Author Name:   himanshi23

A right to keep a domain around an individual, which includes all those things that are part of him, such as his body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives him the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts he chooses to disclose.There have been various landmark judgments with regard to the evolution of the right of prisoners. Starting with the case of Platek vs. Aderholdin USA where the court stated that court has no power to interfere with conduct of prison or its rules and regulation up till the suit of Johnson vs. Averywhere the court recognised certain rights of the prisoners.

Prisoner’s Rights

Historical background
There have been various landmark judgments with regard to the evolution of the right of prisoners. Starting with the case of Platek vs. Aderholdin USA where the court stated that court has no power to interfere with conduct of prison or its rules and regulation up till the suit of Johnson vs. Averywhere the court recognised certain rights of the prisoners. In Indian development Sunil Batra’scase, a revolutionary judgment given by a constitutional bench preserving the Fundamental Rights of the prisoners by invoking Article 14, 19 and 21 of the Constitution for guarding from the wretched environment of the jail.

Prisoners Rights:
Prisoner’s Rights Law deals with the rights of inmates since the time they are placed behind the bars. Many of these laws are very much related to the fundamental human rights and civil liberties.

Cruel and Unusual Punishments– Every inmate has the right to be free under the Eighth Amendment of the US constitution from inhumane treatment or anything that could be considered “cruel and unusual” punishment. Generally speaking, any punishment that is considered as inhumane treatment in nature, like torture or abuse, or a violation of a person’s basic dignity is be considered cruel and unusual within the discretion of the court.
Sexual Harassment or Sex Crimes– All the inmates have a right to be free from sexual harassment or sex crimes, like being raped or molested while in custody and this applies to the crimes or harassment from both inmates and prison personnel.

Right to Complain About Prison Conditions and Access to the Courts– The inmates have the right of both to complain about prison conditions and to raise their concerns to prison officials and the courts.
Disabled Prisoners– Inmates with disabilities are entitled to certain reasonable accommodations under the American with Disabilities Act to ensure they receive the same access to prison facilities as those who are not disabled.

Medical and Mental Health Care– Prisoners are entitled to receive medical care and mental health treatment. These treatments are required to be “adequate,” not the best available or even the standard treatment for those outside of incarceration.

Legal Perspective:
The terms “prison” and “jail” are used interchangeably in India, perhaps reflecting the fact that no significant effort is made to separate “undertrials,” as those awaiting trial are known, from convicts.
The leading court case on right to counsel in India is M.H.Hoskot v. State of Maharashtra. It provides that the defendant shall “have legal assistance assigned to him in any case where the interests of justice shall require” at no cost if the defendant cannot pay. Though the Court’s opinion, by Justice Krishna Iyer, explicitly cites bail motions as among the circumstances where justice “would be well-nigh impossible” without legal aid, free legal assistance is not made available at this stage in India.

“Article 20(3) of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. Moreover, Sections 25 to 27 of the Evidence Act guard against this danger. Section 25 provides that no confession made to a police officer shall be proved against a person accused of any offence. Section 26 provides that no confession made by any person while he is in the custody of the police, shall be used as evidence against him. However, Section 27 provides that when any fact is discovered in consequence of information received from an accused in custody of the police, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

. The confinement of juveniles in Tihar Jail led to a court decision, Sanjay Suri v. Delhi. Judge Ranganath Misra noted in his decision a previous case in which the courts had found “a shocking state of affairs in so far as juvenile prisoners are concerned. The District Judge has interviewed some of the juvenile prisoners in regard to whom he learnt that they had been subjected to sexual assault by the adult prisoners. The juvenile prisoners who made statements before the District Judge have expressed apprehension that they might get into difficulties if their names are disclosed” Though an effort had been made in the earlier case to protect the juveniles in Tihar Jail, Judge Misra determined that it had not been effective and issued new orders in an attempt to protect them by maintaining strict segregation within the jail

Right to Privacy – Search and Seizures
There are quite relevant cases where intrusion to right to privacy of individuals is done by the state by the way of search and seizures.

Historical Background
'Every man's house is his castle'. One of the most forceful expressions of the maxim was - "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter, the rain may enter - but the King of England cannot enter - all his force dare not cross the threshold of the ruined tenement".

In New Zealand, with regard to the context of sec.21 of the NZ bill of rights, the court has made a distinction between illegality and unreasonableness. A ‘search’ may be legal but unreasonable, it may be illegal but is reasonable and thus, the search under the court warrant is lawful but the manner in which it was executed was unreasonable.

In Indian context, the issue of the right to privacy linked up with the ‘search’ and ‘seizures’ was raised in the early 1950s where the Supreme court held that the search and seizure is not in violation of article 19(1)(f) of the Indian constitution and a mere search by itself does not affect the right to property and if seizure affected it then such effect is temporary and was a reasonable restriction on the right.

In India, our Constitution does not contain a specific provision either as to 'privacy' or even as to 'unreasonable' search and seizure, but the right to privacy has, as we shall presently show, been spelt out by our Supreme Court from the provisions of Arts. 19(1)(a) dealing with freedom of speech and expression, Art. 19(1)(d)dealing with right to freedom of movement and from Art. 21which deals with right to life and liberty.

Right to Privacy – Other recent developments
In the present times, the concept of privacy has evolved much. Now, the distinction betweenprivacy in a physical sense and the privacy of one's mental processes is made.
The court inN.D. Tiwari’s caseheld that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, space is provided for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can beadmitted in accordance withSection 27of the Evidence Act, 1872.The brief examination of the jurisprudence where compulsory testing or the permissibility of involuntary drawing of samples has been accepted or statutorily permitted which was possible shows that judicial precedents on this area largely arise in cases relating to criminal prosecutions in serious offences including those involving narcotic substances; murder; manslaughter by drunken driving and sexual offences. In each case, the court weighed the interest of justice in the context of public policy while examining the permissibility of compulsory testing.

It was also held that constitutional rights are subject to reasonable limits prescribed by law. Such limits are required to be justified in a free and democratic society. Objectives of mandatory testing have to relate to important personal and substantialconcerns and the means chosen have to be proportional or appropriate to the ends. Simply put, the mandatory testing would have to be rationally connected to the objective sought to be achieved and further, impair constitutional rights as little as possible.

The level of privacy protection thus may also depend upon the context in which the established standards are applied and the manner in which the right to privacy is challenged. Instances of mandatory testing which has been considered reasonable are available depending on the context in which mandatory testing was involved, and upon application of the doctrine of "probable cause"; "compelling need", "public interest" "decreased expectation of privacy", "maintenance of law and order"; "public health", "public safety" provided that the testing was performed in a scientific and accurate manner bearing in mind the privacy concerns of the individual;
It is therefore evident that it is only in exception nal cases, that human rights law has justified carrying out of compulsory or mandatory medical examinations which may be bodily invasive and interfered with a person’s physical integrity. Such forced interventions with an individual’s privacy under human rights law in certain contingencies has been found justifiable when the same is founded on a legal provision ; serves a legitimate aim ; is proportional ; fulfills a pressing social need ; and, most importantly, on the basis that there is no alternative, less intrusive, means available to get a comparable result.

Online privacy
Internet users can protect their privacy by taking actions that prevent the collection of information. Most people who use the Internet are familiar with the concept of tracking cookies. These are the small stores of data which keep a log of your online activities and reports back to the tracker host. The information stored is usually for marketing purposes. To many Internet users, this is called, an invasion of privacy. But there are also several ways toavoid tracking cookies.

Browsers and social media platforms, such asFacebookand Twitter, allow their users to choose levels of privacy settings, ranging from sharing everything to only share with friends to share only the minimum, like your name, gender and profile picture.

The Children's Online Privacy Protection Act (COPPA) also enforces a parent's right to control what information websites collect about their children. Websites that aim to target children younger than 13 or knowingly collect information from children must post privacy policies on their sites, get parental consent before collecting information from their children, and also allow parents to decide how such information is used and provide an opt-out option for future collection of a child's information.

Limitations to Right to privacy
One of the major failings of the concept of privacy in India is that it doesn’t exist as a positive right, but it is present merely a resistive right against targeted intrusion. The right to privacy would be useless as a concept to resist something like generalized street video surveillance – as long as a citizen is not singled out for a disadvantage, the right to privacy would be of no. Under it one does not have the right to be as private as one wishes, but only no less than the next person.

Judicial inactivity is one of the limiting factors on the right to privacy. By holding violations of procedure by investigating agencies would not vitiate trials, the judiciary has been complicit in perhaps some of the more damaging incursions into privacy. For Once a person is implicated in any manner in the criminal justice system – either as a victim, a witness or an offender, investigating agencies are immediately invested with plenary powers. They can search his house without warrant. Can Subject him to ‘medical examinations’, take his fingerprints and DNA and hold it in a bank and there is nothing you can do. In this context, perhaps the strongest privacy safeguard can come from a reform in criminal procedure alone.

The Court defined the limits of legitimate privacy intrusion and stated that legislative intrusions could be tested using the doctrine of proportionality, administrative/executive intrusions had to be reasonable, while judicial intrusions were permissible upon the issuance of a judicial warrant on the premise of "sufficient reason" and necessity.

In Shardav.Dharmpalthe Supreme Court considered the question of whether a party to a divorce proceeding could be compelled to take a medical examination. While acknowledging the importance of privacy and confidentiality, the Court found that the right to privacy was not absolute and a party could be asked to take a medical examination since in a matrimonial proceeding:
"If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter right to personal liberty as enshrined under Article 21 of the Constitution, then it may in most of such cases become impossible to arrive at a conclusion."

This decision demonstrates that like all other fundamental rights, the right to privacy too is subject to reasonable restrictions

Conclusion
In the recent times, Right to Privacy has evolved as an essential right under the ambit of Article 21 of the Indian constitution. The right to privacy linked up with personal liberty is something which cannot be taken away from the people of India except for the procedure established by law. The power of phone tapping has now become regulated power both procedurally an substantively. But while deciding upon the cases, the court has to go through a case-by-case development and these concepts are still in the process of evolution.

End-Notes
# Warren and Brandeis, "The Right To Privacy", 4 Harvard Law Review 193 (1890)
# Alan Westin, Privacy and Freedom, 1968
# Flaherty, D. (1989). Protecting privacy in surveillance societies: The federal republic of Germany, Sweden, France, Canada, and the United States. Chapel Hill, U.S.: The University of North Carolina Press.
# Shade, L. R., Reconsidering the right to privacy in Canada. Bulletin of Science, Technology & Society, 28(1), p. 80-91.
# M.P. Jain, INDIAN CONSTITUTIONAL LAW, Lexis Nexis, 7 Edn.,2016, p.1168
# Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 : (1964) 1 SCR 332
# Dicey, CONSTITUTIONAL LAW, 9 Edn.,p.207-208
# Blackstone, Laws of England, Book 1, p.134
# A.K.Gopalan v.The State of Madras, 1950 AIR 27, 1950 SCR 88
# Smt. Maneka Gandhi v. Union of India ,AIR 1978
# Govind v.State of Madhya Pradesh ,AIR 1975 SC 1378
# MATHEW ,J., Govind v.State of Madhya Pradesh ,AIR 1975 SC 1378
# R. Rajgopal v. State of Tamil Nadu AIR 1995 SC 264 : (1994)6 SCC 632
# People’s Union for Civil Liberties v. Union of India AIR 1991 SC 207,211
# B.K. Partasarathi v. State of Andhra Pradesh AIR 2000 AP 156
# Naz Foundation v. Govt. of N.C.T Delhi AIR 2009
# State of Maharashtra v. Madhukar Narayan Mardikar AIR 1999 SC 495: (1999) 1 SCC 57
# M.P. Jain, INDIAN CONSTITUTIONAL LAW, Lexis Nexis, 7 Edn., p. 1170
# Pandey J.N.,(Faridabad) , Allahabad Law Agency,9 Ed.,2003,p.207
# Ibid# 14
# R.M.Malkini v. State of Maharashtra AIR 1973 SC157
# Roy Olmstead v. United States of America 277 US 438(1928)
# S. Pratap Singh v. State of Punjab AIR 1964 SC72
# Yusufalli Esmail Nagree v. State of Maharashtra AIR1968 SC 147
# R v. Maqsud Ali [1965]All.ER.464
# N. Sri Rama Reddy v. V.V.Giri AIR 1971 SC 1162
# R v Sang [1980] AC 402
# Malone v UK [1979] 2 All ER 623
# Olmstead v. US 277 U.S. 438, 48 S .Ct. 564, 72 L.# Ed. 944 (1928)
# Platek vs. Aderhold, 73 F.2d 173 (5th Cir. 1934)
# Johnson vs3 . Avery, 393 U.S. 493(1969)
# Sunil Batra vs. Delhi Administration, 1980 AIR 1597, 1980 SCR(2) 557
# M.H.Hoskot v. State of Maharashtra 1978, 3 S.C. 544
# Sanjay Suri v. Delhi 1987 (2) SC 276.
# # Semayne's case ,1603 (5 Coke's Rep. 91a) (77 Eng. Rep. 194) (KB)#
# # By William Pitt in the British Parliament in 1763
1[37] M.P.Sharma v. Satish Chandra 1954 AIR 300, 1954 SCR 1077
# Distt. Registrar & Collector v. Canara Bank Etc ,1 November, 2008
# Rohit Shekhar vs Shri Narayan Dutt Tiwari & Anr. on 23 September, 2011
# R. v. Oakes# 1986 1 SCR 103
# Ibid 39
# Ibid 38
# Sharda v.Dharmpal (2003) 4 SCC 493

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