This is a guest post by Aishani Gupta and Sarvjeet Singh who are final year students at National Law University, Delhi. Their areas of interest include information technology and media laws and their effect on civil liberties (particularly freedom of expression and privacy). They were the winners of the 2011-12 Price Media Law Moot (South Asia Rounds) and semi-finalist at the International Rounds of the competition and subsequently judged the South Asia Rounds in 2012. In addition to this Sarvjeet has also completed two seminar courses on media and technology taught by Mr. Apar Gupta.
The 23rd of January saw the release of the awaited report of the Justice JS Verma Committee on Amendments to Criminal Laws (the full report can be accessed here). The Committee recommends the insertion certain offences in the Penal Code, which would create offences for breaching the privacy of women in physical spaces.The section dealing with recommendations to amend the Criminal Law Amendment Bill, 2012 (Appendix 4, pp. 437-38) envisages two new offences of voyeurism (s. 354 B) and stalking (s. 354 C(1)) under the Indian Penal Code. Moreover, the Bill of Rights of Women (Appendix 3, p. 432) discusses a right to secured spaces even within the public domain demonstrating a shift in the conception of privacy.
These offences are properly concerned with intrusion of physical places, which is considered the starting point for privacy rights. The privacy movement has its conception in an article in 1890 because people intruded into the private wedding ceremony of the daughter of one of the authors. As a right privacy had its beginning in physical spaces and with the rise of the Internet even this right had to adapt as did many other aspects of our lives. Even though today most of us are concerned with privacy with digital spaces, much of the narrative on privacy commences from the proverbial walls of a castle. And as the Warren and Brandeis metaphor goes even a woman’s house is her castle. In the digital age where we only think of privacy as a right to control personal information,which seems to be one of the limitations of the Report on Privacy by the Justice Shah Committee (summary of the report available here)) the protection provided by the right as encapsulated by the recommendations of the Verma Committee in physical spaces should not be overlooked.
Privacy, has been looked at by the Supreme Court as a right to be free from State interference, however, the Committee’s report looks at privacy in tandem with other jurisdictions where the right to privacy is looked at as a right to personal development and autonomyoffering a zone of interaction even in public spaces [SeePG and JH v The United Kingdom App no 44787/98 (ECtHR, 25 September 2001)].
“354B. Voyeurism –
Whoever watches a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator, or by any other person at the behest of the perpetrator shall, be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but may extend to three years, and with fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but may extend to seven years, and also with fine.
Explanation 1: ‘Private act’, in the context of this provision, is an act carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim’s genitals, buttocks or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public.
Explanation 2: If the victim consented to capture of the images or other material, but not to their dissemination to third persons, such dissemination shall be considered an offence within this section.”
This proposed section seems to be an extension of section 66E of the IT Act, which prohibits capturing, publishing or transmitting of image of private area of any person without their consent thereby, disallowing online voyeurism. The recommendation of the Committee goes further than the aforementioned section and also prohibits and punishes the viewing of woman engaged in private acts. It should also be noted that this section acknowledges the aspect of recidivism in persons engaging in such activities. The recommendation is an attempt to punish ‘peeping toms’ and punishes watching women engaging in private act where a ‘legitimate expectation of privacy’ ensues. An act would come within the confines of the definition of a ‘private act’ if a reasonable expectation of privacy exists and the victim’s genitals, buttocks or breasts are exposed or covered only in underwear. Further, the usage of a lavatory by a victim or sexual acts which are ordinarily not done in public are also classified as private acts
The section affirms the proposition that the right to privacy protects people and not places, as the section prohibits voyeurism regardless of public or private sphere as long as the woman has a ‘legitimate expectation of privacy’. However, one is left to ponder why this section is not worded in a gender-neutral manner.
“354C(1). Stalking –
Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking.
Provided that the course of conduct will not amount to stalking if the person who pursued it shows:
i. that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or,
ii. that it was pursued under any enactment or rule of law, or to comply with any condition or requirement imposed by any person under any enactment; or,
iii. that in the particular circumstances the pursuit of the course of conduct was reasonable
(2) Whoever commits the offence described in Section 354C(1) shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine.”
As a right, privacy is an intrinsically individual right, allowing for each person to define for themselves what is private and what is not. Essentially, this is embodied in the theory of control. The Internet has made the right to privacy extremely susceptible to erosion by diminishing the control over personal information. The recommendation dealing with the offence of stalking specifically takes this into consideration and states “[…] whoever monitors the use by a person of the internet, email or any other form of electronic communication… will be guilty of the offence of stalking”.The manner, in which this offence is worded, clearly shows the intention of the Committee to indicate the value of control over personal information.
In the digital age where individuals engage in numerous activities via social media taking this into account is a welcome recommendation on behalf of the Verma Committee.
The codification of these offences is an example of the recognition of the right to privacy in the absence of any enactment specifically granting this right. Once codified, these offences will mark a shift in the role of the State when it comes to the right of privacy. Privacy in India has been looked at as a right that entails a negative obligation on part of the State i.e. minimum intrusion into the private lives of individuals. However, in keeping with different conceptions of privacy there is also a positive obligation on the State (as noted by General Comment no. 16 to Art. 17 of the ICCPR)that can be noted in the recommendations of the Committee. The right to secured spaces coupled with the codification of the offences of voyeurism and stalking increases the obligation of the State to ensure that individuals are protected from being unwantedly pursued, be it through electronic media or in physical spaces.
In the digital age whennumerous people engage in various activities online, leading to the generation of large amounts of personal information, these proposed amendments (especially stalking, with relation to the internet) are commendable developments.However, there is also an urgent need of a single legislation addressing the right to privacy in as recommended by the Shah Committee (available here).
[Image taken off this NDTV Article]