M J Antony: The confines of privacy

OUT OF COURT

In this electronic age, we leave our footprints in various documents, files, records and computers. Apparently, there is no way for us to know when, how and by whom the information about us would be used.

The right to privacy is shrinking. What a British judge said in 1603, that "every man's house is his castle", seems to be a fading notion.

However, the judiciary has been incessantly fighting against the invasion of privacy by various private and public agencies.

In its judgement delivered earlier this month, the Supreme Court gave prime place to the right to privacy while striking down an Andhra Pradesh legislation (Distt Registrar vs Canara Bank).

According to the state's amendment to the Stamp Act, the collector or anyone authorised by him was allowed to enter the premises of banks and corporations to check whether the documents in their possession carried the correct amount of stamp paper.

The object was to plug the leakage of revenue. However, the court struck down the provision because it violated the right to privacy and granted uncontrolled power to the collector to delegate his authority to other functionaries.

The Constitution does not expressly mention the right to privacy. However, the Supreme Court has interpreted the fundamental rights provisions to include this concept, which is also developing in other democratic constitutions.

For instance, the Fourth Amendment to the US Constitution was expanded to recognise the right to privacy, which was described as "the right to be left alone".

One of the earliest judgements of the Supreme Court referring to the right to privacy was Kharaka Singh vs State of UP(1964). An Uttar Pradesh rule allowed the police to visit the houses of suspects at any time to keep a tab on them.

The court struck it down because it violated three fundamental rights "" the right to life (Article 21), freedom of expression (Article 19[1][a]), and freedom of movement (Article 19[1][d]).

Since then, the right has steadily expanded, the latest decisions being R Rajagopal vs State of TN (1994), PUCL vs Union of India (2003) and Sharda vs Dharmpal (2003).

While most of the above judgements affected individual rights, the present judgement on the Andhra law dealt with those of corporations. Therefore, 11 banks and a number of financial companies challenged the rule.

They normally hold private documents of their customers. They also have a relationship of confidentiality with their customers. Can the state authorities have unrestricted access to inspect, seize or make roving inquiries into the records in the banks' possession in the name of checking the stamp papers? The court said no.

It said: "Under the garb of the power conferred by the rule, the authorised person may go on the rampage...The possibility of any wild exercise of such power may be remote, but the possibility cannot be ruled out. Any number of documents may be inspected, may be seized and may be removed and at the end, the whole exercise may turn out to be an exercise in futility."

There are "search and seizure" provisions in other Central and state laws. The Income Tax Act has Section 132 and the Code of Criminal Procedure has Section 165. However, the powers under all these legislations have been tested for constitutionality by the judiciary and excesses have been clipped.

The Andhra law was unnecessary in the first instance. If a document is not properly stamped, it has no value. If the instrument is not duly stamped, the authority concerned can impound it and recover not only duty but also penalty.

If there was any fraud, the people responsible can be prosecuted. In view of these severe consequences, it was not necessary to pass another law for search and seizure.

The only beneficial outcome of it all is perhaps the renewed emphasis on the right to privacy put by the Supreme Court. The ruling can be invoked in other circumstances as well, since this valuable right is in danger of eclipse.