An examination of the legal provisions regarding transfer of Privacy Rights of the deceased in India

Transfer of Privacy Rights on the Death of an Individual in India

Introduction

Privacy rights are an integral aspect of an individual's autonomy and dignity. In India, the right to privacy is protected as a fundamental right under Article 21 of the Constitution. However, when an individual passes away, questions arise regarding the transfer and preservation of their privacy rights. This article delves into the privacy rights transferred upon the death of an individual in India, drawing references from relevant acts, rules, and significant judgments.

The Legal Framework: Indian Constitution and Personal Laws

The Indian Constitution guarantees the right to privacy as an intrinsic part of the right to life and personal liberty under Article 21.  Art 21 states that 'No person shall be deprived of his life or personal liberty except according to a procedure established by law.' It implies that the word ‘person’ used in Art.21 would also include the dead if privacy is to be extended to the deceased. However, this right is not absolute and subject to reasonable restrictions as outlined in the Constitution itself. While the Constitution provides a broad framework for privacy rights, personal laws and statutory provisions play a crucial role in defining the transfer of these rights upon an individual's death.

The laws in India primarily focus on protecting the privacy of living individuals. Therefore, the extent of privacy rights after death may be limited, and certain personal information may become accessible to others in specific circumstances. All information pertaining to a dead individual should not be disclosed as certain information continues to be protected by his right to privacy even after death. Different nations protect privacy to varying extend and after a person's death, their privacy rights are typically transferred to their legal heirs or representatives.

General Clauses Act and Indian Penal Code may be referred for its definition. Sec 3 (42) of the General Clauses Act 1897 defines a person 'to include any company or association or body of individuals, whether incorporated or not.' Section 11 of the Indian Penal Code defines a person to include 'any company or association or body of persons whether incorporated or not.' It is apparent that these definitions do not explicitly define a person to include the dead.

The Indian Succession Act, 1925

The Indian Succession Act, 1925 is the primary legislation governing the transfer of property, including digital assets, upon the death of an individual. Section 2(xxii) of the Act defines "property" to include both movable and immovable assets. Though the Act provides for execution of the will of a person, after death, it does not specifically address privacy rights.

Inheritance of property through traditions and laws have a history as old as that of human civilization. However, privacy laws pertaining to the deceased are a relatively new phenomenon as in increased amounts of personal information is now being digitally created and shared online.

The transplantation of Human Organs Act, 1994 provides a right to a person over his dead body. No organs can be taken out, except by the consent of the person, when he was alive. (or by the consent off his kith and kin or the state if the body is unclaimed). 

The Information Technology Act, 2000

The Information Technology Act, 2000 (IT Act) provides certain provisions related to privacy and confidentiality in the digital domain. Section 43A of the IT Act addresses compensation for failure to protect data privacy and confidentiality, and Section 72A deals with the punishment for disclosing personal information in breach of lawful contract. While the IT Act primarily focuses on data protection, it does not explicitly address the transfer of privacy rights upon an individual's death. Therefore, the applicability of the IT Act in matters of privacy rights transfer remains limited.

Judicial Interpretation: Landmark Judgments

The specific rights and obligations related to privacy after death in India are vague and are in a state of evolution. In the absence of cleat laws and regulations, cases are ending up before the higher judiciary to address individual circumstances and concerns.

Several judicial pronouncements have contributed to the development of privacy jurisprudence in India. While these judgments do not specifically address the transfer of privacy rights on an individual's death, they have laid the foundation for recognizing privacy as a fundamental right.

Justice K.S. Puttaswamy (Retd.) vs. Union of India (2017)

In this landmark case, the Supreme Court of India held that the right to privacy is a fundamental right protected under Article 21 of the Constitution. The judgment emphasized the importance of personal autonomy, dignity, and informational privacy.

While the Puttaswamy judgment does not directly address the transfer of privacy rights upon an individual's death, it establishes the overarching significance of privacy as a fundamental right.

R. Rajagopal vs. State of Tamil Nadu (1994)

The Supreme Court, in this case, recognized the right to privacy as an intrinsic part of an individual's right to life and personal liberty under Article 21. The judgment emphasized that an individual's right to privacy is not absolute and can be limited by compelling public interests.

Although the Rajagopal judgment predates the explicit recognition of the right to privacy as a fundamental right, it provides a foundation for understanding privacy limitations and the balance between an individual's rights and public interests.

Shreya Singhal vs. Union of India (2015)

The Supreme Court, in this case, struck down Section 66A of the IT Act, which dealt with restrictions on freedom of speech and expression online. The judgment reaffirmed the importance of protecting fundamental rights in the digital age and the need for a balanced approach.

Kharak Singh v. State of U.P. (1962) 

The scope of right to privacy was discussed by Supreme Court.

While the Singhal judgment primarily focuses on freedom of speech, it highlights the significance of personal privacy in the digital realm and sets a precedent for future privacy-related cases.

Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Ors. (1981)

The fundamental right to life must be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.

Vikram Deo Singh Tomar v. State of Bihar (1988)

Every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen under Art.21 of the Constitution. The dignity of man is inviolable. It is the duty of the State to respect and protect the same.

Paramanand katara v Union of India (1989)

The Hon'ble SC held that right to dignity and fair treatment is not confined to the living man but also his dead body. 

Deepa Jayakumar v. AL Vijay and ors., O.S.A.No.75 of 2020

Division Bench of the Madras High Court in the Dr. J. Jayalalitha case relied on the legal maxim ‘actio personalis moritur cum persona’ – a personal right of action dies with the person. It was held that all the three rights enjoyed by a person during his lifetime – personality right, reputation and privacy, come to an end after his lifetime and cannot be inherited or enforced by his legal heirs.

Collection of personal information by organisations

Many organisations collect the data of individuals for specific purposes. In general, the personal data of a deceased individual should be handled with reasonable security practices and procedures to prevent its unauthorized access, use, disclosure, alteration, or destruction. The personal data should be retained for as long as it is necessary for the purposes for which it was collected or is required under any law.

Key points regarding privacy rights after death in India:

1. Posthumous privacy: While privacy laws generally protect the personal information of living individuals, there is no explicit provision for posthumous privacy in Indian law. Once a person has passed away, their personal information may be accessed and used by others unless there are specific legal provisions in place or the deceased person had taken steps to safeguard their information.
2. Consent and disclosure: In general, the consent given by an individual during their lifetime does not extend beyond their death. This means that personal information of a deceased person may be disclosed or used without the need for consent, especially in cases where it is required for legal or administrative purposes.
3. Data protection and sensitive information: The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, impose certain obligations on entities that collect, store, or process sensitive personal information. However, these rules primarily focus on the privacy of living individuals, and there are no specific provisions addressing the privacy of deceased individuals.
4. Estate administration and legal proceedings: During the administration of a deceased person's estate or in legal proceedings related to the deceased person, certain personal information may be shared or disclosed to carry out necessary actions. This can include accessing financial records, property-related information, or other relevant data required for legal purposes.
5. Social media and online accounts: Many social media platforms have their own policies regarding deceased users' accounts. Some platforms allow for memorializing accounts or providing access to authorized representatives, while others may delete or deactivate the account upon receiving proof of death. It is advisable for family members or legal representatives to contact the specific platform to understand their policies and process for handling accounts of deceased individuals.

Conclusion

The transfer of privacy rights upon the death of an individual in India remains a complex and evolving area of law. While the Constitution recognizes privacy as a fundamental right, personal laws and statutory provisions do not explicitly address the transfer of privacy rights. The absence of specific legislation leaves room for interpretation and raises important questions concerning the preservation and limitation of privacy rights postmortem.

In case of defamation of a deceased person, Section 499 of the Indian Penal Code provides for protection of reputation. To ensure clarity and protection of privacy rights after an individual's death, there is a need for comprehensive legislation and guidelines that address the transfer, management, and preservation of digital assets, including personal information and online accounts. Such legislation should strike a balance between the privacy interests of the deceased individual and the legitimate interests of their family members, inheritors, and society at large.

The Indian legal system should learn from international practices and adopt a holistic approach that considers the diverse aspects of privacy, data protection, and digital assets in the context of death and inheritance. Only through a well-defined legal framework can India ensure that privacy rights are effectively transferred and respected after an individual's demise.

Some Supreme Court judgments in RTI cases dealing with Privacy

1. Central Board of Secondary Education Vs. Aditya Bandopadhyay https://www.rtifoundationofindia.com/supremecourt1-459
2. Namit Sharma Vs. Union of India https://www.rtifoundationofindia.com/NamitSharma-v-UnionfoIndia-SCI-Sep12.pdf
3. Girish Ramchandra Deshpande Vs. Cen. Information Commr. & Ors. https://www.rtifoundationofindia.com/dopt/SCDecision.pdf
4. Chief Information Commissioner Vs. High Court of Gujarat and Another https://rtifoundationofindia.com/files/infobeans-cms-next/upload/17.pdf
5. Canara Bank Vs. C.S. Shyam & Anr. https://rtifoundationofindia.com/central/SuprimCase18.pdf
6. Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agrawal  https://rtifoundationofindia.com/files/infobeans-cms-next/upload/22.pdf