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Comment

In the service of privacy




The contours of privacy laws in India are unclear; the proposed new law to protect citizens' private data is welcome, says Shamnad Basheer.

Aleaked videotape involving a Tamil actress thrust Swami Nithyananda into the eye of a controversial storm. While some claimed that the video was doctored, others argued that this was an aspect of tantra not immediately discernible to the uninitiated. Yet others alleged that the swami's encounter with the actress casts serious aspersions on his claim to be celibate and his legitimacy as a guru.

It is important to separate the 'moral' from the legal here. For the most part, what the good swami does within the privacy of his home is his own business. In fact, advanced legal regimes would treat this as an unlawful encroachment on the swami's right to privacy. For Lenin Karuppan, an erstwhile disciple, had secretly planted a camera in the swami's bedroom and leaked out the tape without his consent.

More recently, K Yogesh, a devotee of the swami, lodged a criminal complaint alleging that Lenin himself had committed a legal wrong. For, his secret entry into the swami's bedroom and the planting of a camera therein without permission had caused severe distress and annoyance to the swami and was therefore punishable under the Indian Penal Code as "criminal trespass".

There is a decent chance that Lenin would be held criminally liable for this intrusion. However, what of civil liability? Can Indian courts apply common law principles of privacy and grant appropriate damages to the swami for this harm? US courts have been preventing such intrusions through civil law remedies since the publication of an influential Harvard Law Review article in the 1890s which advocated for a right to privacy and noted in pertinent part that "The intensity and complexity of life, attendant upon advancing civilisation, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual;but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. "

Retreating from the material world is not an alien concept to a civilisation, whose ancient scriptures have prescribed "vanaprastha" as one of the four stages to be traversed in one's life. More to the point however, the massive proliferation and dissemination of personal data in this digital day and age gives great cause for concern and makes a law to protect privacy imperative.

One might argue that Indian law only recognises a right to privacy within the meaning of Article 21 of the Constitution of India, which guarantees to every citizen the "right to life". In other words, unless the state is directly involved in an infraction that implicates the privacy of a citizen, a court cannot interfere. But even here, one might argue that by failing to prevent invasions of privacy by other private citizens, the state breaches its constitutional duty. Such an argument was implicit in the notorious murderer Auto Shankar's case, where the court grappled with the issue of whether or not sordid details of the serial killer's life could be published without his consent.

Justice Jeevan Reddy of the Supreme court held in that "The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his life, 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 and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages."

In other words, the court was suggesting that breaches of privacy by non-governmental actors were also to be prohibited by laws such as the common law of privacy. Unfortunately, the contours of this law are uncertain, as we have not had many privacy cases in India.

All this is set to change, as the government is now seriously considering a comprehensive statute to protect privacy. It has constituted a panel of senior officials headed by Shantanu Consul, secretary (personnel) in the Department of Personnel and Training, to prepare a draft law in this regard. The key challenge of this law will be to determine the extent of "privacy" accorded to citizen's data and the circumstances in which such privacy can be abrogated in the larger interests of the State and the public.

Nithyananda Swami and his esoteric video are not the trigger for this wonderful legal initiative by the government. Rather, it stems from the scathing attacks that have been mounted on the ambitious Nilekani-led UID (Unique Identification Data) project that seeks to provide unique identity cards to all Indians. Pertinent information relating to specific individuals could then be tagged to the ID in question. Civil society groups and many others have berated the project and questioned its legitimacy on account of the capturing of private data and its potential for misuse. Indeed, some fear that without a corresponding privacy legislation, there is a serious threat to the very constitutionality of the UID project.

Were such a legislation to shape up in the near future, the swami's supporters will have much cause to celebrate. Not only because it would bolster the swami's case for preventing future intrusions of this sort, but also because spiritual development and privacy are largely two sides of the same coin. Indeed, one cannot effectively traverse the many layers of human consciousness, unless one's metaphysical odyssey is protected to some extent from harmful outside interference.

The writer is the ministry of HRD professor in IP Law at the National University of Juridical Sciences

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