The
right to privacy
By
Nalini J. Singh
Overtly or
covertly our privacy is being violated in
one-way or the other. There are
complaints by high profile citizens and
opposition politicians that even their
bedrooms are being watched. The question
being asked is: Do the agencies of the
Government have any legal right to tap
phone, intercept mail and keep a citizen
under surveillance? Has a citizen a legal
remedy against such intrusion on his
privacy? Do the numerous detective
agencies in the country have any legal
status in criminal investigations? Can
the police intrude upon the privacy of
home of a citizen at any time of day or
night without search warrant? Does a
citizen have any safeguards against the
police searching and questioning him
either in the street or in a restaurant?
Does the
press have a right to report private
affairs of a citizen should he come to
its notice either by accident, or for
being implicated in a criminal case or
because he happens to be a public figure?
What are his rights to privacy in his own
home and his social and cultural milieu?
Most
people whom the first batch of questions
were asked did not know (and had not
cared to find out even when occasion
arose) the answers to issues impinging on
their fundamental right to liberty. There
were ministers of the government of
India; there were leaders of the
Opposition; there were senior journalists
who claimed to know for sure that their
telephones were tapped. There were senior
lawyers and opinion leaders, even editors
none of whom know, for example, that the
Government of India and State Governments
had sweeping powers permitting them to
tap telephones and intercept mail of just
about every citizen of this country. Such
are the sweeping provisions of Section 5
(1) of the Indian Telegraph Act, 1885.
In almost
all Western countries, the press and the
public have waged a relentless war
against surveillance and wiretapping by
the executive. In most foreign countries,
the fact is accepted that the police and
intelligence men may have to tap certain
phones in the interests of national
security or in the investigation of
organised crime. But in all these
countries, including England, the
Government agencies have had to fight at
every step for retaining this right. And
in most of these countries, the agencies
concerned have to obtain the clearance of
a court of law before ordering a
wiretapping.
In 1969, a
law was passed in the USA permitting
federal States and local Government
agencies to tap phones and install bugs
in the process of collection evidence in
certain criminal investigations. In all
such cases, however, the agents were
required to obtain a court order before
doing so. In the late 1960s and early
1970s, the American executive gave a very
broad interpretation to its power to
order wiretaps in the interests of
national security, and conducted
electronic surveillance of domestic
radicals and those it terms
"subversives." In 1972, the US
Supreme Court ruled that such
surveillance without a court warrant was
unconstitutional. Thereafter, the US
Government passed a Special Act, the
Privacy Act, 1974, but it deals mainly
with information gathering by the
government agencies and in particular
storing in electronic gadgets such
personal information for future
reference. The American Act entitled the
citizen to know what is the information
on him with a particular agency. It also
restricts the use of that information.
Many
European countries have also adopted
legislation protecting the privacy of
telephonic communications. Generally,
however, in countries like France, Italy,
Denmark and Sweden, wiretapping is
permitted under judicial authority or
under written court orders. England does
not recognise a general right to privacy
according to Young committee Report 1972.
In Japan, too, it is prohibited under the
law.
However,
in India the victims are not even aware
of their rights. As eminent jurist the
late Nani Palkhiwala had observed, that
Indians are perhaps unique in their
ability to absorb every intrusion into
their rights and their liberty; however,
unreasonable it might be, without even a
token of gesture of protest. In New
Delhi, people are least aware of
activities of the intelligence network
(IB, RAW and the Special Branch of the
Delhi Police).
The former
Union Minister of State for
Communications Janeshwar Mishra said
"the Posts and Telegraph Departments
are officially allowing intelligence men
to tap telephones and censor mail. The
procedure, according to Mr. Mishra, is
for the Central and State Government to
issue a written order to the Telegraph
Department to make a particular line
available for listening. It is not for
the Communications Ministry to question
the bonafides of such an order or seek
details of reasons for wiretapping.
As Mr.
Mishra put it: "Under the law, we
are required to provide the line to
intelligence agencies for listening or
let them open mail. We are not involved
in it, in the sense that we don’t do
it directly. We just connect the line to
the intelligence or to the state police.
It is not for us to question a proper
government request or order."
The Indian
Telegraph Act, 1885 (Act 13 of 1885)
showed that the covert activity had been
provided a legal cover by a substitution
of Section 5 (vide Act 38) in 1972.
Section 5 (2) reads: "On the
occurrence of any public emergency, or in
the interest of public safety, the
Central Government or a State Government
may, if satisfied that it is necessary or
expedient to do so in the interest of the
sovereignty and integrity of India, the
security of the State, friendly relations
with foreign States or public order or
for preventing incitement to the
commission of an offence, for reasons to
be recorded in writing, by order,
directly that any message or class of
messages to or from any person or class
of persons, or relating to any particular
subject, brought for transmission by or
transmitted or received by any telegraph,
shall not be transmitted, or shall be
intercepted or detained, or shall be
disclosed to the Government making the
order or an officer thereof mentioned in
the order.
"Provided
that press messages intended to be
published in India of correspondents
accredited to the Central Government or a
State Government shall not be intercepted
or detained unless their transmission has
been prohibited under this
sub-section."
Telephones
are tapped under Section 5 (2) and also
outside it. Even when it is done, under
the provisions of the Indian Telegraph
Act, no one below the ranks of the
General Manager and the Director
(Vigilance) comes to know about it. The
list of people to be tapped always
remains a tightly guarded secret. But it
can be decided at the level of IPS
officers of the rank of DIG, by the head
of the Technical Department of the IB, by
the Director of the Bureau or by the
Chief Minister of the State concerned or
the Prime Minister and his secretariat.
But such orders to the Bureau or to the
Special Branch are never conveyed in
writing.
Censorship
of mail within the purview of law comes
under the following categories:
1. Open
Censorship: In this category sampling of
foreign mail are opened at random.
2.
Specific Censorship: Here specific
written orders are issued for opening
mail of particular persons. The tentacles
of Section 5(2) are all-encompassing.
The more
immediate assault on every man’s
privacy comes from the mushrooming
private detective agencies. There are
dozens of them in Delhi, Mumbai, Kolkata,
Hyderabad and other State capitals.
The
private detective companies have no
sanction in law whatsoever to investigate
any offence by entering other
people’s houses, shadowing, tapping
of telephones, opening up the mail or by
questioning any person.
If a
detective company taps the telephone of a
person, he commits an offence under
Section 25 of the Telegraph Act, 1885,
for which, if the offence is proved, he
can be sent to jail for a period of three
years. Nor does any "private
detective" have any powers of arrest
or interrogation. The working of the
so-called detective agencies is thus
totally illegal and in gross violation of
the right to privacy.
The powers
of investigation are given to the police
and other official agency, explicitly in
the relevant Act like the Criminal
Procedure Code, Customs Act and the
Central Excise Act. An agency cannot have
any power that is not expressly conferred
by a statute. However, it is wrong to
believe that the police must have a
search warrant from the magistrate to
search the house of a person. Under
Section 165, Cr. PC, the police can
search the house of a person without the
warrant from a magistrate.
The only
safeguards for the citizen are:
The police
must have with them, preferably (but not
necessarily) from the locality;
The police
must leave with the occupant a copy of
the search-list showing the articles
found;
The police
must sent a report of such a search to
the nearest magistrate;
The police
must make an entry in the station diary.
In Mumbai
and Delhi, the Bombay Police Act, 1951,
is in force. Other states have
legislation on the same line but under
different nomenclatures. Section 65 of
the CR. PC Act invests every police
officer with powers of search which he
has reason to believe, is used for
drinking or a shop for the sale of
intoxicating drugs or a place of resort
of loose and disorderly characters.
What are
the rights of a suspect or an accused
when faced by the police? Can he refuse
to answer and just remain silent? Can he
insist on his lawyer being present? Can
he consult his lawyer in privacy?
Section
303 of the Constitutional says: "No
person who is arrested shall be detained
in custody without being informed, as
soon as may be, of the grounds for such
arrest nor shall he be denied the right
to consult and to be defended by a legal
practitioner of his choice."
Article 20
(3) of the Indian Constitution says:
"No person accused of an offence
shall be compelled to be a witness
against himself…"
These
issues came up before the Supreme Court
when former Chief Minister of Orissa,
Nandini Satpathy was arrested by a police
and issued a list of questions regarding
the property that she had allegedly
amassed. She refused to answer any
question that might supply the police
with data that might incriminate her. She
also wanted her lawyer to remain present
in the police station, if at all because
she contended that the police had no
right to call her to the police station.
The police need not wait for more than a
reasonable time for the advocate’s
arrival, but they must invariably warn-
and record the fact- about the right to
silence against self-incrimination (Para
65, justice Krishna lyer’s judgement
in Nandini Satpathy case).
Income tax
men use search provisions to enter homes
and seize financial documents.
The
greatest threat of confidentiality of
one’s income tax returns comes in
the form of a provision in the Income Tax
Act, which permits the disclosure of an
individual’s income tax to any other
person so long as the commissioner of
income tax of the circle thinks it is in
the public interest. It was under this
section 138 (82) that P. Rajagopal Naidu,
MP, had sought some information about the
assets and income of Kantibhai Desai and
his family at the height of the
parliamentary controversy over the Janata
Party PM’s son in 1979.
The income
tax commissioner turned down the request
even though it had been made in the
prescribed form and for discharging the
Parliament member’s public duties.
This clause in IT Act is the most direct
threat to the financial privacy of a
citizen who is honestly paying his dues
to the exchequer.
Confidences
are also made voluntarily to doctors,
chartered accountants, lawyers and the
priest in the Roman Catholic
confessional.
While the
communication made to a doctor enjoys no
privacy in a court of law, the doctor is
bound by the Code of Medical Ethics,
which he signs on his honour before he
registered with the Indian Medical
Council. Point 7 of the pledge says:
"I shall respect the secrets which
are confided in me." Section 11 of
the Disciplinary Action List of the Code
enjoins on the doctor not to
"disclose the secrets of a patient
that have been learnt in the exercise of
your profession. These may be disclosed
only in a Court of Law under orders of
the presiding judge." This is one of
the 18 "infamous act" for which
the registered medical practitioner can
be punished by the maximum punishment-
"removal altogether or for a
specified period from the register the
name of such doctor."
The only
other situation in which a doctor may
disclose a secret of his patient is when
the latter has notifiable disease, and
then too, the disclosure can be made only
to the competent authority. In addition
to complaining to the Medical Council of
India, the patient has the option of
suing the doctor for defamation, should
he disclose a medical confidence to a
third party.
Section
126 of the Evidence Act which grants
immunity to counsel from disclosing
confidences made by a client to his
lawyer, was also invoked by chartered
accountants after they were raided by
income tax sleuths in August, 1980. At a
meeting convened by the All India Tax
Practitioners’ Federation, Ram
Jethmalani, however, pointed out that
while the communication from client to
counsel is privileged, the documents in
the possession of the counsel are not. He
also drew the tax practitioners’
attention to the clear statement in
Section 126 that any communication made
in the furtherance of an illegal purpose
shall not be protected from disclosure.
The Indian
Easement Act does not recognise a general
right to privacy. In rare cases, the
courts have recognised a right to
privacy, only if the right was customary
in that area. However, no court could
ever grant an injunction restraining a
builder to stop construction on the
ground that the windows of a proposed
building would deny privacy to the
neighbour. The Courts would grant such an
injunction only if right to air and light
is shown by the plaintiff, not of
privacy.
Article 21
of the Constitution considered as the
foundation stone and touchstone of all
laws in India, says: "No person
shall be deprived of his life or personal
liberty, except according to procedure
established by law." Since privacy
is a sacrosanct part of liberty which
means secrecy, anonymity and solitude. As
Prof. Ruth Gavison, one of the champions
of ‘explicit commitment to
Privacy’ points out in her erudite
article on Privacy and the Limits of Law,
"Privacy is necessarily linked to
creativity, growth, autonomy and mental
health. One can relax only in privacy.
Being observed makes us uneasy and
formal."
Article 21
of the Constitution of India is, then,
the sheet anchor of the right to privacy,
as of many other important fundamental
rights.
The former
Chief Justice of India P. N. Bhagwati, in
some of his landmark judgements like
Hussenara Khatoon (1979 Cr. Lj 1036 to
1052), Menaka Gandhi V/S Union of India
(1978 (1) SCC 248 has given a dynamic
interpretation to every word in it and
has turned it into a powerful instrument
for the protection of rights and
liberties of the citizens. In Maneka
Gandhi’s case, justice Bhagwati
said: -
"The
expression personal liberty" in
Article 21 is of the widest amplitude and
it covers a variety of rights which go to
constitute the personal liberty of man
and some of them have been raised to the
status of distinct fundamental rights and
given additional protection under Article
19 (1978) ISCC 280.
Privacy,
free legal aid, individual worth and
dignity, freedom from arbitrary or unfair
procedure, natural justice- all these are
the components of "personal
liberty" and "procedure"
under Article 21 of the Constitution
assures "dignity of
individual."
The other
source of privacy law is the Law of
Torts. This is the "judge-made"
law- decision of judges on those aspects
of civil wrongs for which the statutory
law has made no provisions but which have
always constituted the first principles
of law regarding civil wrongs. INAV
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