principles and rights on the fly. Those exceptions, bit by bit, would then eviscerate the content of the main right itself. Undesirable lapses in upholding of fundamental rights by the legislature, or the executive, can be rectified by assertion of constitutional principles by this court…. We are not proposing that Constitutions cannot be interpreted in a manner that allows the nation-state to tackle the problems it faces. The principle is that exceptions cannot be carved out willy-nilly, and without forethought as to the damage they may cause.”
To sum up, the right to privacy is like the elephant – easy to detect, yet all but impossible to define. However, this is not to say that statutes on the subject do not exist. They do, in Canada as well as in the U.S. But the experience is not particularly inspiring. The best course then is to give the strongest protection possible for the right to privacy in any statute that may be enacted. That holds for any public scheme, including the UID project
