consti-2 privacy

8/18/2019 consti-2 privacy

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Constitutional and statutory safeguards for

Right to Privacy

HIDAYATULLAH NATIONAL LAW UNIVERSITY

FUNDAMENTAL RIGHTS AND ITS ENFORCEMENT (HONS) PROJECT

ON


Right to Privacy

SUBMITTED TO

MS. VINI SINGH

VIKASH GOEL

SEMESTER VIII

ROLL NO. 172

SUBMITTED ON

4TH APRIL 2!1"


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Right to Privacy

Acknowledgement

I feel highly elated to work on this dynamic topic on “Constitutional and statutory safeguards for

Right to Privacy”. Its ratio is significant in today’s era when there is a greater threat to privacy of

individuals from government surveillance programs and press and individual privacy guaranteed

by courts are violated on freuent basis.

!he practical reali"ation of this pro#ect has obligated the guidance of many persons. I e$press my

deepest regard for our faculty %s. &ini 'ingh. (er consistent supervision) constant inspiration

and invaluable guidance and suggestions have been of immense help in carrying out the pro#ect

work with success.

I e$tend my heartfelt thanks to my family and friends for their moral support and encouragement.

V#$%&' G*

S+&,- VIIITH

R** . 172


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Right to Privacy

LIST OF ABBREVIATIONS

*IR + *ll India Reporter

Ch + Chapter

CrPc + Code of Criminal Procedure

Cri,- + Criminal ,aw #ournal

el + elhi

/d + /dition

(C + (igh Court

I,I reporter + Indian ,aw Institute reporter

0er + 0erala

Pg + Page

'C + 'cheduled Caste

'! + 'cheduled !ribe

'C + 'upreme Court

'CC + 'upreme Court Cases

'CR + 'upreme Court Reporter

&ol + &olume

/1C* + /ngland and 1ales Court of *ppeal ecisions

2' + 2nited 'tates of *merica

Contents


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Right to Privacy

*cknowledgement.....................................................................................................3

,I'! 45 *66R/&I*!I47'....................................................................................8

Introduction...............................................................................................................9

R/'/*RC( %/!(44,4:;..............................................................................<

Constitutional background for Right to Privacy........................................................=

Proposed *mendment to the Constitution............................................................>8

'tatutory Protection of Privacy...............................................................................>9

!he Right to Privacy 6ill 3?>>.............................................................................>9

igital Privacy@ Information !echnology *ct 3???.............................................>=

International *spects of Privacy..............................................................................>A

Right to Privacy in 2'.........................................................................................>A

Right to Privacy in 2nited 0ingdom....................................................................>B

Privacy in igital 1orld@ 'urveillance and Interception.........................................>

'urveillance and Interception in igital 1orld@ Position in 2' and 20.............3?

Indian Position......................................................................................................3>

Right to Privacy and 2I D**(*RE...................................................................33

Privacy in %edical Profession.................................................................................3=

7* and other forensic technologies and Privacy..................................................3B

Conclusion...............................................................................................................8?

6I6,I4:R*P(;...................................................................................................8>


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Right to Privacy

Introduction

T he law of privacy is recognition of the individualFs right to be let alone and to have his personal

space inviolate. !he need for privacy and its recognition as a right is a modern phenomenon. It is

the product of an increasingly individualistic society in which the focus has shifted from society

to the individual. In early times) the law afforded protection only against physical interference

with a person or his property. *s civili"ation progressed) the personal) intellectual and spiritual

facets of the human personality gained recognition and the scope of the law e$panded to give

protection to these needs.

!he essence of the law derives from a right to privacy) defined broadly as G,' -#/', , 0 let

alone.G It usually e$cludes personal matters or activities which may reasonably be of public

interest) like those of celebrities or participants in newsworthy events. Invasion of the right to

privacy can be the basis for a lawsuit for damages against the person or entity violating the right.

2nder the constitutional law) the right to privacy is implicit in the fundamental right to life and

liberty guaranteed by *rticle 3> of the Constitution.H> !his has been interpreted to include the

right to be let alone. !he constitutional right to privacy flowing from *rticle 3> must) however) be read together with the constitutional right to publish any matter of public interest) sub#ect to

reasonable restrictions.

Right to privacy is not enumerated as a fundamental right in the constitution. (owever) such

right has been culled by the 'upreme Court from *rt. 3> and several other provisions of the

constitution read with directive principle of state policy.

http://www.blogger.com/blogger.g?blogID=1936500401643740872#_ftn1http://www.blogger.com/blogger.g?blogID=1936500401643740872#_ftn1


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Right to Privacy

RESEARCH METHOOLO!"

AIM AND OBJECTIVES

/valuate the key concept of Right to Privacy and Its Constitutional *spect and statutory

aspect. !he ob#ective of the pro#ect is to study the impact of Right to Privacy in Indian conte$t

such as Information technology act) Indian !elegraph act and with respect with international

*spects

RESEARCH UESTION

1. 1hether Right to privacy 6ill is a boon or baneJ

2. 1hether Right to Privacy has got its importance as a 5undamental Right in the Present

'cenarioJ

.

HYPOTHESIS

!his pro#ect proceeds with the (ypothesis that the Right to Privacy is accepted as a

fundamental right in India and other -urisdictions through #udicial pronunciations and via

statutes) but when it comes to other aspects such as 7ational 'ecurity) population Census)

economic development and other situations the recognition of Right to privacy always comes as

a second priority.

RESEARCH METHODOLOGY

In this Pro#ect the researcher has primarily used descriptive and analytical method of

Research. (e has mainly relied up on primary sources such as statutes and case laws regarding

Right to Privacy and 'econdary sources) including 6ooks) articles) web sources) and news

papers.


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Right to Privacy

Constitution#l $#ckground %or Rig&t to 'ri(#c)

!hough the Indian Constitution does not provide a clear reference to Right to Privacy) the

right is read in to the constitution by the 'upreme Court as a component of two 5undamental

Rights@ the right to freedom under *rticle > and the right to life and personal liberty under

*rticle 3>.

It would be necessary to provide a brief background to each of these *rticles before dealing

deeper into the privacy #urisprudence developed by the courts under them. Part III of the

Constitution of India D*rticles >3 through 88 prevents the 'tate from making “any law which takes away or abridges” the

fundamental rights.

*rticle >D>EDaE specifies that “*ll citi"ens shall have the right to freedom of speech and

e$pression” . (owever this is made competent by *rticle >D3E which provides that this will not

“affect the operation of any e$isting law) or prevent the 'tate from making any law) in so far assuch law imposes reasonable restrictions on the e$ercise of the right L in the interests of the

sovereignty and integrity of India) the security of the 'tate) friendly relations with foreign 'tates)

public order) decency or morality) or in relation to contempt of court) defamation or incitement to

an offence”.

!hus the 5reedom of /$pression guaranteed by *rticle >D>EDaE is not absolute) but a

privileged right that is vulnerable) under the Constitutional scheme) to being curtailed under

specified conditions.

!he other important 5undamental Right from the perspective of privacy #urisprudence is

*rticle 3> which reads “3>. 7o person shall be deprived of his life or personal liberty e$cept

according to procedure established by law.”


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Right to Privacy

1here *rticle > contains a detailed list of conditions under which 5reedom of /$pression

may be curtailed) differentially *rticle 3> is thinly+worded and only reuires a “procedure

established by law” as a pre+condition for the deprivation of life and liberty. (owever) the

'upreme Court has held in the famous case of Maneka Gandhi vs. Union of India1 that any

procedure “which deals with the modalities of regulating) restricting or even re#ection of a

fundamental right falling within *rticle 3> has to be fair) not foolish) carefully designed to

effectuate) not to subvert) the substantive right itself. !hus) understood) GprocedureG must rule

out anything arbitrary) freakish or bi"arre.”

'hortly after independence) in a case challenging the constitutionality of search and sei"ure

provisions) the 'upreme Court gave a blow to the right to privacy in India) holding that

“1hen the Constitution makers have thought fit not to sub#ect Dsearch and sei"uresE to

Constitutional limitations by recognition of a fundamental right to privacy) analogous to the

*merican 5ourth *mendment) we have no #ustification to import it) into a totally different

fundamental right.”3 7otwithstanding this early setback) five decisions by the 'upreme Court in

the succeeding five decades have established the Right to Privacy in India as flowing from

*rticle > and 3>.

!he first was a seven+-udge bench decision in Kharak Singh V. The State of U.P 3 decided in

>=9. !he uestion that came in for consideration in this case was whether GsurveillanceG under

Chapter MM of the 2.P.Police Regulations was an infringement of any of the fundamental rights

1D>ABE 3 'CR =3>

2 %. P. 'harma v 'atish Chandra) *IR >


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Right to Privacy

guaranteed by Part III of the Constitution. Regulation 38=DbE which permitted surveillance by

Gdomiciliary visits at nightG was held to be violative of *rticle 3>.!he meanings of the word

GlifeG and the e$pression Gpersonal libertyG in *rticle 3> were elaborately considered by this

court in 0harak 'inghOs case. *lthough the ma#ority found that the Constitution contained no

e$plicit guarantee for Gright to privacyG) it read that right to personal liberty also include the

right to dignity. It held that “an unauthori"ed intrusion into a personFs home and the disturbance

caused to him thereby) is as it were the violation of a common law right of a man) an ultimate

essential of ordered liberty) if not of the very concept of civili"ation”. In the minority #udgment

in this case) -ustice 'ubba Rao held that “the right to personal liberty takes in not only a right to

be free from restrictions placed on his movements) but also free from encroachments on his

private life. It is true our Constitution does not e$pressly declare a right to privacy as a

fundamental right but the said right is an essential ingredient of personal liberty /very

democratic country sanctifies domestic life it is e$pected to give him rest) physical happiness)

peace of mind and security. In the last resort) a personFs house) where he lives with his family) is

his GcastleG “it is his rampart against encroachment on his personal liberty.” !his case) especially

-ustice 'ubba Rao’s observations) opened the way for later elaborations on the right to privacy

using *rticle 3>.

In >A3) the 'upreme Court decided one of its first cases on the constitutional validity of

wiretapping. In R. M. Malkani vs State Of Maharashtra4 the petitioner’s voice had been

recorded in the course of a telephonic conversation where he was blackmailing another person.

(e stated in his defense that his right to privacy under *rticle 3> had been violated. !he

'upreme Court re#ected his plea holding that “!he telephonic conversation of an innocent citi"en

will be protected by Courts against wrongful or high handedF interference by tapping the

conversation. !he protection is not for the guilty citi"en against the efforts of the police tovindicate the law and prevent corruption of public servants.”<

4 *IR >A8 'C >A8 'CR D3E 9>A

5 Ibid


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Right to Privacy

In another case) Govind vs. State of Madha Pradesh! ) decided by a three+ -udge 6ench of

the 'upreme Court) is regarded as being a setback to the right to privacy #urisprudence. (ere) the

court was assessing the constitutional validity of Regulations B9B

7 *IR >B> 'C A=?


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Right to Privacy

of a citi"en as long as there was no Killegal interference’ and it was “unobstrusive and within

bounds”.

7early fifteen years after this case the 'upreme Court elaborated the right to privacy in R.

Ra#ago(al vs. State of Ta)il *ad"+. (ere the court was involved in a balancing of the right of

privacy of citi"ens against the right of the press to critici"e and comment on acts and conduct of

public officials. !he case related to the publication by a newspaper of the autobiography of *uto

'hankar who had been convicted and sentenced to death for committing si$ murders. In the

autobiography) he had commented on his contact and relations with various high+ranking police

officials) disclosures which would have been e$tremely sensational. 'ometime before the

publication) he appears to have been forced to write a letter denying that he had authored the

autobiography. 4n this basis) the Inspector :eneral of Prisons issued a letter forbidding the

newspaper from publishing the autobiography claiming) inter alia) that the publication of the

autobiography would violate the prisoner’s privacy. Curiously) neither 'hankar himself) nor his

family was made parties to this petition.

!he Court decided to presume) that he had “neither written his autobiography” nor had he

authori"ed its publication. !he court then proceeded on this assumption to enuire whether he

had any privacy interests that would be breached by unauthori"ed publication of his life story.

!he right of privacy of citi"ens was dealt with by the 'upreme Court in the following terms@ +

D>E !he right to privacy is implicit in the right to life and liberty guaranteed to the citi"ens of this

country by *rticle 3>. It is a “right to be let alone”. * citi"en has a right to safeguard the privacy

of his own) his family) marriage) procreation) motherhood) childbearing and education among

other matters. 7one can publish anything concerning the above matters without his consent +

whether truthful or otherwise and whether laudatory or critical. If he does so) he would beviolating the right to privacy of the person concerned and would be liable in an action for

damages. Position may) however) be different) if a person voluntarily thrusts himself into

controversy or voluntarily invites or raises a controversy.

8 D>9E = '.C.C. =83


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Right to Privacy

D3E !he rule aforesaid is sub#ect to the e$ception) that any publication concerning the aforesaid

aspects becomes unob#ectionable if such publication is based upon public records including court

records. !his is for the reason that once a matter becomes a matter of public record) the right to

privacy no longer subsists and it becomes a legitimate sub#ect for comment by press and media

among others. 1e are) however) of the opinion that in the interests of decency D*rticle >D3EE an

e$ception must be carved out to this rule) vi".) a female who is the victim of a se$ual assault)

kidnap) abduction or a like offence should not further be sub#ected to the indignity of her name

and the incident being publici"ed in pressNmedia.

4n this reasoning) the court upheld that the newspaper’s right to publish 'hankar’s

autobiography) even without his consent or authori"ation) to the e$tent that this story was able to

be kept together from public records. (owever) if they went beyond that) the court held) “they

may be invading his right to privacy and will be liable for the conseuences in accordance with

law.” Importantly) the court held that “the remedy of the affected public officialsNpublic figures)

if any) is after the publication”

!he final case that makes up the Kprivacy uintet’ in India was the case of PU,- v.

Union of India1) a public interest litigation) in which the court was called upon to consider

whether wiretapping was an infringement of a citi"en’s right to privacy) violating the

constitutional safe guards. !he case was filed in light of a report brought out by the Central

6ureau of Investigation on the K!apping of politicians’ phones’ which disclosed several

irregularities in the tapping of telephones. !he Court made the following observations on the

aspect of the Kright to privacy’ in India@

“!he right privacy by itself has not been identified under the Constitution. *s a concept it may be

too broad and moralistic to define it #udicially. 1hether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.”

9Ibid

10 *IR >A 'C


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Right to Privacy

(owever) the Court went on to hold that “the right to hold a telephone conversation in the

privacy of one’s home or office without interference can certainly be claimed as right to

privacy”. !his was because “conversations on the telephone are often of an intimate and

confidential characterL!elephone conversation is an important facet of a manFs private life.

Right to privacy would certainly include telephone+conversation in the privacy of oneFs home or

office. !elephone+tapping would) thus) infract *rticle 3> of the Constitution of India unless it is

permitted under the procedure established by law.”

!he court also read the right to privacy as deriving from *rticle >. “1hen a person is

talking on telephone) he is e$ercising his right to freedom of speech and e$pression.”) the court

observed) and therefore “telephone+tapping unless it comes within the grounds of restrictions

under *rticle >D3E would infract *rticle >D>EDaE of the Constitution.”

!his case made two important contributions to communications privacy #urisprudence in

India Q the first was its re#ection of the contention that Kprior #udicial scrutiny’ should be

mandated before any wiretapping could take place. Instead) the court accepted the contention

that administrative safeguards would be sufficient. 'econdly) the Court prescribed a list of

procedural guidelines) the observance of which would save the wiretapping power from

unconstitutionality. In 3??A) these safeguards were formally incorporated into the Rules framed

under the !elegraph *ct>>.

!hus) to conclude this section) it may be observed that the right to privacy in India is) at its

foundations a limited right rather than an absolute one. !his limited nature of the right provides a

somewhat unstable assurance of privacy since it is freuently made to yield to a range of

conflicting interests Q rights of paternity) national security etc which happen to have a more

pronounced standing in law.

11 Rule 9>* of the !elegraph Rules stipulates the authorities from whom permission must be obtained

for tapping) the manner in which such permission is to be granted and the safeguards to be observed while

tapping communication. !he Rule stipulates that any order permitting tapping of communication would

lapse Dun less renewedE in two months. In no case would tapping be permissible beyond >B? days. !he

Rule further reuires all records of tapping to be destroyed after a period of two months from the lapse of

the period of interception.


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Right to Privacy

Proposed Amendment to the Constitution

In %arch 3??3) the 7ational Commission to Review the 1orking of the Constitution

submitted its report and recommended amending the Constitution to include a slew of new rights

including the Right to Privacy. !he new Right to Privacy would be numbered *rticle 3>+6 and

would read@

“3>+6. D>E /very person has a right to respect for his private and family life) his home and his

correspondence.

D3E 7othing in clause D>E shall prevent the 'tate from making any law imposing reasonable

restrictions on the e$ercise of the right conferred by clause D>E) in the interests of security of the

'tate) public safety or for the prevention of disorder or crime) or for the protection of health or

morals) or for the protection of the rights and freedoms of others.”>3

!here has) so far been no move to amend the constitution to give effect to this

recommendation

St#tutor) 'rotection o% 'ri(#c)

The Right to Privacy Bill 2011

5or long India ignored this important Civil ,iberty despite demands for the same. 5inally)

'upreme Court of India interpreted *rticle 3> of the Constitution of India as a “Constitutional

'ource” of Right to Privacy in India.

12 Chapter 8@ 5undamental Rights) irective Principles *nd 5undamental uties) in R/P4R! 45 !(/

7*!I47*, C4%%I''I47 !4 R/&I/1 !(/ 14R0I7: 45 !(/ C47'!I!2!I47 D%.7.

&enkatachaliah ed.) 3??3E) [email protected]>ch8.htm


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Right to Privacy

. (owever) e$ercise of a 5undamental Right is very difficult in India without a support of a

“statutory support” in this regard. !his is the reason why we need to enact a 'tatutory ,aw on

Right to Privacy in India.

Privacy Rights have become even more important in this Information /ra where Privacy

of citi"ens is in real danger. Indian :overnment has launched various Pro#ects like *adhar)

7*!:RI) CC!7') Central %onitoring 'ystem DC%'E) etc that are openly violating the Civil

,iberties) including Privacy Rights) of Indians. !his has forced the ,aw %inistry to consider

enacting a Privacy ,aw of India.

,aw %inistry has proposed a Right to Privacy 6ill of India 3?>>. !hough the 6ill begins

to establish a strong framework for the protection of the right to privacy in India) there are many

ways in which the 6ill can be improved and changed to bring about a more comprehensive right

that ensures that privacy does not generate over+ or under inclusive remedies.

!he bill creates a statutory Right to Privacy by means of a broad definition and then

creates specific of protections for it. Recogni"ing the Right to Privacy not to be absolute) the 6ill

identifies various privacy breaches that are permitted. In the 6ill) certain prohibited acts are also

identified for which civil remedies as well as criminal sanctions are created.

!he government interception and telephone tapping mechanism is changed moderately

from the e$isting system. !he modification is with respect to several procedural safeguards

which are put into place to avoid unauthori"ed and unnecessary tap orders.

* regulatory mechanism is created through the ata Protection *uthority of India. It will

e$ercise supervision over private parties which will engage in the collection and storage of

personal data.

5urther) in the system suggested) the 6ill identifies specific officersNposition holders in

various entities Dthat may be involved in various breach of the rightE who shall be held

responsible) in case of any wrong act or any default.


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Right to Privacy

isputes under the 6ill will be referred to the Cyber *ppellate !ribunal which has been

set up under the Information !echnology *ct. !hese disputes are primarily in the nature of claims

by individuals against private data controllers.>8

In the absence of -udicial 'crutiny and Privacy ,aws) Indian Citi"ens are left with no

choice but to use “!echnological 'elf efence %easures” to protect their Privacy Rights)

especially in Cyberspace. /ven this is not acceptable to Indian :overnment as it is harassing

service providers like 6lackberry) :mail) 'kype) etc that are using /ncrypted %easures to

protect Privacy Rights and to ensure 'ecurity. !his is #ust like committing a wrong and then

taking advantage of the same to one’s own benefits.

6ut it is to be noted that since long time bill has not been passed and the new

recommendations have not been introduced to the bill) there is a clear lag from the part of the

government in passing the bill and thus recogni"ing the right as it should be.

Digital Privacy: Inormation Technology Act 2000

!he Information !echnology *ct 3??? contains a number of provisions which can be

used to safeguard against onlineNcomputer related privacy. !he *ct provides for civil and

criminal liability with respect to hacking D'ecs 98 ==E and imprisonment of up to three years

with fine for electronic voyeurism D'ec. ==/E) Phishing and identity theft D==CN==E) 4ffensive

email D'ec. ==*E. isclosure by the government of information obtained in the course of

e$ercising its interception powers under the I! *ct is punishable with imprisonment of up to two

years and fineD'ec. A3E>9 'ection A3* of the I! *ct penali"es the unauthori"ed disclosure of

“personal information” by any person who has obtained such information while providing

services under a lawful contract. 'uch disclosure must be made with the intent of causing

wrongful loss or obtaining a wrongful gain and is punishable with imprisonment which may

e$tend to 8 years or a fine of Rs. >N?=Nanalysis+of+the+privacy+bill+3?>>

14 Prashant Iyengar) Privacy and the Information Technology Act in India) ''R7 /,I6R*R; D3?>>E)[email protected]>B?A


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Right to Privacy

!he act also contains provisions to restrict cyber privacy. 'ection = of the act gives the

central government or the state government the power to issue directions for the interception or

monitoring or decryption of any information through any computer resource. 'ection = *

provides the central government or authori"ed officer Power to issue directions for blocking for

public access of any information through any computer resource. !he grounds on which

directions under section = and = * can be issued are in the interest of the sovereignty or

integrity of India) the security of the 'tate) friendly relations with foreign 'tates or public order

or for preventing incitement to the commission of any cogni"able offence) or for the

investigation of any offence.

Intern#tion#l As*ects o% 'ri(#c)

!he International Covenant on Civil and Political Rights which e$plicitly affirms the

right to privacy in *rticle >A) which provides that no one shall be deprived or be sub#ect to

unlawful and arbitrary interference with his privacy) family and there shall be no unlawful attack

to his honour and reputation. *lso *rticle B of /uropean Convention on human rights provides

that everyone has the right of respect for his privacy) family) home and correspondence. 4ther

than these two no other conventions deal with privacy as such.

Right to Privacy in !"

!he ,egal 5rame work for Protection of Privacy In 2'* is a mi$ture of common ,aw)

5ederal and state statutory laws. In spite of omission of the word KPrivacy’ entirely by the

constitution) 2 ' courts through its decisions have acknowledged and enumerated “Right to

Privacy”>=. :radually the term

15 !im 1afa) Global Internet Privacy Rights @ A Pragmatic Approach : >8. Intell. Prop. ,. 62,,.

>8>)>88D3??E

16 Durga Das Basu, Law of the Press 5th edition! 2010" #e$is %e$is &utter'orths

(adh'a %ag)ur P* 83*


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Right to Privacy

privacy began to transcend the realm of property rights>A. In Gris/old v0 ,onneti"t 1+ 2'

supreme court struck down a legislation which prohibited the use of contraceptives. (ere the

term privacy was described as a Kconstitutional right’ of married couples to use contraception

without fear of government surveillance or punishments. In Roe v. 2ade1) 2' supreme court

upheld the right of an unmarried pregnant woman to an abortion since it is concerned with her

private life. 'ince :riswold in >=B incorporated into /nglish law the /uropean

Convention on (uman Rights. *rticle B.> of the /C(R provided an e$plicit right to respect for a

17 +The premise that property interests control the right of the government to

search and seizure has been discredited. We have recognized that the principal

obect of the fourth amendment is the protection of privacy rather than property,

and have increasingly discarded !ctional and procedural barriers rested on property

rights" (alden v* ,eyden 387 -. 294 304*

18 381 -. 479!1965"

19 410 -. 113!1973"

20 Durga Das Basu, Law of the Press 5th edition! 2010" #e$is %e$is &utter'orths (adh'a%ag)ur P* 83*


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Right to Privacy

private life for the first time within /nglish law. !he Convention also reuires the #udiciary to

Ghave regardG to the Convention in developing the common law3>.

!he e$pansion of the doctrine of breach of confidence under the (uman Rights *ct began with

the o"glas v &ello. 'ection = of the (uman Rights *ct reuires /nglish courts to give effect to

the rights in the Convention when developing the common law. !here is no need to show a pre+

e$isting relationship of confidence where private information is involved and the courts have

recogni"ed that the publication of private material represents a detriment in itself. 33 !he (uman

Rights act has parallel effect in disputes between private individuals which means that the

(uman Rights *ct is #ust as applicable as if one party had been a public body. 6reach of

confidence now e$tends to private information Dregardless of whether it is confidentialE so as togive effect to *rticle B of the /uropean Convention on (uman Rights. 6efore this breach of

confidence afforded Gumbrella protectionG to both personal and non+personal information38.

'ri(#c) in igit#l +orld, Sur(eill#nce #nd Interce*tion-

In the revolutionary article written by 'amuel 1arren and ,ouis . 6randeis) the

authors recogni"ed the need to preserve the core privacy principles especially in the midst of

emerging technologies. Information sent through global network may pass through numerous

computers amenable to its administrators who may capture and store online information. 5urther)

a person’s activities may be monitored by the service provider to which the person have

subscribed and by the websites visited by him39. In the view of rapid growth of privacy

21 htt)/'''*11s*co)df)rivacyaftera$osley*)df

22 htt)/'''*ucl*ac*ula'sgloalla')ulicationsinstitutedocs)rivacy100804*)df

23.u)ra note 22


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Right to Privacy

destroying technologies3rooin The Death of Privacy,52

stan*l*Rev*14611468!2000"

26 Richard oreignntelligence .urveillance


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Right to Privacy

interceptions3B. In >B=) congress updated laws that authori"ed wiretapping) eavesdropping) and

clandestine surveillance in the /lectronic Communications Privacy *ct D“/CP*”E. !he /CP*

e$tended wiretap protections to the interception of electronic forms of communication) including

cellular phones) e+mail) and computer transmissions. /nacted as title II to the /CP* ) the stored

Communications *ct makes it unlawful for a provider of an electronic communications service

to knowingly divulge the contents of a communication while in electronic storage. It also

prohibits a person or entity providing remote computing services from knowingly divulging the

contents of any communication which is carried on or maintained on that service 3. In >AB)

congress enacted 5oreign Intelligence 'urveillance *ct and authori"ed the government to

conduct electronic surveillance of foreign agents within the 2nited 'tates.In 3??>) in response to the 'eptember >> terrorist attacks) congress passed the 2'* P*!RI4!

*ct of 3??> which lies above the aspect of Privacy in many cases. It permits the government to

use pen registers to capture a vast amount of information) including telephone numbers)

comprehensive “dialing) routing) addressing or signaling information.”8? *nd potential internet

related information such as email and IP addresses. In addition the *ct permits the government

without court approval to share the contents of intercepted electronic communication among

federal law enforcement and intelligence personal 8>. In essence the act has enlarged or e$panded

the scope of surveillance statutes and e$panded the coverage of those statutes to include new

targets) lowered the government’s threshold to engage in surveillance and placed additional

responsibilities on communication providers83 .

28 >rederic = oyce


22/34


Right to Privacy

Indian Position

!he principle statutory base for surveillance and interception is the Indian !elegraph *ct

>BB of the constitution in

P2C, v. 2nion 4f India88) in which the hon’ble court held) telephone conversation is an

important facet of man’s private life. Right to privacy would certainly include telephone+conversation in theprivacy of oneFs home or office. !elephone+tapping would) thus) infract

*rticle 3> of the Constitution of India unless it is permitted under the procedure established by

law.89 1hen a person is talking on phone) he is e$ercising his right to freedom of speech and

32-.


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Right to Privacy

e$pression. !elephone+tapping unless it comes within the grounds of restrictions under *rticle

>D3E would infract *rticle >D>EDaE of the Constitution8==) which reuired that a person’s privacy should not

be sub#ect to arbitrary interference8=. 2nless a public emergency occurred or public safety

reuired the government cannot take action under section


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Right to Privacy

KRegistrar’ for the purposes of the 2I. !his means that one’s registration in the 7PR will entail

automatic enrollment in the 2I. !he Citi"enship DRegistration of Citi"ens and Issue of 7ational

Identity CardsE Rules) 3??8 makes it mandatory for everyone to be enrolled in the 7ational

Population Register. 'o) parado$ically) although the *adhar number does not confer citi"enship)

one cannot be a citi"en anymore without owning an *adhar number.

Privacy and !ID

*lthough the 2I*I makes repeated statements regarding its intent to respect privacy

and ensure data protection) the precise mechanism through which these ob#ectives will be

secured is e$tremely unclear.

!o begin with) the entire responsibility for developing schemes for safeguarding information

during the collection phase rests entirely on the Registrars. !he 2I*I’s own responsibility for

privacy begins only from the time the information is send to it by the Registrars by which time

the information may have already passed through many hands including the /nrolling *gency)

and the Intermediary who passes on information from the Registrar to the 2I*I.

Rather than setting out an clear redressal mechanism and a liability regime for privacyviolations) the 2I’s documents insecurely describes the responsibility of the Registrars as a

Kfiduciary duty’ towards the residentNciti"en’s information. !he Registrars are tasked with

maintaining records of the data collected for a minimum period of si$ months. 7o ma$imum

period is specified and Registrars are free to make what use of the data they see fit. In addition)

the Registrars are directed to keep copies of all documents collected from the Resident either in

physical or scanned copies “till the 2I*I finali"es its document storage agency.”8B

!he Kata Protection and 'ecurity :uidelines’ which the 2I*I reuires all Registrars to

observe merely contains pious in#unctions calling on them to observe care at all stages of data

collection and to develop appropriate internal policies. !here is mention of the desirability of

38 DEC-=?% .ER


25/34


Right to Privacy

e$ternal audits and periodic reporting mechanisms) but the details of these schemes are left to the

individual Registrar to draw up.

*lthough the raft 7ational Identification *uthority of India 6ill penali"es the intentional

disclosure or dissemination of identity information collected in the course of enrollment or

authentication) it does not provide protection against accidental leaks and it is not mandatory

that the service providers should positively employ heightened security procedures. Prosecution

of offences under the *ct can only proceed with the sanction of the 2I *uthority) which further

burdens the task of criminal enforcement in these cases and would make it difficult for

individuals to obtain redress uickly. !he total absence of a provision for civil remedies against

Registrars makes it unlikely that they will take the task of protecting privacy seriously.

7ow regarding ata sharing although the authorities claim that 2I will not disclose any

information and will only provide authenticate information with ob#ective answers) but it is not

true as it reveals from the documents of 2I itself that

!he draft 7I* 6ill) permits the *uthority to issue regulations on the sharing of “the

information of *adhar number holders) with their written consent) with such agencies engaged in

delivery of public benefits and public services as the *uthority may by order direct”. In practice)

prior “written consent” for sharing is obtained from the resident as a matter of course at the time

of enrollment itself) and it is impossible to obtain an *adhar number without consenting to

sharing by the 2I *uthority. In practice) in India) a large number of forms will be filled in by

assistants and the written consent bo$ will be ticked as a matter of course without the resident

understanding the full implications of her “consent”.

!he draft 7I* 6ill permits the authority to “make any disclosure of information

Dincluding identity informationE made in the interests of national security in pursuance of a

direction to that effect issued by an officer not below the rank of -oint 'ecretary or euivalent in

the Central :overnment after obtaining approval of the %inister in charge”.


26/34


Right to Privacy

!here is nothing in the *ct that reuires that this information be made available on an

individual basis Q in other words) it is possible for the data to be shared en+masse with any

agency “in the interests of national security”.

!here is nothing preventing “Registrars” who carry out the actual data collection

functions from sharing this information with anyone they choose. !hus) for instance) the *adhar

information collected during the e$ercise of compiling the 7ational Population Register will can

be shared in whichever manner the Registrar :eneral of India chooses Q irrespective of what the

2I*I does with that information.

'o there are mechanisms already in place to presume that all this information will be

made available) on demand) to whichever agency that happens to be interested and so can up to a

large e$tend violate the privacy to a large e$tend.

!he 7ational (uman Rights Commission) has issued an opinion cautioning against the

potential harms of the *adhar scheme. !he Commission noted the possible discriminatory effects

of the scheme and the fact that no provision had been made in the 6ill for compensation to the

victim in case of breach. It was reported in a news paper that “!he 7(RC noted that the

Gbiometric informationG and Gdemographic informationG have not been clearly defined.

'ri(#c) in Medic#l 'ro%ession

5or improving the standards of medical practice and profession the medical council of

India in 3??3) notified the Indian %edical Council DProfessional conduct) /tiuette and /thicsE

Regulations which contain ethical restrictions backed by disciplinary action in cases of breaches.

'everal of the articles in these regulations relate to privacy) for instance


27/34


Right to Privacy

/very physician is reuired to maintain medical records pertaining to indoor patients for a period

of 8 years from the date of commencement of the treatment. 2pon reuest by the patients or

authori"ed agents or legal authorities involved these documents should be issued within a period

of A3 hours.

Physicians should also maintain Confidences concerning individual or domestic life entrusted by

patients to a physician. efects in the disposition or character of patients observed during

medical attendance should never be revealed unless their revelation is reuired by the laws of the

'tate. !he rules also reuires the physician) controversially to evaluate “whether his duty to

society reuires him to employ knowledge) obtained through confidence as a physician) to

protect a healthy person against a communicable disease to which he is about to be e$posed”. In

such an instance) the rules advice the physician to “act as he would wish another to act toward

one of his own family in like circumstances.8”

!he registered medical practitioner should disclose the secrets of a patient that have been learnt

in the e$ercise of his N her profession e$cept Q

>. in a court of law under orders of the Presiding -udge

3. in circumstances where there is a serious and identified risk to a specific person and N or community and

8. notifiable diseases.9?

* medical practitioner is also prohibited from publishing photographs or case reports of

patients without their permission) in any medical or other #ournal in a manner by which their

identity could be made out. If the identity is not to be disclosed) however) the consent is not

needed9>.

39 *rticle 3.3 of the Indian %edical Council DProfessional conduct) /tiuette and /thicsE Regulations

3??3

40d


28/34


Right to Privacy

In Mr. 5 vs &os(ital U) one of the most important cases to have come up on the issue of

privacy) a person sued a hospital for having disclosed his (I& status to his fiancV without his

knowledge resulting in their wedding being called off. In) the 'upreme Court held that the

hospital was not guilty of a violation of privacy since the disclosure was made to protect the

public interest. !he 'upreme Court while affirming the duty of confidentiality owed to patients)

ruled that the right to privacy was not absolute and was “sub#ect to such action as may be

lawfully taken for the prevention of crime or disorder or protection of health or morals or

protection of rights and freedom of others.”

NA #nd ot&er %orensic tec&nologies #nd 'ri(#c)

It is evident that the utility of the mass of the forensic technologies and information such

as fingerprints) handwriting samples and photographs) 7* data in solving crimes is immense.

1ithout having said a word) it is possible for a person to be convicted based on these various

bodily affects)the human body constantly bears witness and self+incriminates itself. 6oth

handwriting and finger impressions beg the uestion of whether these would offend the

protection against self+incrimination contained in *rticle 3?D8E of our Constitution which

provides that “7o person accused of any offence shall be compelled to be a witness against

himself.” !his argument was considered by the 'upreme Court in State Of 6o)$a vs Kathi

Kal" Oghad 7nd Others48 !he petitioner contended that the obtaining of evidence through

legislations such as the Identification of Prisoners *ct amounted to compelling the person

accused of an offence Gto be a witness against himselfG in contravention of *rt. 3?D8E of the

Constitution. !he court held that “there was no infringement of *rt. 3?D8E of the Constitution in

compelling an accused person to give his specimen handwriting or signature) or impressions of

his thumb) fingers) palm or foot to the investigating officer or under orders of a court for the

purposes of comparison. ..Compulsion was not inherent in the receipt of information from an

42


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Right to Privacy

accused person in the custody of a police officer it will be a uestion of fact in each case to be

determined by the court on the evidence before it whether compulsion had been used in

obtaining the information”.

7ow regarding the validity of 7* the 4rissa (igh court after considering the concerns

about privacy ,aid own following principles in the case of Thogorani 7lias K. a)aanti vs

State of Orissa 7nd Ors43) the necessary cases where or reasons for which 7* tests can be

applied@

• !he e$tent to which the accused may have participated in the commission of the crime.

•!he gravity of the offence and the circumstances in which it is committed.

• *ge) physical and mental health of the accused to the e$tent they are known.

• 1hether there is less intrusive and practical way of collecting evidence tending to

confirm or disprove the involvement of the accused in the crime.

• !he reasons) if any) for the accused for refusing consent .

*lthough there are several such Ktechnologies’ which operate on principles ranging from

changes in respiration) to mapping the electrical activity in different areas of the brain) what is

common to them all) in ,awrence ,iang’s words is that they “maintain that there is a connection

between body and mind that physiological changes are indicative of mental states and emotions

and that information about an individual’s sub#ectivity and identity can be derived from these

physiological and physiological measures of deception”.99

In a case of Ra)handra Ra) Redd v. State of Maharashtra49 the 6ombay (igh Court

upheld these technologies by applying the logic of the 0athi 0alu 4ghad case discussed above.

!he court drew a distinction between Kstatements’ and Ktestimonies’ and held that what was

43 3??9 Cri , - 9??8 D4riE [email protected]=?8ABNX

44 Keynote address given to the 93rd ndian .cience Congress* .eehtt)/indLustice*orgindia2@06*ht cited in #iang #* 2007* rontiers* Delhi/ C.D. Delhi ))* 100@110* D33?


30/34


Right to Privacy

prohibited under *rticle 3?D8E were only Kstatements’ that were made under compulsion by an

accused. In the court’s opinion) “the tests of 6rain %apping and ,ie etector in which the map

of the brain is the result) or polygraph) then either cannot be said to be a statement.” *t the most)

the Court held) “it can be called the information received or taken out from the witness”.

!his position was overruled by the supreme court in the land mark decision of Selvi v.

State of Karnataka4! . In contrast with the 6ombay (igh Court) the 'upreme Court e$pressly

invoked the right of privacy to hold these technologies unconstitutional.

!he court held “/ven though these are non+ invasive techniues the concern is not so

much with the manner in which they are conducted but the conseuences for the individuals who

undergo the same. !he use of techniues such as O6rain 5ingerprintingF and O5%RIbased ,ie+

etectionF raise numerous concerns such as those of protecting mental privacy and the harms that

may arise from inferences made about the sub#ectFs truthfulness or familiarity with the facts of a

crime.”

5urther down) the court held that such techniues invaded the accuser’s mental privacy

which was an integral aspect of their personal liberty.

Conclusion

'o to conclude although Right to privacy is considered as an important right in India and

other countries) it is to be noted that priority is given for other rights such as 7ational 'ecurity

and other reasons in record. Right to Privacy of individuals including citi"ens is often violated on

these grounds which are unnecessary in many cases. !ake the situation of India) all though Indian

Courts especially the 'upreme Court has recogni"ed the Right to Privacy as a 5undamental Right

under *rticle 3> of the constitution though a number of cases) still the Right to Privacy Remains

as an 2ncertain right. !he Provisions of Information !echnology *ct and !elegraph *ct and

46 !2010" 7 .CC 263 htt)/indiananoon*orgdoc338008


31/34


Right to Privacy

pending of the Right to Privacy 6ill 3?>> in Parliament are e$amples to prove that when certain

other factors such as 7ational 'ecurity) Census Population Register etc comes in to picture Right

to Privacy is given ,ess Importance. !he 7ational Population Register and 2niue Identification

7umber D**(*RE schemes although claims to be protecting privacy but it is not so the

documents of 7PR and **(*R proves that it is not so. 'ame is the case with 2'* and 20.

!he Patriot *ct of 2'* gives the *uthorities ultimate power to intercept one’s communication or

indulge in to privacy without providing any specific reason. *ll though state that it is for

7ational 'ecurity) there is a greater chance of authorities misusing the act and its provisions.

'o a uestion is always put up “*lthough Right to Privacy is a universally accepted right) is it

given proper recognition as it reuires to be givenJ”

BIBLIO!RA'H"

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32/34


Right to Privacy

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33/34


Right to Privacy

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W%'=% N%/9- 2!1!

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Right to Privacy

=. [email protected]>88?.stm) C? 9-#5%6 6%& % =%,-&'.

A. [email protected]) 'ri(#c) l#w rem#ins con%used-

B. [email protected]) Case ,aw ata 6ase.

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Documents

consti-2 privacy