Privacy as a Right: Hurdles and Opportunities (Part II)

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PRIVACY AS A RIGHT: HURDLES AND OPPORTUNITIES (PART II)

Tamish Kumar, 1st Year, BBA.LLB (Hons.), Symbiosis Law School, Pune

Editorial Note: In continuation of the previous blog post, the author looks at some other issues concerning the right to privacy in the Indian context.

 The earlier part is available here.


III. Surveillance Laws
India’s position towards phone-tapping is built around the 1996 judgement of Supreme Court[1] which involved the case of rampant telephone tapping of politicians in New Delhi. The Court held that ‘telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office’. With people now moving more towards electronic storage and means of communication, mere mention of telephonic conversation would render the judgement archaic. The government still orders for active surveillance, disregarding the citizens’ right to privacy.

For instance, in December 2018, Union Home Secretary Rajiv Gauba authorised ten central agencies with ‘interception, monitoring and decryption of any information generated, transmitted, received or stored in any computer’.[2] Not only is the order setting in motion a process that is prima facie invasive of privacy, but the government could also pry on personal data that it is not supposed to look at otherwise such as, but not exclusively, personal e-mails and messages. The agencies would also have powers to confiscate devices and not much protection would be available. With such arbitrary decisions being taken under the guise of security, there is a need for the Supreme Court to revise its position and extend protection against modern means of surveillance which are arbitrary and invasive of privacy.

IV. Restitution of Conjugal Rights (Section 9 of Hindu Marriage Act, 1955)
The law regarding restitution of conjugal rights in India is an offspring of English Law where ecclesiastical courts had jurisdiction to hear and decide upon cases where an action was brought against a husband or wife for living away from their spouse without a reasonable reason. It was later abolished under Matrimonial Proceedings and Property Act, 1970. However, India continues to follow this law and courts can compel a husband or wife to fulfil matrimonial duties.Section 9 of the Hindu Marriage Act, 1955 has given rise to vehement debate about its being against the married individual’s right to privacy.

The law might have held good before the present developments in privacy rights, but it should no longer do so. In Gobind v. State of Madhya Pradesh,[3] the Hon’ble Supreme Court held that ‘any right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing’. This should imply that Section 9 of HMA, 1955 intrudes upon ‘personal intimacies of the home’ and ‘family marriage’.

In yet another judgement that followed, T. Sareetha v. T. Venkata Subbaiah,[4] the Andhra Pradesh High Court, while extending the concept of sexual autonomy of Hindu wife, struck down Section 9 of the HMA, 1955. In the same case, the court also observed that ‘the right to privacy belongs to an individual…and is not lost by marital association.’ The court held that compelling the wife to fulfil matrimonial duties would contemporaneously compel her to have sexual relations with her husband, and this would deprive her of her sexual autonomy and right to privacy.

The law may also violate a person’s right to privacy in case of marital rape, which is not recognised by law in India. If a woman is compelled to fulfil her matrimonial duties by living with her husband, it would put her under the risk of marital rape or non-consensual sex;[5] in simpler terms, the spouse ordered to cohabit risks losing autonomy over his or her body.

V. Lack of Awareness and Legal Aid
Laws and regulations could be made to protect and respect people’s right to privacy, but being oblivious of them would be as good as not having such laws. Public legal education faces huge challenges in India. People do not possess rudimentary knowledge of the legal procedures and system within the country, and are incognizant of many of their fundamental rights. In a country that struggles with providing basic education to the mass, providing public legal education seems to be a difficult task.

Lack of legal aid is another major hindrance. Lawyers often refrain from providing legal aid in India, sometimes due to their own financial constraints.Moreover, people do not seek enforcement of their rights due to lack of awareness andbelieve that law enforcement is a drawn-out process. As put by former Attorney-General of the USA Robert F. Kennedy, ‘To the poor man,“legal”has become a synonym simply for technicalities and obstruction, not for that which is to be respected.’[6]

In addition, the lawyer to population ratio in India is observably very less. In October 2018, CJI Ranjan Gogoi criticised the low ratio and asked the Bar Council of India to keep in mind that growth of population will inevitably result in higher inflow of cases, which would require more lawyers.[7] Conclusively, laws and regulations are only a means to an end. It’s only when people possess the adequate means and knowledge to avail the means, will change begin to be noticed in matters concerning privacy and other such rights.

Conclusion
The conflict between right to privacy and laws seems all too much for its smooth enforcement. Despite the various judgements, especially after finally settling privacy as a fundamental right in Puttuswamy,[8] the only way to describe the right to privacy in the present scenario would be calling it a toothless tiger. Where the lawmakers seek to bring about legislative impediments to privacy and the judiciary seeks to declare it as a fundamental right, common grounds are difficult and nowhere to be found. The present status with respect to the landmark judgement is more or less a reiteration of the judiciary’s earlier standpoints concerning privacy, as seen in R. Rajagopal, Gobind v. State of Madhya Pradesh, T. Sareetha, and multiple other cases.

The lack of proper legislation in privacy in India leaves the definition and acknowledgement of privacy as a right merely in the judiciary’s hands. There exist cracks and crevices in protection of HIV/AIDS affected due to absence of definite legislation. The Parliament must bear in mind the importance of privacy while framing laws and not frame any law that deprives an individual of his/her right to privacy. Further, public legal education and legal aid and assistance from lawyers are of supreme importance for enforcement of privacy rights. Laws that are in derogation of the right privacy must be reviewed by the judiciary and struck down if arbitrary and invasive.It’s about timeprivacy was not only recognised as a fundamental right, but also enforced as one.


[1]Ibid.
[2]10 central agencies now authorised to intercept information on computers, The Indian Express, https://indianexpress.com/article/india/10-central-agencies-now-authorised-to-intercept-information-on-computers-5503254/
[3]AIR 1975 SC 1378.
[4]AIR 1983 AP 356.
[5]Anik Bhaduri, ‘The Restitution of Conjugal Rights in Indian Law violates the Right to Privacy’, (OxHRH Blog,) <http://ohrh.law.ox.ac.uk/the-restitution-of-conjugal-rights-in-indian-law-violates-the-right-to-privacy> [date of access].
[6] Attorney-General Robert F. Kennedy, Law Day Address at University of Chicago Law School, May 1, 1964, https://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/05-01-1964.pdf
[7]Lawyer to population ratio in India is very less: CJI, Asian News International, https://www.aninews.in/videos/national/lawyer-population-ratio-india-very-less-cji/
[8]Ibid.

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