AUTHOR: Parul Gupta, 1st Year, ICFAI University, Jaipur

Introduction 

Privacy may enable people to be free to think and act as they pleasant without uncooperative or unjust or control by others. This freedom may prevent a society from becoming authoritarian i.e. subject to complete control by a ruling party. ‘The Right to Privacy’, means the right to be isolated. Privacy has several features such as political privacy, medical privacy, genetic privacy, internet privacy, bodily privacy and privacy of communication.

Definition of privacy is borrowed from

  1. Article 12 of the Universal Declaration of Human Rights 1948 (UDHR)[1]
  2. Article 17 of the International Covenant of Civil and Political Rights(ICCPR)[2]

“The above legally protect persons against illogical interference with one’s privacy, family, home, contacts, privilege and status”. India put and approved the ICCPR on April10, 1979 without reservation.

  1. Article 7 and 8 of the Charter of Fundamental Rights of the European Union 2012[3].

“Protection of personal data and its assembling for an especial legal purpose”

  1. Article 21 of the constitution of the India 1950

 

 Features of privacy in the Indian context

  1. Privacy that involves the persone. when there is some takeover by the state of a person’s rights relatable to his physical body, such as the right to move freely.
  2. Descriptive privacy, which does not deal with a person’s body, but deals with a person’s brain, and therefore identify that an individual may have control over the communication of material that is personal to him.
  3. The privacy of option, which protects an individual’s freedom over fundamental personal choices.

The broad inference is that the government cannot frame any policy on law that completely takes away the citizen’s right to privacy. It can only place reasonable restrictions on limited grounds such as national sovereignty and safety, common, sequence, respect, etc, as specified in article 19(2) of the constitution.

Right to Privacy in India

Refers to esteeming and certify the privacy of the individual. Right to privacy not clearly mentioned in the constitution. Right to privacy is an inseparable part of right to life and personal liberty under article 21 and entire part 3 of Indian constitution.[4]

Challenges- govt schemes, cyber security, technology, private sphere and cashless economy

Pros

  1. It ensures dignity of individual as mentioned in our preamble.
  2. To avoid unwanted interference in an individual’s personal life.
  3. Critical for sustenance of right to liberty and freedom.
  4. To impose restrictions on government when it tries to encroach our privacy.
  5. Impetus to right to life and personal liberty under article 21
  6. With privacy one can form a sense of individuality, forming his own ideas and values and beliefs.

Cons

  1. Can hinder the implementation and performance of welfare schemes like Aadhar, Direct bank transfer
  2. Also restrict police and intelligence agencies to collect private information about accused etc
  3. .Indian institutions like joint families, marriage celebrations community life do not encourage privacy.

Way Ahead- A balance between Right to Privacy and into protection and promotion of National Interest. Environment must be created where information is seeked in such a manner to make business a safer place even if it isn’t government run.

 Judgments

Case1       M.P Sharma vs. Satish Chandra[5] AIR 1954

  • 8 judge bench
  • Right to privacy
  • Not a Fundamental Right

 Case 2         Kharak Singh vs. State of U.P[6]

  • 6 judge bench
  • Right to privacy
  • Not a Fundamental Right

 Case 3        ADM Jabalpur vs. Shivkant Shukla[7]

  • Black judgment
  • Supreme court declined to execute the Fundamental Rights
  • Gave authority to the state
  • Right to liberty was abolished –emergency era
  • Preventive detention

 Case 4         Suresh Kumar vs. Naz Foundation[8]

  • Re –criminalized section 377
  • Indian Penal Code
  • Regressive

 Case 5           KS Puttaswamy and Anr vs. Union of India [9]

This case overruled MP Sharma case and Kharak Singh case The nine judges bench have held that privacy is a constitutionally protected right that come out    from the right to life and liberty guaranteed by article 21 of the constitution, which is inseparable from the right to live with respect.

  In this case it has decided that privacy is a natural right and restricted only by state action when

  1. it is backed by a law
  2. legitimate purpose
  • Proportionate i.e. state should have tried all the other alternative means and only finally restrictions can be made on the Fundamental right of right to privacy.

The Supreme Court also opined that sexuality or sexual orientation is also protected under privacy. This had an impact on the later SC judgment that decriminalized homosexuality.

The judgment also recognized right to food as a right under the larger ambit of privacy. This will have an impact on the discussion nearby the consumption of beef, alcohol etc. this case also addressed the rising concern against ‘Big Data’ and stressed on the need for a data protection law.           

            

 Privacy and sexual autonomy

Sexual orientation is part of aloneness and constitutionally protected, and that the 2014 verdict upholding section 377 of the Indian Penal Code is to be questioned. This opens up the case for a much needed   re -think.

 Privacy and female autonomy

This judgment is to tremendous significance in the context of bodily autonomy and more specifically, ‘a woman’s right to choose’.

Limitations imposed by statues like the Medical Termination of Pregnancy Act and also ‘woman’s right to privacy, dignity and bodily integrity’ in the context of reproductive rights is limited.

 Privacy for the Poor

The identification  that privacy cannot be dissolved as an elitist set up , which needs to be quit in exchange for welfare benefits from the state

Aadhar case

The Supreme Court has cut straight to the heart of the issue in the Aadhar petitions. The order is based on an arrangement of petitions that have challenged the necessary use of Aadhar cards which give a unique 12 digit ID to every citizen.

The Aadhar programme, launched in 2009 is an initiative of Unique Identification Authority of India (UIDAI)[10].Aadhar initiative requires collection of personal data from citizens of India, and this has resulted in discussion regarding its potential to be missed. This is so because it requires collection of biometric details iris scanning and finger prints which are essentially main details and could be misused.

Cyber space is vulnerable space and is prone to threat and cyber security architecture is also not very strong in India. However, Aadhar in itself is a well- purposed program so as to stop leakages and ensure financial involvement. This will lead to better way of subsidies. There were horror the data could be misused by a government that argues Indians have no right to privacy. There have been recurring reports of Aadhar details being leaked. UIDAI has said that its data is secured. So five judge bench hearing the Aadhar case referred the issue of Right to Privacy to a 9 judge constitutional bench as the earlier ruling on Right to privacy was by a 8 judge bench and to overrule that judgment, a numerically superior bench was required.

  • This bench did not decide the destiny of Aadhar ; only the nature and status of the right to privacy under the constitution
  • It doesn’t comment on whether the government’s demand for Aadhar to be linked to all financial transactions amounts to an infringement of privacy.
  • That decision will be taken by a separate (5 judge) and smaller bench of the Supreme Court.

 International Law

Privacy is a fundamental human right recognized in the UN declaration of Human Rights, the International covenant on civil and political rights and in many other international treaties. It has become one of the most important human rights topics of the modern age. Social media plays a vital role in single part of life, internet lifestyle and mobile data bases promote broadcasting of personal information of people attached to it. Users are estimated as a field of marketing things knowing about their interests. By taking an example of facebook, the point of privacy topic can be made clear-cut. This particular site inspires users to start an account by providing authentic details. Moreover, the revert settings of the site allow friends, friends of friends and almost all users present in the site to have access to the basic details provided by a particular user. Identity stealing, annoying, online victimization, etc are some of the results coming up as a result of pasting personal information without checking the privacy settings. Moreover the intrinsic features of mobile device as a device that can be directly linked to an identifiable person increase the risks for the privacy of the users.[11]

India’s has no specific law focusing on data protection. A few principles of data protection are dispersed through IT Act, directions issued by RBI, TRAI etc. one of the most important section of law protecting our data at present is the Information Technology Act. The IT act makes hacking and interfering with computer source a crime and punishing for unlawful access to data. The ministry of electronics and information technology has appointed an expert group headed by former Supreme Court judge BN Srikrishna to make a data protection law.

The decision to constitute the group was shared by the UIDAI to Supreme Court as part of its arguments in the Right to Privacy case.

Under the IT Act, 2000 section 66-A is relevant and section 500, 506 and 507 of Indian Penal Code, 1860 are relevant .The accused may be penalized for a term which may extend to 3 years and with fine. As per section 77-B of IT act, 2000 the offence shall be cognizable and bailable while if section 500 of IPC is relevant for the said crime under the case of public servant is non-cognizable, bailable, accord with permission of the court.

Surveillance is a most debating concept now –a- days.  Surveillance is explained as a form of disciplinary power[12], to Roger Clarke who in 1988 found the term ‘dataveillance’ as “the systematic use of personal data systems in the investigation or broadcasting of the information from one person to other”[13]and Gary Marx’s “new surveillance” relative to traditional surveillance but unable to be seen and automatically utilizing and integrating data collection into routine automated activity.[14]

Certain standards were prescribed by the Supreme Court

Structural reforms:

Transparency –It is in the process of ordering and implementing the spying project and also openness that is similar to transparency.

So openness and transparency was made in the appliance of judicial negligence over surveillance request. Basically this transparency and openness means that great care and attention or sensitivity was given in dealing with personal information of the citizens. Like case of Aadhar, now Aadhar has been widely used to grab Sim cards or forgetting a mobile connection for gas booking or connections for everything Aadhar is used so what we are doing for giving Aadhar as Id proof …. Is that moving our information or your private information has conveyed to a government agency or to private agency.

After this judgment great care and observation or sensitivity was given in order to deal with personal information of the citizens.

Data protection law- It legislated a transformative rights oriented and protection law. All the institutions or all the powerful entities are held including the government or the private entities which deals with the personal information of the citizens so the data protection law provided for holding the personal information of the citizen and any agency or any institution which was responsible for holding the information of the citizens were held under the law. The data protection law, the law embodies the citizen.[15]

  • The state or the government must be a model data controller –the state should provide the higher standard or a minimum standard of observance. It banned the practice of making access to essential services contingent on the citizen party irrelevant to personal data it means that under the data protection law the Supreme Court banned the practice of making access to essential services so it is not mandatory to provide your Aadhar or personal information to a larger extent that is beyond the extent for getting excess to these services
  • Privacy commission and revolutionized the technology sector landscape – it was established and the task or the mandate of the commission is to enforce, protect and fulfill the fundamental right of right to privacy.

 

National security

The importance of the National Security and law enforcement agencies in every country plays very vital role regarding ‘data protection’.[16]

 

  • Ministry of home affairs – it has authorized almost ten central agencies in order to bisect, monitor, decrypt and send any information that is generated, transferred ,received or stored in any computer devices or any electronic devices in the country. So this notification that has authorized the government agencies or the central agencies for this purpose it is presently under the Supreme Court.
  • Ministry of Information broadcasting – it floated a tender for social media monetary hub. It is a technical solution to oversee on all social media communications including email. This tender was cancelled by the central government after Supreme Court interfered with. This was disapproved by the Supreme Court

 

  • Unique Identification Authority of India (UIDAI) and the Income Tax Department –also comes under national security.

In doing so, it especially overruled the earlier Supreme Court rulings in MP Sharma and Kharak Singh to the extent that they were disputing with this verdict.

Also, the judiciary did not create a new right in this case but merely granted recognition to a right that already existed as the fundamental core of human dignity, privacy.

Conclusion

Rapid technological development and social and political patterns of information sharing, personal information protection can still be rescue through a new regulatory approach. This approach should focus on the keeping of consent in meaningful instances which have significant implications for individuals –such as in employment, education and health .so we must protect privacy.

With the use of internet, in this age, social networks such as Facebook and Twitter are driving new forms of social interaction and the availability has raised privacy concerns. Towards this the government must strengthen cyber security system and assure by means of legislation that private details would be maintained private against violation of right to privacy. So the government should come up with better data security laws and not strengthening the privacy rules. A data protection authority simultaneous with right to privacy will be our way forward.

This way we can build a strong nation.

[1]  UN General Assembly, Universal Declaration of Human Rights, 10 December 1948,217 A (iii), available at: http://www.refworld.org/doocid/3ae6b3712c.htm

[2]  UN General Assembly, International Covenant on Civil and Political Rights,16 December 1966 , United Nations, Treaty Series, vol.999,p.171 available at: https://www.refworld.org/docid/3ae6b3aa0.html

[3] Council of Europe, European Convention for the Protection of Freedoms, as amended by protocols, ETS 5, available at: https://www.refworld.org/docid/3ae6b3b04.html

[4] KS Puttaswamy vs. union of India (2017) 10 SCC 1

[5] Referred to VS.N. Shukla’S Constitution Of India ( 13th ed, Eastern Book company,34, Lalbagh, Lucknow)

[6] Referred to  Dr J.N Pandey constitution of India ( 56th ed, Central Law Agency 30 –D/Moti Lal Nehru Road)

[7]  Referred to MP Jain Indian Constitution of Law of India( 7th ed, LexisNexis 2014)

[8] Referred to  Dr J.N Pandey constitution of India ( 56th ed, Central Law Agency 30 –D/Moti Lal Nehru Road)

[9] Referred to MP Jain Indian Constitution of Law of India( 7th ed, LexisNexis 2014)

[10] Right to privacy not a fundamental right cannot be invoked to scrap Aadhar; centre tells Supreme Court.http;//articles.economictimes.indiatimes.com/2015-07-23/news/64773078 fundamental-right-attorney-general-mukul-rohatagi-privacy.

[11] See Green, N & Sean, S. (2003). A Spy in your pocket : The regulation of mobile data in the UK Surveillance & Society.1(4) ,573-587.

[12] Simon, B. The Return of Panopticism, Supervision, Subjection and the New Surveillance, Surveillance & society3 (1): 1-20 available at http://www.surveillance-and-society.org/articles3 (1)/return.pdf.

[13] Clarke.R. Information Technology and Dataveillance Communications of the ACM 31, No5 (May1988) 498-512.

[14] Marx, G (2014) what’s New About the “New Surveillance”? Classifying for change and continuity. Surveillance & society (1): 9-29. Available at from http://www.surveillance-and-society.org/article1/whatsnew.pdf.

[15] Pew Research centre,(2014), The Internet of Things Will Thrive by 2025 Available at: http://www.pewinterest.org/2014/05/14/internet of things/

[16] Law Enforcement, National Security and Privacy, Accessed March 25, 2015,http://cis-india.org/internet-governance/blog/law-enforcement-national-security-privacy.pdf.