Lok

S.S. Jain Subodh Law College

RIGHT TO PRIVACY”

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Project Submission as per fulfillment of Cyber Law

Submission To:

Submitted By:

MS.PRIYANKA CHAUDHRY

LOKESH SHARMA

FACULTY OF CYBER LAW

Roll no: - 03 X Semester S.S. Jain Subodh Law College

TABLE OF CONTENTS

1. Certificate 2. Acknowledgement 3. Research Methodology 4. Introduction 5. International concept 6. Right to Privacy in India 7. Right to Privacy under IT Act 8. Later development 9. Conclusion 10. Bibliography

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CERTIFICATE

This is to certify that LOKESH SHARMA of X Sem of (B.A.LL.B) has prepared and submitted the project report enclosed with under my direct and close supervision that this is a bonafide  piece of work done by him. It has not been submitted to any other university or it has it been  published at any time earlier.

MS. PRIYANKA CHAUDHRY Signature

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ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to MS.PRIYANKA CHAUDHARY for inspiring me and guiding me during the course of this

 project work and also for her cooperation and guidance from time to time during the course of this project work on the topic.

JAIPUR 5th JULY 2017

(Student sign) LOKESH SHARMA

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RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic

“RIGHT

TO

PRIVACY”

forming a concrete informative capsule of the same with an insight into its relevance in the Cyber Laws.

Research Plan

The researchers have followed Doctrinal method.

Scope and Limitations:

In this project the researcher has tried to include different aspects pertaining to the concept of Right to Privacy special attention is also provided on Cyber Laws, basis of object of Right to Privacy of judicial pronouncements on Right to Privacy and lastly conclusion.

Sources of Data:

The following secondary sources of data have been used in the project

Case Study

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Websites

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Case Laws

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Books

Method of Writing and Mode of Citation:

The method of writing followed in the course of this research project is primarily analytical. The researcher has followed Uniform method of citation throughout the course of this research  project

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CHAPTER 1 : -

INTRODUCTION

Before we get into a complete discussion of Right to Privacy first of all we need to know what does the word Privacy mean. According to Black’s Law Dictionary “right to be let alone; the right of a person to be free from an y unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”. Article 21 of the Constitution of India states that “No person shall be deprived of his life or  personal liberty except according to procedure established by law”. After reading the Article 21, it has been interpreted that the term ‘life’ includes all those aspects of life which go to make a man’s life meaningful, complete and worth living. Like everything mankind has ever achieved, there has been a positive and a negative side to it. Technology has invaded every part of our lives whether the invasion w as desired or not, we cannot be sure whether what we say has been heard by a third party as well whether that was desired or not. The proverbial Hindi saying of even walls having ears has never rung truer. The  principle of the world today can be: whatever you may do, the world will get to know before you realize, ask a certain Tiger Woods about it. In the earlier times in India, the law would give protection only from physical dangers such as trespass from which the Right to Property emerged to secure his house and cattle. This was considered to be the Right to Life. As the ever changing common law grew to accommodate the  problems faced by the people, it was realized that not only was physical security required, but also security of the spiritual self as well as of his feelings, intellect was required. No w the Right to Life has expanded in its scope and comprises the right to be let alone the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession —  intangible, as well as tangible. The strategy adopted by the Supreme Court with a view to expand the ambit of Art. 21 and to imply certain right there from, has been to interpret Art.21 alon g with international charters on Human Rights. The Court has implied the right of privacy from Art.21 by interpreting it in conformity with Art.12 of the Universal Declaration on Human R ights and Art.17 of the International Covenant on Civil and Political Rights, 1966. Both of these international documents provide for the right of privacy. Right to privacy is not enumerated as a Fundamental Right in the Constitution of India. The scope of this right first came up for consideration in Kharak S ingh’s Case which was concerned with the validity of certain regulations that permitted surveillance of suspects. The minority decision of SUBBA RAO J. deals with this light. In the context of Article 19(1) (d), the right to 6

Privacy was again considered by the Supreme Court in 1975. In a detailed decision, JEEVAN REDDY J. held that the right to privacy is implicit under Article 21. This right is the right to be let alone. In the context of surveillance, it has been held that surveillance, if intrusive and seriously encroaches on the privacy of citizen, can infringe the freedom of movement, guaranteed by Articles 19(1)(d) and 21. Surveillance must be to prevent crime and on the basis of material provided in the history sheet. In the context of an anti-terrorism enactment, it was held that the right to privacy was subservient to the security of the State and withholding information relevant for the detention of crime can’t be nullified on the grounds of right to  privacy. The right to privacy in terms of Article 21 has been discussed in various cases.

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CHAPTER 2 : -

INTERNATIONAL CONCEPT

Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his honour and reputation. Everyone has the right to protection o f the law against such interference or attacks.” Article 17 of International Covenant of Civil and Political Rights (to which India is a party) states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation” Article 8 of European Convention on Human Rights states “Everyone has the right to respect for his private and family life, his home and his correspondence; there shall be no interference by a  public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”

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CHAPTER 3 : -

RIGHT TO PRIVACY IN INDIA

Intrusion into privacy may be by- (1) Legislative Provision (2) Administrative/Executive order (3) Judicial Orders. Legislative intrusion must be tested on the touchstone o f reasonableness as guaranteed by the Constitution and for that purpose the Court can go into proportionality of the intrusion vis-à-vis the purpose sought to be achieved. (2) So far as administrative or executive action is concerned it has to be reasonable having regard to the facts and circumstances of the case. (3) As to judicial warrants, the Court must h ave sufficient reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or seizure necessary for  protection of the particular State interest. In addition, as stated earlier, common law did recognise rare exceptions for conduct of warrantless searches could be conducted but these had to be in good faith, intended to preserve evidence or intended to prevent sudden anger to person or property.

The Privacy Bill, 2011 The bill says, “every individual shall have a right to his privacy —  confidentiality of communication made to, or, by him —  including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other mode s of communication; confidentiality of his private or his family life; protection of his honour and good name;  protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; confidentiality of his banking and financial transact ions, medical and legal information and protection of d ata relating to individual.” The bill gives protection from a citizen's identity theft, including criminal identity theft (posing as another person when apprehended for a crime), financial identify theft (using another's identity to obtain credit, goods and services), etc. The bill prohibits interception of communications except in certain c ases with approval of Secretary-level officer. It mandates destruction of interception of the material within two months of discontinuance of interception. The bill provides for constitution of a Central Communication Interception Review Committee to examine and review the interception orders passed and is empowered to render a finding that such interception contravened Section 5 of the Indian Telegraphs Act and that the intercepted material should be destroyed forthwith. It also prohibits surveillance either by following a person or closed circuit television or other electronic or by an y other mode, except in certain cases as  per the specified procedure.

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AS per the bill, no person who has a place of business in India but has data using equipment located in India, shall collect or processor use o r disclose any data relating to individual to any  person without consent of such individual. The bill mandates the establishment of a Data Protection Authority of India, whose function is to monitor development in data processing and computer technology; to examine law and to evaluate its effect on data protection and to give recommendations and to receive representations from members of the public on any matter generally affecting data protection. The Authority can investigate any data security breach and issue orders to safeguard the se curity interests of affected individuals in the personal data that has or is likely to have been compromised by such breach. The bill makes contravention of the provisions on interception an offence punishable with imprisonment for a term that may extend up to five years or with fine, which may extend to Rs. 1 lakh or with both for each such interception. Similarly, disclosure of such information is a  punishable offence with imprisonment up to three years and a fine of up to Rs. 50,000, or both. Further, it says any persons who obtain any record of information concerning an individual from any officer of the government or agency under false pretext shall be punishable with a fine of up to Rs. 5 Lacs.

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CHAPTER 4 : -

RIGHT TO PRIVACY UNDER IT ACT

The right to privacy has been held by the Hon’ble Supreme Court of India in R. Rajagopal v. State of T.N. [(1994) 6 SCC 632] as an integral part of the fundamental right to life under Article 21 of The Constitution of India. Spamming, sending unsolicited mails and websites collecting information about individual surfers and selling it off for monetary considerations lead to violation of their privacy in cyberspace. Telephone – Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to a telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. Privacy concerns exist wherever uniquely identifiable data relating to a person or persons are collected and stored, in digital form or otherwise. In some cases these concerns refer to how data is collected, stored, and associated. In other cases the issue is who is given access to information. Other issues include whether an individual has any ownership rights to data about them, and/or the right to view, verify, and challenge that information Various types of personal information often come under privac y concerns. For various reasons, individuals may not wish for personal information such as their religion, sexual orientation,  political affiliations, or personal activities to be revealed. This may be to avoid discrimination,  personal embarrassment, or damage to one’s professional reputation. In this day and age, the right to privacy is becoming more essential as every day passes. With all our lives being splattered over the media be it through social networking sites or the spy cameras, we need protection so that we can function in a way we want to and not think of others  before our actions. There is no comprehensive legislation on privacy in our country. As such it has been left to the Judiciary to interpret privacy within existing legislations. On April 11, 2011, India’s Ministry of Communications and Information Technology notified the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under the Information Technology Act, 2000. India now has a privacy law, brought into force with immediate effect with wide ramifications on the way companies will do business in India.

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CHAPTER 5 : -

LATER DEVELOPMENTS

Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into any sphere of activity. The conferment of such a right has become extremely difficult with the advancement of technology and the social networking sites. But the other side of the picture is that right to privacy of a person includes the right to seclude personal information. The extent to which the realm of privacy of each person should remain is subjective, which might differ from  person to person. The recognition of right to privacy can also be seen in the S. 43 of Information Technology Act which makes unauthorised access into a computer resource invoke liability.

Today, each person is a press, taking in view the emergence of blog spots and social networking sites. Many a times, the right to privacy may come in conflict with the right to press the right to  press is a right derived from Article 19 (1) (a) in particular. The right to expression of a person may co0me in conflict with the right to privacy of another person. The question, where there is a conflict, which should prevail over the other, is well explained by bringing in the concept of ‘public interest’ and ‘public morality’. The publication of personal information of an individual without his consent or approval is justified if such information forms part of public records including Court records. Each case is distinct and each right is special.

Any right derived from Article 19 can be derived from Article 21 too, under the wide interpretation of ‘personal liberty’. Though the Court generally applies the test of ‘public interest’ or ‘public morality’ in case of conflict between two derived rights, another interpretation is also possible. A right derived under Article 21 is superior to a right derived under Article 19, since the state enacting law in contravention of such right can be saved under the reasonable restrictions under 19(2) to (5). The position was different in the Pre-Maneka era, when Article 21 was not a source of substantive right.

The right to privacy may come in conflict with the investigation of police in several aspects.  Narco-analysis, polygraph test and brain mapping tests, in application, make unwarranted intrusion into the right to privacy of a person. The Supreme Court was acknowledging the individual right to privacy by declaring these tests inhuman and unconstitutional. The Supreme Court in Directorate of Revenue and Anr v. Mohammed Nisar Holia cited the US Supreme Court  judgement which held ‘thermal imaging’, a sophisticated sense enhancing technology which when kept outside the residential house of a person can detect whether the inmate has kept narcotic substance within as infringement on the right to privac y of the said person. The Court discouraged the unnecessary infringement of the right to privacy of a persons and held that no 12

authority shall be given untrammelled power to infringe the right to privacy of a person, the Court held while reversing the conviction for non -compliance of statutory requirement of search and seizure. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in case of this nature, the least that a Court can do is-to see that such right is not unnecessarily infringed

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CHAPTER 6 : -

CONCLUSION

Indian’s growing legislative framework and surveillance policies are not adequate to deal with future threats and there is an urgent need to amend existing legal framework as well as to introduce strong and effective policies in order to p rotect IT industry as well as to protect privacy of individuals in the country. As referred above, UK and US have very effective policies and the workings of agencies as well as the laws relating to surveillance and privacy of its citizens. Similarly, in India, legislature should pass such acts and rules in relation to working of agencies,  powers and authorities under whom surveillance will be done, protection and destruction of such data collected during surveillance and how far the privacy of individual is secured.

Also, the laws governing surveillance done by governmental departments and agencies which are currently working should be passed. There is also a need of defining the word privacy again in modern age as the development in IT sector and surveillance industry has changed the concept of  privacy and laws governing it. The existing framework is not enough to deal with future threats and in future, there is a probability of increasing threats of cyber crimes and cyber terrorism. Although according to rules, the government has got power to intercept, monitor, decrypt or  block any information on any computer resource and also the central government has got power to authorize any agency or any person to perform such activity as it thinks fit, but the working of such agency and who shall be employed in such agency has not been mentioned anywhere in the rules and also the provisions as to penalties for misuse o f such information by any governmental  body or person has not been given. It is possible that the information obtained can be used for  political purposes

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BIBLIOGRAPHY BOOKS: VAKUL SHARMA

WEBSITES: 

www.legalserviceindia.com

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www.lawyersclubindia.com /

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