CHAPTER ONE

INTRODUCTION AND RESEARCH METHODOLOGY

1.1 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 anywhere 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.

The Project goes through the Constitutional Aspects of privacy and an overview about
the statutory aspects of privacy such as Right to Privacy Bill, Privacy in Digital World,
International Aspects of Privacy such as international conventions and the implementations of this
in other Jurisdictions such as UK and US, surveillance and interception Laws, Privacy and Unique
Identification Number (UID) Privacy and Forensic processes like DNA and other process, Privacy
in Medical Profession and concludes with the remark that Right to Privacy has not got its
importance as a Fundamental Right in the Present Scenario because when it comes to other aspect
right to privacy is always given the second position.

1.2 Research Methodology

Aim:

Evaluate the key concept of Right to Privacy and Its Constitutional Aspect and statutory aspect.
The objective of the project is to study the impact of Right to Privacy in Indian context such as

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Information technology act, Indian Telegraph act and with respect with international Aspects and
throw some light on issues surrounding the enforceability thereof.

Objectives:
1. To understand the definition and meaning of ‘Right to Privacy’ with reference to Indian
Constitution.
2. To study the role of judiciary in evolution of ‘Right to Privacy’ under Article 21.
3. To examine the international aspects and standards of ‘Right to Privacy’.
4. To explain the scope and extent of ‘Right to Privacy’ in light of reasonable restrictions
and constitutional limitations.

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 Internet technology, National Security, Population
census, economic development and other situations the recognition of Right to privacy always
comes as a second priority.

Rationale of study: Intrusion upon privacy is gradually becoming the order of the day. It has
therefore become a matter of great concern. Human urge is to keep things, which are private, away
from the public gaze. With the advent of globalization and technology the meaning and contours
of privacy has also taken different forms. There is a right to live, but is there a right to privacy? If
there is, what is the scope and parameters of this right? What do we do about it in case there is
breach thereof? This research project seeks to explore these socio-legal issues.

Concept of study:

1. Privacy: The right that determines the non-intervention of surveillance and the protection
of an individual’s information. It is split into 4 categories:
a. Physical: An imposition whereby another individual is restricted from experiencing an
individual or a situation.
b. Decisional: The imposition of a restriction that is exclusive to an entity.
c. Informational: The prevention of searching for unknown information and

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 d. Dispositional: The prevention of attempts made to get to know the state of mind of an
individual.
2. Fundamental Right: Fundamental rights are those rights which are essential for intellectual, moral
and spiritual development of individuals. As these rights are fundamental or essential for existence
and all-round development of individuals hence called as 'Fundamental' rights. These are enshrined
in Part III (Articles 12 to 35) of the Constitution of India.
3. Judicial activism: It is that judicial philosophy which motivate judges to depart from the
traditional precedents in favour of progressive and new social policies.

Nature of research: Descriptive and analytical methods of doctrinal research are employed in
collection of data for this project which are based on compilation and analysis of primary and
secondary sources through personal scrutiny.

Type and sources of data:

1. Primary: Statutes and Case laws

2. Secondary: Books, websites, articles, journals,

Review of literature:

1. Majumdar, P.K., Kataria, R.P., Commentary on the Constitution of India, 10th edn.(2009)
The book provides an insightful inquiry on the most important area of law that is our
Indian Constitution. The book also delves into the role of judiciary in the growth of
Indian legal system which is a significant part of the project.

2. Durga Das Basu, Law of the Press 5th edition (2010)

The book on the ‘Law of Press’ explains extensively the legal framework in India with
respect to Press and associated issues in consonance with the Freedom of speech and
expression. The author critically examines the statutory provisions of the Indian
Telegraph Act with respect to reasonable limitations and restrictions on the ‘Right to
Privacy’.

3. M.P Jain, Indian Constitutional Law, 6th edition (2016)

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 The intuitive take of this book on contemporary constitutional issues like Right to
Privacy in present world serves as an authoritative text in the field of constitutional law.
The author explains chronologically the march of law with respect to expansion of ambit
of ‘Freedom of Speech and Expression’ and Right to life and personal liberty under
article 19 and 21 respectively, which are also the foundational provisions for the
evolution of ‘Right to Privacy’ in India.

Limitation of study: The doctrinal nature of the study limits the scope for sources of data to
statutes, case laws, journals, articles, books, news reports, web pages and magazines.

Limitation of time: Time stipulated for completion of the research project was 30 days.

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 CHAPTER TWO
CONSTITUTIONAL BACKGROUND OF RIGHT TO PRIVACY

2.1 Right to Life and Personal Liberty:

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.

Article 21 reads as:

“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme

importance in a democratic society.”1 Iyer, J., has characterized Article 21 as “the procedural
magna carta protective of life and liberty.2 This right has been held to be the heart of the
Constitution,3 the most organic and progressive provision in our living constitution, the foundation
of our laws.4

Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty”
by the “State” as defined in Article 12. Violation of the right by a private individual is not within
the preview of Article 21.5
Article 21 secures two rights:
 Right to Life; and
 Right to Personal Liberty.

The Article prohibits the deprivation of the above rights except according to a
procedure established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth

1
Francis Coralis v. Union Territory of Delhi AIR 1981 SC 746
2
P.S.R. Sadhanantham v. R.S Naik AIR 1992 SC 1701
3
I.R. Coelho v. State of Tamil Nadu AIR 2007 SC 861
4
Rajneesh Kapoor v. Union of India AIR 2007 M.P. 204
5
Bombay Dyeing & Mfg. Co. v. By. EA Group AIR 2006 SC 1489

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Amendment to the American Constitution, Article 40(4) of the Constitution of Eire 1937, and
Article XXXI of the Constitution of Japan, 1946.6

Article 21 applies to natural persons. The right is available to every person, citizen or alien.
Thus, even a foreigner can claim this right.7
The term “life” as mentioned in the Article has been given a broad meaning by the Supreme
Court. Right to Life does not merely mean the continuance of a person’s animal existence but a
quality of life. In the case of Kharak Singh v. State of Uttar Pradesh,8 the Supreme Court quoted
with approval Field, J.’s observation in Munn v. Illinois9 and held:

“By the term “life” as here used something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by amputation of an
arm or leg or the pulling out of an eye, or the destruction of any other organ of the body
through which the soul communicates with the outer world.”

In Sunil Batra v. Delhi Administration10 the Supreme Court reiterated with theapproval the
above observations and held that the “right to life” included the right to lead a healthy life so as to
enjoy all faculties of the human body in their prime conditions. It would even include the right to
protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It
includes the right to live in peace, to sleep in peace and the right to repose and health.

In P. Rathinam v. Union of India,11 the Supreme Court defined “life” as follows: “The
right to live with human dignity and the same does not connote continued drudgery. It takes within

6
Majumdar, P.K., Kataria, R.P., Commentary on the Constitution of India, p. 928 (10th Ed., Vol.
1, Orient Publishing Company, Allahabad, 2009)
7
O. Konavalov v. Commander Coast Guard Region (2006) 4 SCC 1489
8
AIR 1963 SC 1295
9
(1877) 94 U.S. 113
10
AIR 1978 SC 1675
11
AIR 1994 SC 1844

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its fold some of the fine graces of civilization which makes life worth living and that the expanded
concept of life would mean the tradition, culture and heritage of the person concerned.”
In Olga Tellis,12 the Supreme Court has emphasized that the term “life” in Article 21 is not
only restricted to mere animal existence of a person. It means something more and “the inhibition
against the deprivation of life extents to all those limits and faculties by which life is enjoyed.”

In D.B.M. Patnaik v. State of Andhra Pradesh,13 some prisoners challenged some

restrictions as violation of Article 21. The Supreme Court stated that a convict is not denuded of
all his fundamental rights. Imprisonment after conviction is bound to curtail some of his rights,
e.g., freedom of speech or movement, but certain other rights, e.g., right to hold property, could
still be enjoyed by a prisoner. In Akhtari Bi v. State of Uttar Pradesh,14 the Supreme Court has
recognized the right of a child of 3 years to parental care, love and affection. The court ruled that
depriving the child of the right was not only against the interests of the child but against the interest
of the society as well.

2.2 Meaning of Right to Privacy:

The right to be let alone, the right of a person to be free from unwarranted publicity.15 The
right of an individual (or corporation) to withhold himself and his property from public scrutiny,
if he so chooses. It is said to exist only so far as its assertion is consistent with law or public policy,
and in a proper case equity will interfere, if there is no remedy at law, to prevent an injury
threatened by the invasion of, or infringement upon, this right from motives of curiosity, gain, or
malice.16
“Privacy” has been defined as “the state of being free form intrusion or disturbance in one’s
private life and in affairs.”17

12
AIR 1986 SC 180
13
AIR 1974 SC 2094
14
AIR 2001 SC 1528
15
Holloman v. Life Ins. Co. of Virginia, 7 S.E.2d 169(S.C. 1940)
16
Black's Law Dictionary, 4th Ed. Rev., 1968, at page 1358.
17
Distt. Registrar & Collector v. Canara Bank (2005) 1 SCC 496

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 The terms privacy and Right to Privacy can’t be easily conceptualized. To understand this
more appropriately privacy has been taken in different ways in different situations. Tom Gaiety
said ‘right to privacy is bound to include body’ inviolability and integrity and intimacy of personal
identity including marital privacy.18

CHAPTER THREE
EVOLUTION OF RIGHT TO PRIVACY IN INDIA

The concept of privacy can also be pragmatic in the ancient text of Hindus. Looking at the
‘Hitopadesh’ which enumerates that certain matter such as worship, sex and family matters should
be protected from disclosure. The very concept is not entirely non-familiar to Indian Culture, the
privacy in ancient time was related to ‘Positive Morality’. So, in spite of this, right to privacy was
vague in the ancient Indian text.19
In present time, the issue of Right to Privacy was discussed for the very first time in debate
of constituent assembly, where an amendment was moved by K.S. Karimuddin, where B.R.
Ambedkar gave it only snobbish support and Right to Privacy was not incorporated in the Indian
Constitution. The issue of privacy was dealt with both as a fundamental right under the
Constitution and as a common law right since the 1960’s.Privacy was not considered as a
fundamental right was first held by the Supreme Court in the year 1954 by an eight-judge bench
in M.P. Sharma v. Satish Chandra20 case, while dealing with the power to search and seize
documents from the Dalmia Group, dismissed the existence of a right to privacy on the basis that
the makers of Constitution.21

18
Dr. P.K. Rana,” Right to Privacy in Indian Perspective”, 2IJL 07(2016).
19
Evolution of Right to Privacy, India, available at: https://www.lawteacher.net/free-law-
essays/constitutional-law/evolution-of-the-right-to-privacy-constitutional-law-essay.php (last
visited on Oct 7, 2019).
20
AIR 1954 SCR 1077
21
Supra at 19

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 There are a large number of cases where Indian Courts have recognised the right to privacy
as a fundamental right. Below is a list of landmark cases that have elaborated on the right to
privacy along with short points on what the Court has held in those cases:

The first was a seven-Judge bench decision in Kharak Singh V. The State of U.P22 decided
in 1964. In this case before the Supreme Court, a minority opinion recognized the right to privacy
as a fundamental right. The minority judges located the right to privacy under both the right to
personal liberty as well as freedom of movement. 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 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 Rao’s observations, opened the way for later elaborations on
the right to privacy using Article 21.

In Govind v. State of M.P.23 the Supreme Court confirmed that the right to privacy is a
fundamental right. It derived the right to privacy from both the right to life and personal liberty as

22
AIR 1963 SC 1295
23
(1975) 2 SCC 148

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well as freedom of speech and movement. The right to privacy was said to encompass and protect
the personal intimacies of the home, the family marriage, motherhood, procreation and child
rearing. However, the right to privacy is subject to “compelling state interest”.

In Malak Singh v. State of Punjab,24 the question related to as to when surveillance of a

person would be infringement of his “right to privacy”. In this case, the name of the petitioner was
included in the surveillance register by the police under section 23 of the Punjab Police Act, he
not being given an opportunity of being heard. Since he was not heard and including his name in
the register, he argued, had infringed his right to privacy under Article 21. The Court held that
“organized crime cannot be successfully fought without close watch of suspects. But, surveillance
may be intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his
fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom
of movement guaranteed by Article 19(1)(d). That cannot be permitted.”

Nearly fifteen years after this case the Supreme Court elaborated the right to privacy in R.
Rajagopal vs. State of Tamil Nadu25. 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 prisoner’s privacy. Curiously, neither Shankar himself, nor his
family was made parties to this petition.

24
AIR 1981 SC 760
25
(1994) 6 S.C.C. 632

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 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.
(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 newspaper’s right to publish Shankar’s
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 publication”26
In People’s Union for Civil Liberties v. Union of India27 case the Supreme Court extended
the right to privacy to communications in which the court was called upon to consider whether

26
Ibid
27
AIR 1997 SC 568

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wiretapping was an infringement of a citizen’s 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.”
Also, the Court went on to hold that “the right to hold a telephone conversation in the
privacy of one’s home or office without interference can certainly be claimed as right to privacy”.
This was because “conversations on the telephone are often of an intimate and confidential
character…Telephone 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
Act.
The Court further laid down guidelines that form the backbone for the checks and balances
in interception provisions in India such as:
(i) Interception orders to be issued only by Home Secretaries at both the Central and State
governments;
(ii) Issues such as the necessity of the information and whether it can be acquired by other means
to be considered while making the decision to approve interception;

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(iii) The addresses and the persons whose communication has to be intercepted should be specified
in the order, which means that the interception order cannot be generic; and
(iv) Putting a cap of two months on the life of an interception order.

In District Registrar and Collector, Hyderabad and another v. Canara Bank and
another28 the Supreme Court judgment refers to personal liberty, freedom of expression and
freedom of movement as the fundamental rights that give rise to the right to privacy. The Court
also held that the right to privacy deals with persons and not places and that an intrusion into
privacy may be by (1) legislative provisions, (2) administrative/executive orders and (3) judicial
orders.

Petronet LNG LTD vs. Indian Petro Group and Another29 - In this case before the Delhi
High Court, it was established that corporations and companies cannot assert a fundamental right
to privacy. Furthermore, the right to privacy is not available against non-state individuals or actors.

In R. Sukhanya v. R. Sridhar,30 the Madras High Court held publication of matrimonial

proceedings, meant to be conducted in camera, as invasion of right of privacy and more
importantly the Court also held that “the rightful claim of an individual to determine to which he
wishes to share himself with others and control over the time, place and circumstances to
communicate with others.”

In Selvi and others v. State of Karnataka and ors. 31 the Supreme Court acknowledged the
distinction between bodily/physical privacy and mental privacy. The scheme of criminal and
evidence law mandates interference with the right to physical and bodily privacy in certain
circumstances, but the same cannot be used to compel a person "to impart personal knowledge
about a relevant fact". This case also establishes the intersection of the right to privacy with Article
20(3) (self-incrimination). An individual's decision to make a statement is the product of a private

28
AIR 2005 SC 186
29
CS (OS) No.1102/2006
30
AIR 2008 Mad. 244
31
AIR 2010 SC 1974

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choice and there should be no scope for any other individual to interfere with such autonomy.
Subjecting a person to techniques such as narcoanalysis, polygraph examination and the Brain
Electrical Activation Profile (BEAP) test without his or her consent violates the subject’s mental
privacy.

In Unique Identification Authority of India & Anr. v. Central Bureau of

Investigation32 case, the Central Bureau of Investigation sought access to the database of the
Unique Identity Authority of India for the purposes of investigating a criminal offence.
However, the Supreme Court in an interim order held that the Unique Identity Authority of
India should not transfer any biometric information of any person who has been allotted an
Aadhaar number to any other agency without the written consent of that person.

Recently in the landmark judgment of Justice K.S. Puttuswamy (Retd.) & Anr. v. Union
of India & Ors.33 Given by the Supreme Court, the issue of privacy was discussed in light of the
Unique Identity Scheme. The question before the court was whether such a right is guaranteed
under the Constitution, and if it is, the source of this right, given that there is no express provision
for privacy in Indian Law. The Attorney General of India argued that privacy is not a fundamental
right guaranteed to Indian citizens. Ultimately, the Court left the question to be deliberated by a
larger constitutional basis since the earlier judgments that denied the existence of the right to
privacy were given by larger benches than the cases where the right to privacy was accepted as a
fundamental right. This led to unresolved controversy, leading the Court to refer the matter to a
larger bench to be settled. This was settled in the 2017 ruling that there was a fundamental right to
privacy in the constitution.

32
SLP (Crl) 2524/2014
33
(2017) 10 SCC 1

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 CHAPTER FOUR
STATUTORY PROTECTION OF PRIVACY IN INDIA
4.1.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.
. 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.

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 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.
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.34
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 one’s 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.

4.2.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)35 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

34
http://www.iltb.net/2011/06/analysis-of-the-privacy-bill-2011
35
Prashant Iyengar, Privacy and the Information Technology Act in India, SSRN ELIBRARY
(2011),available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1807575

16 | P a g e
a wrongful gain and is punishable with imprisonment which may extend to 3 years or a fine of Rs.
5, 00,000 or both.
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.

4.3.Proposed amendment to include ‘Right to Privacy’ expressively in 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.”36
There has, so far been no move to amend the constitution to give effect to this recommendation

36
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), available at: http://lawmin.nic.in/ncrwc/finalreport/v1ch3.htm

17 | P a g e
 CHAPTER FIVE
DIFFERENT ASPECTS ASSOCIATED WITH RIGHT TO PRIVACY

5.1.Privacy in medical profession:

For improving the standards of medical practice and profession the medical council of India
in 2002, notified the Indian Medical Council (Professional conduct, Etiquette and Ethics)
Regulations which contain ethical restrictions backed by disciplinary action in cases of breaches.
Several of the articles in these regulations relate to privacy, for instance
Every physician is required to maintain medical records pertaining to indoor patients for a period
of 3 years from the date of commencement of the treatment. Upon request by the patients or
authorized agents or legal authorities involved these documents should be issued within a period
of 72 hours.
Physicians should also maintain Confidences concerning individual or domestic life entrusted by
patients to a physician. Defects in the disposition or character of patients observed during medical
attendance should never be revealed unless their revelation is required by the laws of the State.
The rules also requires the physician, controversially to evaluate “whether his duty to society
requires him to employ knowledge, obtained through confidence as a physician, to protect a
healthy person against a communicable disease to which he is about to be exposed”. In such an
instance, the rules advice the physician to “act as he would wish another to act toward one of his
own family in like circumstances.37”
The registered medical practitioner should disclose the secrets of a patient that have been learnt
in the exercise of his / her profession except –
1. in a court of law under orders of the Presiding Judge;
2. in circumstances where there is a serious and identified risk to a specific person and / or
community; and
3. notifiable diseases.38

37
Article 2.2 of the Indian Medical Council (Professional conduct, Etiquette and Ethics)
Regulations 2002
38
Id Article 7.14

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 A medical practitioner is also prohibited from publishing photographs or case reports of
patients without their permission, in any medical or other journal in a manner by which their
identity could be made out. If the identity is not to be disclosed, however, the consent is not
needed39.
In Mr. ‘X’ v. Hospital ‘Z’,40 the question before the Supreme Court was whether the
disclosure by the doctor that his patient, who was to get married had tested HIV positive, would
be violative of the patient’s right to privacy. The Supreme Court ruled that the right to privacy was
not absolute and might be lawfully restricted for the prevention of crime, disorder or protection of
health or morals or protection of rights and freedom of others. The court explained that the right
to life of a lady with whom the patient was to marry would positively include the right to be told
that a person, with whom she was proposed to be married, was the victim of a deadly disease,
which was sexually communicable. Since the right to life included right to healthy life so as to
enjoy all the facilities of the human body in the prime condition it was held that the doctors had
not violated the right to privacy.

5.2.DNA and other forensic technologies and Privacy

It is evident that the utility of the mass of the forensic technologies and information such
as fingerprints, handwriting samples and photographs, DNA data in solving crimes is immense.
Without having said a word, it is possible for a person to be convicted based on these various
bodily affects,the human body constantly bears witness and self-incriminates itself. Both
handwriting and finger impressions beg the question of whether these would offend the protection
against self-incrimination contained in Article 20(3) of our Constitution which provides that “No
person accused of any offence shall be compelled to be a witness against himself.” This argument
was considered by the Supreme Court in State Of Bombay vs Kathi Kalu Oghad And Others41
The petitioner contended that the obtaining of evidence through legislations such as the
Identification of Prisoners Act amounted to compelling the person accused of an offence "to be a
witness against himself" in contravention of Art. 20(3) of the Constitution. The court held that

39
Id Article 7.17
40
AIR 1999 SC 495
41
AIR 1961 SC 1808

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“there was no infringement of Art. 20(3) of the Constitution in compelling an accused person to
give his specimen handwriting or signature, or impressions of his thumb, fingers, palm or foot to
the investigating officer or under orders of a court for the purposes of comparison. ..Compulsion
was not inherent in the receipt of information from an accused person in the custody of a police
officer; it will be a question of fact in each case to be determined by the court on the evidence
before it whether compulsion had been used in obtaining the information”.
Now regarding the validity of DNA the Orissa High court after considering the concerns
about privacy Laid Down following principles in the case of Thogorani Alias K. Damayanti vs
State of Orissa And Ors42, the necessary cases where or reasons for which DNA tests can be
applied:
 The extent to which the accused may have participated in the commission of the crime.
 The gravity of the offence and the circumstances in which it is committed.
 Age, physical and mental health of the accused to the extent they are known.
 Whether there is less intrusive and practical way of collecting evidence tending to confirm
or disprove the involvement of the accused in the crime.
 The reasons, if any, for the accused for refusing consent.

Although there are several such ‘technologies’ which operate on principles ranging from
changes in respiration, to mapping the electrical activity in different areas of the brain, what is
common to them all, in Lawrence Liang’s words is that they “maintain that there is a connection
between body and mind; that physiological changes are indicative of mental states and emotions;
and that information about an individual’s subjectivity and identity can be derived from these
physiological and physiological measures of deception”.43
In a case of Ramchandra Ram Reddy v. State of Maharashtra44 the Bombay High Court
upheld these technologies by applying the logic of the Kathi Kalu Oghad case discussed above.
The court drew a distinction between ‘statements’ and ‘testimonies’ and held that what was
prohibited under Article 20(3) were only ‘statements’ that were made under compulsion by an

42
2004 Cri L J 4003
43
Keynote address given to the 93rd Indian Science Congress. Available at:
http://www.sarai.net/publications/readers/07-frontiers/100-110_lawrence.pdf (last visited 8th
Oct., 2019)
44
(2205) CCR 355 (DB)

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accused. In the court’s opinion, “the tests of Brain Mapping and Lie Detector in which the map of
the brain is the result, or polygraph, then either cannot be said to be a statement.” At the most, the
Court held, “it can be called the information received or taken out from the witness”.
This position was overruled by the Supreme Court in the land mark decision of Selvi v.
State of Karnataka45. In contrast with the Bombay High Court, the Supreme Court expressly
invoked the right of privacy to hold these technologies unconstitutional.
The court held “Even though these are non- invasive techniques the concern is not so much
with the manner in which they are conducted but the consequences for the individuals who undergo
the same. The use of techniques such as `Brain Fingerprinting' and `FMRI based Lie-Detection'
raise numerous concerns such as those of protecting mental privacy and the harms that may arise
from inferences made about the subject's truthfulness or familiarity with the facts of a crime.”
Further down, the court held that such techniques invaded the accuser’s mental privacy which was
an integral aspect of their personal liberty.

5.3. Privacy in digital world:

In the revolutionary article written by Samuel D Warren and Louis D. Brandeis, the authors
recognized the need to preserve the core privacy principles especially in the midst of emerging
technologies. Information sent through global network may pass through numerous computers
amenable to its administrators who may capture and store online information. Further, a person’s
activities may be monitored by the service provider to which the person have subscribed and by
the websites visited by him46. In the view of rapid growth of privacy destroying technologies47 and
era of ‘dataveilliance’ there are no virtually online services that guarantee absolute privacy.
Right to Privacy is compliant to the interests of the state. This empowers the law
enforcement agencies to gain access to personal information of any person via internet, intercept
their communication and put any person under surveillance. Digitization of information has helped
law enforcement agency in monitoring a person. With digitization, not only can recorded
information be retained indefinitely at little cost, but also the information held by merchants,

45
AIR 2010 SC 1974
46
T Basanth, Impact of USA Patriot Act on Cyber privacy: A Revisit, (2006), Vol V IJCL 23, P. 24
47
A Micheal Froomkin The Death of Privacy,52 stan.l.Rev.1461,1468(2000)

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insurers and government agencies can be readily be shared, opening the way to assembling all the
recorded information concerning an individual in a single digital file that can easily be retrieved
and searched48.
The principle statutory base for surveillance and interception is the Indian Telegraph Act
1885. Section 5(2) of the act states that ‘On the occurrence of any public emergency, or in the
interest of the public safety, the Central Government or a State Government or any officer specially
authorized in this behalf by the Central Government or a State Government may, if satisfied that
it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States or public order or for preventing
incitement to the commission of an offence, for reasons to be, recorded in writing, by order, direct
that any message' or class of messages to or from any person or., class of persons, or relating to
any particular subject, brought for transmission by or transmitted or received by any tele- graph,
shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government
making the order or an officer thereof mentioned in the order’.

5.4. International aspects of Privacy:

The International Covenant on Civil and Political Rights which explicitly affirms the right
to privacy in Article 17, which provides that no one shall be deprived or be subject to unlawful
and arbitrary interference with his privacy, family and there shall be no unlawful attack to his
honour and reputation. Also Article 8 of European Convention on human rights provides that
everyone has the right of respect for his privacy, family, home and correspondence. Other than
these two no other conventions deal with privacy as such.

Right to Privacy in US
The Legal Frame work for Protection of Privacy In USA is a mixture of common Law,
Federal and state statutory laws. In spite of omission of the word ‘Privacy’ entirely by the
constitution, U S courts through its decisions have acknowledged and enumerated “Right to

48
Richard A. Posner. Privacy, Surveillance and Law, 75 U. Chi. L. Rev. 245, 248(2008)

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Privacy”49. Right to privacy was initially associated with right to property50. Gradually the term
privacy began to transcend the realm of property rights 51. In Griswold v, Connecticut52 US
Supreme Court struck down a legislation which prohibited the use of contraceptives. Here the
term privacy was described as a ‘constitutional right’ of married couples to use contraception
without fear of government surveillance or punishments. In Roe v. Wade53, US Supreme Court
upheld the right of an unmarried pregnant woman to an abortion since it is concerned with her
private life. Since Griswold in 1965, the constitutional right of privacy has expanded, including
divergent interests in both ‘Decisional Privacy’- i.e. The right to make certain profoundly personal
decision such as those concerning contraception, abortion or marriage, free form government
coercion and ‘Informational privacy’, i.e. The right to preserve the confidentiality of certain highly
professional information, such as one’s medical records in the government possession54.

Right to Privacy in United Kingdom

Historically, English common law has recognised no general right or tort of privacy, and
was offered only limited protection through the doctrine of breach of confidence and a "piecemeal"
collection of related legislation on topics like harassment and data protection. The introduction of
the Human Rights Act 1998 incorporated into English law the European Convention on Human
Rights. Article 8.1 of the ECHR provided an explicit right to respect for a private life for the first
time within English law. The Convention also requires the judiciary to "have regard" to the
Convention in developing the common law55.
The expansion of the doctrine of breach of confidence under the Human Rights Act began
with the Douglas v Hello. Section 6 of the Human Rights Act requires English courts to give effect
to the rights in the Convention when developing the common law. There is no need to show a pre-

49
Tim Wafa, Global Internet Privacy Rights: A Pragmatic Approach: 13. Intell. Prop. L. BULL.
131,133(2009)
50
Durga Das Basu, Law of the Press 5th edition,(2010), Lexis Nexis Butterworths, Wadhwa
Nagpur, P. 83.
51
Walden v. Heyden 387 US 294, 304.
52
381 US 479(1965)
53
410 US 113(1973)
54
Ibid at 50
55
http://www.11sb.com/pdf/privacyaftermaxmosley.pdf (last accessed on 8th Oct., 2019)

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existing relationship of confidence where private information is involved and the courts have
recognized that the publication of private material represents a detriment in itself.56 The Human
Rights act has parallel effect in disputes between private individuals which means that the Human
Rights Act is just as applicable as if one party had been a public body. Breach of confidence now
extends to private information (regardless of whether it is confidential) so as to give effect to
Article 8 of the European Convention on Human Rights. Before this breach of confidence afforded
"umbrella protection" to both personal and non-personal information57.
British radio DJ Sara Cox's case against The People newspaper was one of the first celebrity
privacy cases. The media referred to the case as a "watershed"58. The disc jockey sued after the
newspaper printed nude photographs of her taken while on her honeymoon. However the case was
settled out of court and so did not establish a precedent. The decision was seen as discrediting the
Press Complaints Commission59.

Surveillance and Interception in Digital World: Position in US and UK

The United States has two separate legislations60 that deal with surveillance of electronic
correspondences through these programs. The United Kingdom also employs these surveillance
programs through its Regulation of Investigatory Powers Act, 2000. The Wiretap Act of 1968 (US)
set the blueprint for all subsequent privacy and surveillance laws by generally protecting the
privacy of wire and oral communications while also permitting certain authorized interceptions61.
In 1986, congress updated laws that authorized wiretapping, eavesdropping, and clandestine

56
http://www.ucl.ac.uk/laws/global_law/publications/institute/docs/privacy_100804.pdfv (Last
visited on 9th Oct., 2019)
57
Ibid.
58
Cox privacy case 'a watershed',available at: http://news.bbc.co.uk/2/hi/uk_news/2971330.stm
(Last visited on 9th Oct., 2019)
59
Privacy law remains confused, available at: http://news.bbc.co.uk/2/hi/uk_news/2975718.stm
(Last visited on 9th Oct., 2019)
60
The Electronic Communications Privacy Act 1986(which consists of three sub parts: The
Wiretap Act, The stored Communications Act and the Pen register Act ) and Foreign Intelligence
Surveillance Act 2006
61
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. 1481,1486-87 (2007)

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surveillance in the Electronic Communications Privacy Act (“ECPA”). The ECPA extended
wiretap protections to the interception of electronic forms of communication, including cellular
phones, e-mail, and computer transmissions. Enacted as title II to the ECPA, the stored
Communications Act makes it unlawful for a provider of an electronic communications service to
knowingly divulge the contents of a communication while in electronic storage. It also prohibits a
person or entity providing remote computing services from knowingly divulging the contents of
any communication which is carried on or maintained on that service62. In 1978, congress enacted
Foreign Intelligence Surveillance Act and authorized the government to conduct electronic
surveillance of foreign agents within the United States.
In 2001, in response to the September 11 terrorist attacks, congress passed the USA PATRIOT
Act of 2001 which lies above the aspect of Privacy in many cases. It permits the government to
use pen registers to capture a vast amount of information, including telephone numbers,
comprehensive “dialing, routing, addressing or signaling information.”63 And potential internet
related information such as email and IP addresses. In addition the Act permits the government
without court approval to share the contents of intercepted electronic communication among
federal law enforcement and intelligence personal64. In essence the act has enlarged or expanded
the scope of surveillance statutes and expanded the coverage of those statutes to include new
targets, lowered the government’s threshold to engage in surveillance and placed additional
responsibilities on communication providers65 .

62
Ibid.
63
USAPA section 216
64
USAPA section 203
65
USAPA section 210 expands the type of information that a provider must disclose to the Law
enforcement agencies, which includes “records of session times and duration”; any temporarily
assigned network address and any means or source of payment

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 CHAPTER SIX
CONCLUSION

Right to privacy is a requisite of right to life and personal liberty under Article 21 of the
Indian Constitution. Right to privacy is not an absolute right, it may be subject to certain reasonable
restrictions for prevention of crime, public disorder and protection of others but, it may, apart from
contract, also arise out of a specific relationship that may be commercial, matrimonial or even
political and also where there is a conflict between these two derived rights, the one, which
advances public morality and public interest, will prevail.

The Court's broad interpretation of the right to privacy has paved the way for a wide range of
claims. While the exact boundaries of the right will continue to develop on a case by case basis, it
is clear that privacy claims will often have to be weighed against other competing interests. In the
absence of a defined hierarchy among the various rights guaranteed under Part III of the
Constitution, the decision in each case will vary based on facts at hand and the judicial
interpretation.

Looking at the previous judgments of the Apex court in its seminal years, one can observe the
cachet of the court to treat the Fundamental Rights as water-tight compartments in the case of A.K.
Gopalan v. State of Madras, the relaxation of this stringent stand could be felt in the decision of
Maneka Gandhi v. Union of India, the right to life was considered not to be the epithet of a mere
animal existence, but the guarantee of full and meaningful life. Considering ourselves a part of a
society, we often countermands that we are individuals first and in this world each and every
person or individual need his/her private space. So as to give each individual that right, the State
accordingly is giving those private moments to be enjoyed with those whom they want without the
prying eyes of the rest of the world. As every day is advancing, this right is becoming more and
more essential. With all our lives being exposed to the media through social networking sites or
the spy cameras, the protection is to be given to everyone and it should act in such a manner that
no one should think to intrude the right to privacy of the individuals. Privacy should be protected
in every aspect but it is subjected to reasonable restrictions under the provision of Constitution of
India and other relevant statutory provisions in force. One needs to understand that privacy should

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be keep in mind and within the confined limits not to explain to rest of the world.

Suggestions:
From the above mentioned discussions in detail, it may be suggested:
1. There may be prohibition of interception of communications except in certain cases but
only with the approval of Secretary- level officer.
2. A Central Communication Interception Review Committee may be constituted to examine
and review the interception orders passed by the concerned authority.
3. A data protection authority may be established which might protect data and whose
function will be to monitor the development in data processing.
4. Penalty should be imposed upon such person who tries to obtain any information from any
resource or any officer of government under any pretext.

Contribution:
This research projects finds its purpose in elaborating and analyzing the role of Judiciary in
protection of Right of Privacy in cases of unsolicited intervention of individuals and the state. The
research adds up to the existing pool of knowledge regarding judicial activism in expanding the
scope of privacy per se and provides a comprehensive elaboration to the same.

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 BIBLIOGRAPHY

Books:
1. Black's Law Dictionary, 4th Ed. Rev., 1968
2. Majumdar, P.K., Kataria, R.P., Commentary on the Constitution of India, 10th edn.(2009)
3. Durga Das Basu, Law of the Press 5th edition (2010)
4. M.P Jain, Indian Constitutional Law, 6th edition (2016)
Journals:
1. Dr. P.K. Rana,” Right to Privacy in Indian Perspective”, 2IJL 07(2016)
2. T Basanth, Impact of USA Patriot Act on Cyber privacy: A Revisit, (2006), Vol V IJCL
23, P. 24
3. A Micheal Froomkin The Death of Privacy,52 stan.l.Rev.1461,1468(2000)
4. Richard A. Posner. Privacy, Surveillance and Law, 75 U. Chi. L. Rev. 245, 248(2008)
5. Tim Wafa, Global Internet Privacy Rights: A Pragmatic Approach: 13. Intell. Prop. L.
BULL. 131,133(2009)
6. 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. 1481,1486-87 (2007)
Articles:
1. Evolution of Right to Privacy, India, available at: https://www.lawteacher.net/free-law-
essays/constitutional-law/evolution-of-the-right-to-privacy-constitutional-law-essay.php
2. Prashant Iyengar, Privacy and the Information Technology Act in India, SSRN
ELIBRARY (2011)
3. Keynote address given to the 93rd Indian Science Congress. Available at:
http://www.sarai.net/publications/readers/07-frontiers/100-110_lawrence.pdf
4. Cox privacy case 'a watershed',available at:
http://news.bbc.co.uk/2/hi/uk_news/2971330.stm
5. Privacy law remains confused, available at:
http://news.bbc.co.uk/2/hi/uk_news/2975718.stm

28 | P a g e
Websites:
1. http://www.11sb.com/pdf/privacyaftermaxmosley.pdf
2. http://www.ucl.ac.uk/laws/global_law/publications/institute/docs/privacy_100804.pdfv
Reports:
1. 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).

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