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RAJIV GANDHI NATIONAL UNIVERSITY OF LAW
PUNJAB
TOPIC: RIGHT TO PRIVACY: A CRITICAL REFLECTION
Submitted by- Submitted to –
Hifza Haq Dr. Ivneet Walia
17013 Assistant Professor of Law
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Privacy in India: Evolution, Restrictions, and Data Protection Bill, Study Guides, Projects, Research of Law
The evolution of the right to privacy in India through customs, legislations, and Supreme Court judgments. It also analyzes the Personal Data Protection Bill, 2019, discussing its salient features and grounds for reasonable restrictions on the right to privacy. The document highlights the importance of data privacy and security in the digital age and the role of various laws in addressing these concerns.
What you will learn
- What are the constitutional pre-requisites for applying restrictions on the right to privacy in India?
- What are the salient features of the Personal Data Protection Bill, 2019?
- How has the Supreme Court of India influenced the right to privacy in India?
- What is the role of data privacy and security in the digital age?
- What are the grounds for reasonable restrictions on the right to privacy in India?
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2022/2023
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RAJIV GANDHI NATIONAL UNIVERSITY OF LAW
PUNJAB
TOPIC: RIGHT TO PRIVACY: A CRITICAL REFLECTION
Submitted by- Submitted to –
Hifza Haq Dr. Ivneet Walia
17013 Assistant Professor of Law
Acknowledgement
"On completion of this project, it is my present privilege to acknowledge my profound gratitude and indebtedness towards our teachers for their valuable suggestion and constructive criticism. Their precious guidance and unrelenting support kept us on the right track throughout the project."
"We gratefully acknowledge our deepest sense of gratitude to our revered and intellectual guide Prof. (Dr) G.S. Bajpai , our worthy Vice Chancellor. I wish to express my sincere thanks to Dr. Naresh Kumar Vats, worthy Registrar of my University for providing me with all the necessary facilities." "In addition, I'd want to take this opportunity to thank my mentor, Dr. Shruti Goyal, for her inspiration and guidance during this project."
"It would not have been possible to finish this project without the help and supervision of the library staff. In addition, I'd want to thank my loved ones and friends for their support and encouragement throughout this effort."
"Thanks to the Almighty's blessing, we were able to complete this job effectively and with flying colours."
RAJIV GANDHI NATIONAL UNIVERSITY OF LAW
PATIALA, PUNJAB
CANDIDATES CERTIFICATE
"I, the undersigned, hereby solemnly declare that the project work entitled “ Right To Privacy: A Critical Reflection ” submitted to Rajiv Gandhi National University of Law, Punjab, in partial fulfilment of the requirements of B.A. LLB (Hons.) (Criminal Law), IX Semester is an original and bonafide research work of mine. All the information declared hereby is true to best of my knowledge."
Hifza Haq
B.A. LLB (Hons.) (Criminal Law)
TABLE OF CONTENTS:
1. INTRODUCTION
1.1 Meaning of Privacy 1.2 Definitions of Right to Privacy 1.3 Classification of Privacy
2. EVOLUTION OF RIGHT TO PRIVACY IN INDIA
2.1 Evolution of the Right to Privacy in India through Customs and Legislations 2.2 Evolution of the Right to Privacy by the Supreme Court of India
3. RIGHT TO PRIVACY AND DATA PROTECTION IN INDIA
3.1 Meaning of the term Data Privacy and Data Protection 3.2 Current Data Protection Laws in the Country 3.3 Reports and Bills Drafted for Protection of Data Privacy 3.4 Analysis of the Personal Data Protection Bill, 2019 3.5 Salient Features of the Bill 3.6 Certain Point to be Reconsidered in the Bill, 2019
4. RESTRICTIONS ON RIGHT TO PRIVACY
4.1 Constitutional Pre-requisites for Applying Restrictions on the Right to Privacy 4.1.1 Legality, which Postulates the Existence of Law 4.1.2 Law not to be Arbitrary 4.1.3 Test of Proportionality 4.2 Certain Grounds for Reasonable Restrictions on the Right to Privacy 4.2.1 Public Interest 4.2.2 National Security Interest 4.2.3 Search and Seizure
ABSTRACT
Privacy has never been an essential topic for discussion in the Indian legal jurisprudence. But the recent happening in the country, the introduction of the Aadhaar Scheme, the ArogyaSetu App, the Pegasus controversy, rendered the consideration of the right to privacy as a fundamental right. Right to Privacy is an essential component of many rights, and number of times conflict with other necessary rights. It is a broad term and cannot be confined to one aspect of life. Despite no specific definition, international charters and conventions have recognized the right to privacy. Everyone has acknowledged the fundamental need for privacy, and State action has been demanded the protection of privacy rights.
Though there is no explicit recognition of the right to privacy in the Indian Constitution, it got a place under the Constitution. For five decades, the right to privacy has been acting as a constitutional safeguard against the arbitrary state action. It serves as the legitimate constitutional limit on the governmental powers and pre-supposes that the judiciary is the correct body to determine privacy rights limits. The most significant decision in respect of privacy right, which has settled the debate of privacy as a fundamental right, is recently decided privacy judgment. As the right to privacy is not an absolute right, restrictions can be imposed on it. The limits on the right can be imposed only by following just, fair and reasonable procedure.
The most important aspect of the right to privacy, which is most discussed today, is digital privacy. Data privacy issues need serious consideration by the legislature. The draft Data Privacy Bill, 2019, requires a reconsideration to give minimal protection for personal data. The bill creates the monopoly of State actors, dilutes property rights in data, and private companies worldwide have a significant compliance burden.
New privacy threats will always rise, as modern technologies and infrastructures will ever grow. The countries are facing new challenges against the protection of privacy rights. The CA and Facebook scandal raised serious concern over the privacy of individuals. The Aadhaar scheme in India also raised serious concerns about data privacy in the country. The outbreak of COVID-19 and steps taken by the governments across the world again raised serious concern with regard to privacy protection. The AarogyaSetu app has been launched, which takes demographic information and tracks the location of a person infected. The app lacks privacy and in absence of effective data protection legislation number of questions
remains unanswered. Further recent controversies which involved the Pegasus spyware has also raised concern of privacy.
To be precise, it can be stated that privacy performs different functions in any society. The privacy right protects personal autonomy and a person's right to live with human dignity. In the current technological world, privacy is not an isolated event. Instead the existence of it has been recognized by many countries around the globe. It is right to enjoy one‟s life without interference, but that does not mean it is to allow a person to do destructive work. India has moved in a very progressive manner with regard to privacy protection. But there are number of issues that need consideration in light of the right to privacy.
1.2 DEFINITIONS OF RIGHT TO PRIVACY
The idea of privacy is difficult to define precisely. 'Privacy,' in public law, has always meant independence from official intervention. With the advancement of science and technology, as well as other pressures, the term "privacy" has taken on a new meaning. In general, privacy refers to the right to be left alone. In 1888, Justice Thomas Cooley coined the phrase. He believes that the right to privacy entails the right to be left alone. Warren and Brandeis adopted Thomas M. Cooley's definition of privacy as the right to be left alone. This term highlights a person's right to be left alone, as well as his or her disengagement from society. It has a pejorative connotation. William L. Prosser, reviewed a number of cases, and said "right to privacy is a compound of four different torts." These are as follows^2 : i. "Intrusion upon the plaintiffs seclusion or solitude or into his private affairs", ii. "Public disclosure of embarrassing private facts about the plaintiff", iii. "Publicity which places the plaintiff in a false light in the public eyes" and iv. "Appropriation for defendant's advantage, of the plaintiffs name or Hkeness". 1.3 CLASSIFICATION OF PRIVACY (i) Intimate Privacy According to the western view "intimacy is the sharing of information about one's action, beliefs, or emotions, which one does not share with all, and which one as the right not to share with anyone"^3 On account of a different culture, the Indian society in which we live the concept of intimate privacy somewhat differs from the Western one. It is observed that most intimate form of privacy exists amongst married couples, but since marriage constitute a family, the intimate privacy can also be classified under the head 'family privacy'. Hence the intimate privacy relates to the inner and outer mechanisms in the minds of the individuals, their beliefs and actions which they desire to treat as private. It does not however mean that these intimate aspects are never disclosed at all.
(^2) William L Prosser, Privacy, 48 California Law Review 389 ( (^3) William Cohen and John Kaplan, Constitutional Law - Civil Liberty and Individual Rights, 516(1982)
(ii) Family Privacy
Family privacy can refer to anything from the privacy of a married couple to the privacy of a joint family living together to the privacy of all the family's blood relatives, even if they don't live together. A family secret is frequently observed being fervently guarded by members of the family, even if they live in separate locations. Males and females were separated, and unwritten social conventions were naturally developed and provided privacy.
(iii) Social Privacy (A) Political/Legal Privacy
Certain personal freedoms are safeguarded against government incursions under this privacy. The government's incursions are restricted by law, and the law provides or takes away rights to particular liberties, which will have a significant impact on privacy. Procedures for search and seizure; news publications; eavesdropping/wire tapping, and so on are examples of rules.
(B) Professional Privacy
One of the areas in which privacy of an individual can get affected is that of the professional and through the professions. When a professional acquires knowledge of private activities of an individual, it cannot be safeguarded unless professional privacy is made possible. A professional may also have his own privacy of vocation to safeguard. Hence, in the case of professionals safeguard to privacy may become essential on two scores - Firstly is own professional privacy, and secondly, the professional privacies of his clients. Generally in India, lawyers, doctors, chartered accountants, consultants, document copiers, magicians, astrologers etc. are the professionals.
(C) Community Privacy
Because a society is made up of a collection of communities, and social regulations generally govern significant parts, the concept of community privacy has a very restricted scope. However, there are some aspects of community privacy that may necessitate legal involvement to protect. A slaughterhouse for beef in the centre of a Hindu Brahmin community's commercial and residential neighbourhood would be unwelcome. A prohibition on cow slaughter would also be unpopular among Christians and Muslims.
EVOLUTION OF RIGHT TO PRIVACY IN INDIA
2.1 EVOLUTION OF THE RIGHT TO PRIVACY IN INDIA THROUGH CUSTOMS AND
LEGISLATIONS
The regulations that guaranteed privacy in primitive cultures were always observed, such as the admittance of strangers, the norm to be followed while accessing other premises, conversing and viewing the strange lady, and so on. Various Hindu ancient writings have signs of the existence of privacy. Initially, there was no formal regulation to safeguard privacy; nonetheless, it was preserved in certain ways by traditions. In India, distinct groups' customs played an important role in preserving privacy. These were the only customs that were subsequently formalised under colonial control.
The right to privacy was immensely popular in ancient India, but its importance waned during the Middle Ages. The mediaeval period did not make much of an impact in this sense, however it cannot be said that the right to privacy did not exist. The practise of practising purdah provides privacy at this time. The modern age saw the evolution of this privilege, and the nature of it altered as well. Western intellectuals were familiar with the concept of privacy, therefore they introduced it to India. The British government enacted special laws to preserve the right to privacy, or to put it another way, they recognised some norms in the form of a statute. However, they haven't discussed privacy protection in terms of fundamental rights or established monitoring practises. Only in some domains, such as property, religion, and communication, was the right to privacy recognised.
In the post-independence period, the right to privacy underwent substantial changes. It would be incorrect to claim that the Constituent Assembly explicitly declined to include the right to privacy in the Constitution. The area of privacy, which was specifically protected by the Cr.PC, was rejected, and India was not prepared for the same level of protection in the case of search and seizure as the United States. Recognizing privacy as a constitutional right was considered as impeding the criminal justice system's procedure. The assembly placed no restrictions on the future Parliament's ability to preserve the right to privacy if the necessity arose.
It is in modern India that the desire to defend this privilege has arisen. People have felt the need to safeguard their privacy in various aspects of their lives. The Indian Parliament
has approved a number of laws to safeguard the right to privacy under several headings. The notion of privacy has evolved with time, and today's culture wants more privacy than ever before. Laws have been written with the value of both physical and psychological privacy in mind. The concept of privacy, as it exists now, was not only formed in Indian civilization, but it has also been stolen by Western society in certain ways. The nature of invasions of privacy has altered in modern society. People are now intruding on a person's privacy using modern technology rather than directly. People have been subjected to surveillance, which has resulted in a breach of their privacy. We started moving away from a family privacy society and toward personal privacy.
2.2 EVOLUTION OF THE RIGHT TO PRIVACY BY THE SUPREME COURT OF INDIA
The Supreme Court encountered the problem of privacy protection in regard to the power of search and seizure not long after the Constituent Assembly's discussions. In the M.P. Sharma case, the court first used an extremely restrictive interpretation of basic rights. For starters, it was owing to two factors: first, judges were schooled in the common law system, and second, they interpreted the Constitution as if it were a regular legislation. During this time, A.K. Gopalan's viewpoint was dominant. From the Govind case, the conventional orthodoxy of rigid interpretation of the law regarding the right to privacy shifted. The minority opinion of Subba Rao J. cleared the path for the recognition of privacy as a fundamental right.
There was no turning back after accepting Subha Rao J.'s minority opinion in the Govind case. The right to privacy did not stop at search and seizure; it gradually expanded to other areas as well. It is crucial to highlight that such a shift in the judiciary's stance did not happen overnight; rather, the social and political environment had a significant impact. The court's conventional and formalist approach was abandoned in the R.C. Cooper case and its descendant, the Maneka Gandhi case, and the interlinking of basic rights was recognised. The court interpreted rights as overlapping rather than as separate entities. Art. 21 of the Constitution was amended to include the United States' idea of due process, giving it a broad application. Following these progressive rulings, Indian courts began to prioritise citizens and hold the government responsible to them.
The ruling altered the previous approach and ushered in a new age in which courts might consider many aspects of basic rights. The court did not meet many difficulties connected to privacy violations in the first two phases, i.e., 1950-1960, 1961-1970; matters that
Navtej Singh Johar, Sabrimala, and Hadiya are the result of India's transformational understanding of privacy rights. More explicitly following observations are made:
- The right to privacy is derived principally from Article 21 of the Constitution and is a stand-alone right. Elements of it may also be found in the Constitution's Articles 19, 20, 23, and 25.
- In each case, the court held that the right to privacy is not absolute. Also, appropriate limitations can be established.
- While there is some definitional confusion around the right to privacy, this does not preclude it from being recognised as a basic right.
- The right to privacy mainly consists of three facets: repose, sanctuary, and intimate decision.
- The right to privacy encompasses both the negative and good aspects of the right. Negative right refers to the ability to make decisions about one's own life without interference from others; positive right refers to the ability of individuals to make decisions about their own lives.
- The court, rather than the legislative, has been responsible for the majority of privacy jurisprudence growth. The Indian courts have attempted to create this right in accordance with the privacy protections of the United States of America.
- The basic right to privacy can be used against the government, and the government can only enter a person's private life if there is a reasonable suspicion of wrongdoing.
- A case-by-case analysis of the right to privacy is required.
- It is not an elitist concept; rather, everyone, regardless of their standing, has this privilege. The right to privacy covers a wide range of aspects of an individual's life, not merely searches and seizures.
- It is fundamentally concerned with the protection of personal autonomy.
- Even in public places, people have valid expectations of privacy, albeit these expectations differ from place to place and person to person.
- Informational privacy is an important aspect of the right to privacy in the era of technology.
RIGHT TO PRIVACY AND DATA PROTECTION IN INDIA
3.1 MEANING OF THE TERM DATA PRIVACY AND DATA PROTECTION
3.1.1. Personal Data
It refers to any information which relates to an identified or identifiable living individual. Or any information, if combined with others, can lead to the identification of a particular person. Example: person name, surname, address, email, identification card number, financial information, medical history, etc. Personal data can be collected by any person, organization, government, or any agency
3.1.2 Non- personal Data
It refers to the information from which an individual cannot be identified. It carries economic value, but from this, there is no breach of personal information. A corporate registration number, an email address for the firm, anonymised data, and so on are examples of data that are not considered personal data.
3.1.3 Data Privacy and Data protection
Data privacy refers to a person's right to control his or her personal information. It is one's right to control how personal data is gathered, shared, and utilised. It is a part of the right to privacy, and it must be safeguarded given the sophisticated nature of technology advancement. Data privacy is concerned not only with the correct treatment of data, but also with the individual's expectation of privacy. Personal data is a valuable asset in today's technological era that must be protected against arbitrary acts. In simple words, data privacy refers to who has permission to view the information. The main focus of data privacy is on the use and governance of personal data.
The term "data protection" refers to the safeguarding of personal information. It investigates if data is handled properly and legally. Policies and procedures in data protection aim to limit intrusion into an individual's privacy through the gathering and use of personal data. It may be described as the legal control over data access and usage. The process of securing an individual's personal information against misuse is known as data protection. It is concerned with the interaction of technology with data collecting and
A contract may readily override some of the rules, and the statute only applies to businesses, not governments. Sections of the act are only applicable to people who have been granted authority under the act. It also fails to notice the unintentional invasion of one's privacy.
As amended in 2008, the Information Technology Act of 2000 does not adequately address the concerns of data protection, privacy, and security in electronic transactions. The IT Rules of 2011 were enacted to address the issue, however they are insufficient as well. The rules layout provisions for security practices and procedures that need to be followed while possessing, dealing, or handling any SPD by the body corporate or any person on their behalf. These new rules regulate the collection, disclosure, transfer, and storage of sensitive personal data. The privacy rule made a distinction between the term “personal information” and “SPI.”
Other acts dealing with data protection in India:
Indian Penal Code, 1860 : The act does not explicitly mention about data protection but s. 403 imposes criminal liability for dishonest misappropriation or conversion of movable property for one‟s use. Ss. 405 and 409 talks about the criminal breach of trust, and s. 378 deals with the theft of movable property. But these provisions are not satisfactory for the protection of the individual right of data protection. Indian Copyright Act, 1957 : The act gives protection to literary, dramatic, musical, artistic, and cinematographic works. Under cinematographic work, computer database is included. S. 63B deals with infringing copy of the computer program. But the difficulty lies in differentiating between data protection and database protection under the act. Thus, again the scope is limited to the protection of creativity of an individual. Credit Information Companies Regulation Act, 2005 : Norms dealing with privacy are to be followed while collecting the credit information pertaining to the individual in India.
Several other acts and regulations, such as the Insolvency and Bankruptcy Code, 2016, Payment and Settlement System Act, 2007, and SEBI Regulations, provide data privacy
in financial matters. Same way in the health sector, NASSCOM and BPOs are having provisions for privacy protection. 3.3 REPORTS AND BILLS DRAFTED FOR PROTECTION OF DATA PRIVACY The Personal Data Protection Bill 2006^5 : It can be stated that this bill was the first serious attempt towards the protection of data privacy. The bill was introduced in the Rajya Sabha on December 8, 2006 by M.P. Vijay J. Darda but was not passed and lapsed. The bill's purpose was to provide for the protection of personal data and an individual's information. The bill comprised of 14 sections and was limited to the use and disclosure of personal information. The main concern in the bill was over the misuse of personal data by marketing companies. It imposed an obligation on both government and private organizations not to disclose information for the purpose of direct marketing or any commercial gain. Approach Paper for Legislation on Privacy, 2010^6 : Department of personnel training, GOI, issued the approach paper for legislation on privacy for seeking opinions and public views on October 18, 2010. The paper discussed the need for such legislation despite having norms by companies to look into breach of privacy. The concern regarding the co- existence of data legislation with other statues was also dealt in the paper. The distinction between the personal sensitive data and personal data right needs to be applied and all the bodies collecting data to be brought under the legislation. The paper recommended the law for India after looking into privacy laws in 13 different jurisdictions. Paper highlighted the need for privacy law as the trend towards centralization of government database has started, and more number of private entities are involved in collecting data. Right to Privacy Bill 2011^7 : The bill again was drafted to provide the right to privacy to Indian citizens. It aimed to regulate the collection, maintenance, use, and dissemination of an individual's personal information and provide penal action for violation. The bill talked about protecting privacy in case of surveillance, health information, DNA, and other samples and data protection under separate chapters. Establishment of Data Protection Authority, their qualification, the term of office, powers, removal, functions were also
(^5) The Personal Data Protection Bill, 2006, India, available at: http://164.100.24.219/billstexts/rsbilltexts/asintroduced/xci_2006.pdf (last visited on October 21, 2021). 6 Approach Paper for a Legislation on Privacy, 2010, available at: http://documents.doptcirculars.nic.in/D2/D02rti/aproach_paper.pdf (last visited on October 21, 2021) 7 Right to Privacy Bill, 2011, available at: https://cis-india.org/internet-governance/draft-bill-on-right-to- privacy, last accessed on October 21, 2021.