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Policing Privacy: Regulating Information Dissemination between the Media and the Police by Alwyn and Prerna

About the Author: Alwyn & Prerna are Law Student at School of Law, Christ University, Bangalore
  1. Introduction

The role of the media was often understood as a mere mediator of primary information to the public. However, this role has been expanded over the past few decades owing to the era of globalization and democratization.[1] The media, has been the cornerstone for the ‘collusion of adverse opinions’.[2] John Stuart Mill opined that the ideal role of the media is to discover the truth, and in doing so, it is justified in deliberating on various matters within the ‘marketplace of ideas’.[3] Sometimes the functionality of the media is diluted with regulations posed by the state. Nevertheless, the freedom of speech and expression is quintessential for the proper functioning of the state system.

This freedom not only enables public participation in a democratic society[4], but also plays an integral part of every citizen’s right to self development and fulfillment.[5] This freedom is not an end in itself but a means of identifying and accepting the truth.[6] No right is absolute; every right has its restrictions. Many nations have imposed restrictions on this freedom in light of morality, national security and privacy. However, privacy, amongst the various other restrictions, also happens to be a positive right. Thus it is safe to assert that the right to speech and the right to privacy are mutually exclusive and hard to reconcile.

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Towards the end of the twentieth century, the nations of the world began to realize the growth of mass media in disseminating information to the public. The media began gaining great importance in establishing state-citizen relationships. The media has taken on the position of the ‘fourth estate’[7], aiding the state in its communication to its citizens. This confers upon the media, as sense of public accountability in delivering truthful and resourceful information.[8] However, in an attempt to appeal to the public, the media often oversteps its responsibility and invades into people’s privacy.[9]

In an attempt to reconcile the differences between the media and its citizens, the Indian Parliament has introduced the Privacy Bill, 2011 that is pending before the house for perusal. The paper attempts to provide a critical appraisal of the Bill, thereby ensuring the authenticity on information received and delivered by the media. The growing casual encounters between the police and media personnel, has raised crucial questions with regard to the violation of privacy.[10] Lastly the paper attempts to provide recommendations in order to foster a healthier and more accountable police-media relationship.

  1. Invasion Of Privacy By The Media

The freedom of press is regarded as “the mother of all other liberties” in a democratic society.[11]The Constitution of India, 1950 does not explicitly provide for a “freedom of press”. However, such a guarantee can be said to be derived from Article 19(1)(a) of the Constitution. [12] Nevertheless, the freedom is often misconstrued to mean a press that is free to disregard its responsibility.[13]. In the case of Time Inc. v. Hill[14], the U.S. Supreme Court observed that the constitutional guarantee of freedom of speech and press are not for the benefit of the press so much as for the benefit of all the people.[15] Summing it up, Arthur Hays says that the crux of the freedom of press is not the publisher’s freedom to print but the citizens’ ‘right to know’.[16]The expression ‘right to know’ is valid so long as it does not interfere with any of an individual’s legal rights. When the press or the media infringes a man’s justifiable right by prying into his personal life, it results in an instance of invasion of the individual’s privacy.

‘Privacy’ was seen as a collection of distinct rights. It arises from instances of a general right to privacy such as trespass, breach of confidence, copyright and defamation.[17] However, by virtue of the aforesaid instances being general in nature, their scope is restricted, making them ill-suited to the protection of privacy.

With the advent of increasing powers of the media and a tremendous advancement in technology, countries all around the world are starting to realise the proportional misuse which this kind of advancement brings.For instance, in the Radia-tapes case, a writ petition was filed before the Supreme Court challenging unauthorised publication of private conversations between industrialist Ratan Tata and Nira Radia.[18] The question for consideration before the Court was whether the publication of the private conversations was covered under the exception of public interest? This case highlighted the burning need for legal recognition and the consequent protection of the inherent right of privacy in India.

Now, let us look at how far the Indian legal system goes, so as to enumerate the aforesaid. In India, the question of including ‘privacy’ as a fundamental right arose in 1964 in Kharak Singh v. State of U.P. &Ors.[19] which equated privacy to an essential element in human existence. The view was strengthened in Autoshankar’s case[20] wherein the Supreme Court held that privacy is implicit in the right to life and liberty guaranteed to the citizens of India by Article 21 of the Constitution. It is a “right to be left alone”.[21]

Apart from judicial precedents on privacy, the main legal provision that deals with data protection is Section 43A of the Information Technology Act, 2000 which provides a civil remedy in the form of compensation proportional to the extent of damage caused by the lack of adequate security measures taken by those persons mentioned in the provision. The Section simply put, provides a remedy to an individual, against those organisations controlling confidential or private data which fail to exercise reasonable security measures. The two major lacunae in this provision is firstly, it is limited to only “corporate persons” i.e., a company, a firm, sole proprietorship or other association of individuals, engaged in commercial or professional activities.  Therefore its application is restricted to the private sector alone, leaving the activities of the public sector completely unaccounted for. The second concern is that religious and social organisations would be completely excluded from the purview of this provision as their activities are considered to be neither within the bracket of “commercial” nor “professional” activities.

Therefore, to create a more comprehensive law, the Government has proposed a ‘Privacy Bill, 2011’ which is still pending before the Parliament for consideration. For the purpose of the present paper, it is expedient to discuss the merits and demerits of the proposed bill in length.

  1. Critical Analysis Of The Privacy Bill, 2011:
  1. SCOPE AND EXTENT:

(i)                 Object Of The Act

The object clause of the Privacy Bill, 2011 makes a citizen’s constitutional right to privacy a statutory right. However, the flaw in the object clause is that it is unable to clearly mention the reason for having such an object[22], unlike the RTI Act, 2005 that follows up the declaration of the right to information with the need to “promote transparency and accountability in the working of every public authority”. Another component that the object clause is devoid of, is that it fails to mention that the right to privacy is not absolute.[23]There is a need to broadly mention an exception to the right to privacy as the interpretation of the Act is often made with reference to the object clause.[24]

(ii)               Applicability Of The Act

The object clause states that the Bill is applicable to only citizens of India. This provision does not accommodate the possibility that there can be a wrong (civil or criminal in nature) committed by a foreign entity operating in India. Agreed, Section 8 of the Bill provides that foreign non-citizens operating in India must elect a representative who is a resident of India. However, the debatable issue here is that, in case of a default on the part of the foreign entity, the representative will be held liable and the actual defaulter will not be penalised. In the recent U.S. snooping incident, according to top-secret documents provided by a NSA whistleblower, the American agency carried out intelligence gathering activities in India using a program called PRISM. It collected information about certain specific issues from the Indian offices of Google, Microsoft, Facebook, Yahoo, Apple and YouTube.[25] In order to regulate and restrict the occurrence of such activities we think a change in the wording of the aforementioned Section is mandatory.

 Also, logically speaking if a man’s inherent right to privacy under Article 21 is applicable to all individuals,[26] then it is only befitting that the statutory right to privacy must also be applicable to all persons (citizen or not).[27] Hence, there is a need to re-define “individuals” u/s 2(xvi) of the Bill to include even foreign nationals.

  1. ABSTRACT NATURE OF PRIVACY

(i)            What is “Right to Privacy” ?

It is crucial for any society to have laws relating to the protection of these private rights and define the contours of “privacy” and the right to it unequivocally.  Section 3 of the Bill simply confers upon the citizens the power to exercise the right to privacy but fails to define what “right to privacy” is. Although Section 6 gives us an idea of what a “reasonable expectation” of privacy is, the Bill does not give us an explicit definition of what the right includes. In 2010, the media reported that Sunanda Pushkar, a close friend of the Minister of State for External Affairs, Shashi Tharoor, holds a significant stake in the IPL Kochi team. The media exposure led to the exit of Shashi Tharoor from the government. While the media’s questioning of Pushkar’s holdings was rightful, the media’s coverage of her past relationships and how she dressed had no bearing on public interest.[28]

(ii)          Ambiguous phrase

(a)        The phrase “processing” as defined in Section 2(xxiv) is broad and has the danger of being interpreted in favour of media personnel. “Processing” needs to be defined in such a manner that any person involved in any point of the processing chain, cannot enjoy complete access to the full length of the confidential information.  The law must allow enforcement agencies like the police but exclude the media as the victim will wish to share the details of the wrong done to him to the police alone and not come under the radar of the public eye.

The judgment in Jessica Lal’s case had pointed out the failure of the police in deciding the accused first and then collecting evidence against him, instead of the reverse. Similarly, the media was blamed for exaggerating the offense of the accused in many other cases like the Aarushi Talwar case and the Gujarat Best Bakery Case.[29] Therefore a mere failure in procedural formalities proved to be fatal enough to deny justice to the victim. Hence to avoid such instances in future, the phrase ‘processing’ needs correction. This self-acclaimed authority in the absence of an effective checks and balance system is what encourages infamous concepts like trial-by-media.

  1. INTERACTION BETWEEN MEDIA AND POLICE FORCE

Section 10(4) of the Bill provides for the maintenance of confidentiality among persons employed by the data controller. This is the closest the Bill gets, with regards to regulating the interaction between two of the biggest data controllers in today’s day and age. Therefore as of today, the Parliament does not have a stand on the constant backdoor interaction between the media and the police. The Bill neither prohibits nor allows for the interaction between the media and the police force.

In fact it is this ambiguous position of the Parliament that led to confusion amongst the judiciary and the public in the Aarushi Talwar case. The media reports disclosed confidential information about the ongoing CBI investigation to the public, claiming to have received such information from the CBI officials personally.[30] The officials denied such leaks and the Court was forced to pass a restraining order to contain the media frenzy and give directions on responsible reporting.[31]

On a concluding note, if the Bill were to be passed in its present text, the aforesaid problems would continue to persist and would be counter-productive to its spirit. In order to evade such outcomes, the existing Bill must be supplemented with an efficient system of regulations governing the powers and functions of the Police department.

  1. Checking Police-Media Encounters

The quality of media houses is determined more by the authenticity of information provided and not by their ability to misguide the public with multiple takes on the same matter. Authentic information is a sign of a responsible media[32] that respects the fragility of the matter being reported. In order to exonerate such unhealthy practices, it is important to get to the root of the issue and regulate the sources from which the media get their information. One such information provider is the police. In many cases, the media approach the police to retrieve information about an ongoing trial or investigation. Such a contact between the media and the police is neither recorder nor permitted.[33] This results in improper disclosure of information which is damaging to the public[34] and subsequently to the state at large. The police officials are usually expected to strictly refrain from disseminating information in the interest of confidentiality.[35] However, on the other hand, the media’s existence relies upon uncovering information.[36] This conflict of interest is usually the cause for increasing speculations between the two entities.

The Constitution of India confers upon the state, the right to frame laws in relation to policing, public order, courts, prisons, etc.[37] Therefore the role of the union in regulating the affairs of the police is negligible. Past attempts made by the union in the form of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Prevention of Terrorism Act, 2002 to control police functions have clearly failed and have been repealed.[38] Nevertheless, there are many statutes that help govern the functionality of the police to a considerable extent, namely:

  1. The Police Act, 1861: The Act being passed before independence finds its applicability throughout most part of India. It establishes the role of the police as mere law enforcement agency, and is silent as to a more appropriate service-oriented role of which enforcement is only a part.[39] The Act casts a duty on the police to collect and communicate intelligence affecting the public peace.[40] Further, it mandates that every police officer must maintain a diary in order to record complaints and other related information.[41]

On a close inspection of the law, it is identifiable that the police may disseminate information on grounds of public peace. Does ‘peace’ mean quenching public thirst for information or the media’s urge to stay in business? In cases like the Nitish Katara murder case[42] and the Bijal Joshi gang rape case[43], if it were not for the media, the accused would have gone unpunished. This is a clear indicative of how the media has used unauthorized sources to pollute the minds of the judiciary as well.

  1. The Indian Evidence Act, 1872: The Act entails that evidence cannot be given from unofficial public documents relating to any affairs of State, which includes information held by the police, without the permission of the head of the relevant department.[44] No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.[45] Further, no police officer can be compelled to reveal any sources of information relating to the commission of any offence.[46]

However these rules are clearly not adhered to. This makes it clear that it not the lack of law but the lack of enforcement of the law that defeats justice. Since the police consider themselves as the law enforcement authority, laws that regulate the police itself is left unenforced or enforced at the will of the police. This opens the doors of arbitrariness as there exists no system of checks on the working of the police.

  1. The Code of Criminal Procedure, 1973: The Code provides clear guidelines to illustrate the procedure to be followed in conducting investigation. The powers of the police during investigation include the right to examine witnesses, to search and to maintain records.[47] Since these records are publicly held documents, they are made available to the general public for scrutiny.[48] However such liberty must be given to the accused to decide whether the information seeker must be given such information or not.

It is opined that the general rule must allow the subject of the information to have the greatest say in determining the dissemination of such information. However, the law may lay down the exceptions to this rule. In this way, privacy will be the rule and distribution will be the exception and not vice versa.

  1. Recommendations

AMENDMENTS TO THE PRIVACY BILL.

  1. There is a need to change the words “citizens of India” to “all individuals” in the object clause of the Bill for reasons stated earlier. The Universal Declaration of Human rights provides for “The right [of alien individuals] to protection against arbitrary or unlawful interference with privacy, family, home or correspondence”.[49] Alongside this change, Section 8 of the proposed Bill must be amended to provide for the penalising of a non-citizen if he acts in contravention to the provisions of the Bill. Thus, a man’s inherent right to his privacy must be extended to citizens and non-citizens alike.
  1. Also, the object clause of the Bill must contain the reason for having a statutory right to privacy and the corresponding exception to clarify the nature of the right being non-absolute. Therefore, the phrase that is likely to best summarise the need to have a Privacy Bill would run along the following lines: “A free and democratic society requires respect for the autonomy of individuals, and limits on the power of both state and private organizations to intrude on that autonomy. Privacy is a key value which underpins human dignity and it is the reasonable expectation of every person.”[50]
  1. Moving onto the crux of the Bill, we cannot help but emphasise the need to define the right to Privacy in crystal-clear terms. The proposed clause under Section 3 of the Bill that will define the right to privacy reads as follows: The right to privacy is a composite of the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information[51] and the right of the same individual to freely choose under what circumstances and to what extent he will expose himself, his attitude and his behaviour to others. [52]
  1. The biggest concern in terms of ambiguity in phrases in the proposed Bill is with respect to “processing”. The Bill provides that processing information is a function that vests with the data controller [ i.e., with the police department and the media houses].[53] Although it is difficult to exclude both these entities from “processing” information, it is necessary that in the light of preserving privacy, it is essential that reasonable restrictions be placed on these entities. Although Section 19 lays down certain exemptions such as public interest, established code of ethics, prevention of crime, etc., these exemptions can be extremely threatening as the data controller need not take the consent of the data subject before processing such information. This is highly dubious and in contravention of similar provisions in foreign countries[54], wherein it is necessary that the data subject should unequivocally give his consent at every stage of processing information. Therefore the necessity of consent is an absolute requirement which sees no limitations.

In light of the increasing human rights violations that are seen due to the acts of the police[55] as well as by the media, it is essential that the data subject be given some powers with respect to information being processed. Even in case of extremely grim situations, wherein it is impossible to take the consent of the data subject; there has to be an intimation made in a form of a reasonable notice.

  1. The most important recommendation encompasses the enhancing of the powers of the self-regulatory body to include the responsibility of disseminating personal information to media men and any third party that seek such information for genuine purposes. A self-regulatory body is always preferred over the regulations adjudged by a Court of Law.[56] Therefore it is suggested that the already provided for (Section 43), National Data Controller Registry take up the aforementioned task. The registry must not only maintain records but must also be vested with the power to impart registered data to third parties [e.g., the Media] if it so deems fit. This will help resolve the issue of unofficial interactions between the media and the policemen.

SETTING UP POLICE COMPLAINTS REGISTRY BOARDS

The police are highly powerful in terms of their statutory powers and functions. Most Police Acts[57] do not focus on public accountability, thereby increasing their immunity from public scrutiny. Therefore, the police officials acquire a sense of hierarchical superiority over the public. This runs in contravention of the theory of popular sovereignty and good governance. However, in countries like the UK such a violation is addressed by the Independent Police Complaints Commission (IPCC),[58] which supervises and investigates public complaints against the police. Similarly South Africa has independent complaints authorities[59] that investigate police misconduct at both national and provincial levels. Furthermore, it is highly recommended[60] that there exists a Body that works similarly even in India. The public may register complaints if the police have failed to fulfill its statutory obligations. This will help the public keep a check on their privacy being violated at the grass root level itself or before such sensitive information is conveyed to the media. The appointment and functioning of the proposed body may be done in tune with various foreign models that establish similar bodies.[61] Moreover, the Supreme Court, in Prakash Singh and Ors v. Union of India and Ors.[62]has also expressed a need to set up a Commission to deal with complaints against the police department. However, there has not been any action in that regard.

Therefore, the proposed Body has already been in the mind of the judiciary and it is just a matter of time that we have such a Body in place. Media Reporting, may create a lasting image on the victim’s image; however if such a body is established, the victim can prevent such a situation at an earlier stage. Prevention and not punishment must be the rule of the thumb. This will not only ensure greater accountability but will also act as an efficient system of checks and balances on the police departments.

  1. Conclusion

The parliamentarians have consistently infused the Indian democracy with libertarian values. The laws today have embodied balances sovereign control with ideals of transparency, individual liberty and good governance. The Consultative Committee on Information and Broadcasting is trying its best to incorporate the United Kingdom’s Leveson Report. The Report stems from the News of the World phone hacking scandal that riddled Britain in 2012.[63] The report provides for strict regulations governing the media vis a vis the police and politicians.

The Indian media faces issues like paid news, politically motivated news channels and media trials. The people of this country deserve to know the truth. A well informed society is one that is aware of both sides of the coin. Although, a sound opinion can only be framed when encountered with a marketplace of ideas such opinions cannot violate an individual’s privacy. Privacy must always be placed at a higher pedestal that the satisfaction of the public at large. It is opined that a progressive society is one that weighs one man’s pain over a million’s pleasure. The only justification for curbing the right to express is the fear of confrontation with the truth. Nevertheless, all truth cannot be placed before the public for scrutiny. This is why privacy must be respected and shielded.

[1] The freedom of speech and expression has taken its roots from the evolution of democracies all over the world. The United States is a fine example of how the freedom of speech and expression, was the first amendment that came to the minds of the drafters of the Bill of Rights. Therefore, democracy has often been the litmus test to identify the legitimacy of a statement made violating the first amendment. See Purcell v. Ireland App. No. 15404/89, (1991) 70 DR 262.

[2] See Milton J ‘Areopagitica: A Speech For The Liberty Of Unlisenced Printing (1644) in Prose Writings (London: Everyman’s edn, 1958).

[3] Abrams v. US 250 US 616, 630 (1919).

[4] Handyside v. UK (1976) 1 EHRR 737, para 49.

[5] See T Scanlon, Freedom Of Expression And Categories Of Expression 40 U. Pittsburgh L. Rev. 519 (1979).

[6]  Andrew Nicole, Galvin Millar & Andrew Sharland, Media Law & Human Rights 3 (2nd edn. Oxford University Press, 2009).

[7]There is a need to ensure that a democracy does not compromise the personal rights of citizens at the cost of protecting the freedom of press. Nonetheless, the importance of the press cannot be undermined. Just like the American fourth estate operates as a de facto quasi-official fourth branch of government, its institutions no less important as compared to the Indian media. The citizens have the right to be informed about the affairs of the state; they have the right to know the truth. See Douglass Cater, The Fourth Branch of Government 13 (Boston: Houghton Mifflin, 1959).

[8] Warren Francke , The Evolving Watchdog: The Media’s Role in Government Ethics , 111, 109-121 Annals of the American Academy of Political and Social Science, Vol. 537, Ethics in American Public Service.

[9] See Peter. L. Fletcher & Edward. L. Reuben, Privacy, Publicity and the Portrayal of Real People by the Media, 88 Yale. L.J. 1157 (1978-1979).

[10] V. Held, The Media and Political Violence, 197, 187-202 The Journal of Ethics, Vol. 1, No. 2 (1997).

[11] In re Harijai Singh, 1987 Cri LJ 58 at 61 ; See also Indian Express newspapers Bombay v. Union of India, AIR 1996 SC 515: (1985) 1 SCC 641.

[12]Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Pvt. Ltd. Bombay , AIR 1989 SC 190.

[13]Dr. Awasthi & Kataria, Law Relating To Protection Of Human Rights 582-583  (2nd ed., Orient Publishing Company 2005).

[14]385 U.S. 375; See  Sushil Choudhury v. State of Tripura, AIR 1998 Gau 28 at 32; Indian Express newspapers Bombay v. Union of India, AIR 1996 SC 515: (1985) 1 SCC 641.

[15]Supra, note 13 at 586.

[16]Id. at 592.

[17] Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

[18] Sonal Makhija, Privacy and Media Law (Jul. 26, 2011) available at ‘cis-india.org/internet-governance/blog/privacy/privacy-media-law’ (last visited Nov. 21, 2013).

[19]AIR1963 SC 1295 :1964 SCR (1) 332.

[20]R. Rajagopal v. State of T.N, (1994) 6 SCC 632.

[21] Id.

[22]Draft Bill on the Right to Privacy, Cabinet Secretariat, Rashtrapati Bhawan, No. 501/2/6/2011-CA.V.

[23]Id..

[24]The Right to Privacy Bill, 2011, Statement of Reasons and Objectives: “A Bill to provide for the right to privacy to citizens of India and regulate the collection, maintenance, use, and dissemination of their personal information and provide for penal action for violation of such right and for matters connected therewith or incidental thereto.”

[25] Glenn Greenwald & Shobhan Saxena, India Among top Targets of Spying by NSA, (Sep. 23, 2013) available at https://www.thehindu.com/news/national/india-among-top-targets-of-spying-by-nsa/article5157526.ece (last visited Dec. 22, 2013).

[26]The Constitution Of India, art.21

[27]Martinez Montsant Joan v. Union Of India, W.P. No. 61225 of 2009.

[28] Sunanda Pushkar, Media just turned me into a ‘slut’ in IPL row, available at https://articles.timesofindia.indiatimes.com/2010-04-23/india/28149154_1_sunanda-pushkar-shashi-tharoor-ipl-kochi  ( last visited Dec. 6, 2014).

[29]Prabal Dixit,  Jessica Lal: A case of Indian Realism, available at: https://www.legalindia.in/jessica-lal-a-caseof-indian-realism (last visited Mar. 11, 2013); Shree Paradkar, Aarushi Talwar murder: Inside story of India’s most controversial trial, (Jan 26, 2013) available at: https://www.thestar.com/news/world/2013/01/26/aarushi_talwar_murder_a_look_at_one_of_indias_most_notorious_cases.html (last visited  Mar. 11, 2013).

[30] State of U.P v. Rajesh Talwar and Anr. Sessions Trial No. 477/ 2012.

[31] Id.

[32] High Court of Karnataka v. State of Karnataka AIR 1998 Kant. 327.

[33] Elizabeth Filkin, Ethical Issues arising from the relationship between Police and Media, (Jan, 2012), available at https://content.met.police.uk/cs/Satellite?blobcol=urldata&blobheadername1=ContentvType&blobheadername2=ContentDisposition&blobheadervalue1=application%2Fpdf&blobheadervalue2=inline%3B+filename%3D%22944%2F933%2FFINAL+REPORT++ALL.pdf%22&blobkey=id&blobtable=MungoBlobs&blobwhere=1283540988465&ssbinary=true (last visited on 26, Feb. 2013).

[34] Id.

[35] Melanie Jo Triebel, The Relationship Between the Media & the Police, available at: https://www.ehow.com/info_8747854_relationship-between-police-media.html (last accessed on 25, Feb. 2013)

[36] Larry Jones, Police and Media Relations: How to Bridge the Gap, available at: https://www.fdle.state.fl.us/Content/getdoc/9a5940ba-6100-45e3-86a2-092f72480769/jones-larry-final-paper (1).aspx (last accessed on 26, Feb. 2013).

[37] The Constitution of India, art. 246; Entry 1,List 2, Sch. 7

[38] Peoples Union  of Civil Liberties v. Union of India Civil W.P. No. 196/2004

[39] Tharron Mclvor, Media and the Police: Legal Interactions, available at www.humanrightsinitiative.org/programs/aj/police/papers/media_police_legal_interraction.pdf (last visited Nov. 30, 2013).

[40] The Indian Police Act, 1861, § 23.

[41] The Indian Police Act, 1861, § 44.

[42] Ms. Bharathi Yadav v. State of U.P. Crl. M. C. No. 6230/ 2006; Crl. M. No. 11312/ 2006.

[43] Bijal Revashanker Joshi v. State of Gujrat (1997) 2 GLR 1147.

[44] The Indian Evidence Act, 1872 § 123.

[45] The Indian Evidence Act, 1872 § 124.

[46] The Indian Evidence Act, 1872 § 125.

[47] The Code of Criminal Procedure, 1973, Ch. 12

[48] The Right to Information Act, 2005 § 5.

[49]Universal Declaration of Human Rights, art.5(1)(b), Dec. 10, 1948; Cited in Martinez Montsant Joan v. Union Of India, W.P. No. 61225 of 2009.

[50] The Australian Privacy Charter Group, Law School, University of New South Wales, Sydney, The Australian Privacy Charter,(1994).

[51]Report of the Committee on Privacy and Related Matters, 7 (1990).

[52]Alan F. Westin, Privacy and Freedom, 7 (Atheneum, New York, 1967).

[53]See Belgium Privacy Act, 1992, § 2:“’Processing’ shall mean any operation or set of operations that is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment, combination, as well as blocking, erasure or destruction of personal data.”

[54]Consolidated text of the Belgian law of 8 December 1992 on Privacy Protection in relation to the Processing of Personal Data as modified by the law of 11 December 1998 implementing Directive 95/46/EC1 and the law of 26 February 2003 (See alsoBelgian State Gazette, 3 February 1999, 3049.

[55]Human Rights Watch, Broken System: Dysfunction, Abuse, and Impunity in the Indian Police,(4 Aug, 2009), 1-56432-518-0, available at: https://www.unhcr.org/refworld/docid/4a793f692.html (last visited 13 March 2013).

[56]Hellen Fenwick, Civil Liberties 280 (1995).

[57] This includes within its purview, both Central and State Acts in relation to Police Reforms.

[58]The IPCC is one such body that has access to any kind of information that is held by the police in its premisis. Complainants have the right to file complaints both in their own personal capacity or they can be represented by a third party. Their complaints will be addressed by the Constituting Body of the IPCC, based on inquiries, examinations and investigation of the police official against whom the complaint has been registered. The complainant is also bestowed with the right to take the case on an appeal to a higher judicial authority. This helps encourage a greater level of loyalty on behalf of the police towards the public. Not only can the victim file a case against the police under non-performance of duties under the various police Acts, but also under the proposed Draft Bill on Privacy. Therefore, introducing a similar system in India will go a great deal in protecting innocent citizens from the human right violations from the police. See Maja Daruwala, G.P Joshi & MandeepTiwana, Police Act, 1861: Why we need to replace it?,Police Reforms too Important to Neglect too Urgent to Delay, (Commonwealth Human Rights Initiative, 2005).

[59]These authorities are called the Independent Complaints Directorate, which keeps a check on the activities of the police which is prohibited by the police regulations such as code of conduct or neglect of duties The body, also helps to provide a remedy for an individual whose privacy has been violated by means of unauthorised delivery of information from the media to the police. Thus the police department will remain vigilant at all times as the public can act as a watch dog in order to promote proper police conduct in accordance with the principles of the Constitution. See Supra, note 38; See also, Independent Police Investigative Directorate, Republic of South Africa, Vision and Mission, available at: https://www.ipid.gov.za/about%20us/vision_mission.asp (last visited on Mar, 7, 2013 )

[60] Such a recommendation was also made by the United Nations Refugee Agency, wherein a report required that India set up independent bodies that register complaints against the police officials. It also provides, that in order to reduce impunity, the central and state government should bolster the capacity of the national and state human rights commissions to undertake independent investigations, including the number of investigative staff.  SeeHuman Rights Watch, Broken System: Dysfunction, Abuse, and Impunity in the Indian Police, 14 (4 Aug, 2009), 1-56432-518-0, available at: https://www.unhcr.org/refworld/docid/4a793f692.html (last visited 13 March 2013).

[61] For instance the Police Act in British Columbia provides for the appointment of a Police Complaint Commissioner to oversee the handling of complaints against the police. S/he is appointed on the unanimous recommendation of a special committee of the Legislative Assembly. The police complaint commissioner cannot be a Member of the Legislative Assembly but is considered to be an officer of the Legislature, who holds office for a term of six years. S/he can appoint staff to assist in performing the duties of the office and must report annually to the Speaker of the Legislative Assembly on the work of her/his office. ( The Police Act, 1996, Part 9, § 47 also available at: https://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96367_01).

[62]W. P. (civil) No. 310/ 1996.

[63] Prashant Jha, India looks for lessons from Leveson report on media, ( Jul. 14, 2013) The Hindu, National.

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