RIGHT TO PRIVACY

Submitted By: Submitted To:

Tushar Joshi Mrs. Aruna Hyde, Prof. C.M. Mukherjee

Roll No. 160 Hidayatullah National Law University

B.A. LL.B (Hons) Raipur

19-09-2011
 Right to Privacy

TABLE OF CONTENTS

1. Declaration……………………………………………………..2
2. Acknowledgements…………………………………………….3
3. Acronyms/Abbreviations Used………………………………..4
4. Research Methodolgy………………………………………….5
5. Objectives……………………………………………………....6
6. Introduction : What is Privacy?.......………………………….7
7. Protection Of Privacy : International Scenario……………...8
8. Privacy Laws : Indian Legal Scenario………………………..11
9. Right to Privacy Bill…………………………………………...13
I)Background…………………………………………………..13
II)The Bill………………………………………………………15
III) Statement and Objectives…………………………………15
IV) Important Clauses of the Bill……………………………..15
10. Conclusion……………………………………………………...17
11. Bibliography……………………………………………………18

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 Right to Privacy

DECLARATION

I, Tushar Joshi, hereby declare that, the project work entitled, ‗Right To Privacy‘
submitted to H.N.L.U., Raipur is record of an original work done by me under the
able guidance if Mrs. Aruna Hyde, Prof. C.M. Mukherjee Faculty Member,
H.N.L.U., Raipur.

Tushar Joshi

Batch XI

Roll No. 160

19/09/2011

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Acknowledgements

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them in words is
beyond the domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Faculty-in-charge Mrs.
Aruna Hyde and Prof. C.M. Mukherjee, for their kind gesture in allotting me such a
wonderful and elucidating research topic. Apart from that I would like to thank my friends
Simranvir, Pratibhanu, Kabeer amd Malay for their support and suggestions during the process
of making this project.

Tushar Joshi

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 Right to Privacy

Acronyms/Abbreviations Used

A.I.R. - All India Reporter

S.C.C. – Supreme Court Cases

U.N. - United Nations

U.S. – United States

U.K. – United Kingdom

O.E.C.D. – Organization for Economic Co-Operation and Development

M.P. – Member of Parliament

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Research Methodology

The research methodology used in this project is analytical and descriptive. It is largely based on
electronic and secondary sources of data. Data has been collected from various books, articles,
papers and web sources. This project is based upon non-doctrinal method of research. This
project has been done after a after a through research based upon intrinsic and extrinsic aspects
of the project.

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 Right to Privacy

OBJECTIVES

To define what is privacy

A history of privacy protection laws of various international organizations, conventions

and nations.

Current legislations, judgements regarding protection of privacy in India.

Analysis of The Right to Privacy Bill introduced in Rajya Sabha.

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 Right to Privacy

► Introduction: What is Privacy?

The word privacy comes from the Latin word privates. It is the state in which you are not
watched or disturbed by others. It is the ability of an individual or group to seclude themselves or
information about themselves and thereby reveal themselves selectively. Privacy as a concept
involves what privacy entails and how it is to be valued. Privacy as a right involves the extent to
which privacy is (and should be legally protected). ―The law does not determine what privacy is,
but only what situations of privacy will be afforded legal protection 1.‖ It is interesting to note
that the common law does not know a general right of privacy and the Indian Parliament has so
far been reluctant to enact one. U.S. Supreme Court‘s Justice Brandeis articulated right to
privacy as ‗a right of an individual to be left alone‘. According to Edward Bloustein, privacy is
an interest of the human personality. It protects the inviolate personality, the individual's
independence, dignity and integrity. The concept of privacy varies from person to person. It is
something which is more related to self-exposure to the world. It all depends on a person how
much he wants to share about himself to the world. Thus the term ‗privacy‘ can be described as
―the rightful claim of the individual to determine the extent to which he wishes to share of
himself with others and his control over the time, place and circumstances to communicate with
others. It means the right to withdraw or to participate as he sees fit. It also means the
individual‘s right to control dissemination of information about himself; it is his personal
procession‘‘. Privacy can also be defined as a ‗Zero-relationship‘ between two or more persons
in the sense that there is no communication or interaction between them, if they so choose.

The recognition of privacy is deeply rooted in history. There is recognition of privacy in

the Qur'an and in the sayings of Mohammed. The Bible has numerous references to
privacy. Jewish law has long recognized the concept of being free from being watched. There
were also protections in classical Greece and ancient China. There are various forms of privacy,
some of them being:

1. Information privacy, which involves the establishment of rules governing the collection
and handling of personal data such as credit information, and medical and government
records. It is also known as "data protection".

1
Hyman Gross, The Concept of Privacy

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 Right to Privacy

2. Bodily privacy, which concerns the protection of people's physical selves against
invasive procedures such as genetic tests, drug testing and cavity searches.
3. Privacy of communications, which covers the security and privacy of mail, telephones,
e-mail and other forms of communication.
4. Territorial privacy, which concerns the setting of limits on intrusion into the domestic
and other environments such as the workplace or public space. This includes searches,
video surveillance and ID checks.
5. Organisational Privacy, which concerns with the Governments agencies, corporations,
and other organizations and their desire to keep their activities or secrets from being
revealed to other organizations or individuals.

► Protection of privacy: International Scenario

Legal protection has existed in Western countries for hundreds of years. In 1361, the Justices of
the Peace Act in England provided for the arrest of peeping toms and eavesdroppers. In 1765,
British Lord Camden, striking down a warrant to enter a house and seize papers wrote, "We can
safely say there is no law in this country to justify the defendants in what they have done; if there
was, it would destroy all the comforts of society, for papers are often the dearest property any
man can have."2 Parliamentarian William Pitt wrote, "The poorest man may in his cottage bid
defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow
through it; the storms may enter; the rain may enter - but the King of England cannot enter; all
his forces dare not cross the threshold of the ruined tenement."

Various countries developed specific protections for privacy in the centuries that followed. In
1776, the Swedish Parliament enacted the Access to Public Records Act that required that all
government-held information be used for legitimate purposes. France prohibited the publication
of private facts and set stiff fines for violators in 1858. The Norwegian Criminal Code prohibited
the publication of information relating to "personal or domestic affairs" in 1889.

2
Entick v. Carrington, 1558-1774 All E.R. Rep. 45.

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 Right to Privacy

The modern privacy benchmark at the international level can be found in the 1948 Universal
Declaration of Human Rights3, which specifically protects territorial and communications
privacy4. Article 12 states:

“No one should be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks on his honour or reputation. Everyone has the right to the
protection of the law against such interferences or attacks.”

This human right has also been articulated in the International Covenant on Civil and Political
Rights, 19763 (―ICCPR‖). The obligations imposed under the ICCPR require the State to adopt
legislative and other measures to give effect to the prohibition against such interferences and
attacks as well as to the protection of this right.4 The UDHR and the ICCPR are directly binding
upon India as it is a signatory to both these international conventions. However, no consequent
legislation has been enacted in India to protect this coveted right.
Numerous international human rights treaties specifically recognize privacy as a right. The
United Nations Convention on Migrant Workers, Article 14, and the UN Convention on
Protection of the Child, Article 16 adopt the same language.

Article 8 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950 makes this right legally enforceable in Europe. The Convention created the
European Commission of Human Rights and the European Court of Human Rights to oversee
enforcement. Both have been active in the enforcement of privacy rights and have consistently
viewed Article 8's protections expansively and interpreted the restrictions narrowly. The
Commission found in 1976:

“For numerous Anglo-Saxon and French authors, the right to respect "private life" is the
right to privacy, the right to live, as far as one wishes, protected from publicity...In the opinion
of the Commission, however, the right to respect for private life does not end there. It
comprises also, to a certain degree, the right to establish and develop relationships with other
human beings, especially in the emotional field for the development and fulfillment of one's
own personality.”

3
India is a signatory to UDHR
4
Declared by U.N. Genral Assembly on Dec 10,1948

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 Right to Privacy

The OECD5 has formulated Guidelines on the Protection of Privacy and Transborder Flows of
Personal Data (―the Guidelines‖). The Guidelines attempt to balance the protection of privacy
and individual liberties and the advancement of free flows of personal data through eight privacy
principles which, if observed, are supposed to guarantee a free flow of personal information from
other OECD countries.
The European Parliament and the Council of the European Union passed the Data Protection
Directive with an aim to establish a regulatory framework to protect privacy through meeting
three stated objectives.
The objectives are:
to protect the rights and freedoms of individuals regarding the processing of personal data;

to harmonize data protection standards throughout Europe; and

to limit movement of data to those countries outside of Europe that do not have adequate levels
of protection.

The Privacy Act of 1974 protects records held by US Government agencies and requires them to
apply basic fair information practices. Like the Indian Constitution, there is no explicit right to
privacy in the US Constitution. However, US Courts have interpreted the right to privacy to be
included in the US Constitution.
The US has no comprehensive privacy protection law for the private sector. A patchwork of
federal laws covers some specific categories of personal information. These include financial
records, credit reports, video rentals, cable television, children‘s (under age13) online activities
educational records, motor vehicle registrations, and telephone records. However such activities
as the selling of medical records and bank records, monitoring of workers, and video surveillance
of individuals are currently not prohibited under federal law. There is also a variety of sectoral
legislation on the state level that may give additional protections to citizens of individual states.
The tort of privacy was first adopted in 1905 and all but two of the 50 states recognize a civil
right of action for invasion of privacy in their laws.

5
Organization for Economic Co-Operation and Development

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 Right to Privacy

Several other countries such as UK, Spain, Switzerland, Sweden, Australia, China (Taiwan),
Thailand, Singapore, to name a few, have enacted laws to protect data and privacy rights.

► PRIVACY LAWS : Indian Legal Scenario

The Indian Constitution does not expressively grant Right to Privacy. The right to privacy has
been interpreted as an unarticulated fundamental right under the Constitution of India
(―Constitution‖). The growing violation of this right by the State on grounds (that are not
always bona fide) encouraged the Indian Judiciary to take a pro-active role in protecting this
right. The Supreme Court of India has come to the rescue of common citizen, time and again by
construing ―right to privacy‖ as a part of the Fundamental Right to ―protection of life and
personal liberty‖ under Article 21 of the Constitution, which states ―no person shall be
deprived of his life or personal liberty except according to procedures established by law‖.

A landmark judgment with respect to this issue is Kharak Singh v. State of U.P.6 The Supreme
Court held that the right of privacy falls within the scope of Article 21 of the Constitution and
therefore concluded that an unauthorized intrusion in to a persons home and disturbance caused
to him is in violation of personal liberty of the individual.
In this case, it was held that the expression ―right to life‖ was not limited to bodily restraint or
confinement to prison only but something more than mere animal existence. Here the Petitioner
was kept under police surveillance, while he was charged with the offence of dacoity. The police
made domiciliary visits to his house for verification of his movements and activities.
However, in Gobind v. State of Madhya Pradesh 7 the Supreme Court qualified the right to
privacy and held that a violation of privacy could be possible under the sanction of law.
The scope and ambit of the right of privacy or right to be left alone came up for consideration
before the Supreme Court in R. Rajagopal v. State of T.N. during 1994.In this case the right of
privacy of a condemned prisoner was in issue. By interpreting the Constitution in light of case
law from the United Kingdom and United States, Justice B.P. Jeevan Reddy held that though the

6
AIR 1963 SC 1295
7
(1975) SCC (Cri) 468

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 Right to Privacy

right to privacy was not enumerated as a fundamental right, it could certainly be inferred from
Article 21 of the Constitution.
Another significant case related to the right of privacy was the People's Union of Civil Liberties
v. the Union of India8. The case was primarily involved with the issue of 'telephone tapping' and
held that tapping a person‘s telephone line violated his right to privacy, unless it was required in
the gravest of grave circumstances such as public emergency. In this case, Section 5 (2) of the
Indian Telegraph Act, 1885 was challenged since it allowed the concerned authorities to
intercept message for transmission by or transmitted or received by any telegraph, in the interests
of national sovereignty. The decision in this case was a result of a broad interpretation of Article
21 of the Constitution, thereby including telephone tapping as a violation of privacy.

In Mr. „X‟ v. Hospital „Z‟9, where the marriage of an individual was called off after the doctor
publicized the HIV+ reports of an individual, the Supreme Court held that ―Right of privacy
may, apart from contract, also arise out of a particular specific relationship, which may be
commercial, matrimonial, or even political. Doctor-patient relationship, though basically
commercial, is professionally, a matter of confidence and, therefore, doctors are morally and
ethically bound to maintain confidentiality.‖ The court observed that even the Code of Medical
Ethics carved out an exception to the rule of confidentiality and permitted the disclosure in
certain circumstances ‗under which public interest would override the duty of confidentiality‘
particularly where there is ‗an immediate or future health risk to others‘. According to the court,
the ‗right to confidentiality, if any, vested in the appellant was not enforceable in the present
situation, as the proposed marriage carried with it the health risk from being infected with the
communicable disease from which the appellant suffered.

As regards the argument of the appellant that his right to privacy had been infringed by the
respondents by disclosing that he was HIV (+) and, therefore, they were liable in damages, the
Supreme Court observed that as one of the basic human rights, the right of privacy was not
treated as absolute and was ‗subject to such action as may be lawfully taken for the prevention of
crime or disorder or protection of health or morals or

8
(1997) 1 SCC 318
9
(1998) 8 SCC 296

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 Right to Privacy

protection of rights and freedom of others.‖

While it may seem that the right to privacy is adequately protected as a fundamental right, it is
essential to keep in mind that barring a few exceptions, fundamental fights secured to the
individual are limitations only on State action. Thus, such an interpretation will not protect an
individual against the actions of private parties. From an understanding of the Indian legal
scenarios, it can be concluded that there exists no Indian legislation that covers the protection of
rights of privacy, which can be interpreted in therealm of transactions between individuals and
corporations or between two individuals.

No general right relating to personal data protection has been developed so far. The Indian
conception of privacy is rather different from the European one. Although the Information
Technology Act, 2000 is based on the Model Law on Electronic Commerce earlier adopted by
the United Nations Commission on International Trade Law (UNCITRAL), it is often quoted in
India as an Act containing provisions pertaining to data protection. The IT Act is more an Act
related to e‐commerce and cyber crime than a data protection Act. The Indian Contract Act
provides for an alternative solution for European data exporters Nevertheless, this remains a
subsidiary solution. The Credit Information Companies (Regulation) Act, 2005 contains certain
provisions ensuring data protection but it is limited in its scope. It only imposes duties on credit
information companies, credit institutions and specified users while processing credit
information. Moreover, no specific authority has been established to ensure the implementation
of these provisions under this Act. However, Regulations made by the Reserve Bank of India –
still not adopted‐ foresees, in Section 19, that the Reserve Bank is empowered to impose penalty
or reprimand any credit information company, credit institution or specified user having
contravened the Act. On this ground, the Reserve Bank could be considered as a specific Data
Protection Authority in the field of credit information.‖
► Right To Privacy Bill :

BACKGROUND 
The Niira Radia episode led to an unexpected gain for privacy crusaders as the government has
been forced to pay heed to an average citizen‘s concerns about how secure his or her cell-phone

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conversations or other databases are. The Radia tapes controversy related to the taped and
released telephonic conversations between Nira (also Niira) Radia, a professional lobbyist and
politicians, corporates and industrialists, officials, bureaucrats, aides and journalists that were
taped by the Indian Income Tax Department in 2008–09. The tapes led to government and public
accusation that these calls evidence the planning of the 2G spectrum scam and other criminal and
unconstitutional activities. Nira Radia runs a public relations firm named Vaishnavi Corporate
Communications, and also operates through subsidiaries such as Neucom, Noesis Strategic
Consulting Services and Vitcom Consulting, whose clients, among others, include Ratan
Tata's Tata Group, Mukesh Ambani‘s Reliance Industries and Prannoy Roy's NDTV.

Ratan Tata, Head of 320,000 crore salt-to software conglomerate went to Supreme Court against
the publication of intercepts of his conversation with Neera Radia, who handles the corporate
communication for the group. Tata holds that as Radia‘s phones were tapped by government
agencies specially for investigating a possible offence, the recorded conversations should have
been used for that purpose alone.
Ratan Tata submitted a petition before Supreme Court asking to protect his right to privacy.
For this he requested—

1. ―direct the ministry of home, finance, director general income tax and the CBI to take
immediately retrieve and recover as far as possible all recordings that have been removed
from their custody‘‘
2. ―direct the government through the CBI or any other authority a thorough enquiry
into the manner in which these secrets records were, contrary to the rules, made available
and/or became available to those not authorized to so receive the recordings before this
court‘‘
3. ―direct the government to ensure that no further publication of these recordings, either as
audio files through the Internet o has any print as transcripts appears in any media-print
or electronic-and for that purpose take steps as may be necessary, under the Cable
Television Networks Regulation Act, 1995, the Information Technology Act, 2000, the
Information Technology Act, 2000, the Code of Criminal Procedure, 1973, read with the
Indian Penal Code, 1860, and any other law as may be necessary.‘‘ Chief of Tata group is

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begging for right to life, invoking Article 32 to secure Article 21. But given that freedom
of information laws have at their core the purpose of disclosure, exemptions are strictly
construed, and it has been said that the public right to know should prevail unless
disclosure would publicize intimate details of a highly personal nature.

The Bill10 
The Bill was introduced in the Rajya Sabha by M.P. Rajeev Chandrashekhar. It is a bill to
provide for the protection of right to privacy of persons including those who are in public life so
as to protect them from being blackmailed or harassed or their image and reputation being
tarnished in order to spoil their public life and for the prevention of misuse of digital technology
for such purposes and for matters connected therewith and incidental thereto.

Statements and Objective11:

Every person has the right to privacy exclusively meant for him to enjoy unless it does not
violate any provisions of Law for the time being in force. But these days this right has become
the subject matter of hot debate throughout the country particularly after the recent Multi-Media
Messaging Service (MMS) episodes which have thrown up some important questions about the
lacunae in our existing laws and threats of digital technology. Commercialization of sex and easy
availability of internet has opened new vistas in pornography. Advancement of technology has
made photography by cell phone cameras and videography by small equipments which could be
hidden easily which are now employed with impurity to secretly by capture private images and
intimate moments of women or couples or friends and thereafter used to embarrass or blackmail
the suspecting victims. It is the duty of the State to prevent the misuse of new advancements in
technology and protect the right of privacy of its citizens by providing deterrent punishment for
the violators.
Important Clauses in the Bill :
Section 2(a) of the Bill defines ‗digital recording‘. While section 2(b) of the bill defines ―Persons
in public life‖ including the representatives of the people in Parliament, State Legislatures, local
self Government bodies and office bearers of recognized political parties.

10
As introduced in Rajya Sabha on the 25TH February, 2011
11
Bill can be viewed at ‗164.100.24.219/BillsTexts/RSBillTexts/asintroduced/right.pdf‘

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Section 3(1) defines their right to privacy as ‗exclusive, unhindered and there shall be no
unwarranted infringement thereof by any other person, agency, media or any one‘. Anyone
infringing this right would be deemed guilty under this act. Though, this right wont be applicable
in cases of corruption and misuse of office by the person in public life.
Under this bill, people are prohibited to use ‗a cellular phone with a built in camera if its does not
produce a sound of at least sixty five decibels and flash a light when used to take a picture of any
object or person, as the case may be‘.

Section 5 is the most important section of this bill which prevents any person from making
digital recording or taking photographs or making videography in any manner whatsoever of:

(a) any part or whole of a human body which is unclothed or partially clothed without the
consent of the person concerned; or

(b) any part or whole of a human body at any public place without the consent of the person
concerned; an

(c) the personal and intimate relationship of any couple in a home, hotel , resort or any place
within the fore walls by hidden digital other cameras and such other instruments; with the intent
of blackmail or of making commercial gains from it or otherwise.

The violation of this act would invite a penalty ranging from :

i)imprisonment for a term which shall not be less than four years but may extend to seven years
and also with a fine which may extentd to five lakh rupees for violation of Section 3 of the bill.

(ii) fine which may extend to fifty thousand rupees for violation of Section 4 of the bill.

(iii) imprisonment for a term which may extend to three years and also with a fine which may
extend to two lakh rupees for the violation of Section 5 of the bill.

Every punishable offence under this Act would be deemed cognizable.

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Conclusion:

Hence we may conclude that the concept of privacy and protection of privacy is comparatively
new in India. Though this concept in the western nations has been in existence for a relatively
longer period of time. Over the period of years, the Supreme Court of India has acted a savior of
private rights of an individual by interpreting the Right to Privacy as a fundamental right under
article 21 of the Constitution. India has been a signatory to Declaration of Human Rights which
defines a person‘s right to privacy. Moreover there are many other international organizations
who have been working for the protection of human privacy.

In background of the recent developments especially the Niira Radia phone taping issue, the
government has lately been thinking of protecting the privacy of ‗persons in public life‘. For this
the Right to Privacy bill was introduced in the Rajya Sabha. It is for the first time in the history
of the country that such a step has been taken to safeguard human privacy.

Apart from the privacy in life, a new form of privacy violation has been noticed lately. This
being through the medium of internet. For this, the government had introduced the India Data
Protection and Control Bill in 2006 but since then there has been no progress over the issue.

Though the steps taken are commendable, a lot needs to be done in this field.

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BIBLIOGRAPHY

www.privacyinternational.org

White Paper on Privacy Protection in India - Vakul Sharma

Report 223 law commission of india

www.thehindu.com

The Right to Privacy Bill as presented in Rajya Sabha on 25 February,2011

Your privacy is public property by Neha Tara Mehta (Mail Today, May15,2011)

Article 21 of Constitution of India – Justice N.K. Jain

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