Aug 072010
 
 August 7, 2010  Non-U.S.

A scandal in India involving Swami Nithyananda leads in to discussion of privacy law in India. From an article by Shamnad Basheer, a professor in intellectual property law at the National University of Juridical Sciences:

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.

Read more in the Times of India

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