We all often debate and talk about corruption, woman security and unfair laws in India. Now a day, we all have a great exposure to electronic media like Internet, computerized window systems. Where ever you go now days whether in government departments or private institution, you need to register yourself or create a login password for the same. Even the government is also promoting the web based systems for services like passport seva, income tax e-filling etc. We all become very happy to read such news and articles about web based services because this will save our time. But have you ever think that how secure is your personal information given to banks, private institution and government department? Have you ever thought that how strong the laws are in case if your privacy and confidentiality is breached? These are some of very serious concerns which we must think next time before giving our sensitive personal information to anybody. Is it acceptable to you that your personal sensitive information like your financial records or how you are performing in your department will be known to somebody every time? The bigger question is that somebody with whom you don't want to share anything but still he managed to get all but not using it to cause any monetary loss to you. You know that the third person is getting your information regularly but he is not using it for any wrong intention or wrongful loss. Have you ever think that in such situation do you have any provision in book of law to stop? My answer is no and I am quoting no so confidently just because i am the sufferer and i tried everything to stop but law doesn't consider it a serious crime because it is done without any wrong intention. What is definition of a crime and does it gives you full right to get information related to you if you are somebody relative or brother or wife or parents even if it is clearly specified everywhere in the law that nobody is entitle to get this information. Does this give you every right to do unlawful act just because you are fighting for your right in court or just to prove your innocence? These are some of the question which every day comes in my mind and I never get the answer is yes. Let me discuss some of the information available with me regarding the privacy and confidentiality:
1. The judiciary has derived “right to privacy” from the rights available under articles 19(1) (a) (the fundamental right to freedom of speech and expression) and 21 (the right to life and personal liberty) of the constitution.
2. Master circular on customer services in banks by RBI dated July 2, 2012, DBOD No.Leg.BC. 21/09.07.006/2012-13. Point 25 Customer Confidentiality Obligations: The scope of the secrecy law in India has generally followed the common law principles based on implied contract. The bankers' obligation to maintain secrecy arises out of the contractual relationship between the banker and customer, and as such no information should be divulged to third parties except under circumstances which are well defined. The following exceptions to the said rule are normally accepted:
I. Where disclosure is under compulsion of law.
II. Where there is duty to the public to disclose.
III. Where interest of bank requires disclosure and
IV. Where the disclosure is made with the express or implied consent of customer.
3. IT amendment act 2008 Section 72A Save as otherwise provided in this act
Or any other law for the time being in force, any person including an
Intermediary who, while providing services under the terms of lawful
Contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment.
4. RTI Act is applicable on public authorities, not on private entity or company. The public authorities could not disclose and have right to reject the
RTI application for personal information of their employee in obligation to RTI
Act 2005 Chapter 2, section 8, 1(j) exemption from disclosure of information, information which relates to personal information the disclosure of which has no relationship to public activity or interest or which would cause unwarranted invasion of the privacy of the individual unless the central public information officer or state public information officer or the appellate authority as the case may be, is satisfied that public interest justifies the disclosure of such information.
The four points mentioned above are very basic laws which can provide safeguard to your privacy and confidentiality. Let me illustrate more point wise.
1. This is your fundamental right that your confidentiality and privacy shall be maintained whether at your bank, company or any other place where you have shared your personal or financial information.
2. Bank can disclose your personal or financial information only in the case when it is under compulsion of law/ it is with your consent / it is in public interest.
3. Any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information can not disclose your information and it is a punishable offence under section 72A of IT Amendment Act 2008.
4. RTI Act is applicable to public authority, not on the private entities.
However even the public authorities have the right to reject the RTI application which relates to personal information the disclosure of which has no relationship to public activity or interest or which would cause unwarranted invasion of the privacy of the individual. So next time you can reach your employer for not disclosing your information to anybody if it is not under the compulsion of law.
Now question arises how effective these laws are to provide you protection
against breach in your privacy and confidentiality especially in the case when it
is done by some of your close relative like your wife/husband/parents/brother
etc. I am person who don't like to discuss my personal issues publically but if
my personal example can bring a positive change or aware society then I think
i must share my experience with you all. I belong to a very basic Haryanvi Jaat
family where moral and social responsibilities are always kept above all other
kind of responsibilities. I am working in private company. I got married to a
working girl in November 2011. However my marriage worked for two and half
month due to some unusual circumstances. Not going into what were the
reasons for breakup because that doesn't have any relation with the matter I
want to discuss. Like it happens in every dissolved marriage i have also been
booked by my wife under various sections of Dowry act, domestic violence however I was not much surprised with this act of my wife just because it is a
common trend and easiest way that a separated wife adopts either to
threaten her husband or to make as much as money she can from a dissolved
marriage. As a part of judiciary proceedings I have submitted the certified
salary slip from the company into court. But I remained surprised when my
wife submitted my HDFC bank account statement to court. This has happened
even I have never made her nominee or introduced in bank anywhere. I reached the bank and asked them to give me information about the divulged
statement but in the name of investigation they choose to remain dumb. Later
when I raised the issues to higher level of country head and chairman then
finally bank came up with investigation report in which bank admitted that
they have not received any written request for issuance of the account
statement. The IP address of the system from where the account statement
was divulged was clearly mentioned on the statement but rather than taking
any action against the bank employee bank told me to put up my grievance
with the Banking ombudsman. So now you can easily understand that how
much fear these private banks have for our main monetary regulatory
institution RBI. So with a very heavy heart I have written a open letter to our
Honourable governor of RBI Mr. Subbarao and also filed a complaint in Banking
Ombudsman in a hope that I will get the justice but later I came to know that our own government and main monetary institution have already decided the cost of our privacy in some lac rupees and that’s why the bank was provoking me to go in banking ombudsman because they know that they can easily get out of this problem with taking any action by paying a few rupees as compensation. Since 3 months has passed but complaint is with RBI and like every common man of this country i am in hope that someday I will get justice some day. I decided not to give up and went nearest police station to register a complaint against the offenders but like it happen in every police station rather than behaving like a public servant police man started talking like a local Gundas and started asking me many questions like in which crime we register complaint or claiming that it is taken by your wife and she has every kind of right to get that. However i was well prepared in advance by reading banking regulation act, IPC, RTI act and IT act. I clarify all their doubts in terms of laws. One more interesting thing i would like to share with you related to banks:
Banking regulation act 1949 section 46-A lays down that a chairman, director, manager and other employees of a banking company shall be deemed to be a public servant for the purposes of chapter 9 of Indian penal code.
However with my fundamental right to expression and liberty I decided to
write a letter superintendent of Police through a registered post and finally a
very weak investigation is carried out with an investigation report that says
that investigation need to be carried out at the place from where the
statement is leaked. I have written a letter to DGP of that state in a hope
that investigation will be carried out but didn't get anything other than a
complaint number till Date.
The impact of this very weak stand by government agencies lead me into another trouble and now she managed to get my performance summary letter which in company terms is very private and confidential even I had given a written request in the company that my no information will be disclosed to anybody without my consent or if it is not under the compulsion of law. However later while discussing with a very senior advocate I came to know that court will not consider this breach as a very serious crime because it is not done with a wrong intention. My trust has little bit broken on the laws in this country which I am finding very weak. But being a responsible citizen and a law abide citizen rather than giving up I decided to take up this issue until it reaches some conclusion. But for some of the questions I am really struggling to get an answer are:
1. Does crime can be justified in the name of intention? whatever has happened with me is a crime but it is done by my wife so it cannot be treated as serious crime however the stand of judiciary as well as government is giving a message to the other criminals that they can do it if it is not in a of monetary loss.
2. For me a crime is a crime. No other definition can be justified and if you are any leniency than it gives a very wrong message in the society. In the name of intention we cannot motivate the wrong procedures in the society. If you look in the other way, my wife has every right to get this information through court procedure either by putting request in court to get financial information but she opted for the wrong one and even the court also justifies the wrong way in the name of intention.
3. What is use of giving this status of fundamental right to the privacy and confidentiality if we don't have any strong legislation for it?
For me my privacy is very precious and it cannot be compensated in few rupees. Rather than giving compensation I insist for strong laws for the breach. I would also like you to share with as many of your friends and colleague so that issue can be well highlighted and my battle against breach of privacy and confidentiality reaches some conclusion. To take my battle next level I am drafting a letter to Chief justice of India as well as president of India. If I could, I will file a PIL in the Supreme Court but it further needs lots of financial backup which I don't have right now. But one thing i would like to tell you all that being a law abide citizen I have the right to expression and I will write until get any positive change in the process/procedure/law. I have a very strong feeling that if 65% of the population in the country is youth and if every youth come up with a single problem with an intent to fight until it resolves than we cannot even imagine that how many reforms will take place in India. Now the time has come that we youngsters lead from the front rather than depending on the political parties for the change we want to bring in the country.