Right To Privacy In India
Introduction
The English dictionary meaning of privacy
is “someone's right to keep their personal matters and relationships
secret" whereas according to Black’s Law Dictionary, Right to Privacy
means “right to be let alone”; the right of a person to be free from any unwarranted
interference. Privacy as a matter of right has been a subject of debate,
however it has not been defined under the Indian jurisprudence. Instead, cases
like M.P. Sharma v. Satish Chandra, District Magistrate, Delhi (1954) and
Kharak Singh V. State 0f. UP. (1962) merely defined whether privacy is a part
of fundamental rights in our constitution, without elaborating or defining what
privacy is and therefore there was a lack of compressive jurisprudence in
relation to privacy.
In the case of Justice K.S. Puttaswamy
(Retd.) and Anr. Vs Union of India, while defining Privacy Justice D. Y.
Chandrachud touched upon the views of Historically political thinkers like
William Black Stone, Austin, Aristotle, etc. The right to privacy is dignity
of.an individual, “Life and personal liberty are inalienable rights. These are
rights which are inseparable from a dignified human existence. The dignity of
the individual, equality between human beings and the quest for liberty are the
foundational pillars of the Indian constitution”.
Also, Justice Krishan Kaul of the Hon’ble
Supreme Court defined privacy as a natural right. It is an inherent right
and.it is something that isn’t give but exists. He further observed that an
aspect of Privacy includes an individual’s right to control dissemination of
his personal information, an aspect which has assumed particular significance
in this information age and in view of technological improvements.
Privacy Rights and Personality Rights
Privacy right is concept that evolved in the
United States of American, whereas Personality rights is more of a European
concept and has its roots in the long history of Germany and France. The term.
‘personality right' is also commonly used for 'right to publicity' and is
usually relates to celebrities or famous people.
In other words, "it is the right to
control. and profit from the commercial use of. One’s name, image, likeness,
etc., and it prevents unauthorized appropriation of. the same for commercial
purposes "the main distinction between the doctrine of. right to privacy
and doctrine of personality rights is that. the right to privacy is primarily
conceived as negative right, which saves an individual’s right.to be left alone
whereas the personality rights also includes a person’s interest to represent
himself/herself. or. could also be called as the commercial use of. his/her
identity.
In the Supreme Court constitutional bench
judgment Justice Kaul observers “Every individual should have a right to be
able to exercise control over his/her own life and image as portrayed.to the
world and to control commercial use of his/her identity. This also means
that.an individual may be permitted to prevent others from using his image,
name and other aspects of. his/her personal life and identity for commercial
purposes without his/her consent”.
In today’s world, privacy acts as a
constraint not only against the government but also against private sector
entities. Apart from corporations, Right to Privacy can also claimed against
individual actors such as media houses and private individuals. Though, there
has been considerable conflict between media rights and a person’s right to
privacy, we argue that infringement of privacy can only be justified when there
is a compelling public interest, as opposed to stories that merely interest the
public such as gossip which often come at the cost of infringement of privacy.
Right to Control One’s Image as Portrayed: Celebrity Information
Media and public figures have been involved
in a lot of controversies regarding issues of.privacy with celebrities. It is a
fairly common to see celebrity photographs taken by paparazzi an d being
published in different media platforms. Very recently, a photograph of Indian
actors Ranbir Kapur and Mira.Khan.smoking a cigarette emerged on social media
and went viral. The responses to the same varied from people expressing
contempt to the female actor being sexualised amongst many other things.
Important question arose due to this
debacle, namely, did the celebrities give up their right to privacy owing to
their stature? Whether the ‘truthful nature’ of the information was a
justification for the publishing and lastly whether they gave up their right by
being in a ‘public space’?
Sadly enough, there isn’t proper
legislative protection against such infringement. Press Council of India (PCI)
norms lay own guidelines for reporting cases which recognises privacy as an
inviolable fundamental right. However, interviews from journalists themselves
reveal that such protection is only extended in ‘private spaces’ and once
information comes in the public domain, it no longer falls within the sphere of
private, thereby failing.to make a distinction between warranted and
unwarranted invasion of privacy. In such situations, the need for a stringent
legislation.is deeply felt.in order.to grant effective protection to subjects
who are susceptible to having their intimate information disclosed to public
due to their stature.
I would touch on four other key aspects,
which are very relevant in the Modern day Era. As, Technology has become a key
aspect of our lives.
Online Shaming
Shame is a highly complex, intriguing and
nuanced concept. In other words, shame is simultaneously an emotion, and a norm
(condemning what is shameful). In.an equally important work of scholarship on
shame, Bernard Williams examines Homeric Greek shame culture and its relevance
to contemporary time. Not just celebrities but even the common man is a risk of
privacy infringement by another. online shaming has become a prominent phenomenon
in recent times. This new form of shaming involves the exposure of personal
identifiable information of. targeted individuals, who are perceived to have
transgressed different degrees of social norms (though often violated none or
only mi nor legal offences), for the purpose of humiliation, social
condemnation and punishment.
Cyber Bullying
Encompassing term for the shaming described
in this paper. It has been defined as, “any behavior performed through
electronic or digital media by individuals or groups that repeatedly
communicates hostile or aggressive messages intended to inflict harm or
discomfort on others It is identified as a separate category to tease out its
differences, as will be seen, concerning the privacy issues of a person like Justine
Sacco or the Vancouver rioters and some of the more traditional cases of
children being bullied online.
Bigotry
This category concerns an identifiable
group attacked on the basis of their race, gender, sexual orientation,
religion, color or ethnic origin. These are more classic cases of hate speech,
explored further below, except in situations of online shaming the attack is
executed by the mob, further stigmatizing and excluding the victim. A study by
the Pew Internet Centre Found that 40% of women report having been harassed
online. A recent survey of over 1000.women in Australia found that 76% of women
under 30 surveyed had experienced online harassment. The Guardian newspaper
analysed 70 million comments left by users on its site and found that they had
blocked 2% for violating their community standards. Of the top 10 abused
writers, eight were women (four white, four non-white) and the remaining two
were black men.
Vigilantism
One of the most striking phenomena of
social media is vigilantes outing individuals that break social and legal
rules. The power of sharing as communicating with large number of people has resulted
in policing of one’s view. One of the best example is the Social Media War
between Leftist and Rightist in today’s time. In our country itself, we are
bombarded with views of different people with their ideology and arguments.
Surely, Social Media is a platform to share but the biggest drawback, when we
slide line or shame people for their views. Such act amounts to Social Media
Vigilantism, where people mostly tend to disregard the Liberty and platform
given to them. At times to curb such a problem people object by saying that
their Constitutional Rights are being violated. But people tend to forget such
acts of Social Vigilantism, becomes a problem for an Individual or any Minority
living in the Society.
Conclusion
The enactment of law and its modifications
w.r.t to changing times is a slow process. Most of the laws in India are
colonial in nature whereas the technological developments are like a chemical
reaction that is spontaneous and constantly changing. While the Indian
government is still making temples and protecting the void for legislation in
the field of personal right enlarges. Most of the legislators do not understand
technology and privacy is not the major concern of public at large.
By:
Siddhant Singh (Advocate)
M/s
Aura & Company
Date:
04/03/2021