DR.

RAM MANOHAR LOHIA

NATIONAL LAW UNIVERSITY

2018

Human rights law

“Privacy of information and how broad is this right”

5 year integrated course at RMLNLU, Lucknow

SUBMITTED TO: SUBMITTED BY:

Dr. Aparna singh Utkarsh kumar Prajapati

Assistant professor (Law) Enroll no. - 150101151

Dr. Ram Manohar Lohia 7th Semester

National Law University,

Lucknow.
 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to Dr.

Aparna singh, Assistant Professor (Law) for her exemplary guidance, monitoring and

constant encouragement throughout the course. The blessing, help and guidance given

by her time to time shall carry me a long way in the journey of life on which I am

about to embark.

Lastly, I thank almighty, my parents, brother, sisters and friends for their constant

encouragement without which this research paper would not be possible.

 TABLE OF CONTENTS

1- Introduction
2- Right to privacy and right to information
3- CONCEPT OF PRIVACY IN INDIA
4- RIGHT TO PRIVACY NOT AN ABSOLUTE RIGHT
5- Aadhar and privacy
6- Indian Perspective about Right to Privacy and International
Instruments
7- Indian legislations
8- Judicial pronouncements
9- Conclusions and suggestions
10- References
 1- Introduction

Information privacy is the privacy of personal information and usually relates to personal
data stored on computer systems.

The need to maintain information privacy is applicable to collected personal information,

such as medical records, financial data, criminal records, political records, business related
information or website data.

Information privacy is also known as data privacy.

Information privacy is considered an important aspect of information sharing. With the

advancement of the digital age, personal information vulnerabilities have increased.

Information privacy may be applied in numerous ways, including encryption, authentication

and data masking - each attempting to ensure that information is available only to those with
authorized access. These protective measures are geared toward preventing data mining and
the unauthorized use of personal information, which are illegal in many parts of the world.

Information privacy relates to different data types, including:

 Internet privacy (online privacy): All personal data shared over the Internet is subject
to privacy issues. Most websites publish a privacy policy that details the website's
intended use of collected online and/or offline collected data.
 Financial privacy: Financial information is particularly sensitive, as it may easily use
to commit online and/or offline fraud.
 Medical privacy: All medical records are subject to stringent laws that address user
access privileges. By law, security and authentication systems are often required for
individuals that process and store medical records.

2- Right to privacy and right to information

In order to get an idea of the broadness of the “privacy of information”, we need to

understand the right to privacy and right to information.

The right to privacy and the right to information are both essential human rights in the
Modern information society. For the most part, these two rights complement each other in
holding governments accountable to individuals. But there is a potential conflict between
these rights when there is a demand for access to personal information held by government
bodies. Where the two rights overlap, states need to develop mechanisms for identifying core
issues to limit conflicts and for balancing the rights.

Privacy and RTI are often described as “two sides of the same coin”—mainly acting as
complementary rights that promote individuals ’ rights to protect themselves and to promote
government accountability. The relationship between privacy and RTI laws is currently the
subject of considerable debate around the globe as countries are increasingly adopting these
types of legislation. To date, more than 50 countries have adopted both laws

Privacy is increasingly being challenged by new technologies and practices. The technologies
facilitate the growing collection and sharing of personal information. Sensitive personal data
(including biometrics and DNA makeup) are now collected and used routinely. Public
records are being disclosed over the Internet. In response to this set of circumstances, more
than 60 countries have adopted comprehensive laws that give individuals some control over
the collection and use of these data by public and private bodies. At the same time, the
public’s right to information is becoming widely accepted. RTI laws are now common around
the world, with legislation adopted in almost 90 countries. Access to information is being
facilitated through new information and communications technologies, and Web sites
containing searchable government records are becoming even more widely available.
International Bodies are developing conventions, and relevant decisions are being issued by
international courts. Availability, legislation, and judicial decisions have led to many debates
about rules governing access to personal information that is held by public bodies. As equal
human rights, neither privacy nor access takes precedence over the other. Thus it is necessary
to consider how to adopt and implement the two rights and the laws that govern them in a
manner that respects both rights .There is no easy way to do this, and both rights must be
considered in a manner that is equal and balance.
 3- CONCEPT OF PRIVACY IN INDIA

The Indian Constitution did not guarantee the Right to Privacy as a fundamental right earlier.
In our country the sole-credit goes to the judiciary for recognizing the concept of privacy
because neither the Constitution nor any other statute in our country defined this concept. As
a matter of fact this concept is quiet in primitive stage of its development. But its
development is bound to have tremendous effect on the individual's living, However if we go
through various statutes of our country to understand the position of the concept of privacy,
then we would find several provisions which have been enacted for protecting privacy. Ss 28,
29,164(3) and 165of Cr. P.C., 1973, S 509 of IPC 1860 and S. 18 of Easements Act, 1882
may be taken as example. Not only this, ancient law in ‘dharam-shashtraas’ also recognized
the concept of privacy. Really the law of privacy has been well expounded in the
commentaries of old Law.

‘Kautilya’ in his ‘Arthashashtra’ has prescribed a detailed procedure to ensure right to

privacy while ministers were consulted. But neither in ancient law nor in the present law has
the term ‘privacy’ anywhere been defined. It is the matter of pleasure that the emerging trend
of the new constitutionalism by our judiciary justifies the need of a law trenching on one's
privacy-his dignity. Besides, Art. 12 of the Universal Declaration of Human Rights, 1948,
Art. 17 of the International covenant of Civil and Political Rights, 1966and Art. 8 of the
European Convention of Human Rights have recognized and provided for the protection of
this right to privacy. Further the Nordic conference of Jurists and Legal Experts also
emphasized that the right to privacy is paramount to the human happiness.

4- RIGHT TO PRIVACY NOT AN ABSOLUTE RIGHT

The right to privacy is an essential component of right to life envisaged by Art. 21. The right
however is not absolute and may be lawfully restricted for the prevention of crime, disorder,
or protection of health or moral; or protection of rights and freedom of others. With the
growth of terrorism and related activities each country is trying to do its best curbing this
trend. Today, there are cases where in organisations; all the e-mails of the employees are
monitored. It is an absolute abuse of the right to privacy. Further to recently all the cell phone
companies activated the tracking system wherein wherever the cell phone user goes his
mobile phone shows the name of the area. This makes one feel as if he is being tracked or
shadowed. It is a fit case of unreasonable restriction on the freedom of movement. The Indian
government is currently considering the idea of enacting a detailed law on data protection
under the initiative of the Ministry of Communication and Information Technology. A
detailed enactment in respect of the right to privacy is the need of the hour. Otherwise every
Indian citizen will be like a prisoner in his own backyard. In Govind v. State of Madhya
Pradesh1 it was held "Assuming that the fundamental right explicitly guaranteed to a citizen
has penumbral zones and that the right to privacy is itself a fundamental right, and it must be
subject to restriction on the basis of compelling public interests. “The code further observed
that" if there is a conflict between fundamental rights of two parties that right which advances
public morality would prevail. The right to privacy in any event will necessarily have to go
through a process of case by case development. Therefore, even assuming that the right to
personal liberty, the right to move freely throughout the territory of India and the freedom of
speech create an independent right of privacy, it is an emanation from them which one can
characterise as a fundamental right but the right is not absolute. Furthermore in Peoples
Union for Civil Liberties (PUCL) v. Union of India2 Supreme Court discussed whether
declaration of assets of an elected candidate is infringement of his right to privacy or it is in
favour of voter’s right to information. In the instant case P. Venkatarama Reddy J. observed:
"Privacy primarily concerns the individual. It therefore, relates to an overlaps with the
concept of liberty. The most serious advocate of privacy must confess that there are serious
problems of defining the essence and scope of the right. Privacy interest in autonomy must
also be placed in the context of other rights and values". Concluding, The norms of privacy
should be determined and measured to a common standard because a right without
description is a right without protection.. It may be hoped that when an appropriate case
comes before the Apex court, it would make an overall review arid reconsider the existing
position regarding the right to privacy.

5- Aadhar and privacy

The main reason why the case of infringement of privacy was filed was because the
Government of India asked for biometrics of the citizens to provide them with Aadhar Cards.
The Aadhar scheme makes it mandatory for all the citizens to have the Aadhar Card
otherwise they would suffer problems with respect to opening bank accounts, payment of

1
1975) 2 SCC 148
2
AIR 2003 SC 2363
taxes etc. The major contention was that the Aadhar Act does not make the enrolment for
Aadhar mandatory and hence, the said scheme is not violating any right because all the
people are giving their biometrics voluntarily. Light must be thrown on the fact that, the
Government of India definitely provides various social security benefits to the poor’s of the
country. If a citizen does not obtain Aadhar then he/she would be deprived of such benefit.
This would ultimately deprive them of the benefits and would create different unreasonable
classes of citizens which would again violate Article 14 (granting Right to Equality) of the
Indian Constitution.

Another reason for the invalidity of the said scheme is that there is definitely a trace of undue
influence that can be found here. The doctrine of colourable legistation founds its genesis in
the principal that what cannot be done directly can also not be done indirectly. The Aadhar
Act is definitely a form of colourable legislation wherein the Government indirectly and
secretly has an undue influence on certain sections of the society. When a citizen is made to
choose between privacy and social welfare schemes, then definitely they would choose food
and shelter first.

Another issue concerning the said issue being that even after introduction of such a scheme,
the Government did not make any stringent laws to safeguard the personal data of the
citizens. Although, the information technology act (IT Act) has been amended several times
to enhance the data protection laws, there should be stringent laws that still needs
introduction to implement the Aadhar Scheme. The Government must be made bound by law
to reveal the reason for collection of data as well as must take the responsibility for protection
of the same.

One of the solutions to prevent such unauthorized leak of personal data can be by allowing
anonymous access to services and anonymous surfing of internet. However, this can also
create many problems and would give rise to more cyber-crimes. Taking into consideration
various international conventions like Article 8 of European Convention and Article 12 of
Universal Declaration of human rights, the declaration and recognition of privacy as a
fundamental is the need of the hour. The Supreme Court of India has given a right judgment
and stringent data protection laws needs implementation. The privacy bill pending in the
Parliament must be passed after the judgment.
With the increase in the exchange of Trans-border data, the Organisation for Economic Co-
operation and Development (OECD) has given various guidelines with respect to protection
of personal data , some of them being-

 The data must be collected with the lawful consent of the person giving such data
and must be used for lawful means.
 The personal data must not be leaked or transferred to some other person without
the prior permission of the person giving data.

Hence, the said Aadhar Scheme also violates various international conventions also. Various
countries that have specific data protection laws are as follows-

 Canada which has its own Personal Information Protection and Electronic
Documents Act, 2000.
 K. Data protection Act, 1998
 Privacy Act, 1993 of New Zealand

6- Indian Perspective about Right to Privacy and International

Instruments

Article 17 of the International Covenant on Civil and Political Rights states about the right to
privacy, it say “No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation".
Whereas Article 12 of the Universal Declaration of Human Rights 1948, states “No one shall
be subjected to arbitrary interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks". Both instruments provide the right to privacy to the
citizen, and the states, who are signatory to it, are expected to fulfil these rights.

Since India is a signatory to the International Covenant on Civil and Political Rights and
Universal Declaration of Human Rights, 1948, India has the obligation to enforce these
rights.

In the lack of enabling legislation, the ICCPR can have the legal force as the other laws in
India. And the UDHR is a mere declaration, and it does not have the legal force. But the
courts has used provisions of ICCPR and UDHR to make its argument stronger; and also in
order to make realized the government about his obligation toward it citizen and towards
international instruments.

In the case of People's Union of Civil Liberties v Union of India3 Supreme Court cited the
Article 17 of ICCPR and Article 12 of UDHR. Through these two international instruments,
the court strengthened his contention and also to alert the government about his obligation
towards its citizen.

7- Indian legislations

Right To Information Act, 2005

 All information that relates to the working of Government and the use of public funds is
critical.

 Designated officers for release of information responsible for releasing information to the
public;

 Complaint Mechanism: The CIC or SIC is responsible for receiving and inquiring into
complaints by individuals;

 Proactive disclosure: Governmental bodies are required to proactively release specified

types of information,

 Act lays down clearly what is public, and in doing so protects the privacy of both citizens
and public figures.

 Any public official is permitted to disclose any information (exemptions included) if public
interest outweighs the protected interest.

Official Secrets Act 1923

3
Ibid.
Prior to the Right to Information Act, the Official Secrets Act was established to protect
sensitive governmental documents and communications;

The Prevention of Corruption Act 1988

In the context of the Prevention of Corruption Act information related to a public figures
assets and financial transactions is critical. The Prevention of Corruption Act enables law
enforcement to investigate governmental officials on allegations of corruption;

The Securities and Exchange Board of India Act, 1992

Information relating to finances of companies is critical to the Act. By enforcing transparency

and disclosure of information the Act ensures that companies are fairly portrayed to the
public, and are unable to manipulate markets. In turn dilutes the privacy of companies.

8- Judicial pronouncements

Allahabad high Court in Nihal chand v. Bhawan Deit took first step when it recognized an
independent existence of the right to privacy as emerging from the customs and traditions of
the people besides being a statutory right. It observed :'the right to privacy based on social
custom....is different from a right to privacy based on natural modesty and human morality,
the latter is not confined to any class, creed, colour or race and it is a birth right of any human
being and is sacred and should be observed. The right should not be exercised in an
oppressive way'.

Then M.P. Sharma v. Satish Chandra4 was the first case before the Supreme Court wherein
it had an opportunity of considering the constitutional status of the right to privacy in the
context of state power of search and seizer, but a very narrow view of constitutional
provisions was taken in this case. Unfortunately the opportunity was missed and the right to
privacy could not be put into the public law.

4
2 1954 AIR 300
In Kharak Singh v. State of Uttar Pradesh5, the petitioner was charged and tried for
committing dacoity and he was subjected by the police to domiciliary visits and surveillance.
While determining the validity of such visits and surveillance by the police, the apex court
examined whether the right to privacy formed a part of personal liberty. It observed that
personal liberty is a compendium of rights that go to make up the personal liberty of an
individual and that the right to life in Art. 21 of our constitution is similar to that of
fourteenth and fifteenth amendments to the US Constitution.

Further the court relied on Wolf v. Colorado6 held that the common law rule that event man's
house was his castle, expounded a concept of personal liberty which did not rest upon a
theory that had ceased to exist and that the domiciliary visit was repugnant to personal liberty
and hence unconstitutional.

7
In Pooran Mal v. Director of Instruction apex the court restricted the right to privacy to
search and seizure. In fact in a landmark judgment in the case of People's Union for Civil
Liberties v. Union of India8 the Supreme Court held that "right to life and personal liberty
includes the right to privacy and right to privacy includes telephone conversation in the
privacy at home or office and thus telephone tapping violates Art. 21".

In R. Rajagopal v. State of T.N.9 popularly known as "Autoshanker case" the Supreme

Court has expressly held the "right to privacy" or the right to be let alone is guaranteed by
Art. 21 of the constitution. A citizen has a right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, childbearing and education among other matters.
No one 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 of the person concerned and would be liable in an action for damages. However,
position may be differed if he voluntarily puts into controversy or voluntarily invites or raised
a controversy.

5
AIR 1963 SC 1295
6
338 U.S. 25 (1949)
7
[1974] 1 S.C.C. 345
8
(2004) 1 SCC 712
9
(1994) 6 SCC 632
In State of Maharashtra v. Madhulkar Narain10 it has been held that the'right to privacy' is
available even to a woman of easy virtue and no one can invade her privacy. A police
Inspector visited the house of one Banubai in uniform and demanded to have sexual
intercourse with her. On refusing he tried to have her by force. She raised a hue and cry.
When he was prosecuted he told the court that she was a lady of easy virtue and therefore her
evidence was not to be relied. The court rejected the argument of the applicant and held him
liable for violating her right to privacy under Art. 21 of the Constitution. There are many
aspects of privacy found in the Indian socio-legal system but the right to privacy in the light
of conjugal rights requires special attention.

The question of relation between the right to privacy and conjugal right arose for the first
time in T.Sareetha v. T.Venkata Subbai11 Andhra Pradesh High Court observed that sexual
the cohabitation is an inseparable ingredient of a decree for restitution of conjugal rights.

In case of Mr. ‘X’ Vs. Hospital ‘Z’12 person was found to be a HIV positive and the
information was disseminated by the doctor to his prospective wife. The person preferred a
suit against the doctor for breach of right to privacy and damages as well. Doctor patient
relationship though basically commercially is professionally a matter of confidence and
therefore, doctors are normally and ethically bound to maintain confidentiality. In such a
situation public disclosure of even true private facts may amount to an invasion of the "right
to privacy" which may sometimes lead to clash of one person's "right to be let alone" with
another person's "right to be informed".

In the case of Ram Jethmalani and Others. V. Union of India13 Supreme Court held: “Right
to privacy is an integral part of right to life, a cherished constitutional value and it is
important that human beings be allowed domains of freedom that are free of public scrutiny
unless they act in an unlawful manner.

9- Conclusions and suggestions

As Justice Hugo Black wrote in the Griswold vs. Connecticut opinion, "'Privacy' is a broad,
abstract and ambiguous concept." There is no one sense of privacy which can be extracted

10
AIR 1991 SC 207
11
AIR 1983 AP 356
12
2003 (1) SCC 500
13
(2011)
from the various Court decisions which have touched upon it. The mere act of labelling
something "private" and contrasting it with "public" implies, though, that we are dealing with
something which should be removed from government interference.

Talking about India, with the recognition of privacy as a basic and fundamental right of an
individual, India definitely cannot lag behind. The judgment of the Supreme Court is correct
and true and with the growing information technology, privacy needs to be fundamental right.
However, it is also true that stringent laws needs introduction after this. An expert committee
must be formed to probe into the matter as to how many privacy infringement issues are
taking place in India and accordingly legislation exclusively dealing with such problems must
be enacted. Data protection laws must be made more stringent and must conform to OECD
guidelines. Only one or two sections like section 43A of the IT Act won’t be sufficient to
regulate the data protection at such a large scale when schemes like Aadhar are to be
implemented.

When it comes to conflict between infringement of privacy and public interest, reasonable
care must be taken to choose as to what is more important. Individual interest cannot override
public interest. The maxim “salus populi est suprema lex” which means public welfare is
the highest law must be maintained in the democracy. Jurisprudentially also, Bentham gave
the pain and pleasure theories. Hence, the Government must take into account the pleasure of
larger number of people should try to inflict lesser pain. There must be regulation on the
arbitrary use of power by the Government with respect to personal information of the people.
One of the greatest advantages that India has is that the Privacy bill, 2011 is still pending in
the Parliament. Hence, relevant amendments can be made to it before enacting it as
legislation.

As far as homosexuality is concerned, Indian has taken a right stand by decriminalizing

homosexuality and helped in relaxing of the privacy of individuals of L.G.B.T.Q community.
Privacy as a fundamental right cannot be made an exception to a particular community just
because they have different traits. As far as consensual sex takes place between two
individuals in closed room which does not hamper social life, homosexuality is not something
bad. Also, there should be strict guidelines with respect to tapping of telephone and
permission from the higher authority must be made mandatory.
 10- References

BOOKS-

a- H.M. Seervai, Constitutional law of India, Vol.2, 2007, Universal law publishing co.

b- J.N. Pandey, The Constitutional law of India, 4th ed

c- M.P. Jain, Indian Constitutional law, 5th ed., Wadhwa publishing co.

LINKS-

https://blog.ipleaders.in/right-to-privacy-judgment-impact/
https://www.techopedia.com/definition/10380/information-privacy
http://folk.uio.no/lee/oldpage/articles/Human_rights.pdf
https://academic.oup.com/hrlr/article/14/3/441/644279