The first man who, having enclosed a piece of ground, bethought himself of saying, “This is mine”, and found people simple enough to believe him, was the real founder of the civil society.
Rousseau, Discourse on the Origin of Inequality
Have you ever come across a situation where somebody trespasses into your house or plays a loud music at midnight in your neighbourhood? How will you react when somebody bursts crackers in a way which disturbs your sleep? Do you like if anyone peeps into your mobile when you are travelling in a public transport? Well, the answer for the all queries will be a big ‘No’ and your reaction may vary from being unresponsive to aggressive outbursts. Even though we, human beings are social animals, we built a space away from the mob, away from pressure where we find peace and happiness. It can be our home, our bedroom or the virtual space in our laptop or mobile device which we call the ‘private space’. Any indulgence into this space, let it be people intervention or even in the form of sound or light, it causes a violation of our private space. It was something very personal since a decade ago, but with the changing attitudes, needs and problems, it has transgressed the private space and has moved to the public sphere which has led to the birth of Right to Privacy.
India, the world’s largest democratic country is a land of innumerable laws. The number of laws in India outnumbers the challenges, crisis and issues that exist in the country. With the longest written constitution, our country gives its subjects diverse rights to lead a peaceful life. In the course of time and with the needs of people these rights were subjected to amendments which have changed the way people access and execute these rights. The Right to Privacy as a legal right in India is considered as a part of Right to Life and Personal Liberty under Article 21 of the Indian constitution. Article 21 provides that,
“No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Supreme Court came up with this right during the AutoShankar Case (R.Rajagopal vs State of Tamilnadu, 1994). The court said that, “a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent, whether truthful or otherwise. However the rights of public servants stand on a different footing. In a democratic country public officials must be always open to criticism”. This right in India is very different from the Western notions of Right To Privacy as in India it is largely based on the ‘culture of trust’. This can also be the reason of why in India these laws are assumed to be weak in nature. Before we talk about the nature and legal ties of Right to Privacy, let’s probe into the concept of privacy.
The concept of privacy is often considered elusive. The general assumption about privacy is synonymous to secrecy. The etymology of the word, can be traced from its basic Latin form ‘privus’, which meant ‘single’. According to the Online Etymology Dictionary, in 1590s the word carried a meaning, ‘a private matter, secrecy’ and in 1600s it meant, ‘seclusion’. From 1814, it meant, ‘state of freedom from intrusion’. The desire for privacy was so strongly associated to the idea of private property initially. It conveyed an urge for autonomy which means an independence from the control of others. From private property, the boundaries expanded to family, home and possessions including the material objects. It even includes the spiritual, emotional and sensory nature, confidence, reputation, goodwill and products of the mind. But with time, the individual autonomy (private sphere) and the public sphere collided which led to a third party intervention, that is the law system which is considered as an objective, unbiased body. In general, the private space is considered to be subjective and is highly dependent on one’s culture, environment and economic condition. Thus, the changing meaning of privacy from one social context to another has given multiple interpretations to the whole notion of privacy.
The Right to Privacy today is part of the Human Rights and is highly influential that it can play a role in the development of an individual’s personality, integrity and dignity. Today, with the advancement of communication technology, the need to protect privacy not only includes the physical space but the cyber space as well. The three technological advancements that led to this whole business of publication and reproduction is digitisation of information, networking and www. Data protection, which is a subset of privacy laws and data privacy have become hot topics of debate in the recent era with the innumerable challenges faced, especially, with the very characteristics of internet. Commercialisation of internet has become a great challenge to the freedom of expression. Cyberprivacy issues include but not limited to copyright issues, optical disc piracy of movies, music and softwares and unauthorised file sharing with the advancement of social media and peer technology. Technology gives an access even to the personal information stored in computers or storage devices which can be easily manipulated. Telemarketing is another major domain where there is a transfer of personal information of the subscribers. Even the applications and softwares today demand an access to the user’s privacy. The nature of issues and challenges are even gender biased as in online victimization and bullying. In India, the Copyright Act of 1957, amended upto 1999 is yet to take these issues into consideration. The need for privacy in personal data in public and private databases has not yet been adequately addressed.
Data privacy in media is an important aspect to be noted. Media has crucial role in disseminating information as the categorisation of information as to what is private/ confidential and what falls outside that realm itself is difficult. In most of the discussion shows or talk shows, we see that sometimes the journalists do not disclose the details of the person involved or any details that interrupt the privacy of an individual. This privilege of anonymity often supports the freedom to talk or express and allows the individual to speak openly. This anonymity often helps the rape victims as the society even in the 21st century humiliates the woman in such cases.
The often quoted term ‘Celebrity privacy’ is a kind of individual privacy which determines the amount of personal or professional information which the celebrities wish to expose. Bio-piracy concerned with the rights of indigenous people, is another important area which even questions the prevalent legal system. The interventions of this right is there in all the domains as it encompasses privacy of person, privacy of personal communication, territorial privacy and privacy of data and has a widespread impact. Right to privacy is often used as a mechanism or agency of power to control or curtail as in the adoption of a National ID card like Aadhar. Aadhar was a nationwide identity system introduced to check illegal migrations, identify frauds, and check terrorist activities and to bring electoral reforms. With the coming of Aadhar, the biometric data became the identification criterion. But India’s population is so large that a unification process and the maintenance of a secure database is not very easy. Studies prove that it failed to achieve the objectives for which it was made. A massive chaos was there when Aadhar was introduced as half the population doubted its validity and reliability. Moreover, the technical issues during the recording of biometric data left them in panic. It created a range of unforeseen administrative and social complexities. Rectification of errors was another herculean task. With the introduction of Aadhar there was a shift in power from the individual to state. There occurred a breach in individual privacy as the government could access any kind of data pertaining to an individual and sometimes it even paved way for a misuse or manipulation of the data.
This right has always confronted the state power of searches and surveillances. In many ways, surveillance has helped in maintaining law and order. The CCTV footages have been powerful evidences in many legal cases. But as a coin has two sides, surveillance can even affect the freedom of movement in the form of not just physical inhibitions but psychological as well. As in the case of places like Kashmir, surveillance is a way to exert power on people by the State and the Army. With the recent decisions of the State and court regarding the land and the consequent breakdown, Kashmir had to face not only privacy issues but also traumatic experiences due to the identity crisis which was always there in its soil.
With all the above mentioned privacy issues, we can see that the loss of a private sphere has serious implications on the individual and society as a whole. This loss cannot be negotiated until the huge gap that exists between the privacy needs of an individual and existing legislative protection in India is bridged. An initiative from the government must be there to address the existing voids in the law system. It is high time for our judicial system to reconsider the rights and laws and place them within the socio-cultural-political and economic context of India. The laws must not be just adopted, but must be synthesised, constructed or refined according to the needs of the land and people and must ensure the privacy of an individual at different levels from mishandling and manipulations.