Analysing the Judicial Development of Privacy Law

Right to Privacy was never incorporated in the Indian Constitution nor has been provided by any Ordinary law in India. The Judicial interpretations, as well as the development of the law, has led to the emergence of this right, which remains ambiguous till date. Privacy still remains as subjective as it can be comprehended by one unless a law governs the same, which is highly unlikely as the Government is unwilling to take a step ahead. The cases portray shift of the judiciary in striking out Privacy as any right to providing Right to Privacy, which is inherent in the Constitution.

The Judiciary had initially looked through the Indian Constitution in a very rigid and  inflexible manner. The M.P. Sharma case[1] was decided merely by considering the American law and decision of the Constituent Assembly, without taking into account any other considerations whatsoever. Whereas the Kharak Singh case[2] went on to state that even late night periodical visits in house and unreasonable surveillance do not infringe any Constitutional rights and amount to the violation of Privacy ipso facto.

Both these decided cases can be clearly inferred to be based on the principles laid down in A.K.Gopalan case[3]. The Judiciary has not endeavoured at all to innovate or apply principles of Article 19 and 21 taken together, effectively. If it were done so, Right to Privacy would have been effortlessly recognised as an inherent Fundamental Right post-independence, subject to reasonable restrictions.

The later case of R.M.Malkani[4] laid down a bad law that phone tapping is not violative of Fundamental Rights merely because the communication cannot be distorted in any manner, which has been severely criticised. This was overruled in the much celebrated PUCL case[5] which guaranteed phone conversations as a Right to Privacy. Right to Privacy has been strengthened in the post-liberalisation era.

In a similar state, Rajagopal[6] and Gobind[7] case held that Privacy was intrinsic to Article 21 of the Indian Constitution but was not at all absolute and cannot be claimed without passing the State and Public interest test and also by public officials in the discharge of official duties. By this time, privacy had assumed an inherent role in our fundamental rights jurisprudence that helped us lead a dignified life without fearing surveillance.

The content of the constitutional right to privacy and its limitations have proceeded on a case to case basis, each precedent seeking to build upon and follow the previous formulations. The foundation of Right to Privacy rests upon M.P.Sharma, Kharak Singh and Gobind cases, further contributed by Rajagopal, PUCL, Selvi and ABC cases. The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21 and the freedoms set out in Article 19. The Right to Privacy, partially, had been granted due to changing needs and circumstances and being the need of the hour.

The recent judgement has laid down that Right to Privacy is a Fundamental Rights inherent in Article 21 of the Constitution and includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.[8] It protects individual autonomy and power of individuals to make decisions for their life.

[1] (1954) AIR 300.

[2] (1963) AIR 1295.

[3] (1950) AIR 27.

[4] (1973) 1 SCC 471.

[5] (1997) 1 SCC 301.

[6] (1994) 6 SCC 632.

[7] (1975) 2 SCC 148.

[8] K.S.Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012 (Supreme Court, 24/08/2017).


ABOUT THE AUTHOR

Devansh Saraswat

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Devansh Saraswat is a second-year BBA LLB student at Gujarat National Law University. Academy sound and possessing a keen interest in writing and being an avid researcher, he has presented papers on diverse issues in various National and International Conferences, and as well grabbed publications in various journals. He wishes to learn the law to transform the society in whatever way possible.

 

 

Impact of Non-constitutional Decision Making Bodies on Women

Unlike various constitutional bodies such as UPSC, Finance Commission, National Commission for Women, etc. a non-constitutional body does not find its name in the Constitution of India hence it doesn’t derive any power from the Constitution of India.

There are various non-constitutional decision-making bodies in India which are not even statutory bodies, but they have a large impact on the communities mainly in rural areas because of their harsh pronouncements. Some of the biggest examples of these non-constitutional decision-making bodies are ‘Khap Panchayats’ and ‘Kangaroo Courts’ in India. These bodies act as agents of mass pushback mainly against women’s rights.

Khaps are unconstitutional and informal law giving bodies representing a clan or a group of related clans that have captured much rural terrain in the north and eastern India, particularly among the Jat people. They are not affiliated with the democratically elected local assemblies that are also termed panchayat, and have no official government recognition or authority. But in rural India, they have been asserting much power over the lives of people, the weakest of whom are women of all communities. They frequently make pronouncements on social issues such as abortion, alcohol abuse, dowry, etc. They have sanctioned several honour killings and have suggested a level of misogyny that is completely at odds with what the leading courts in the country are articulating.

Here are some of the harsh and cruel pronouncements made by Khap Panchayats:

In Haryana, two jat cast bodies imposed dress codes on women and one even said that girls are “agents who pollute society and bring a bad name to the community”.

Another suggested that the age of marriage should be dropped from 18 to 16 because being married would make young women less susceptible to rape.

On the other hand, a kangaroo court is a judicial tribunal or assembly that ignores recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides.

Few years back, a 20-year-old Santhal tribal woman was raped by 12 men in West Bengal on the orders of a kangaroo court called a salishi sabha. Her crime was to have fallen in love with a man outside her community. The couple were tied up and “tried” and asked to pay Rs. 25,000 as payment. The man was able to pay but the woman could not. The headman reportedly decreed that she could be “enjoyed” by several men and that they could “have fun” with her.

The tone of diktat parrots what Nirbhaya’s rapists said- they were out to “have some fun” and a “good time”. She later died after having sustained massive injuries but left behind a mass political movement calling for more rights for Indian women.

Since the country is already struggling with the problems of women and implementation of their rights, these bodies, moreover, add to the problems instead of helping in any way. Khap diktats are singular statements that send messages to all women and families with daughters, successfully silencing any protest that could arise against their rulings.

The Indian state has been quite reticent in initiating any action against khaps even though it is apparent that khap diktats are blatantly undercutting women’s rights and thereby contradicting the verdicts of the highest constitutional lawmaking bodies. One of the biggest reasons for why no protest could arise against their rulings is that in rural India police presence is low and many local notables have links with local law enforcement agents. These notables are also involved in the functioning of khaps. So, they are reasonably confident that their diktats policing women’s behavior will not be challenged. But so long as Khaps have the power to take decisions in rural areas, proper implementation of law cannot be ensured.


ABOUT THE AUTHOR

Anshu Tulsyan

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Anshu Tulsyan is a second-year student of BBA LLB (H) at ICFAI Law School, Dehradun. She has a deep interest in legal research and legal writing. That apart, she is also interested in creative writing. Her first article to be published is titled ‘How to love what does not exist’. Dedication, in her view, is the one quality that describes her best.

Sports Law in India – Necessities and Challenges

Sports, as a profession is rapidly gaining popularity and the need for a codified system of law with sports as its sole focus is the need of the hour. Taking specifically the case of India, the scope of sports in India is finally widening from just cricket, with the emergence of tournaments such as Premier Futsal, with some of the greatest legends the sport has ever seen, and the Indian Super League India is finally trying to break the stereotype that Indians are not good at sports other than cricket.

Furthermore, there are various other competitions conducted to increase popularity and help develop other sports such as badminton, tennis and even indigenous sports such as kabaddi are finally being given the chance to develop.

After decades of slumber, when one tries to develop something from scratch, issues are bound to arise. Taking the case of Premier Futsal, the Brazilian legend Ronaldinho had to leave early as his country needed him, thankfully this situation was resolved amicably which may not always be the case.

As India enters a new age of Sports entertainment and development in India, it is extremely pivotal that it takes sports law as a serious division. The merger of the ISL and the I-League will lead to further complications both within and amongst teams and players unless India develops sports law to the required extent it will be very difficult to settle disputes which may arise during the tournaments. It would be impossible for the ordinary courts to handle issues and disputes occurring in the sporting world as they are already backlogged with both criminal and civil cases.

Another recent example of the necessity of Sports law and the extent to which it has already developed is the case of Mohammad Salah and his loan period at Fiorentina from Chelsea, where Chelsea had been sued for allegedly breaking the contract with Fiorentina which both FIFA and the CAS (Court of Arbitration for Sports) had dismissed. Such an incident would’ve have led to serious issues in India.

The need for a separate segment of law dedicated to sports is also clear from the IPL match-fixing incidents and the ban which had been briefly placed on India’s Olympic Association (IOA). The IPL match-fixing scandal was an eye opener as the players were charged with criminal offences as it was not easy to determine what category the offence fell under, which would not have been the case if there existed a segment for Sports law.  Cases such as the Narsingh Yadav case, which highlighted the subpar implementation of doping tests as compared to world standards as well as the poor judgement that the National Anti-Doping Agency (NADA) had given on the case, shows the need to improve the current structure of Sports law in the country.

Sports law is a tried and tested segment of law in countries such as the United States, though it is considered to overlap various other segments such as labour and contract law, sports law is granted the authority to act as a decision-making body in the realm of sports in the United States. This has helped in the advancement of sports in the country and shows the need for India to follow suit and opt for such a legal system.


ABOUT THE AUTHOR

Vittal Balasubrahmanyam

Vittal

Vittal is currently a Second- Year law student studying at O.P. Jindal Global Law School. He is also pursuing a career in accounts as an aspiring ACCA. Academic interests include; sports, economics, contracts and accountancy. Hobbies include; listening to music, watching tv shows and movies.

A dismal setback to sec. 498A IPC

From time immemorial, married women in India have been defencelessly enduring cruelty and domestic violence at the hands of men. Cruelty against women was difficult to prove and to make it worse, there was no specific law aiming to safeguard women against such cruelty. It is not unfamiliar that crimes against women have been a barrier to the holistic development of the society.

Responding to the dire need of gender equality and curbing the menace of marital cruelty upon women due to the evil of dowry prevalent in our country, the Criminal Law (Second Amendment) Act, 1983 was enacted by the Indian Legislature which amended the Indian Penal Code, 1860 by inserting Section 498A, the Code of Criminal Procedure, 1973, the Hindu Marriage Act, 1955, the Indian evidence Act, 1872 (by inserting section 113-A into it) which has shifted the burden of proof to the accused and the Dowry Prohibition Act, 1961.

The section 498A of the Indian Penal Code, 1860 was introduced into the Indian criminal law system with an objective to prevent the menace of dowry death and cruelty inflicted upon women. This was a momentous change introduced in the Indian criminal law system intending to provide protection to the women as the offence of marital cruelty in India became cognizable, non-bailable and non-compoundable offence.

Section 498A is given under the heading, “Husband or relative of husband of a woman subjecting her to Cruelty.” Under this section, “cruelty” has been explained as (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Aiming towards the complete wellbeing of the married women, apart from physical cruelty, section 498A of the Indian Penal Code, 1860 has recognised ‘mental cruelty’ by husband or relatives of the husband as a psychological harm and made it a punishable offence.

Recently, in the name of preventing misuse of Sec. 498A, the guidelines laid down by the Honorable Supreme Court in Rajesh Sharma & Others vs. State of U.P. & Another, blatantly defeated the objective of sec. 498A IPC. It requires that every complaint under sec. 498A received by the Police or Magistrate shall be referred to a particular committee which shall have to submit its report within one month from the date of receipt of the complaint. Moreover, until the report is submitted, no arrest should be made. However, his judgement has undermined “mental cruelty” and it has been made clear that these directions will not apply to the offences involving tangible physical injuries or death of a woman.

The incidences of mental cruelty are no less harmful to any woman. Instead of taking action to prevent cruelty and save the life and dignity of a woman, the judgement instructs to take action only when the woman has been hit, thrashed, beaten up or killed. The Indian women are made to suffer to such an extent to get eligible for access to justice. During the one month period of enquiry to confirm the veracity of the facts of the complaint, the psychological cruelty may continue and even aggravate to harm of a serious nature including psychological depression or even suicidal tendencies in the victim women.

The ground reality regarding the implementation and effectiveness of the law provided under sec. 498A is quite dismal. According to the reports of National Crime Report Bureau, crimes against the female population in India have increased manifold in the recent time. The guideline of the Supreme Court in the above-mentioned case is regressive in nature and it has sabotaged the ongoing effort to bring about gender equality.

According to a report of the CHRI, the Police in India refuses to register complaints of sexual harassment and other crimes against women. It said that “the survey points to a significant proportion of unaddressed and unreported crime, signalling worrying levels of insecurity among the public, particularly women”.

Stringent implementation of the existing laws is required to curb crime against women because there is massive under-reporting of crime against women in India. The real concern for us should be the lower conviction rate for crime against women according to various official data. Guidelines should also be framed to encourage abused women to report crimes and fight her case till the end. The instruction to refrain from filing FIR until a thorough enquiry has been a big demotivating factor.


ABOUT THE AUTHOR

Shampa Chowdhury

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She is a legal professional working in a Law Firm in Kolkata. She has a brief experience of content writing for a few Law portals. Currently, Shampa is pursuing a course on Cyber Law Practice, Information Technology and Social Media Law from NUJS.

 

Pride and Dignity: Women at workplace

In the era of globalization, modernization, and rationalization, one thing which is most applauded about is women empowerment. International leaders, celebrities, politicians, youth, and even the laymen talk about the blurring gap between men and women and uplifting women, not only socially but politically as well as economically.  But the irony is, it is all loose talk in the air, because when the time comes to execute it practically, women are always portrayed as weaklings, needing male support at all times.

The esteemed workplace where she can prove herself itself becomes the place where her wings get clipped. The question which arises is, what stops her in her workplace to work efficiently? What stops her to work freely without fear? The answer is, unfortunately, SEXUAL HARASSMENT AT WORKPLACE. Statistics show seven out of ten women are sexually harassed at the workplace. Around ninety percent women are not aware how to deal with the situation or what can be done to stop it or is there any way out? Fortunately, the answer to all these questions is, YES! And the credit for such steps goes to the judiciary as well as the government of India. Now, what is needed is generating awareness among women as well as people regarding prevention of sexual harassment at workplace.

The Supreme court in Vishaka & others versus State of Rajasthan and others laid down guidelines directing that these guidelines would be strictly observed in all workplaces for enforcement of gender equality of women at the workplace.

The facts of the case were, there was a writ petition filed by some social activists with the aim of bringing the attention towards growing incidents of sexual harassment at workplace. It was aimed at preventing sexual harassment at workplace by laying down certain guidelines.

But the immediate cause for filing such petition was the gangrape of a social worker in a village in Rajasthan. It was contended that sexual harassment leads to violation of fundamental rights under Art. 14 (equality before law), Art. 15 (Prohibition of discrimination), and Art 21 (right to life and personal liberty) of a woman. But by laying down necessary directions court had endeavoured to ensure “A safe working environment to women”. The court even directed central as well as state governments to consider the appropriate legislation for the same.

The second step was the Sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013 [SHW ACT]. The act defines sexual harassment as ANY Unwelcome sexually determined behaviour, and demands, from male employees at the workplace, which includes:

    • any physical contacts and advances
    • sexually coloured remarks
    • showing pornography
    • passing lewd comments or gestures
    • sexual demands.

It mandates all the employers to constitute an INTERNAL COMPLAINTS COMMITTEE [ICC] at each office or branch with ten or more employees and requires fifty percent should be women.  It requires time-bound redressal of complaints which should be confidential. It requires employers to conduct education and sensitization programs and provide a safe working environment.

The other initiative was Justice Verma committee; it recommended Employment Tribunal comprising two retired judges, two sociologists and a social activist to obviate the need of ICC which was not functioning as it was intended.

The latest and the most technically efficient initiative the government has launched is the SHE BOX (sexual harassment electronic box). Recently government launched an online platform, which will enable women employees to file complaints related to sexual harassment at workplace.

This online initiative seeks to ensure effective implementation of SHW act 2013. Once a complaint is submitted to the portal, it will be directly sent to the ICC of the concerned ministry or department.

The SHE BOX will cater effective and immediate and speedier remedy to women facing sexual harassment as well it will help the complainant to monitor the progress of the inquiry.

Currently, the complaint can be filed by central government employees only, which will later be extended to all. Under the vision of digital India program, it will help in achieving the goal of gender equality and women empowerment.

Barack Obama once quoted, “A country’s progress and future depend upon how we treat our women and girls”. Let us ensure that women can live their dreams, by ensuring a safe work environment at the workplace where they can work in par with their male counterparts with no obstacles coming in their way, and appreciation coming their way for achievements.


ABOUT THE AUTHOR

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DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.