What do we mean by a “right of privacy” in India?

What do we mean by a “right of privacy” in India?

Justice Cooley in 1888 defined it simply as a right to be left alone. Alternatively, it may be defined as a right to be anonymous. The two definitions are quite different but both are important, and the right to be anonymous is a form of privacy that has particularly significant implications in cyberspace. In legal terms, our right of privacy amounts to a right to be free from government intrusion into certain areas of our lives and a right to be free from intrusion by other individuals into our “private” lives. The former is protected largely through Constitutional interpretation and a number of statutes; the latter is protected largely through the common law under tort principles.
Before 1890 no English or American court had ever granted relief based on such a claim as “invasion of privacy.” 
However, in 1890 a Harvard Law Review article by Samuel Warren and Louis Brandeis examined a number of cases ostensibly decided on other grounds, and concluded that these decisions were actually based on a broader principle, a right of privacy. Warren and Brandeis claimed such a principle was in fact necessary to deal with what was seen as the growing problem of excesses of the press. New York was the first state to confront this issue head on in the wake of the article. Several lower courts had held the existence of a right of privacy.
The New York State Court of Appeals (which is, oddly, the State’s highest court – the “Supreme Court” is the State’s entry level court) got to review the matter in the case of Roberson v. Rochester Folding Box Company in 1902. In this case, the defendant had used a picture of an attractive young woman to advertise its flour without her consent. In a 4–3 decision, the Court of Appeals held that there was no legal precedent for such “right of privacy.” Furthermore, the Court felt that recognizing a right of privacy was a poor idea because, first, the alleged harm was of a purely mental character and would thus be difficult to prove or disprove; second, recognizing a right of privacy would lead to a flood of litigation; third, there would be difficulty in distinguishing between “public” and “private” figures, whose protections under a right of privacy would differ; and finally because it might lead to undue restrictions on the freedom of the press.
A public outcry followed the decision and, in its next session, the New York State Legislature passed a law banning the use of a person’s name or picture “for advertising purposes or for the purposes of trade” without the person’s written consent. By the 1930s “virtually” all jurisdictions had recognized the Right of Privacy, either by statute or through the common law.

Man’s house is his castle.a well-known proverb is also getting legal recognition as Right to Privacy. Human beings have a natural need to autonomy or control over confidential part of their. This need is inherent in human behaviour  and now this has been recognized as fundamental right to privacy. It is not a right against physical restrains but it is a right against psychological restrain or encroachment of right . USA, UK, India, and at International level UDHR, ECHR, ICCPR has recognized this right as fundamental right.

Position in India

Right to Privacy is not explicit in the Constitution of India, so it is a subject of judicial interpretation. The judicial interpretations of fundamental right bring it within the purview of fundamental right. The journey of this project would start from the search of answer of issue that whether the right to privacy is a fundamental right, through analysis of cases and some pioneering work of scholars.

In India, after the case of R. Rajagopal alias R. R. Gopal v State of Tamil Nadu and People s Union for Civil Liberties (PUCL) v Union of India , the right to privacy is well recognized as Right to Life. In the case of People s Union for Civil Liberties (PUCL) v Union of India (Telephone Taping Case) Supreme of India also observed Article 17 of ICCPR and Article 12 of UDHN.

The apex court is hearing the Aadhaar card privacy issue.The Government is of a view and has argued before Supreme Court that “there is a fundamental right to privacy, but it is a wholly qualified right”.  The constitution bench of Supreme Court in the same case have said "Can this court define privacy? You can't make a catalogue of what constitutes privacy. Privacy is so amorphous and includes everything... if we make any attempt to catalogue privacy it will have disastrous consequences," 

What now evolves remains to be seen, but i agree that Privacy cannot be an absolute right. I also agree that Data Privacy is bigger than Right to Privacy in this cyber age. India definitely needs Data Privacy or Data Protection Act.

Can a Complainant or Victim fight his own cyber crime case or appoint his own Lawyer?

Can a Complainant or Victim fight his own cyber crime case in Magistrates Court or appoint his own lawyer?
Note: Normally when one files a police FIR, the case is represented free of cost by the STATE in the courts i.e By Public Prosecutor.

Yes !!! He can by himself or through his Expert Legal Counsel or a Lawyer.
But he has to file a written application making out a case, so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.

A plain reading of Section 301 reveals that though oral submissions before the court cannot be independent of the Prosecutor, a pleader instructed by a private person can definitely file written submissions before the court independent of the Public Prosecutor, if the court so permits. That apart, Sections 301 and 302 cover two different situations. Section 301 envisages a situation where the Public Prosecutor is in charge of a case and a private person instructs his pleader to intervene. In such cases, as has been rightly held, it is the Public Prosecutor under whose overall conduct and supervision the prosecution is carried on. However, Section 302 is concerned with a situation where any person not being a police officer below the rank of inspector, can prosecute a case, with the permission of the court, either himself or through his pleader. This amply signifies that CrPC contemplates a situation where the whole conduct of the case is with a private person. Thus two levels of intervention by private persons are envisaged under CrPC. One is under the supervision and control of the Public Prosecutor and the other independent of the Prosecutor. Thus clearly, in a case where a private person seeks the permission of the court to intervene, it is the discretion of the court to decide which level of intervention should be allowed in any given case.

The difference between Section 301 and Section 302 of the Code of Criminal Procedure (CrPC) is examined by the Hon. Supreme Court in Dhariwal Industries Ltd. vs. Kishore Wadhwani & Ors. It was held that Section 302 CrPC confers power on a magistrate to grant permission to the complainant to conduct the prosecution independently. The court also made it clear that the said provision applies to every stage, including the stage of framing charge (This means when the court finalises the sections of law to be applied to the accused by passing a charge framing Order) 

A Bench comprising Justice Dipak Mishra and Justice Adarsh Kumar Goel also clarified that when a complainant wants to take the benefit as provided under Section 302 CrPC, he has to file a written application making out a case, so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.

The private complainant, who is the appellant before the Supreme Court, was permitted by the magistrate to be heard at the stage of framing of charge. However, the high court modified the said order by expressing the view that the role of the complainant is limited under Section 301 CrPC and he cannot be allowed to take over the control of prosecution by directly addressing the court, but has to act under the directions of the assistant public prosecutor in charge of the case.

Magistrate Can Permit The Complainant To Conduct Prosecution Independently

Referring to a three-judge Bench decision in J.K. International vs. State, the court observed: “It has been opined that the private person who is permitted to conduct prosecution in the magistrate’s court can engage a counsel to do the needful in the court in his behalf. If a private person is aggrieved by the offence committed against him or against any one in whom he is interested, he can approach the magistrate and seek permission to conduct the prosecution by himself. This court further proceeded to state that it is open to the court to consider his request and if the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Clarifying further, it has been held that the said wider amplitude is limited to the magistrate’s court, as the right of such private individual to participate in the conduct of prosecution in the sessions court is very much restricted and is made subject to the control of the public prosecutor. “ 

The court further observed: “Role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 CrPC is concerned, power is conferred on the magistrate to grant permission to the complainant to conduct the prosecution independently.”

Written Application Must

However, the Bench added: “When a complainant wants to take the benefit as provided under Section 302 CrPC, he has to file a written application making out a case in terms of J.K. International (supra) so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.”

Section 302 CrPC Applies To Every Stage

Allowing the appellant to file an application under Section 302 CrPC before the magistrate, the Bench said: “It may be clearly stated here that the said provision applies to every stage including the stage of framing charge in as much as the complainant is permitted by the magistrate to conduct the prosecution. We have said so to clarify the position of law. If an application in this regard is led, it shall be dealt with on its own merits. Needless to say, the order passed by the learned magistrate or that of the high court will not be an impediment in dealing with the application to be led under Section 302 CrPC.“ 

Role of Public Prosecutor

The other challenge in general public mind is the Public Prosecutor is an officer of the court, and not the counsel of the State, and hence she should be absolutely impartial, and should not work towards a conviction, but should strive to uphold the truth and assist the court in doing the same. This is an idealistic position, and practice has shown that the Prosecutor has basically become the counsel of the State. This is because, ultimately, the Prosecutor is appointed and removed by the State. Hence, she has no choice, but to be briefed by the State and to put forth the views of the State in the court of law. This has very clearly come through in the Best Bakery case, wherein the Public Prosecutors seem to have followed the instructions of the State Government at every step.
Conclusion

To conclude, one of the major aims of punishment under criminal law is deterrence. With abysmal rates of conviction in cyber crime matters, deterrence is becoming meaningless. The criminal-justice system is becoming overburdened and unreliable due to lack of awareness amongst judges and lawyers about cyber crime and electronic evidence. Hence, in my opinion, it makes sense to permit the complainant to represent himself or through his expert legal counsel intervene in criminal cases.