Right to Privacy in India and USA

Professor (Dr.) Santosh Kumar Tewari*

Usually, right to privacy is understood as the right to be left alone. On 17 January 2014 evening, when news of  the death of  Sunanda Pushkar, celebrity wife of an Indian minister, broke on TV channels, her son Shiva Menon requested media that his family’s privacy should be respected.

The right to privacy – by itself – has not been identified and defined in  the Constitution of India. However, in several judgments of the Supreme Court, it has been accepted that it is enshrined in Article 21 of the Constitution of India. In Article 21, which is a fundamental right, it is stated: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

There is an old principle that law will protect a person’s life and liberty. However, political, social and economic advancements have made it necessary to widen the scope of right to life and liberty. Right to privacy is an extension of right to life and liberty.

The Supreme Court of India has expanded the meaning of the word  life. Accordingly, life  includes the right to live in fair and reasonable conditions, right to livelihood by legal means and decent environment. The expanded scope of Article 21 has been explained by the Supreme Court of India  in the case of Unni Krishnan Vs. State of Andhra Pradesh 1993 AIR SC 217. The Supreme Court itself provided a list of some of the rights covered under Article 21 on the basis of earlier pronouncements:

1. The right to go abroad
2. The right to privacy
3. The Right against solitary confinement
4. The Right against Bar fetters
5. The Right to legal aid
6. The Right to speedy trial
7. The Right against Handcuffing
8. The Right against delayed execution
9. The Right against custodial violence
10. The Right against public hanging
11. Doctor’s Assistance
12. Shelter

The leading cases of the Supreme Court of India  on right to privacy are:

Kharak Singh Vs. State of U.P. AIR 1963 SC 1295,

Govind Vs. State of M.P. AIR 1975 SC 1378,

People’s Union of Civil Liberties Vs. Union of India AIR 1997 SC 568, and

State of Maharashtra Vs. Madhukar Narayan Mardikar (1999) 1 SCC 57

In the case of PUCL Vs. Union Of India, decided by the Supreme Court on 18 December, 1996, the court held that the right  to privacy would include telephone conversation too. When a person is talking on telephone, he is exercising his right to freedom of speech and expression as given to him by Article 19 (1)(a). However, telephone tapping could be held reasonable only if the grounds for doing so are covered by the restrictions stated in  Article 19(2).

U.S.A.: In fact the concept of right to privacy started taking shape in the USA as early as 1890. It developed after the publication of the article ‘The Right to Privacy’ written by Samuel D. Warren and Louis D. Brandeis in the Harvard Law Review of December 1890 (Vol. IV, No. 5). In their article Warren and Brandeis  stated:

“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. To satisfy purient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.”(13)

Authors of the essay emphasized the need for the further development of right to privacy in the country. They described this right as ‘right to be left alone’.

In the original U.S. Constitution there was no right to privacy. The First, Fourth and Fifth Amendments to the US Constitution led to the development of right to privacy in the country.

For example, in 1923, the U.S. Supreme Court struck down a provincial law  prohibiting schools from teaching any language other than English.

In 1965 the U.S. Supreme Court in the case of Griswold Vs. State of Connecticut held that right of privacy is implied in the US Constitution. In this case the court invalidated a law prohibiting the use of contraceptives, even by married persons.

In 2003 the U.S. Supreme Court extended this right to privacy to sexual relationships.

Under the U.S. Privacy Act of 1974, different government departments are prohibited from disclosing personal information of individuals except under a court order or certain other limited circumstances.

In  the U.S.A. there is a ban on the disclosure of income tax record of an  individual except in a court of law or similar circumstances.

Like U.S.A. in India too, several income tax records of  an individual are considered as confidential. That means they cannot be disclosed to public at large.

Some important features of privacy as mentioned in the above stated article of Warren and Brandeis are given below:

1. The right to privacy does not prohibit any publication of matter which is of public or general interest.
2. The right to privacy is not invaded by any publication made in acourt of law, parliament, or state assemblies.
3. A person loses his right to privacy if he gives consent to publish facts about his private life.
4. The truth of the matter published does not afford a defence.
5. The absence of ‘malice’ in the publisher’s mind is also not a defence.

According to D.D. Basu,  a person, who has a public life, cannot claim privacy to the same extent as a person who has no public status.(14)

Basu further suggests that in the absence of any public issue/ public interest, the press should not be allowed to make commercial use of any material obtained by invading the privacy of any individual.

The major difference in the law of privacy in U.S.A. and India is that in America one can ask for damages if his privacy has been invaded, whereas in India this provision does not exist at present.

Press Council of India and Concept of Privacy: Following are the norms of journalistic conduct given by the Press Council of India on right to privacy:

Things concerning a person’s home, family, religion, health, sexuality, personal life and private affairs, are covered by the concept of privacy, except when any of these matters becomes an issue of public interest.

A newspaper should not publish such matters of a person without his consent – whether truthful or otherwise and whether laudatory or critical. Position may, however, be different, if a person voluntarily invites or raises a controversy.

The press should not invade the privacy of a person, if the subject matter is not of genuine public interest.

Once a matter becomes a material of public record, the right to privacy no longer exists, and it becomes a legitimate subject for comment by the press.

While reporting crime involving rape, abduction or kidnapping females or sexual assaults on children, publication of victims particulars leading to their identity should be avoided. Similarly, minor children or infants who are the offspring of sexual abuse or forcible marriage or illicit sexual relations should not be identified or photographed.

In normal circumstances, newspapers should also avoid identifying the relatives or associates of a person convicted or accused of a crime, when they are totally innocent and  a reference to them is not relevant to the matter reported.

News Broadcasters Association and Concept of Privacy: In their code of ethics News Broadcasters Association, India, it has been stated:

As a rule channels must not intrude into the private lives, or personal affairs of individuals, unless there is a clearly established wider and  identifiable public interest for such a broadcast. Intrusion into the private spaces, records, transcripts, telephone conversations and any other material will not be for salacious interest. The intrusion could be done only when it is warranted in the public interest. However, it is also understood that the pursuit of the truth and the news is not possible through the predetermined principle of prior permission; hence door stepping  at individuals or authorities for the purpose of news gathering may be used only in the larger public interest. Further, in the case of minors, in any broadcast that intrudes into their privacy, the channel should attempt, wherever  possible, to seek the consent of the parent or legal guardian. However, the defence of privacy cannot be misconstrued as the denial of access, and this applies to all individuals, including those in the public eye and public personalities. It does however apply in its entirety, as per the provisions mentioned above, to their children and kin, who are minors.(15)

In a report published in The Times of India, New Delhi, 4 January 2011, it was stated that the law ministry was working on a proposal to make right to privacy a fundamental right in the Indian Constitution. Corporate  lobbyist Nira Radia’s phone tapping row and new-age surveillance techniques being extensively used to crack down on economic offences are the trigger behind the move.

However, modern technology, increasing use of electronic devices for eavesdropping, and the practices of industrial espionage have complicated   the problem of maintaining right to privacy.

The shocking revelations of mass monitoring by the US and UK show how privacy protections have not kept pace with technology for securing privacy of the people.

So far as telephone tapping or hacking is concerned, it is done not only by governments but also by media. In 2011 when the news broke about phone hacking done by the British tabloid News of the World, situation became so grim that its owner had to close down the 168-year old newspaper, and some of its journalists were arrested.

In India the current legal framework is not effective and efficient to deal with illegal intrusion into the private lives of people. As our lives become more digitised, unchecked surveillance can erode everyone’s privacy.

References

1. Satwant Singh v. A.P. O. New Delhi (1967) 3 SCR page 525.
2. Govinda v. State of U.P., [1975] 3 SCR 946 701
3. Sunil Batra Vs. Delhi Administration (1978)4 SCC 494 at 545
4. Charles Sobhraj v. Supdt. Central fail, (1979) 1 SCR Ill
5. HoskotVs. State of Maharashtra (1979) 1 SCR 192
6. Hussainuia Katoon v. State of Bihar, (1979) 3 SCR 169
7. Prem Shankar v. Delhi Administration (1080) 3 SCR 855
8. TV. Vatheeswaran Vs. State of Tamilnadu AIR 1983 SC 361
9. Sheela Bhasre Vs. State of Maharashtra (1983) 2 SCC 96
10. A.G. of India v. Lachma devi AIR 1986 SC 467
11. Parantananda Katra v. Union of India, (1989) 4 SCC 286
12. Santistar Builder v. N.K. Totame, (1990) 1 SCC 520
13. Harvard Law Review December 1890 (Vol. IV, No. 5), p. 196
14. Basu, B.B. Law of the Press( 5th Edition 2010) Nagpur: Lexis Nexis Butterworths Wadhwa, p.89
15. http://www.nbanewdelhi.com/pdf/final/NBA_code-of-ethics_english.pdf