GPS tracking: An invasion of right to privacy?

Human rights activitists cry hoarse for invasions of privacy but what actually privacy is, is indeterminate; is it the human space as we call it or it is an unwarranted invasion in the private life of a person? The debate is, nonetheless, subjective. Such is the nature of these privacy rights that the courts are content to declare specific instances as to ascertain whether such instances invade privacy. A general enunciation, however, eludes both the law-makers and the law-interpreters. 

Despite such odds, there is no doubt that the ambit of privacy rights is wide and can be extended to enumerate a vast variety of aspect of human life requiring a forbearing from others. A similar attempt has been made by a Law Profession in his paper recently published on SSRN entitled Privacy Revisited – GPS Tracking as Search and Seizure wherein he has sought to argue that even tracking a person through a GPS device is invasion of privacy. Even though the article is based in the context of the American legal system, the author passionately argues to conclude that the "degree and magnitude of GPS surveillance involves such a massive invasion of privacy that a judicial warrant is required for its use". The author also relies upon a a recent decision of the US Court of Appeal in support of his stand and calls for for a declaration of law to such end. In all, the paper provides an interesting insight into the meaning and extent of the right to privacy assigned by the US courts. 

Corporate's tax return under RTI? Matter reaches High Court.

The Delhi High Court has stayed a recent of the CIC which was taken as a big set back by all corporate entities wherein the Central Information Commission had declared that the copies of tax return filed by the corporate entities can be sought under the Right to Information Act from the Income Tax Department. In passing this decision the CIC set aside all the objections of the companies as well the Income Tax authorities which chose to contend that such information could not be given in terms of various exemptions under the RTI Act itself.

The CIC inter alia declared that;

• Information relating to tax returns is not one kept under commercial confidence and its disclosure may not harm the competitive interests;

• Tax information is not kept by the income tax authorities under fiduciary capacity;

"The information must be given by the holder of information when there is a choice- as when a litigant goes to a particular lawyer, or a patient goes to particular doctor. It is also necessary that the principal character of the relationship is the trust placed by the provider of information in the person to whom the information is given. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the giver. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary.

In the present case, the information the Appellant is seeking information which the Department has received from members of the public as a result of their statutory obligation to file tax returns. Members of the public who have sent this information to the Department did not have any choice with regard to who they would like to send this information to. In fact, as there is a legal obligation to file these returns, members of the public have no choice with regard to the disclosure of this information to the Department. Traditionally, lawyer-client relationship and doctor-patient relationship have been considered to be examples of fiduciary relationship. In both these relationships, the lawyer and the doctor act on behalf and in the interest of their client and patient. The Department makes a tax assessment or takes any other action on this information based on the law and regulations relating to income tax. The Department does not take this action for the benefit of the tax assessees or in their personal interest. If the department were to take action for the benefit of the assessees, it would be considered a corrupt practice. The element of trust involve in such a situation is not the one required for a fiduciary relationship."

• Tax information of corporates is not personal information;

"Section 8(1)(j) is with regard to personal information and therefore it can only be claimed by natural persons and not by corporate entities. The three Institutes cannot claim to have ‘personal’ information. There is a difference between having a personality, i.e. a legal personality, and owning ‘personal information’. Personal information is information relating to a natural person, not a legal person. Words in a law should normally be given the meanings given in common language. In common language we would ascribe the adjective 'personal' to an attribute which applies to an individual and not to an Institution or a Corporate. From this it flows that 'personal' cannot be related to Institutions, organisations or corporates. Hence Section 8(1)(j) cannot be applied when the information concerns institutions, organisations or corporates. Therefore, the Commission is of the opinion that Section 8(1)(j) cannot be relied on by these three third parties as they are not natural persons."

• Where State obtains information in relationship of a public activity, it cannot be invasion of privacy;

"The State has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade the privacy of a Citizen. In those circumstances special provisions of the law apply; usually with certain safeguards.

Therefore where the State routinely obtains information from Citizens, this information is in relationship to a public activity and will not be an intrusion on privacy. As this information has been provided by the assessee to meet his legal obligations, there is no unwarranted invasion of his privacy by the state. Therefore the disclosure of the same information to another person cannot be construed as being an unwarranted invasion of the privacy of the individual.

Given our dismal record of misgovernance and rampant corruption which colludes to deny Citizens their essential rights and dignity, it is in the fitness of things that the Citizen’s Right to Information is given greater primacy with regard to privacy.

Hence information provided by individuals in fulfillment of statutory requirements will not be covered by the exemption under Section 8 (1) (j)."

The Delhi High Court, however, seemingly unimpressed, stayed the decision of the CIC. The final outcome on the legal position will, therefore, have to await.

Have a look at the CIC's decision and Delhi High Court interim order.

Why Would Anyone Want to Be a Public Interest Lawyer?

Why Would Anyone Want to Be a Public Interest Lawyer? An interesting question, especially when the times are competitive and law school education drains a lot of money. A compensating (and equally esteem carrying) career is thus the norm of the day. There are, however, those who aspire to be public interest lawyers. For those who are not so illuminated, Professor Philip G. Schrag of Georgetown University in his paper entitled 'Why Would Anyone Want to Be a Public Interest Lawyer?' gives ten reasons for one to be a public interest lawyers. Providing really interesting insights on the aspect, the paper is replete with illustrations where public interest lawyers are reflected to be in a much better position then those in the corporate race. 

We have borrowed a few words of the intriguing well-written paper just for reference to cull out the ten reasons given by Schrag as extracted below. However we promise the entire article is not only illuminating but also giving a rewarding insight into the brighter side of the public interest lawyering. 

The first reason to become a public interest lawyer pertains to the colleagues who are likely to surround you. Almost no one drifts into public interest law. Lawyers choose this work because they believe in causes, and they know that those around them share their basic value systems.

A by-product of the shared mission is that in many public interest organizations, new lawyers are able to receive outstanding mentoring, though it is usually from peers rather than bosses.

The third reason to do this work is that the collegiality in public service extends far beyond one’s own institution. Public interest lawyers are part of a large national and international community of like-minded souls who encounter each other through their work, through periodic conferences, and through social contacts.

The fourth reason to become a public interest lawyer is the large degree of responsibility that is given even to beginners.

A fifth reason to become a public interest lawyer relates to the flexibility or versatility that this type of practice offers. Lawyers in private practice tend to become specialized. If they are very good at corporate taxation or municipal bonds or biological patents, they are likely to spend decades if not their entire careers in those particular specialties.

The surprising sixth reason to become a public interest lawyer: you might do it for the money. While starting and ending salaries are higher in the largest law firms than in public service, not everyone starts in large law firms, especially these days, and even in better times, because of their pyramid structure, very few people end in them.

The seventh advantage of a career in public service is that you can have a life outside of your office.

Reason number eight is that except in certain large government bureaucracies, the work is rarely routine. Public interest lawyers get to work on cutting edge issues all the time. That’s the very nature of public interest work: it is law-reforming, a challenge to the status quo.

Ninth, consider this: practicing public interest law is fun. It’s fun because when they are successful, public interest lawyers usually turn the tables on more powerful institutions, and it’s fun because upsetting the status quo forces you to be creative and innovative.

Public interest lawyers spend their lives in that pursuit. Most public interest lawyers represent people or institutions that are unable to obtain legal representation from the private sector for one of three reasons: either they are so unpopular that no one is willing to represent them for a fee; or what they need from a lawyer (such as the establishment of a principle, or recovering a small amount of money, or avoiding a small judgment) would not generate or warrant a fee, or the client simply is too poor to pay a fee.

The paper can be accessed from its SSRN link.

Christan cannot marry according to Hindu traditions

In a recently reported decision the Gujarat High Court has declared that a marriage between a Christan and Hindu according to Hindu rituals is a nullity and does not exist as such in the eyes of law. The High Court relied upon a 2005 decision of the Supreme Court wherein it was declared that a person of Christian faith cannot be legally married to a Hindu by following the Hindu rituals of marriage. 

The Supreme Court in its decision had inter alia observed as under;

6. There is no dispute that at the time of the purported marriage between the appellant and the respondent the appellant was a Christian and continues to be so whereas the respondent was a Hindu and continues to be so. There is also no dispute that the marriage was alleged to have been performed under the Hindu Marriage Act, 1955, and was also registered under Section 8 thereof. As against the above, a novel argument has been advanced on behalf of the appellant, the substance whereof is that the Hindu Marriage Act, 1955 does not preclude a Hindu from marrying a person of some other faith.

18. Although, an attempt has been made to establish that the Hindu Marriage Act, 1955, did not prohibit a valid Hindu marriage of a Hindu and another professing a different faith, we are unable to agree with such submission in view of the definite scheme of the 1955 Act.

20. As submitted by Mr. Rao, the Preamble itself indicates that the Act was enacted to codify the law relating to marriage amongst Hindus. Section 2 of the Act which deals with application of the Act, and has been reproduced hereinabove, reinforces the said proposition.

21. Section 5 of the Act thereafter also makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said Section were fulfilled. The usage of the expression `may' in the opening line of the Section, in our view, does not make the provision of Section 5 optional. On the other hand, it in positive terms, indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. In other words, in the event the conditions remain unfulfilled, a marriage between two Hindus could not be solemnized. The expression `may' used in the opening words of Section 5 is not directory, as has been sought to be argued, but mandatory and non-fulfilment thereof would not permit a marriage under the Act between two Hindus. Section 7 of the 1955 Act is to be read along with Section 5 in that a Hindu marriage, as understood under Section 5, could be solemnized according to the ceremonies indicated therein.

Reputation of a person not linked to his wealth: High Court

In a recently reported decision, the Jammu and Kashmir High Court has declared that the respect a person commands and dignity one carries is not linked to the wealth one owns; respect and reputation of a person is not dependent on the richness of the person and rather it is the human values one imbibes which are determinative. The High Court was dealing with the challenge to an order passed by the lower court wherein a suit for defamation (i.e. one for damages for causing harm to the reputation of a person) was dismissed by the lower court on the premise that the claimant was a pauper, he did not command any reputation in the society. The High Court, however, disagreed and reversing the decision declared the law as under;

The ld. trial Judge has further assumed that as plaintiff has instituted a suit in forma pauperis so being not possessed of sufficient worldly possessions can't have any respect in the society and it is on these two assumptions the suit of the plaintiff has been dismissed. The respect and reputation of a person is not dependent upon how much wealth he has accumulated . A human being is entitled to lead respectful life in the civilized society. The human rights of an individual do pronounce that every individual shall be entitled to have respect in the society. Pronounced and professed values of the society do not state that only that person who has amassed worldly possession is entitled to respect and a poor man has no respect. If this assumption is followed and accumulation of wealth is made the touch stone for determining the reputation and respect one can have in the society, then a great dis-service will be done to the entire society. Such type of approach would prompt the people to amass wealth by hook or by crook and entire society will be ushered into an anarchical situation. No reasonable person will accept the reason given by ld. trial Judge for dismissing the suit of the plaintiff. Our society is already adrift in the ocean of debasing the human values. Conscious efforts are to be made to ensure that there is no further deterioration in the human values. The ground on which suit has been dismissed is not only un reasonable but also offends once conscience.

Have a look at the decision.