Report No. 42
Violation of Personal Privacy
23.1. Right of privacy.- "The quest for privacy is a strong one. The poet Robert Browning said in Paracelsus:
I give the fight up: let there be an end,
A privacy, an obscure nook for me.
I want to be forgotten even by God."1
A man's privacy, his "right to be left alone,2" requires protection from the law to the extent to which it would be infringed by others without just cause. For such protection, the laws of the last century are inadequate mainly because of the rapid advancement of technology, especially in the field of electronics, sound and light. With the modern electronic, optical and other artificial devices, it is very easy to infringe on the privacy of a person even inside his house, without his knowledge. Hence invasion of privacy, which was perhaps the subject of mere poetical imagination in the last century, has now become a real menace requiring statutory interference. As one American author observes.-
"We are slowly drifting into a world of nakedness. Each year an increasing number of technological devices invade the world that we once considered private and personal. In spite of this, we are still confident that our lives, activities, ideas, thoughts, and sensations are shared with no one unless we so chose."3
Microphones reduced to the size of a matchhead pick up sound waves and transmit the same to eavesdroppers. Infra-red light techniques enable a room to be watched and photographed from an adjoining room even though opaque walls. Long distance photography has also developed to such a remarkable extent that photographs can be taken from a distance without the person concerned being aware of the same.
1. Rosenberg The Death of Privacy, p. 142.
2. Cooley on Torts, 2nd Edn., 1888.
3. Rosenberg The Death of Privacy, p. 143.
23.2. Right internationally recognised.-
In Article 12 of the Universal Declaration of Human Rights (1948), the right of privacy was emphasised in the following terms.-
"No one shall be subjected to arbitrary interference will his privacy, family, home or correspondence, nor to attack upon his honour and reputation. Every one has the right to the protection of the law against such interference or attacks."
Though this Declaration may not be legally binding on the nations, its status as an authoritative guide to the interpretation of the Chapter of the United Nations is well established. In the capacity, the Declaration has considerable indirect legal effect and is regarded by the General Assembly of the United Nations and also by some jurists, as a part of the law of the United Nations. This right has been reiterated in the International Covenant on Civil and Political Rights, adopted by the Genera Assembly on the 16th December, 1966, to which India is a party.
Article 17 of the Covenant reads.-
"(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation
(2) Everyone has the right to the protection of the law against such interference or attacks."
23.3. Observation by Pope Pius XII.-
As the safeguarding of privacy is thus made, for all practical purposes, a part of International Law, it is not necessary for us to dilate at length on the need for legislation in this field. We need only quote an observation by Pops Pius XII in the course of his address to the Congress of the International Association of Applied Psychology in 1958.-
"And just as it is illicit to appropriate another's good or to make an attempt on his bodily integrity, without his consent, so it is not permissible to enter into his inner domain against his will, whatever is the technique or method used."
23.4. Right protected by legislation in certain countries.-
We find that the right of personal privacy is protected by specific legislation in several countries. In the Norwegian Penal Code, breach of professional privacy, tampering with private correspondence and tapping private conversation by any mechanical aid have been made penal.1 In the Penal Code of Austria, fixing up instruments clandestinely for hearing 'sound not intended for the public and publication, by pictorial representation or otherwise of facts about the private or family life of person which are of a derogatory nature, are made punishable.2 In some other countries the subject has been taken up and law on the subject are in the process of being enacted.
Thus, in the Draft German Penal Code, prepared in 1962, a whole title has been set apart to deal with "violation of personal privacy". The several sections3 under this title propose to make it an offence to discuss publicly another's private affairs, eaves drop, obtain knowledge of confidential communications, violate confidential disclosures by professional persons, breach of privacy by officeholders and persons especially obligated for public service and commercial exploitation of secrets. In the Draft Japanese Penal Code, prepared in 1961, opening sealed correspondence and breach of privacy by professional persons have been made punishable.4
1. Sections 144, 145 and 145a.
2. Sections 310d and 489.
3. Sections 182 to 186b.
4. Articles 334 and 335.
23.5. Recommendation in England by "Committee of Jurists".-
In England, a Committee was set up by 'Justice" (British Section of the International Commission of Jurists) to examine the whole subject of privacy, with special reference to the safeguarding of the same in the English law. The Committee's Report published in 1970, while suggesting comprehensive legislation on the civil side, recommended that to make use of electronic, optical or other artificial devices as a mean of surreptitious surveillance should be made a criminal offence except in certain clearly defined circumstances. They also recommended further investigation as regards criminal sanctions for industrial espionage.
23.6. Replies of Judges and lawyers in India to question.-
We therefore thought. it advisable to examine this subject and included in our Questionnaire the following question.-
"In view of Article 12 of the Universal Declaration of Human Rights (1948), do you think that the Criminal Law ought to recognise and protect the right of privacy, and if so, what kind of interference with the right should, in your view, be punishable?"
Though a large number of replies received to this question were unfavourable, some of the judges and lawyers were in favour of legislation to make certain types of invasion of privacy penal. Two of the Judges were in favour of a special provision in the Penal Code for invasion of privacy based mainly on the Norwegian pattern. One of the Chief Justices suggested that some beginning should be made in the law of privacy. During discussions some of the Judges observed that specific invasions of privacy like telephone tapping, tape-recording of conversations, unauthorised shadowing should be made punishable. One of the Advocates-General of a State suggested that interference with the right of privacy without authority of law should be made penal.
A Dean of Law Faculty stated that opening of sealed letters and unauthorised disclosure of information by professional persons such as Medical Officers and legal practitioners should be made offences.
23.7. Beginning to be made.-
As the law on the subject is still rudimentary even in advanced countries, we would not advise comprehensive legislation to deal with all aspects of invasion of privacy. It is better to make a beginning with those invasions which may amount to what is known as eavesdropping and unauthorised publication of photographs and leave the rest to be considered later on in the light of the experience gained, and legislation introduced, in other countries. In any such law, the magistracy and the police will naturally have to be exempted from the penal provisions so long as they act in good faith in the discharge of their duties.
23.8. Proposed offences against privacy.-
We recommend the insertion of the following new sections in a separate Chapter which may take the place of the existing Chapter 19 proposed to be omitted.
Offences Against Privacy
"490. Use of artificial listening or recording apparatus.- (1) Whoever, knowing that any artificial listening or recording apparatus has been introduced into any premises without the knowledge or consent of the person in possession of the premises, listens to any conversation with the aid of such apparatus or uses such apparatus for the purposes of recording any conversation, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
(2) Whoever publishes any conversation or a record thereof, knowing that it was listened to or recorded with the aid of any artificial listening or recording apparatus introduced into any premises without the knowledge or consent of the person in possession of the premises, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.1
491. Unauthorised photography.- (1) Whoever, intending to cause, or knowing it to be likely that he will cause, annoyance to any person, takes a photograph of that person without his consent elsewhere than in a public place, or takes his photograph in a public place when that person has prohibited such taking, shall be punished with simple imprisonment for a term which may extend to six months, or with fine, or with both.
(2) Whoever, intending to cause, or knowing it to be likely that he will cause, annoyance to any person, publishes any photograph of that person taken in contravention of sub-section (1) shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.1
492. Exception regarding certain acts of public servants and persons acting under their directions.- Nothing in section 490 or section 491 applies.-
(a) to any public servant acting in good faith in the course of his duties connected with the security of State, the prevention, detection or investigation of offences, the administration of justice, or the maintenance of public order, or
(b) to any person acting under the directions of such public servant."
1. It may be noted that the section does not cover the entry into the premises of another person and fixing therein an artificial listening or recording apparatus. Such entry and fixing would obviously amount to criminal trespass, since it would be either for annoying the owner or for committing the new offence.