Constitutional and statutory safeguards for

Right to Privacy

HIDAYATULLAH NATIONAL LAW UNIVERSITY

MEDIA & LAW (OPTIONAL) PROJECT
ON

Constitutional and statutory safeguards for

Right to Privacy
SUBMITTED TO
Mr. ANKIT AWASTHI

VIKASH GOEL
SEMESTER VIII
ROLL NO. 172
SUBMITTED ON
4TH APRIL, 2016

Constitutional and statutory safeguards for

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 todays era when there is constant conflict between
individuals right to privacy and freedom of press and with latest trend of media trial as well as
stings carried out by media houses.
The practical realization of this project has obligated the guidance of many persons. I express
my deepest regard for our faculty Ms. Ankit Awasthi. His consistent supervision, constant
inspiration and invaluable guidance and suggestions have been of immense help in carrying out
the project work with success.
I extend my heartfelt thanks to my family and friends for their moral support and encouragement.

Vikash Goel
Semester VIIITH
Roll no. 172

Constitutional and statutory safeguards for

Right to Privacy
Contents
Acknowledgement.....................................................................................................2
Introduction...............................................................................................................4
RESEARCH METHODOLOGY..............................................................................5
Constitutional background for Right to Privacy........................................................5
Proposed Amendment to the Constitution............................................................13
Statutory Protection of Privacy...............................................................................14
The Right to Privacy Bill 2011.............................................................................14
Digital Privacy: Information Technology Act 2000.............................................15
RIGHT TO PRIVACY VIS A VIS MEDIA.............................................................17
MODERN MEDIA AND PRIVACY ISSUES.....................................................17
STING OPERATION VIS--VIS RIGHT TO PRIVACY..................................18
Conclusion...............................................................................................................24
BIBLIOGRAPHY...................................................................................................25

Constitutional and statutory safeguards for

Right to Privacy
Introduction
Right to privacy has been the aspect of discussion since time immemorial and it is considered
as one of the comprehensive right of the individual or a society. It is considered as a preliminary
right in many of the Jurisdiction. In India right to privacy is considered as a part of Right to life
under the Constitution of India which is a fundamental right of the Individual. The Supreme
court of India and other courts through its decision starting from late 70s have interpreted right to
privacy as a fundamental right under right to life under article 21 of the Constitution Same is the
case in USA and UK where in USA all though privacy is not defined any where all though in the
earlier stage the courts have interpreted the right to privacy in aspect of right to property only, at
later stage the right to privacy has widen its interpretation by not only including property, but
also, other aspects. In UK all though Common law at the earlier stage did not give much
recognition to Privacy, the passing of the Human Rights Act and the European Convention on
Human Rights gave a new interpretation to privacy which provides for respect for a private Life.
Broadly, the right to the freedom of expression impacts the right to privacy in negotiating:
1.) To what categories of data should the freedom of expression be limited in order to protect
privacy.
2.) In which context will freedom of expression impinge on privacy.
3.) In what circumstances is it necessary that an individual be provided the right to privacy in
order to protect the freedom of speech.
Violations of privacy that can result because of an expression are most commonly understood as
privacy torts and include: (a) intrusion into an individuals personal affairs including public
disclosure of a person's private life (b) publicity which places an individual in false light in
public, and (c) use of an individuals own name for commercial purposes commonly
understood as the right to publicity.

Constitutional and statutory safeguards for

Right to Privacy
RESEARCH METHODOLOGY
AIM AND OBJECTIVES

Study the legal aspect of right to privay

Study the constitutional and statutory aspect of right to privacy
Analyse right to privacy vis--vis freedom of press

HYPOTHESIS
This project proceeds with the Hypothesis that the Right to Privacy is accepted as a
fundamental right in India and other Jurisdictions through judicial pronunciations and

via

statutes, but when it comes to other aspects such as National Security, population Census,
economic development and other situations the recognition of Right to privacy always comes as
a second priority.
RESEARCH METHODOLOGY
In this Project the researcher has primarily used descriptive and analytical method of
Research. He has mainly relied up on primary sources such as statutes and case laws regarding
Right to Privacy and Secondary sources, including Books, articles, web sources, and news
papers.

Constitutional and statutory safeguards for

Right to Privacy
Constitutional background for Right to Privacy
Though the Indian Constitution does not provide a clear reference to Right to Privacy, the
right is read in to the constitution by the Supreme Court as a component of two Fundamental
Rights: the right to freedom under Article 19 and the right to life and personal liberty under
Article 21.
It would be necessary to provide a brief background to each of these Articles before dealing
deeper into the privacy jurisprudence developed by the courts under them. Part III of the
Constitution of India (Articles 12 through 35), which is titled Fundamental Rights, provides
for several rights which are regarded as fundamental to all citizens of India (some fundamental
rights, notably the right to life and liberty apply all persons in India, whether they are citizens
or not). Article 13 prevents the State from making any law which takes away or abridges the
fundamental rights.
Article 19(1)(a) specifies that All citizens shall have the right to freedom of speech and
expression . However this is made competent by Article 19(2) which provides that this will not
affect the operation of any existing law, or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right in the interests of the
sovereignty and integrity of India, the security of the State, friendly relations with foreign States,
public order, decency or morality, or in relation to contempt of court, defamation or incitement to
an offence.
Thus the Freedom of Expression guaranteed by Article 19(1)(a) is not absolute, but a
privileged right that is vulnerable, under the Constitutional scheme, to being curtailed under
specified conditions.
The other important Fundamental Right from the perspective of privacy jurisprudence is
Article 21 which reads 21. No person shall be deprived of his life or personal liberty except
according to procedure established by law.

Constitutional and statutory safeguards for

Right to Privacy
Where Article 19 contains a detailed list of conditions under which Freedom of Expression
may be curtailed, differentially Article 21 is thinly-worded and only requires a procedure
established by law as a pre-condition for the deprivation of life and liberty. However, the
Supreme 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 rejection of a
fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to
effectuate, not to subvert, the substantive right itself. Thus, understood, "procedure" must rule
out anything arbitrary, freakish or bizarre.
Shortly after independence, in a case challenging the constitutionality of search and seizure
provisions, the Supreme Court gave a blow to the right to privacy in India, holding that
When the Constitution makers have thought fit not to subject (search and seizures) to
Constitutional limitations by recognition of a fundamental right to privacy, analogous to the
American Fourth Amendment, we have no justification to import it, into a totally different
fundamental right.2 Notwithstanding this early setback, five decisions by the Supreme Court in
the succeeding five decades have established the Right to Privacy in India as flowing from
Article 19 and 21.

The first was a seven-Judge bench decision in Kharak Singh V. The State of U.P3 decided in
1964. The question that came in for consideration in this case was whether "surveillance" under
Chapter XX of the U.P.Police Regulations was an infringement of any of the fundamental rights
1(1978) 2 SCR 621
2 M. P. Sharma v Satish Chandra, AIR 1954 SC 300 (1954), http://indiankanoon.org/doc/1306519/ The court
regarded the element of judicial supervision inherent in search orders issued under the CrPC as being sufficient
safeguard against constitutional violations. When such judicial function is. interposed between the individual and
the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed. We are not
unaware that in the present set up of the Magistracy in this country, it is not infrequently that the exercise of this
judicial function is liable to serious error, as is alleged in the present case. But the existence of scope for such
occasional error is no ground to assume circumvention of the constitutional guarantee
3 (1964) 1 SCR 332

Constitutional and statutory safeguards for

Right to Privacy
guaranteed by Part III of the Constitution. Regulation 236(b) which permitted surveillance by
"domiciliary visits at night" was held to be violative of Article 21.The meanings of the word
"life" and the expression "personal liberty" in Article 21 were elaborately considered by this
court in Kharak Singh`s case. Although the majority found that the Constitution contained no
explicit guarantee for "right to privacy", it read that right to personal liberty also include the
right to dignity. It held that an unauthorized intrusion into a person's 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 civilization. In the minority judgment
in this case, Justice Subba 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 expressly declare a right to privacy as a
fundamental right but the said right is an essential ingredient of personal liberty Every
democratic country sanctifies domestic life; it is expected to give him rest, physical happiness,
peace of mind and security. In the last resort, a person's house, where he lives with his family, is
his "castle" it is his rampart against encroachment on his personal liberty. This case, especially
Justice Subba Raos observations, opened the way for later elaborations on the right to privacy
using Article 21.
In 1972, the Supreme Court decided one of its first cases on the constitutional validity of
wiretapping. In R. M. Malkani vs State Of Maharashtra 4 the petitioners voice had been
recorded in the course of a telephonic conversation where he was blackmailing another person.
He stated in his defense that his right to privacy under Article 21 had been violated. The
Supreme Court rejected his plea holding that The telephonic conversation of an innocent citizen
will be protected by Courts against wrongful or high handed' interference by tapping the
conversation. The protection is not for the guilty citizen against the efforts of the police to
vindicate the law and prevent corruption of public servants.5

4 AIR 1973 SC 157, 1973 SCR (2) 417

5 Ibid

Constitutional and statutory safeguards for

Right to Privacy
In another case, Govind vs. State of Madhya Pradesh 6, decided by a three- Judge Bench of
the Supreme Court, is regarded as being a setback to the right to privacy jurisprudence. Here, the
court was assessing the constitutional validity of Regulations 855 and 856 of the Madhya
Pradesh Police Regulations which provided for police surveillance of habitual offenders which
including domiciliary visits and picketing of the suspects. The Supreme Court abstained from
striking down these invasive provisions holding that It cannot be said that surveillance by
domiciliary visit, would always be an unreasonable restriction upon the right of privacy. It is
only persons who are suspected to be habitual criminals and those who are determined to lead a
criminal life that are subjected to surveillance.
The court also made some observations on the right to privacy under the constitution:
Too broad a definition of privacy will raise serious questions about the propriety of judicial
reliance on a right that is not explicit in the Constitution. The right to privacy will, therefore,
necessarily, have to go through a process of case by case development. Hence, assuming that the
right to personal liberty. the right to move freely throughout India and the freedom of speech
create an independent fundamental right of privacy as an emanation from them it could not he
absolute. It must be subject to restriction on the basis of compelling public interest. But the law
infringing it must satisfy the compelling state interest test. It could not be that under these
freedoms the Constitution-makers intended to protect or protected mere personal sensitiveness
This case is important since it marks the beginning of a trend in the higher judiciary to
consider the right to privacy as not being absolute. From Govind onwards, non-absoluteness
becomes the defining feature and the destiny of this right.
This reasoning was continued in Malak Singh v State Of Punjab & Haryana7 where the
Supreme Court held that surveillance was lawful and did not violate the right to personal liberty

6 (1975) 2 SCC 148

7 AIR 1981 SC 760

Constitutional and statutory safeguards for

Right to Privacy
of a citizen as long as there was no illegal interference and it was unobstrusive and within
bounds.
Nearly fifteen years after this case the Supreme Court elaborated the right to privacy in R.
Rajagopal vs. State of Tamil Nadu8. Here the court was involved in a balancing of the right of
privacy of citizens against the right of the press to criticize and comment on acts and conduct of
public officials. The case related to the publication by a newspaper of the autobiography of Auto
Shankar who had been convicted and sentenced to death for committing six murders. In the
autobiography, he had commented on his contact and relations with various high-ranking police
officials, disclosures which would have been extremely sensational. Sometime before the
publication, he appears to have been forced to write a letter denying that he had authored the
autobiography. On this basis, the Inspector General of Prisons issued a letter forbidding the
newspaper from publishing the autobiography claiming, inter alia, that the publication of the
autobiography would violate the prisoners privacy. Curiously, neither Shankar himself, nor his
family was made parties to this petition.
The Court decided to presume, that he had neither written his autobiography nor had he
authorized its publication. The court then proceeded on this assumption to enquire whether he
had any privacy interests that would be breached by unauthorized publication of his life story.
The right of privacy of citizens was dealt with by the Supreme Court in the following terms: (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this
country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy
of his own, his family, marriage, procreation, motherhood, childbearing and education among
other matters. None 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 be
violating 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 (1994) 6 S.C.C. 632

Constitutional and statutory safeguards for

Right to Privacy
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid
aspects becomes unobjectionable if such publication is based upon public records including court
records. This 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 subject for comment by press and media
among others. We are, however, of the opinion that in the interests of decency (Article 19(2)) an
exception must be carved out to this rule, viz., a female who is the victim of a sexual assault,
kidnap, abduction or a like offence should not further be subjected to the indignity of her name
and the incident being publicized in press/media.
On this reasoning, the court upheld that the newspapers right to publish Shankars
autobiography, even without his consent or authorization, to the extent that this story was able to
be kept together from public records. However, if they went beyond that, the court held, they
may be invading his right to privacy and will be liable for the consequences in accordance with
law. Importantly, the court held that the remedy of the affected public officials/public figures,
if any, is after the publication9
The final case that makes up the privacy quintet in India was the case of PUCL v.
Union of India10, a public interest litigation, in which the court was called upon to consider
whether wiretapping was an infringement of a citizens right to privacy, violating the
constitutional safe guards. The case was filed in light of a report brought out by the Central
Bureau of Investigation on the Tapping of politicians phones which disclosed several
irregularities in the tapping of telephones. The Court made the following observations on the
aspect of the right to privacy in India:
The right privacy by itself has not been identified under the Constitution. As a concept it may be
too broad and moralistic to define it judicially. Whether 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 AIR 1997 SC 568

Constitutional and statutory safeguards for

Right to Privacy
However, the Court went on to hold that the right to hold a telephone conversation in the
privacy of ones home or office without interference can certainly be claimed as right to
privacy. This was because conversations on the telephone are often of an intimate and
confidential characterTelephone conversation is an important facet of a man's private life.
Right to privacy would certainly include telephone-conversation in the privacy of one's home or
office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law.
The court also read the right to privacy as deriving from Article 19. When a person is
talking on telephone, he is exercising his right to freedom of speech and expression., the court
observed, and therefore telephone-tapping unless it comes within the grounds of restrictions
under Article 19(2) would infract Article 19(1)(a) of the Constitution.
This case made two important contributions to communications privacy jurisprudence in
India the first was its rejection of the contention that prior judicial scrutiny should be
mandated before any wiretapping could take place. Instead, the court accepted the contention
that administrative safeguards would be sufficient. Secondly, the Court prescribed a list of
procedural guidelines, the observance of which would save the wiretapping power from
unconstitutionality. In 2007, these safeguards were formally incorporated into the Rules framed
under the Telegraph Act11.
Thus, 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. This limited nature of the right provides a
somewhat unstable assurance of privacy since it is frequently made to yield to a range of
conflicting interests rights of paternity, national security etc which happen to have a more
pronounced standing in law.
11 Rule 419A of the Telegraph 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. The Rule stipulates that any order permitting tapping of communication would
lapse (un less renewed) in two months. In no case would tapping be permissible beyond 180 days. The
Rule further requires all records of tapping to be destroyed after a period of two months from the lapse of
the period of interception.

Constitutional and statutory safeguards for

Right to Privacy
Proposed Amendment to the Constitution
In March 2002, the National Commission to Review the Working of the Constitution
submitted its report and recommended amending the Constitution to include a slew of new rights
including the Right to Privacy. The new Right to Privacy would be numbered Article 21-B and
would read:
21-B. (1) Every person has a right to respect for his private and family life, his home and his
correspondence.
(2) Nothing in clause (1) shall prevent the State from making any law imposing reasonable
restrictions on the exercise of the right conferred by clause (1), in the interests of security of the
State, 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.12
There has, so far been no move to amend the constitution to give effect to this
recommendation

Statutory Protection of Privacy

The Right to Privacy Bill 2011

For long India ignored this important Civil Liberty despite demands for the same. Finally,
Supreme Court of India interpreted Article 21 of the Constitution of India as a Constitutional
Source of Right to Privacy in India.

12 Chapter 3: Fundamental Rights, Directive Principles And Fundamental Duties, in REPORT OF THE
NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION (M.N.
Venkatachaliah ed., 2002), http://lawmin.nic.in/ncrwc/finalreport/v1ch3.htm

Constitutional and statutory safeguards for

Right to Privacy
.

However, exercise of a Fundamental Right is very difficult in India without a support of a

statutory support in this regard. This is the reason why we need to enact a Statutory Law on
Right to Privacy in India.
Privacy Rights have become even more important in this Information Era where Privacy
of citizens is in real danger. Indian Government has launched various Projects like Aadhar,
NATGRID, CCTNS, Central Monitoring System (CMS), etc that are openly violating the Civil
Liberties, including Privacy Rights, of Indians. This has forced the Law Ministry to consider
enacting a Privacy Law of India.
Law Ministry has proposed a Right to Privacy Bill of India 2011. Though the Bill begins
to establish a strong framework for the protection of the right to privacy in India, there are many
ways in which the Bill can be improved and changed to bring about a more comprehensive right
that ensures that privacy does not generate over- or under inclusive remedies.
The bill creates a statutory Right to Privacy by means of a broad definition and then
creates specific of protections for it. Recognizing the Right to Privacy not to be absolute, the Bill
identifies various privacy breaches that are permitted. In the Bill, certain prohibited acts are also
identified for which civil remedies as well as criminal sanctions are created.
The government interception and telephone tapping mechanism is changed moderately
from the existing system. The modification is with respect to several procedural safeguards
which are put into place to avoid unauthorized and unnecessary tap orders.
A regulatory mechanism is created through the Data Protection Authority of India. It will
exercise supervision over private parties which will engage in the collection and storage of
personal data.
Further, in the system suggested, the Bill identifies specific officers/position holders in
various entities (that may be involved in various breach of the right) who shall be held
responsible, in case of any wrong act or any default.

Constitutional and statutory safeguards for

Right to Privacy
Disputes under the Bill will be referred to the Cyber Appellate Tribunal which has been
set up under the Information Technology Act. These disputes are primarily in the nature of claims
by individuals against private data controllers.13
In the absence of Judicial Scrutiny and Privacy Laws, Indian Citizens are left with no
choice but to use Technological Self Defence Measures to protect their Privacy Rights,
especially in Cyberspace. Even this is not acceptable to Indian Government as it is harassing
service providers like Blackberry, Gmail, Skype, etc that are using Encrypted Measures to
protect Privacy Rights and to ensure Security. This is just like committing a wrong and then
taking advantage of the same to ones own benefits.
But 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 recognizing the right as it should be.

Digital Privacy: Information Technology Act 2000

The Information Technology Act 2000 contains a number of provisions which can be
used to safeguard against online/computer related privacy. The Act provides for civil and
criminal liability with respect to hacking (Secs 43 & 66) and imprisonment of up to three years
with fine for electronic voyeurism (Sec. 66E), Phishing and identity theft (66C/66D), Offensive
email (Sec. 66A). Disclosure by the government of information obtained in the course of
exercising its interception powers under the IT Act is punishable with imprisonment of up to two
years and fine(Sec. 72)14 Section 72A of the IT Act penalizes the unauthorized disclosure of
personal information by any person who has obtained such information while providing
services under a lawful contract. Such disclosure must be made with the intent of causing
wrongful loss or obtaining a wrongful gain and is punishable with imprisonment which may
extend to 3 years or a fine of Rs. 5, 00,000 or both.

13 http://www.iltb.net/2011/06/analysis-of-the-privacy-bill-2011
14 Prashant Iyengar, Privacy and the Information Technology Act in India, SSRN ELIBRARY (2011),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1807575

Constitutional and statutory safeguards for

Right to Privacy
The act also contains provisions to restrict cyber privacy. Section 69 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. Section 69 A
provides the central government or authorized officer Power to issue directions for blocking for
public access of any information through any computer resource. The grounds on which
directions under section 69 and 69 A can be issued are in the interest of the sovereignty or
integrity of India, the security of the State, friendly relations with foreign States or public order
or for preventing incitement to the commission of any cognizable offence, or for the
investigation of any offence.

RIGHT TO PRIVACY VIS A VIS MEDIA

Privacy is vital to the mental, spiritual and physical well being of all individuals and also to the
morality and personality of the individual.
The right to freedom of speech and expression and right to privacy are intricately connected. In a
liberal democracy like India, citizens have a right to talk on the telephone, send e-mail, watch

Constitutional and statutory safeguards for

Right to Privacy
television and surf the internet without interference of government unless for compelling reasons
such as legitimate defense and national security considerations. A person who exercises his right
to know and be informed may violate another persons right to privacy. According to the New
Oxford dictionar privacy is the absence or avoidance of publicity or display; the state or
condition from being from society of others, or from public interest, seclusion. The Blacks law
dictionary has defined it as the right to be let alone; the right of a person to be away from
unwanted publicity; and the right to live without unwanted interference by public in matter with
which the public is not necessarily concerned.
The rights to privacy vis--vis invasions by journalists were observed in Sheela Barse v Union of
India[10], Prabha Dutt v Union of India[11]and also State v Charulata Joshi[12]. In two
decisions the Supreme Court considered the nexus between right to privacy and electronic
communications. In RM Malkhani v. State of Maharastra[13] the court held that it was important
to protect citizens telephonic conversations and declined the argument of the accused that secret
taping violated his article 21[14] as his privacy had been disturbed. In Peoples Union for Civil
Liberties v. Union of India[15] the court suggested that unauthorized telephone interception
infringes the right to privacy.
MODERN MEDIA AND PRIVACY ISSUES
Every democracy gets the Government it deserves and every society its media. In a country with
as robust and multi-faceted a freedom of expression as India, media plays a very significant role
in balancing the interests of public and exercise of its powers. Just as the media is blessed with
freedom of speech and expression for spreading awareness and catering to the right to know of
the public, it is equally important to ensure the privacy of individuals which is an objective
sought to be achieved by the law of privacy. It has been observed by the apex court that, When
there is a competition between the right to privacy of an individual and the right to information
of the citizens, the former right has to be subordinated to the latter right as it serves larger public
interest.
In State of U.P v Raj Narain the Supreme Court has observed that, The people of this country
have a right to know every public act, everything that is done in a public way, by their public

Constitutional and statutory safeguards for

Right to Privacy
functionaries. They are entitled to know the particulars of every public transaction in all its
bearing. The right to know, which is derived from the concept of freedom of speech, though not
absolute, is a factor which should make one wary, when secrecy is claimed for transactions
which can, at any rate, have no repercussion on public security.
An outrageous example of sensationalisation of news was the 26/11 issue where a national
tragedy was turned into bait for profit using emotional trivia by the various competing channels.
They try to create hype out of factual news and attract viewers using the private life of celebrities
and other citizens through scrupulous efforts. Also in Peoples Union for Civil Liberties v. Union
of India[20], the apex court observed that the interception of telephonic conversations and
unauthorized tapping impinges on the right to privacy of individuals and formulated guidelines
to be adopted by the government when it intercepts telephonic conversations. These guidelines
were also included in the Telegraph rules.

STING OPERATION VIS--VIS RIGHT TO PRIVACY

Article 19(2) of the Constitution of India provides that nothing in sub-clause (a) thereof shall
affect the operation of any existing law in so far as it relates to, or prevent the state from making
any law relating to libel, slander, defamation, contempt of court or any matter which offends
decency or morality or which determines the security of, or tends to overthrow the state.The
Sting Operations done by the media in India covers mostly the working of the public servants in
their offices. The official work of the public servants should be transparent and open to all as it is
in the public interest. But the courts have held that the Right to Privacy does not cover this
official work in its purview. Sting Operation began with a laudable objective of exposing
corruption in high places and gradually degenerated into cheap entertainment.A sting operation,
as resorted by the law enforcement agencies, is an operation designed to catch a
personcommitting a crime by means of deception. A typical sting will have a law-enforcement
officer or a cooperative member of the public, play a role as criminal partner or potential victim
and go along with a suspect's actions to gather evidence of the suspect's wrongdoing. Now the
question that arises is whether it is proper for the media to act as the law enforcement
agency.The carrying out of a sting operation may be an exercise of the right of free press but it

Constitutional and statutory safeguards for

Right to Privacy
carries with it an indomitable duty to respect the privacy of others. The individual who is the
subject of such a press or television item has his or her personality, reputation or career dashed
to the ground after the media exposure. He too has a fundamental right to live with dignity and
respect and a right to privacy guaranteed to him under Article 21 of the Constitution. Sting
operations are also undertaken to establish adultery. Such Operations can also be useful in the
arrest of terrorists and anti-national elements. The spy camera of media caught 11 members of
the Parliament accepting bribe for asking questions in the Parliament. When the media gets all
the evidence against the corrupt and the wrongdoer and the aim is public interest, why do media
not file a case in the proper court and submit these as proof? This will lead to punishing of these
wrongdoers. Or, even after getting such evidences, why no information is given to public
authorities so as to make them take appropriate actions? But, there exists an opposite view. Such
cases cannot be filed in courts with these tapes- audio or video recording- as evidence or proof
because courts do not consider these as credible evidence and proof. Moreover, as the
Government machinery is not functioning the way it should function, that is why instances of
sting operations are on the increase.
In India, there has been a lot of controversy over the last few months over Section 66A of the
Indian Cyberlaw being the amended Indian Information Technology Act, 2000 on different
occasions. In Professor Ambikesh Mahapatra case, Professor Ambikesh Mahapatra was arrested
on account of forwarding of caricature/cartoons on Facebook. Further, Ravi Srinivasan Twitter
case showed how on a complaint, a persons tweets could be brought within the ambit of Section
66A of the amended Indian Information Technology Act, 2000.
In K V Rao case, two men K.V. Rao and Mayank from Mumbai, were arrested for allegedly
posting offensive comments against some leaders on their Facebook group. The recent case
pertaining to Shaheen Dhada, where two girls were arrested for Facebook post and its liking
respectively, has become the talking point for all users.
Rcently, we have been seen various discussions about defective IT legislation in India and how
there is a need for changing the same.

Constitutional and statutory safeguards for

Right to Privacy
Section 66A makes it an offense when you send, by means of a computer resource or
communication device, any of the following information:
1. any information that is grossly offensive;
2. any information that has menacing character;
3. any information which you know to be false but which is sent for purpose of causing
annoyance;
4. any information which you know to be false but which is sent for purpose of causing
inconvenience;
5. any information which you know to be false but which is sent for purpose of causing danger;
6. any information which you know to be false but which is sent for purpose of causing
obstruction;
7. any information which you know to be false but which is sent for purpose of causing insult;
8. any information which you know to be false but which is sent for purpose of causing injury;
9. any information which you know to be false but which is sent for purpose of causing criminal
intimidation;
10. any information which you know to be false but which is sent for purpose of causing enmity;
11. any information which you know to be false but which is sent for purpose of causing hatred;
or
12. any information which you know to be false but which is sent for purpose of causing ill will.
All the above as per (3) to (12) must be done persistently by using a computer resource or
communication device.
13. any e-mail or electronic mail message for the purpose of causing annoyance;

Constitutional and statutory safeguards for

Right to Privacy
14. any e-mail or electronic mail message for the purpose of causing inconvenience;
15. any electronic mail or electronic mail message to deceive the addressee or recipient about the
origin of such messages;
16. any e-mail or electronic mail message to mislead the addressee or recipient about the origin
of such messages.
When you send either by means of a Computer, Computer System, Computer Network or using
Mobile Phone, Smart Phone, iPhone, iPad, Tablet, Smart Devices, Personal Digital Assistants,
BlackBerry or any other communication devices, the following kind of information, you could
be covered under Section 66A of the amended Indian Information Technology Act, 2000:1. If you swear or abuse somebody, the said swear words could be said to be grossly offensive.
The same could also be said to be having menacing character and your act could come within the
ambit of Section 66A(a) of the amended Indian Information Technology Act, 2000.
2. Anything defamatory which affects the character, reputation, standing or goodwill of a person
could also be deemed to be grossly offensive.
3. Making false allegations against the character of a person or character assassination could also
qualify as grossly offensive and having menacing character.
4. Using insulting words or symbols which are obscene, could also qualify as grossly offensive
and having menacing character.
5. Calling someone names could also be brought within the ambit of being grossly offensive or
having menacing character
6. Posting the picture of a person in uncomplimentary situations and environments could also be
said to be grossly offensive or having menacing character. For example, if you morphed the
photograph of a girl/boys face on the face of erotic/nude models body, the same could not only
be obscene but could also be grossly offensive and having menacing character.

Constitutional and statutory safeguards for

Right to Privacy
7. Electronic morphing which shows a person depicted in a bad light could also be seen as an
example of information being grossly offensive or having menacing character.
8. Using vernacular gallies or bad words in English alphabets could also qualify as grossly
offensive or having menacing character.
9. Threatening somebody with consequences for his life, apart from being separate offences,
could be also construed as information which is grossly offensive or having menacing character.
10. Threatening to expose the ill-deeds of somebody could also qualify as information which has
menacing character.
11. Information containing malicious, mischievous character assassination
12. Information containing morphed pictures aimed at hurting religious sentiments.
13. Information showing gods and goddesses of particular religions in an uncomplimentary light.
14. Putting the picture of a person against a slogan/phrase/saying which does not depict his true
character or personality.
15. Deceiving the addressee or recipient about the origin of such messages. For example, sending
emails from a fake email account to another person, could qualify as an offence under Section
66A of the amended Indian Information Technology Act, 2000.
16. Further misleading the addressee or recipient about the origin of such messages, e.g. sending
emails and SMSs in the name of Reserve Bank of India for big lotteries, could also be brought
under Section 66A of the amended Indian Information Technology Act, 2000.
17. E-mail containing fake recruitment offers to unsuspected members of the public, could also
qualify as an offence under Section 66A of the amended Indian Information Technology Act,
2000.
As such, while Section 66A talks about sending any information that is grossly offensive or
having menacing character, the law does not give any guidance as to what is grossly offensive or

Constitutional and statutory safeguards for

Right to Privacy
information having menacing character. Thus, it is left to the subjective discretion of the lawenforcement agencies in this regard. All wide meaning terms used under Section 66A have not
been defined, which itself provides huge amount of flexibility in Section 66A to be used in any
circumstances perceivable.

Conclusion
There are tremendous problems in the way Section 66A of the amended Indian Information
Technology Act, 2000 has been drafted. This provision even though has been inspired by the
noble objectives of protecting reputations and preventing misuse of networks, has not been able
to achieve its goals. The language of Section 66A of the amended Indian Information Technology
Act, 2000 goes far beyond the reasonable restrictions on free speech, as mandated under Article
19(2) of the Constitution of India. For India, being the worlds largest, vibrant democracy,
reasonable restrictions on free speech need to be very strictly construed. Section 66A of the
amended Indian Information Technology Act, 2000 has the potential of prejudicially impacting
free speech in the digital and mobile ecosystems. Section 66A of the amended Indian
Information Technology Act, 2000 needs to be amended to made the Indian Cyber Law in sync

Constitutional and statutory safeguards for

Right to Privacy
with the principles enshrined in the Constitution of India and also with the existing realities of
social media and digital platforms today.
The arrest of two women in Mumbai for a Facebook post is the latest heavyhanded move by
Indias government to curb what Indian citizens say on the Internet. The two women were
arrested under a section of the Indian Penal Code that outlaws spreading statements creating or
promoting enmity, hatred or ill- will between classes after one complained about the citywide
strike sparked by the death of the Shiv Sena leader Bal Thackeray and the second woman liked
her statement.
But the incident was just the latest in a string of recent arrests, detentions and account
suspensions in India over online comments. If you live in India and have an opinion someone
might not like, but you dont want to become a target of the law, theres one easy rule you need
to follow, experts say: stay off social media. Right now, theres nothing one can do but to close
up your social media accounts andstop voicing your opinion on the Internet entirely, if you want
to guarantee you wont be arrested in India, said Sunil Abraham, executive director at the Center
for Internet and Society in Bangalore.

BIBLIOGRAPHY
1) Shukla V.N., Constitution of India, Singh P. Mahendra, Eleventh Edition, Eastern
Book Company
2) Bakshi P.M., TheConstitution of India, Eighth Edition, Universal Law Publishing
Co.
3)

Jain M.P, Indian Constitutional Law, sixth Edition, LexisNexis Butterworths

Wadhwa Nagpur, 2010

4) Durga Das Basu, Law of the Press fifth edition, Lexis Nexis Butterworths, Wadhwa
Nagpur, 2010.
5) Tim Wafa, Global Internet Privacy Rights: A Pragmatic Approach : 13. Intell. Prop.
L. BULL,2009.

Constitutional and statutory safeguards for

Right to Privacy
6) T Basanth, Impact of USA Patriot Act on Cyber privacy: A Revisit, 2006, (2006),
Vol V IJCL 23

7) A Micheal Froomkin The Death of Privacy,52 stan.l.Rev.1461,1468(2000)

8) Richard A. Posner. Privacy, Surveillance and Law, 75 U. Chi. L. Rev. 245, 248(2008)
9) Frederic M, Joyce, Andrew E Bigart, Liability for All, privacy for None: the
Conundrum of protecting privacy rights in a pervasively electronic world, 41 Val.
U.L Rev.