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Report No. 156

Clause 197

12.88. The existing Chapter XIX entitled "Of The Criminal Breach Of Contracts Of Service" contains only section 491.

The Law Commission in its 42nd Report under para. 19.2 has recommended for deletion of the Chapter XIX of I.P.C. which includes section 491, I.P.C. mainly on the ground that it is not of practical utility. A close look at the provision would indicate that the provision is implemented to protect the contractual rights of helpless or incapable person who, by reason of youth or of unsoundness of mind, or of a disease or bodily weakness is helpless or incapable of providing for his own safety or of supplying his own wants.

In other words the provision intends to protect the rights of such persons on the grounds of humanity. Such persons may not be in a position to seek civil remedy. Therefore in the present context of the human rights, it may be desirable to retain this provision with enhanced punishment. We recommend that the existing punishment may be enhanced from three months to one year and the existing limit of imposing fine of Rs. 200 may be substituted by the word "fine" only so that the Court may fix the quantum of fine depending upon circumstances of the case.

We also recommend that this offence be made cognizable, if information relating to the Commission of the offence is given to an officer incharge of a Police Station by the person aggrieved by the offence or by any person related to him by blood, marriage or adoption or by any public servant belonging to such class or category as may be notified by the State Government in this behalf.

This clause also seeks to substitute Chapter XIX and insert thereunder new sections 490, 491 and 492 providing for the offences against privacy.

The Law Commission examined the various aspects of right to privacy under Chapter 23 of its 42nd Report and recommended for insertion of a new Chapter on "Offences against Privacy". While adopting the recommendations of the Law Commission, with certain modifications, clause 197 of the Bill seeks to substitute the existing Chapter XIX of the Penal Code for the said purpose which contains new sections 490, 491 and 492.

Under the proposed section 490 use of artificial listening or recording apparatus for listening the to or recording any conversation in any premises without the knowledge or consent of the person in possession of the premises is made punishable for imprisonment upto six months. In case any one publishes such conversation while knowing that it was so listened to or recorded, he will be liable for a higher punishment of imprisonment upto one year.

The proposed section 491, makes the taking of unauthorised photography is made punishable for imprisonment upto six months, and if one publishes such photograph, the imprisonment may extend to one year. However, the proposed section 492 provides for exceptions regarding certain acts of public servants, and persons acting under their directions.

Right to privacy is a vast subject and its scope has been widened considerably under Article 21 of the Constitution of India by the Supreme Court under its various decisions. Various countries abroad have also dealt with the various aspects of right to privacy in separate legislations. For example, the Law Reform Commission of Hongkong in its Report of December 1996 entitled "Privacy: regarding the Interception of Communications", has referred to various legislations in different countries regulating interception of communications.

It observed under para. 4.11 of its Report that several jurisdictions, including common law jurisdictions, have legislation regulating interception of communications and although the scope of protection by such legislation varies, all the statutes apply criminal sanctions to safeguard the privacy interests of individuals in one way or another.

The Law Reform Commission of Hongkong suggested various legislative measures under Chapter 6 of its Report to provide protection against undue interference with the privacy of the individual and in the interest of public security. Similarly, the Law Reform Commission of the Ireland in its Consultation Paper headed 'Privacy: Surveillance and interception of Communications' has provisionally recommended for the enaction of a separate Act to protect the privacy of the individual from intrusive surveillance.

It may be pointed out that in the National Seminar on Criminal Justice in India, organised by the Law Commission on 22nd & 23rd February, 1997 New Delhi, many participants viewed that the proposed provisions under clause 197 of the Bill are bare and sketchy and do not meet the existing demands of society for protection of right of privacy of individuals. A view was also expressed in that Seminar that the exceptions carried out under the proposed section 4.92 virtually render the provisions of the proposed sections 43C and 491 meaningless.

In view of the above discussion, we are of the view that a separate legislation should comprehensively deal with various aspects of offences against right to privacy in the context of the present day needs. The Law Commission is proposing to take up a comprehensive study on this subject separately. It is, therefore, recommended that clause 197 of the Bill which seeks to substitute the existing Chapter XIX of the Penal Code, may be deleted.

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