Changing Dimensions of Privacy in India
The Ephemeral And Continually Changing Dimensions Of Privacy In India: The WADA Clause And Beyond.
‘Privacy', a term which has very wide horizons and dimensions. The meaning of Privacy as mentioned in the dictionary goes like this “the state of being alone and not watched or disturbed by other people” or “the state of being free from attention from public. Now if we go by this meaning the WADA whereabouts clause for the players is really against the meaning of privacy
Right to privacy is not enumerated as a fundamental right in the Constitution of India. The Constitution does not grant in specific and express terms any right to privacy as such. However such a right has been included by the Supreme Court from Article 21 and several other provisions of the constitution read with the Directive Principles of State Policy. The Supreme Court has, in Unni Krishnan v. State of Andhra Pradesh stated that certain unenumerated rights fall within Art.21, since the expression ‘personal liberty is of widest amplitude. In that case the Court itself recognized the right to privacy falling under the ambit of Art.21.
Right To Privacy: The Beginning
The first and the foremost important case in this regard is the case of Kharak Singh v. State of Uttar Pradesh. For the first time in the history, this question was raised before the court that whether the Right to Privacy could be implied from the existing Fundamental Rights, such as Articles 19(1)(d), 19(1)(e) and 21. Judges Subha Rao and Shah, participating in the judgment said of the right to privacy that “It is true that our constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house where he lives with his family, in his “castle”; it is his rampart against encroachment on his personal liberty. The pregnant word of that famous Judge, Frankfurter J, in (1948) 338 US 25 pointing out the importance of security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movement affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Art.21 as a right of individual to be free from restrictions and encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures”
The Change Of View:
In Govind v. State of Madhya Pradesh, the Supreme Court took a more elaborate appraisal of the right to privacy. In Govind, the court considered the constitutional validity of a regulation which provided for surveillance by way of several measures indicated in the said regulation. The court upheld the regulation by ruling that Art. 21 was not violated as the regulation in question was “procedure established by law”, in terms of Art. 21. The court also accepted a restricted fundamental right to privacy as an “emanation from Art 19(a), (d) and 21”. The right to privacy is not, however absolute; reasonable restrictions can be requested thereon in the interest of the public at large under Art. 19(5). Matthew J. observed in the above case that “ the right to privacy in any event will necessarily have to go through a process of case by case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right to privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute”.
Depending on the character and antecedents of the person subjected to surveillance as also the objects and limitations under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction on the right to privacy. Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and the right to privacy in itself is a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.
Thus we can conclude from the above decision of the Supreme Court that, after the decision of the same court in Kharak Singh case, restrictions were added to the right to privacy and its power of being an absolute right was taken away. These restrictions were based on case by case basis but nevertheless the restrictions imposed had lasting effect on the right to privacy.
The Change Continues:
In the case of State of Maharashtra v. Madhukar Narayan Mardirkar, the Supreme Court decided keeping in mind some extreme situations and gave an off the way verdict. The Court said that “even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when one likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law”.
As it is clearly evident from the above decision that the court has expanded its scope in covering Art.21 and the people who should be covered under the article.
Again, in R.Rajagopal v. State of Tamil Nadu the Supreme Court has asserted that in recent times the right to privacy has acquired constitutional status; it is “implicit in the right to life and liberty guaranteed to the citizens” by Art 21. It is a “right to be let alone”. A citizen has a right “to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters”. In this regard the Supreme Court has taken into consideration Art. 8 of the European Convention on Human Rights which defines the right to privacy as follows:
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the right and freedom of others.
In another case of Mr. X v. Hospital Z, the right to privacy was upheld by the Supreme Court once again but with certain limitations on it. The Court decided that “public disclosure of even true facts may amount to an invasion of the Right to Privacy which may sometimes lead to the clash of the interest of one person's ‘right to be let alone' with another person's right to be informed. Disclosure of even true private facts has tendency to disturb public tranquility. It ma y generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, he Right to Privacy is an essential component of right to life envisaged by Art. 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedoms of others.
WADA ‘Whereabouts' Clause: Its Stand In India
Article 14.3 of the World Anti Doping Code provides for the information about the whereabouts of the athletes or players involved in various games. It states that some specific athletes will have to provide for the information of their whereabouts in advance. This has invited much of the attention of the players and athletes all from all over the world. While some are for it while others are against it. FIFA and UEFA, although they have accepted the WADA and the code yet they have rejected the ‘whereabouts clause' of the code in March 2009. These both organizations are against the individual whereabouts clause and do the support the same. They want it to be replaced by collective team location and within the stadium's infrastructure. Nevertheless, FIFA and UEFA agree, as an exception, to individual location for players already serving a suspension, or for players injured for a long period of time, as these players do not necessarily participate in the daily life of the club. Furthermore, FIFA and UEFA do not accept that controls be undertaken during the short holiday period of players, in order to respect their private life.
Now if we turn our heads and minds towards the Indian Scenario, the picture is absolutely different. The BCCI and other athletes have rejected the code from it very roots and opposed it tooth and nail. Some very respected players of the Indian cricket team have opposed the clause namely Sachin Tendulkar, Mahendra Singh Dhoni and Yuvraj Singh, to name a few. The BCCI has stood with its players and argued against the code. But the biggest hindrance in this supportive role of the BCCI is that the Government of India is a signatory to the code and has already accepted it. This step of the government has made the BCCI think about its stand. The authority and the players say that this clause is an invasion on their right to privacy guaranteed by the constitution and so it cannot hold good grounds in India. In India, cricketers are a very hyped lot. In this situation and circumstances, the present clause of the code is indeed in violation of the privacy of the players. Art.19 (1)(d) guarantees to its citizens right to move freely in any part of the country. Although the above clause comes with certain restrictions but still it's a pertinent right in India. Now if the present clause under question is implemented in India then it will indeed be an encroachment on the rights of the players and the athletes. But again there may arise an interesting question that is how the India Courts define this clause and narrate it. It is so because, in the past the court had interpreted this right in various facets and forms. So even after the courts have stated in various cases that the right to privacy is an essential part of Art.21 and should be covered under it, still there remains a dilemma over the right of privacy in context of the Indian players and athletes particularly Indian cricketers(considering their status, which is almost that of a God).
The Right to Privacy has always been a matter of discussion amongst the law makers. Earlier this right was not included or mentioned explicitly in the constitution. But it would be really awkward to think that our constitution makers and the legislature did not have the intention of securing the privacy of an individual. It would be safe to assume by that right to privacy is covered under Art.21 and also under Art.19 (1)(d). it can not only be safely assumed but it is also proved by the previous decisions of the apex court of our country.
The WADA clause has gives the slogan of fight against drugs. And for the achievement of this goal, the whereabouts clause has been added to the code. But according to the Indian Constitution, right to privacy has been given priority over such issues in the past cases which have turned up before the apex court. According to the court even prostitutes posses such right and it cannot be infringed. Then why the players should compromise with their privacy, not forgetting the status of the much hyped game in India, which we call cricket. These players long for some privacy because most part of the year they are playing matches at one place or the other. Few days of holidays are what they get as a reward after a series. But if this code is implemented and carried on then those days of holidays and no attention would also turn into occasions which are hyped. These days the media has gone in so far in reaching theses players that even if a player is attending a wedding party or any function, media persons are present there. To give a very simple and understanding example of players longing for privacy is the case of the dashing cricketer of the Indian cricket team, Yuvraj Singh. He was supposedly linked up with the famous actress, Deepika Padukone. If Yuvraj and were spotted in a party together then the breaking news would be covering this issue only. This incident we can take as an example to understand the situation when there is no code in India. If the code is implemented then we would not be surprised if one of the players slipped while going to the washroom in the night, it would become news, the very next day.
Many other international organizations such as FIFA and UEFA have also not accepted the code as a whole and raised certain objections to the whereabouts clause of the code. In this situation when even international organizations are refusing to accept the code, the decision of the Indian government in accepting the code has come under question. When the Supreme Court in its previous decisions, has already stated that right to privacy is an essential and fundamental right guaranteed by the Part III of the Constitution, then the step of Indian government of accepting the code has to be relooked into.
The Indian Constitution has guaranteed certain rights to individuals and these players are one of them and they also have the right to enjoy these rights to their full extent. If the authorities just take the reason of their being players and taking caution against drugs abuse, the government would we violating the right given to these players in their individual capacity by our constitution. It cannot be denied that the code and the agency is indeed working against drug abuse in sports and towards healthier and clean sports, but also we cannot deny the rights enshrined upon us by our constitution. What the government really needs to do is strike a balance between the right to privacy and its campaign against abuse. There are other methods which have been taken in the past and have proved fruitful in stopping the drug abuse, apart from a few hiccups. Nobody has the right to follow anybody just because he is a player or an athlete and he might engage in doping. When a crime is committed, there is a punishment for it and not that the police follows each and every person and see that the crime is not committed. Proper steps and measures should be taken to restrict the abuse and not the right of an individual.