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Confusing right to privacy with right to rape – addressing comment by Madhu Kishwar

In a rather bewildering tweet today, Madhu Kishwar asked, “Do champions of #RightToPrivacy realise that if 2 women hadn’t complained, #babaRamRahim doings in his “Gufa”covered under right to privacy?” The tweet was so absurd that she was met with a barrage of retorts and taunts by people she was taunting.

I guess if we are a country just growing into our rights, there will be a lot of debates of this sort needed, where clear talking will help more than sarcasm at someone’s ignorance. It also isn’t an alien concept. We have a right to privacy already. Whether it was stated or not, we had protection against someone violating our space. That is how stalking or spy cams or leaking passwords and such is already illegal, even though the right itself was explicitly stated just recently. The world has not changed all that much in terms of what is “right” and “wrong”. Privacy cannot make criminal things legit all of a sudden. That was just propaganda to influence the case into denying our right. Even the government now agrees we have a right to privacy. What has changed is for those whose privacy gets invaded by powerful players like big companies or the government (this judgment emerged directly from a constitutional challenge to Aadhaar on the grounds of privacy), who have the power to fudge an unstated right and interpret it to convenience. Now that it is explicit, they will no longer be able to fudge easily.

What the right to privacy will actually entail and exclude as per law will soon be determined, but the general meaning of the term endorses the right of a person to withhold or reveal information about themselves. There is also an implicit requirement that information revealed in confidence must not be shared beyond the purpose it was explicitly authorized for. This is the rock Aadhaar will flounder on – a mandatory and unaccountable database of private information on citizens cannot coexist with even the most shoddily defined privacy. And this 9 judge bench has given a most excellent verdict. But I digress.

Publicly available information is not covered by the right to privacy. For example, board results (because there seem to be a lot of jokes about keeping marksheets private from parents). You may refuse to reveal, but if the information is public, they will have access to it anyway. Certifications (no, the Prime Minister and Smriti Irani’s degrees don’t get covered by privacy either – they have stated the information themselves, what they are refusing to do is provide proofs for officially filed documents). This also goes for information submitted as proofs, etc. For example, if you have to provide proof of address to start a bank account, your right to privacy does not include starting a bank account without proof of residence. But yes, it definitely includes an obligation on the bank to not share it with third parties or use it for purposes other than verifying your address (for example, sending credit card spam).

As a fundamental right, Ram Rahim still has the right to privacy. Just because he is a convicted rapist does not mean you can make personal and confidential information about him public without his consent (public functions are public). The access to personal information can also be mandated for various reasons – This is where the grey areas lie. You have a right to withhold your bank balance and what you spend your money on from me, but do you have the right to withhold it from the income tax department? The standard understanding is no, because tax is your duty as a citizen. Others, more extreme argue that we voluntarily provide our information to the tax authorities and others don’t and choose to be raided instead. The government will, no doubt soon be launching some form of propaganda to create a way to impose Aadhaar in spite of the recent clobbering in court through such grey areas. But it won’t be easy, because there really is no way to prove that the information is necessary in the manner knowing income would be directly necessary to assess income tax. It is still not arbitrary or unlimited. you need warrants, to enter and search premises, for example. You can’t randomly check whoever you suspect.You have to prove the need for it and get a warrant.

Similarly, your right to privacy is about you having the right to reveal at your discretion what personal information you choose to share. To apply that to sex and rape, it would protect homosexuals, for example. That is why they got all excited about the clarity of the wording. Or at least those who are not engaging in “unnatural sex” in a situation that could be called “public”, unless one of them revealed their “crime”. Short of homosexuality explicitly being legal, this is considerably better than their previous precarious position of not knowing what boundaries and personal rights they could count on. However, it doesn’t protect Ram Rahim from his two victims who complained, because as their personal experience, the victims were perfectly entitled to reveal it to anyone they wished – even if it were consensual. And it wasn’t, which makes it a flat out crime. Crimes are mostly private. But if there is enough evidence of it or a complaint, an investigation will attempt to access all relevant information. The most robustly defined right to privacy in the world cannot protect a rapist from conviction if his crime is proved and it cannot prevent an investigation against an accused either. It is a thin edge of what is a legit investigation or ethical whistleblowing and what is a breach of privacy – which is why exposes are so often accompanied by defamation suits.

Right to privacy is a right of persons, not organizations. If it were not the victims and a third party who came to know about the rapes and complained, the action being illegal would make it count as whistleblowing.

Organizations too can have requirements of confidentiality, but they don’t have a right to information about them requiring consent to be shared – because they aren’t people. Confidentiality requirements of organizations are usually explicit. There are things you can talk about (work timings, coffee maker sucks) and things you can’t (trade secrets, business strategies). If the organization was willing to own the rapes as official business of the organization and not a crime that could not be revealed without breaching confidentiality agreements, they are free to sue the whistleblower or the complainants, but a crime that gets exposed remains a crime. An organization that claims it to be its official business would be a criminal organization.

This is also why you have (and need better) whistleblower protection laws – so that confidentiality cannot be used as an excuse to cover up crimes and persecute whistleblowers.

Hope all is clear now.

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