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At a time when India is debating a new law on Data Protection, an interesting question has been raised  before the Supreme Court about the “Right of Privacy” and whether it extends beyond death. The recent judgement of a 9 member bench of Supreme Court referred to as “Puttaswamy Judgement” was hailed as a “Land mark” judgement because it held that “Privacy is a Fundamental Right”.

At Naavi.org, we have discussed the Privacy Judgement in detail. In conclusion, we discussed the need for a proper definition of Privacy before we worry about how to protect privacy. (Refer: “The Privacy Judgement… Conclusion.. Need for Definition of Privacy” )

According to us, it was a failure of the Puttaswamy judgement that it did not define Privacy as a Right and only went about beating around the bush on the “Protection of the unknown and undefined right called Privacy”.

How can we protect a Right without defining the Right itself?

It is not prudent to make a law for protecting a concept which itself is not properly understood and defined. If we attempt to do it, then it will provide endless scope for litigation and will not help honest citizens.

Criminals will however take full advantage of such ambiguous law and ensure that they thrive at the cost of honest citizens.

The mistake committed by the 9 member bench to declare Privacy as a Fundamental Right without a definition of Privacy has now opened the question as to whether the “Right of Privacy” extends after the death of a person.

I hope this lacuna will be corrected in the Data Protection Law that the Government is trying to develop.

Background

It must be recognized that the current issue, namely “Whether the Right of Privacy extends beyond death” has arisen because there is a need to access and verify finger print data of late J.Jayalalitha,  available with UIDAI as well as the Jail authorities in Karnataka to decide on an allegation that her finger print was affixed on a document when she was in a state of health where she was either already dead or was unconscious.

There was a reasonable ground to believe foul play since during the entire period of her hospitalization, access to her was not permitted to any body other than a small group of people. Even prominent political leaders including Mr Rahul Gandhi and Venkiah Naidu came to the hospital and returned without even looking at the patient.

The prima facie perception which the citizens carried at that time was that the hospital and the Sasikala faction of AIADMK were in collusion and did not declare the true condition of her health. Even the current dispensation of the TN Government did not know her true state of health.

During such a state of doubtful health, she was supposed to have affixed her thumb impression on one of the documents which has now been questioned.  It was a reasonable doubt in the minds of the public that the thumb impression was not willingly placed by a person in understanding of the document on which it was placed and hence it was a “Forgery” and a “Fraud”. The fraud is on the citizens of India both those who like/d or dislike/d Ms Jayalalitha.

Now the honourable Supreme Court has intervened on a petition before the High Court and stayed a request for verification of the genuineness of the thumb impression.

Unfortunately, by granting a stay, The Supreme Court has intervened in a case where Criminal Conspiracy has to be investigated and the only persons who could benefit from this stay are people who want to hide the actual events that surrounded the mysterious death.

Even the UIDAI has wrongly taken a view that it cannot submit the copy of the thumb impression to help in the judicial process and in the process supporting an attempt to protect the secrecy of the doubtful death rather than bringing out the truth.

By trying to protect this questionable request not to grant access to the finger print and proceed with the investigation whether it was genuine or not under the garbs of a discussion of Privacy the Supreme Court will be further muddying the waters to an extent that people will question the integrity of the Supreme Court. Let us not forget that some of the Judges who will sit in judgement in this case may be persons who could have acted as Jayalalitha’s advocates in her days in power.

What is Right to Privacy

It is necessary for us to first define the “Right of Privacy”. As a fundamental right, Privacy can only be a Right that a Citizen can exercise against the democratic state committed to a constitution. If one “Fundamental Right” is considered the “Right that extends beyond death”, every other Fundamental Right can also extend beyond death.

If we define Privacy as a “Right to Life and Liberty” there is no logic in extending it to a dead person who does not have life or liberty.

Privacy cannot be equated to “Right of Secrecy”.

In a situation where the person has died, “The right to privacy of the dead person” cannot be extended as “Right to secrecy of the people around not to provide truthful information” or “Right to protect the deceased from loss of reputation”.

There is no doubt that the Supreme Court has powers to give any judgement and no body can  question their wisdom if they say Privacy extends beyond death. They may even quote some international practices and justify whatever they decide.

But if they do, it cannot be seen as anything other than an attempt to protect the secrets surrounding the death of Ms Jayalalitha and to protect those who could be implicated for causing her wrongful death and compounding it with fabrication of documents with her alleged finger print. Hence whatever judgement they come to will be seen with a sense of suspicion and distrust.

The feeling that ” I have a sense of Privacy” is a “State of Mind” and not a “State of Physical location”.

Let’s think……

When a person is in the Mumbai local, does he have a sense of loss of privacy because of the proximity of the next person? When a person is all alone in a deserted street in the night, does he enjoy our right of privacy?….

If a human desires to have other people around him in certain circumstances and does not mind them being too close physically, Privacy cannot be a matter that is determined by the physical proximity of the person or Right to access his body or private physical space.

Right to “Peaceful state of mind” is a creation of the person himself and not that of the environment. Hence Privacy cannot be equated to anything physical but can only be a state of mind of a person. If a person feels that he is alone, he will have a sense of privacy even in a crowd. If not, he will not feel “Privacy” even if he is in a graveyard.

Being a “Mental State”, Privacy can only be an experience of a “Living Person” and not a dead person. The Right to protect the information about a dead person can only be a “Right to be protected against defamation after death” and not a “Right to protect Privacy”. Right to be protected against defamation is fine but in the current case, it is not the reputation of Jayalalitha at stake and it is the reputation of the people who were around her at that time which is at stake. This cannot and should not be linked to the Right to Privacy of Jayalalitha living or dead.

It would therefore be appropriate if the stay is vacated forthwith and the UIDAI also directed to assist the judicial process.

I would like to point out that if the Supreme Court makes an exception to this case because they may consider that Ms Jayalalitha dead or alive is a special person, then in every other property case where a dead person’s finger print has been affixed on a document after his death, the perpetrators of the crime will claim protection under “Privacy”. There are many past cases where forensics have proved that such property documents were fraudulent and in future there will be no scope for preventing such frauds.

I hope  Supreme Court will be intelligent and honest enough to understand the consequences of holding the Right of Privacy as subsisting after the death of a person and come to the right decision.

Naavi

Justice B.N. Srikishna Committee constituted on 31st July 2017 to draft a “Privacy Act” for India has come out with a white paper for pubic comments. The 243 page report is now in public domain and seeks public response to every angle of the proposed legislation.

The white paper draws heavily from the GDPR as could be expected and has made frequent references to the Supreme Court judgement on Privacy in the Puttaswamy case.

The deadline for submission of comments is 31st December 2017. Presently the web link suggested for online submission returns a 404 error and hopefully it would be corrected soon.

Written responses can be sent to : In case you wish to submit written comments/feedback, same may be sent to: Shri Rakesh Maheshwari, Scientist G & Group Co-ordinator, Cyber laws, Ministry of Electronics and Information Technology (MeitY),Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi- 110003.

Naavi.org will be analysing the suggestions made and provide its comments and suggestions on the website in due course.

Public are welcome to send their responses for the comments.

Naavi