It’s the Article 21 of the Indian Constitution guaranteeing the Right to Life that lends legal credence to the issue of Privacy. Privacy as laid down by law has been ensured through legal terminology and jargon associated explicitly with deeds and documents. So, it was with the emergence of private relationships drawn from contracts, express and implied, that the issue of privacy came into being.
Let’s examine the issue of privacy in functions that have been integral to life and liberty over the years. Work, for once, is closely associated with a set of rules, sometimes written but mostly unwritten over the ages. That one must not discuss or divulge about trade secrets or issues internal and integral to the organisation was always an implied unwritten rule and policy that went on to become etched in print and part of an appointment letter or contract to be signed explicitly in order to bind the employee to a norm to ensure legal compliance. So, what was ethical went on to become scripted as a law by way of internal communication and deeds drafted to meet that end.
I Explicit and implicit consent
Today, each time an employee is taken on board, he has to sign on the dotted line expressing his explicit consent to the terms mentioned. And the terms would inevitably include binding him to secrecy when it came to matter of the organisation and its functioning, sometimes even detailing how a transgression would lead to violation of service conditions and concurrently an annulment of service.
That said, the morality associated with employment terms and conditions has now been reduced into writing and spelt out for the purpose of brevity. These issues of privacy are ascertained and guaranteed by agreement and contract.
Also, workplace privacy related with various ways of accessing, controlling and monitoring employees’ information in a working environment entail employees typically must relinquish some of their privacy while in the workplace. Yet, how much they must do and permit being done is often a contentious issue. Also, whether it is moral, ethical and legal for employers to monitor the actions of their employees has been debated over decades.
While employers believe monitoring is necessary both to discourage illicit activity and to limit legal liability, there are distinct negative effects on emotional and physical stress including fatigue, lowered employee morale and lack of motivation within the workplace. Employers might use surveillance cameras, or may wish to record employees’ activities while using company-owned computers or telephones. With the advancement of technology, rules that govern areas of privacy law are becoming hugely debatable and less important.
Privacy concerns are real
Workplace privacy of employees also involves privacy of using approved websites on firm computers without monitoring. Workplace privacy involves the employer putting in the effort to protect employee privacy from both within the firm and outside the firm. Now, all of that are tall orders that cannot be made available by law and will require personal and individual intervention to procure in a court of law. That it will directly affect one’s prospects at work and employment is a given too.
Then come personal interactions like marriage. Marriage defined as a union of two souls had legal connotations by way of registration and legal responsibilities that generated from the contractual arrangement. A marriage, registered or not, is an agreement between two persons. The agreement had to be legal, with both parties of major age and gender as laid down by the personal law that governed them and their union. The consideration had to be legal. The consent procured had to be ‘free’ and not procured by coercion, force, fraud, misrepresentation, undue influence or mistake. There had to be a proposal and an acceptance apart from the basic ingredients of a legal contract.
Legal contract and privacy
That any or all communication in a marriage was privileged has been laid down in Section 122 of the Indian Evidence Act that reads as follows-
“Communications during marriage — No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”
Marital privilege or spousal privilege seems to have originated from common law jurisprudence. The fundamental, principle behind this privilege is mentioned in the case of S. J. Choudhary vs The State, which was decided on 26 July 1984, where Justice Khanna observed, “So much of the happiness of human life may fairly be said to depend on the inviolability of domestic confidence that the alarm and unhappiness occasioned to society by invading its sanctity and compelling the public disclosure of confidential communications between husband and wife would be a far greater evil than the disadvantage which may occasionally arise from the loss light which such revelations might throw on the questions in dispute hence all communications between them should be held privileged.”
This concept is again echoed in English cases of Pringle v Pringle and Mercer v State. Thus, marital privilege exists because it is essential to preserve amity and sustain full confidence between a husband and a wife, therefore deeming the relationship of marriage as a sacrosanct institution and to some extent placing it above the concerns of justice. This underlines the issue of privacy which is upheld at all times between husband and wife, in the eyes of the law.
Law upholding privacy
Section 122 of the Indian Evidence Act protects every communication between the spouses, during the time of marriage even prevents it from being put up as evidence. There are, however, some exceptions to it, such as it not protecting the spouse if the spouse is accused of an offence against the other spouse – examples being cases of marital violence, domestic violence, cruelty or other cognisable offences committed by one against the other.
The Indian Supreme Court has also held that Section 122 will be applied to every communication made during the life of marriage and the same privilege will continue even after separation or divorce or dissolution of the marital relation, but only for the communication which was made during the existence of marriage not before or after it. It also allows the conduct influenced by the communication, or the spouse witnessing the other spouse doing a criminal act, to be admitted as evidence in the courts, i.e. an effect of the communication can be brought to court but not the communication itself. Marital privilege exists because of the relationship of marriage being considered the foundation of the society and it is vital to protect the intimate relationship of a husband and wife.
Now with the emergence of technology platforms and products such as applications, platforms and software, it’s only mandatory to procure consent for divulgence of personal information that may be shared or provided voluntarily by the party involved. Which is why, consent is mandatory while providing any application access to one’s files or details, at the onset, at regular intervals following updates and on any change to programme. That parties are slack on the issue and arbitrarily provide consent without reading the fine print is a norm but nonetheless have to provide ‘consent’ for the same.
Consent that may be procured as a routine and in passing is now also being reviewed again and tweaked to include audio, local languages, even mandatory scrolling till the end of the terms or consent clearances on each page before the user is able to proceed further, in order to procure consent lest it violate privacy concerned. The law on privacy is an ever- emerging one and, with technology growing by leaps with every passing day, it’s a hurtling race to meet demands and fulfil legal provisions.