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Chapter - III
AN IDEA TO FUNDAMENTAL
RIGHT TO PRIVACY

 Synopsis

 Prologue

 Meaning and Definition of Right To Privacy

 Origin and Evolution of Right To Privacy

 The Landmark Judgment of 2017

 Impact of 2017 Judgment and Way Forward

 Restrictions on Right to Privacy

 Current Data Protection Laws in the Country

 Analysis of The Personal Data Protection Bill, 2019

 Epilogue

3.1 Prologue

“There was a sacred realm of privacy for every man and woman where he made his
choices and decisions-a realm of his own essential right and liberties in to which the
law, generally speaking, must not intrude”.

- Geoffrey Fisher

“Privacy originates from the word ‘Privi’ which meant something very secret.
This showed that there were certain actions or moments in man's life which he wished

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to discharge them without any interference from any one”. Privacy is one of the
indispensable and apparent rights which every individual should enjoy but this right
was not acknowledged as a distinctive right by the administration for a long time
because it was not stipulated under the Constitution. With the passage of time the
acknowledgment of Person’s liberty has increased and this has been given due
importance by Judiciary.

What does the term privacy means? How the thought of affording security to
Privacy arrives? What is the nature of privacy is it a basic right, a human right, or a
natural right? Is this right absolute or there are some restriction over it? Is in the
Digital Era, right to privacy possible? In this Chapter, such issues are addressed along
with the other aspect of privacy jurisprudence in the country.

“Privacy is a value that has been ingrained in the behaviour of people

throughout the world. However, a different kind of privacy may matter to different
people and in different situations. Privacy is a basic need of an individual to lead a life
of dignity. It is not restricted to individuals alone and extends to groups and
institutions. Privacy allows them to determine what, when, where, and how
information which they possess can be shared with others. It enables individuals to
restrict others’ entry into the domain of information they hold control over”.

It permits a person to depart from the larger community for a shorter period of
time. It sustains the personality of an individual. Individuals are expected to enlarge
their ideals and thoughts in period of solitude95. During these times, an individual is at
his creative best and develop ideas and solutions that help to deal with not only
individual problems but also societal problems. He/she needs to think freely without
fear of being ridiculed or judged by others. Privacy in the sphere of relationships is
also a necessary component of personality development. An individual should be able
to express his thoughts towards his near ones freely. They help in the emotional
release where an individual can drop the masks he/she wears in his/her public life and
vent his/her emotions. For a relationship to be trustworthy, individuals should full-fill
their responsibilities without surveillance into their activities.

95
John B Young, Privacy 4 (Chichester, Wiley, New York, 1978)

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 Privacy is a natural desire of every human being, and they automatically
pursue it. This pursuit has only increased in modern times with the increasing
complexities and challenges posed by life. It is now increasingly accepted that privacy
is not just a desire but an absolute need that should be translated into a right. At its
centre, the right of privacy secures the self and builds a boundary that limits the other.

The study of privacy law necessitates the understanding of the concept of

privacy, which in itself is a humongous task. This is because of the emotional and
subjective connotations attached to it. Privacy is not that easy to define. In every
phase, it meant different things to different people in everyday parlance freedom of
speech, freedom of thought, freedom from surveillance, protection of reputation,
protection from disclosure of information shared in confidence, etc. Privacy is
situational in nature, and its meaning varies between nations and cultures.

“The study of privacy law has become significantly crucial in modern times
because of the rapid strides in technology and communication. The march of
technology has made available an extensive surveillance network that threatens to
eliminate our privacy. Our digital transactions, social media posts, phone calls, travel
history, etc. are now available for tracking96. The two most potent forces, Businesses,
and Governments, are shaping the technological development of the internet. They
maintain extensive databases of information about individuals. These developments
have necessitated the need to draw a balance between an individual’s need for privacy
and society’s need for information”.

Although the third industrial revolution has been a boon to humanity in terms
of reducing the effort through the use of computers and digital technology, the advent
of data processing and surveillance mechanisms have threatened our traditional
patterns of privacy. Amidst these concerns about our privacy’s encroachment, there
has been an increasing focus on the right to privacy and expanding its scope further. It
is a mechanism to defend ourselves from unnecessary intrusion in our life and give us
the freedom to choose how we would like to interact with the world. It protects the
individuals from arbitrary and unjustified use of power by businesses and
governments.

96
Charles Nesson, “Threats to Privacy” 68 Social Research 107-108 (2001)

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3.2 Meaning and Definition of Privacy

The legislation doesn’t provide the definition of privacy, however solely

provides certain situations which are provided protection by the legislature. Therefore,
we have to look at the Dictionary or general meaning of the term and the definitions
given by various authors. But before going to the definitions given by various authors
let us have a look at the wordy meaning of the term.

Right to Privacy is made of two words: first is ‘Right’ which is defined as

“Legally recognized and protected Interest”, and second is ‘Privacy’ the legal
definition of which is not available in Indian statutes. However, it usually refers to a
situation in which individual is not noticed or disturbed by other individual and State.
So Privacy can be defined as recognisation and protection of right from being
observed or disturbed by the force of Law. In simple words this term relates to the
notion of protection of individual’s private information from the inspection of public.
So it can be said that it is right of a person to be free from disturbance or interference
by State or its Agencies, “the condition of being alone or free from public attention, as
a matter of choice or right; freedom from interference”.

After having an idea about the general meaning of the concept let us have a
glance at the various definitions and explanations given by different jurists nationally
and internationally. There are several jurists who have given their opinion on this
right but only important are stated here.

3.2.1 Charles Fried

Many theorists use the idea of control in defining privacy, and the foremost
among them is Charles Fried. In his article in the Yale Law Journal, he described
privacy as “control we have over information about ourselves.” Charles Fried was
concerned about the increasing number of insidious intrusions through sophisticated
equipment into areas that weren’t affected earlier and the growing claims to personal
information by public and private agencies. He explained that the concept of privacy
requires a sense of control and power to control aspects of one’s environment. This
control can be given by a legal title to control97.

97
Charles Fried, “Privacy” 77 Yale Law Journal 482-483 (1965).

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3.2.2 Edward Shils

Edward Shils elucidated “Privacy as a zero relationship between two or more

persons in the sense that there is no interaction or communication between them if
they so choose” 98 . Privacy exists when the initiators of the outward flow of
information are the ones about whom this information relates to. It is like a boundary
through which information doesn’t flow from the possessors of information to others.

3.2.3 Adam Carlyle Breckenridge

Dr. Breckenridge conducted a study on the extent to which an individual is

“protected from arbitrary and unreasonable intrusions into personal privacy by the
Bill of Rights and the Fourteenth Amendment” in the U.S.A. According to him, it is
the right of person to decide on the point upto which he wants to distribute
information about him with others, depending upon the time, place, and
circumstances. It is his right to withdraw or participate in sharing information or
communicating with others as he deems fit99. He favors a balance between individual
rights and community interests but the balance is tilted in the favour of individual
rights.

3.2.4 Arthur R Miller

In his book “The Assault on Privacy,” Arthur Miller warns that a “Dossier
Society” nurtured by computers is a threat to personal privacy which is fundamental
in a democracy. According to Arthur, the concept of privacy is complicated to define
as it is exasperatingly vague and evanescent as a doctrine and is all things to all men.
He agrees with the view that the vital ingredient in the definition of the right to
privacy is the person’s capacity to constrain the distribution of information with
respect to that person. In this era of computers and advanced surveillance techniques,
human dignity must be preserved.

98
Edward Shils, “Privacy: Its Constitution and Vicissitudes” 31 Law and Contemporary Problems 282
(1966)
99
Adam Carlyle Breckenridge, The Right to Privacy 1 (University of Nebraska Press, Lincoln, 1970)

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3.2.5 Professor Upendra Baxi

Prof. Upendra Baxi, while raising the question of whether to consider privacy
as a value of human relations in India and mentioned that:

“Everyday experience in Indian setting suggests otherwise,

Marriage parties and midnight music, wedding processions
and morning ‘bhajans,’ unabated curiosity at other
people's illness or personal vicissitudes, a manifestation of
good neighbour lines through constant surveillance by the
next-door neighbour (a large number of Indian houses do
not use curtains) are some of the common experiences. A
question may arise whether privacy is not after all a value
somewhat alien to Indian culture.”100

3.2.6 Professor P.K. Tripathi

According to Prof. P.K. Tripathi, the essence of privacy lies in the idea of
exclusion. Although the right to privacy seems to be just one right, which focuses on a
single idea, it is actually a multitude of ideas by diverse persons at different times. So,
it is situational in nature. Privacy is nothing but the exclusion of others from private
matters, and hence the core of privacy is exclusion. But this idea of exclusion varies
with culture, society, and most importantly, with time101.

3.2.7 Durga Das Basu

According to D.D. Basu, term privacy is too broad, and it encompasses not
only seclusion from neighbors. It can be termed as a circle around every individual
that no government ought to be permitted to overstep102. He suggests that it must be
regarded as a basic human right.

100
K.K. Mathew, Democracy, Equality and Freedom Introduction lxxiv note 262 (Eastern Book
Company, Lucknow, 1978)
101
Govind Mishra, “Privacy: A Fundamental Right under the Indian Constitution” 8 & 9 Delhi Law
Review 139 (1982)
102
Durga Das Basu, Commentary on the Constitution of India 4772 (LexisNexis, India, 59th ed., 2015)

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3.2.8 Black’s Law Dictionary

As per the definition provided by the “Black’s Law Dictionary, Privacy means
right to be let alone; the right of a person to be free from unwarranted publicity; and
the right to live without any unwarranted interference by the public in matters with
which the public is not necessarily concerned”103.

As seen from the above definitions, scholars and jurists are not unanimous
with respect to the definition of privacy. However, the idea of the right to privacy may
be summed up as follows:

1. Every individual has a basic need for private space where he can be sure of non-
interference from others.

2. The idea of privacy varies according to cultures, traditions, societies, and nations.

3. Indian scholars and western thinkers differ in their definition of privacy in the sense
that western scholars look at the right to privacy as a multitude of rights. In contrast,
Indian scholars believe that privacy is a single concept, and it mainly lies in the idea
of exclusion.

3.3 Origin and Evolution of Right to Privacy

Although privacy became generally accepted right only in the 20th century, it
was as old as humanity. It is evident from the numerous religious and political texts
that were written across the world. For example, in India, the Arthashastra prescribes
house building regulations based on the need for privacy. According to these
regulations, an individual’s house should be built at sufficient distance from other
homes. Also, he should ensure that the doors and windows are covered. Another
example of the importance accorded to the privacy of space and property in ancient
times is the condemnation of the usage of a person’s property without his consent as
per the Yajnavalkya Samhita and Manu Smriti. In addition, the privacy of thought
was offered by the Artha Shastra when it has prescribed setting aside forest areas for
meditation leading to self-actualization 104 . In ancient Mesopotamia, the code of

103
Black’s Law Dictionary (Bryan Garner, Edition.) 3783 (2004)
104
Dr. P.K. Rana, “Right to Privacy in Indian Perspective” 2 International Journal of Law 07-09
(2016)

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Hammurabi restricted intrusion into someone’s home without permission. The Roman
law also regulated intrusion into other people’s homes. However, during these ancient
times, the concept of privacy had a very narrow definition. Even animal behaviour
studies and social organization studies also imply that individual’s requirement for
privacy is well rooted in animal genesis.

3.3.1 Privacy during Ancient Period

“The concept of privacy is not unknown to India, and it dates back to ancient
times. Indian ancient religious epics namely The Mahabharata and the Ramayana, and
various other scriptures talk about the different aspects of privacy. The number of
instances in the Ramayana and Mahabharata gives reference to the importance of
privacy in one’s life. Seeing sleeping women (not one’s wife), a naked person (not
one’s spouse), women without veil outside, touching other women, harming sleeping
person, disturb one’s meditation, and other such instances were considered wrong and
other similar cases were punishable in these epics 105 . So, the secret affairs of the
person must not be divulged”.

“Privacy has always been valued in the Indian civilization though the context
was quite different from the present. I.P. Massey wrote that it would be wrong if we
presume that the concept of privacy is alien to the Indian culture 106 . Though no
detailed study is there to look into privacy in ancient India, careful scrutiny shows
people respecting others’ privacy in interpersonal relationships. Words like ‘Ekant’,
‘Gupt’, ‘Upasana’ and other similar words depict that concept of privacy were known
in ancient culture”.

“Sarvas Swe Swe Grihe Raja, i.e., every man is a king of his own house was
accepted in India, and even kings were bound to respect the privacy of its citizens. In
religious matters, any kind of interference was not permissible and disturbing during
mediation or any spiritual activity was considered a sin. The Rig Veda establishes a
concern about the privacy of one’s house by mentioning that one ought to build a

105
Kiran Deshta, Right to Privacy under Indian Law 87-94 (Deep & Deep Publications, New Delhi,
2011)
106
I.P. Massey, “Constitutionalization of Right to Privacy in India”, in B.P. Sehgal (edn.), Human
Rights in India 310-311 (Deep & Deep Publications, New Delhi, 1999)

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house in such a way that the passersby may not see the inmates.” 107 Similar
arrangement was also mentioned in Griha Sutras for protection of intimacy and other
private affairs of a person108.

Clear provision with respect to privacy can be seen in Manusmriti, which

enumerates explicit regulations that look after the privacy of a person. It stipulates
that an individual shall have the right to ponder unaccompanied without any
interruption and no individual should be interrupted when he is sleeping or studying.
“It also mentions that person should not see a naked woman and avoid talking to
women (not a family member) in a lonely area. Activities such as having food,
attending the call of nature, sexual activity should be performed in a hidden spot away
from others’ gaze”.

Therefore, it is stipulated that appropriate rules and regulations were there to

avert violation of privacy. Further the code of conduct with respect to privacy was
followed by the citizens, the common facet of which is followed till today. Right to
privacy with respect to Yogic kriyas, fooding, sexual intercourse and family matters
was cherished and appreciated. Paramount significance was afforded to Privacy of
female and it was considered an offense to intermeddle with the privacy of woman. In
this era a lot of facets relating to privacy were in existence that supported dignity of
an individual.

3.3.2 Privacy during the Medieval Period

The period which commenced after the conclusion of ancient period is known
as medieval period with this period the advent of Muslims started in India. In this era
under Islamic regulations no development with respect to legislation took place. The
codes of conducts were stipulated in their Holy book ‘Quran’ which were professed
by Prophet Mohammed and the same provides for the structure of behaviour which
was to be followed by the individuals.

During this regime, right to privacy occupied an important position,

particularly under the personal law of Muslims. Quran specifically provides that an

107
Maharshi Dayanand Saraswati Rig-Veda Bhasa Bhasya Sampurna, Rig Veda, Mandal 7, Sukta 55,
Hymn ; 1st edition
108
V.M. Apte, Social and Religious Life in the Grihya-Sutras: With Brief Surveys of Social and
Religious Conditions in Pre-Grihya-sutra Vedic Literature

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individual shall not enter into other’s dwelling without obtaining prior acquiescence.
Al-Ghazzali a famous jurist of Muslim Law has also stated that irrational interference
into privacy of individual is not acceptable and examination of other’s cloth is not
allowed except with the permission of lawful authority and for a just cause. Under the
Islamic Jurisprudence protection was afforded to individual’s communication and
expression as they were considered as the center of the human value.

In this era ‘Purdah’ or veil system was in existence not only in existence but
many jurists suggest that this system was brought in the country in this era only.
Studies show that Purdah system was strictly followed in this era which confirms that
privacy was deeply embedded in the customs of Muslims especially with respect to
women as the sentiment of ‘Haya’ was considered as an important characteristic of
woman’s behaviour. The system prevents an individual from indulging in obscene or
coarse acts. The right to privacy can also be inferred from the fact that there was
constraint on observing other person in an irrational manner. Prophet Mohammad
once explains that if the king initiates to look for wrongs among his citizens, he
wrongs them109.

After considering these traditions and customs it can safely concluded that
right to privacy was in existence in this era and individual’s were deeply concerned
about their personal affairs. Respect was afforded to privacy of information and
communication and adequate liberty was provided to public. Thus, it can be said that
people were familiar with right to privacy and the same can also be inferred from the
opinion of Prophet Mohammed.

3.3.3 Privacy during the British Regime

Right to Privacy was recognized in India even before the advent of Britishers
this right can be seen under Hindu Jurisprudence. This right was provided under the
realm of customary Law and no definite law was there to protect this right. During the
regime of Britishers there was no development of this right because the Britishers
feared that if Privacy is accorded the status of fundamental right than there are
chances that there will be conspiracy against the established government. In the

109
Sheikh Showkat Hussain, “Right to Privacy” Journal of Islamic and Comparative Law Quarterly
107 (1983)

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beginning nothing was done with respect to privacy and it was only through
customary law that this right was protected.

The need for the codification of law with respect to privacy was felt by the
Britishers when technical development took place. It was asserted by various
academicians and intellectuals that there is no requirement of Privacy in the Nation
and State and Non-State entities can use the personal information of public. The use
of individual’s data without the assent of user was in practice and surveillance of
citizens was like a tradition. Education played an important in getting this right
recognized as learned citizens thought that there is need to protect their private
information from falling into the hands of State and its authorities. So the practice of
advancement of right relating to privacy was started in our country through the
codification of various aspects relating to privacy.

It is important to mention here that during this regime Privacy was not
recognized as human right rather it was restricted to some aspects which were
acknowledged during ancient and medieval period. The social system of India is
responsible for the advancement of this right. However, no specific legislation was
enacted to codify and protect this right but this right was protected through different
legislations. So, several regulations were enacted, and reports were specifically
initiated to have a glance at privacy of an individual.

3.3.4 Right to Privacy in Constituent Assembly Debates

“The Constituent Assembly was formed in 1946 as per the British Cabinet
Mission Plan. In 1947 an Advisory Committee was formulated to draft the provisions
on fundamental rights by the Constituent Assembly 110 . A fundamental right sub-
committee was formed under the chairmanship of Acharya J. B. Kripalani. Members
of the assembly were very much concerned about the basic fundamental rights of the
citizens. As a lot of suppression of Fundamental Rights was there by the British
authorities and on the parallel the world was struggling from the massacre of the
World War II”.

110
B. Shiva Rao(Editor), The Framing of India’s Constitution (Universal Law Publishing Co., Delhi,
2006)

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 K.T. Shah, a member of the committee wanted that privacy of an individual
should be protected and this right shall be available to every individual of the nation.
K.M. Munshi also supported the above views and he prepared a draft which provides
for the protection of the right to privacy and the same was presented before the
committee. The draft contains specific characteristic of privacy which includes

1. Privacy of his home.

2. The secrecy of correspondence.

3. Right to maintain his person secure from an arbitrary act of State.

4. Right to be free from interference in family relations.

Taking inspirations from the Constitution of Czechoslovakia, Harnam Singh

prepared a draft which provides for the protection of privacy and states that “Every
dwelling shall be inviolable”. Harnam Singh was mainly concerned with the privacy
in physical space rather than privacy in person. Ambedkar was also in favour of this
right but according to him this right was not restricted to citizens rather it should be
available to all individuals. He was of opinion that individual should be protected
against irrational search and seizure of his house and documents. It is prominent to
mention here that Ambedkar did not favour an absolute right relating to privacy rather
he was of the opinion that on reasonable grounds which are supported by affidavit
than the right to privacy of an individual can be restricted.

In March 1947, the sub-committee on fundamental rights accepted the draft

relating to privacy which protects the privacy of home and communication. Later in
April 1947, the final draft containing the provision relating to privacy was prepared
by the sub-committee was the same was accepted by the Advisory Committee 111. The
final draft was prepared by the sub-committee after considering the views and
opinions of K.T. Shah, K.M. Munshi and Ambedkar. The final draft reads as follows:

“The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches
and seizures, shall not be violated, and no warrants shall

111
Historical Background and Constitutional Intent of Right to Life and Personal Liberty, available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/68264/8/08_chapter%202.pdf

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 issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched and the persons or things to be seized and The
right of every citizen to the secrecy of his correspondence”.

An objection was raised during the discussion with respect to incorporation of

provision in the constitution which affords protection to privacy of communication
and protection against irrational search and seizures. Sir Alladi Krishnaswamy Ayyar
was among the members who opposed this right. In his argument he said that
affording such kind of protection to privacy will lead to conversion of every personal
communication into State file and it will create a problem in the prosecution of
offenses. Thus, the provision which provides protection against irrational searches and
seizure was opposed the members on the ground that a similar kind of protection is
provided under Cr.PC.

This fact that no such kind of protection is available under the constitution of
United States was also highlighted. This view was also supported by K.M. Panikar
and B.N. Rau and some other members. Rau mentioned that this guarantee will
hamper the powers of investigation given to police as this guarantee will make it
mandatory for police to obtain a warrant from the court before conducting any search.
Finally, the provision which recognize privacy as fundamental right was eliminated
by advisory committee.

The first member to mention privacy in the discussions of sub-committee on

fundamental rights was R.K. Sidhwa. On 29th April 1947 he stated that the committee
should consider the matter relating to protection of privacy. He was supported by
Somnath Lahiri who tabled an amendment to incorporate privacy of communication
and mention that the same should be not be violated except in certain cases which are
provided by the legislation. But his amendment was neither discussed nor put to
vote112.

In 1948 an amendment was introduced by K.S. Karimuddin which fortifies

Article 14 of the draft Constitution by adding a sub-clause to it, which provides

112
Constituent Assembly of India Debates on April 29& 30, 1947 available at:
http://loksabhaph.nic.in/writereaddata/cadebatefiles/C29041947

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protection against irrational search and seizure except upon reasonable grounds.
Supporting this amendment Dr. B.R. Ambedkar said that privacy is an indispensable
aspect of personal liberty and the same will require protection in coming future. It was
not clear that whether this amendment was accepted or not, so to make it clear
Jawaharlal Nehru recommended deferment of voting session and later when there was
no discussion on the amendment and the same was rejected.

Once more an effort was made by Thakur Das Bhargava to integrate the
provisions protecting irrational restraints or search of an individual or his belongings.
H.V. Kamath while opposing the above views stated that this matter should be left for
the determination of future Parliaments. Thus the provision relating to protection of
irrational search is missing from the body of Indian Constitution. Further, it is
necessary to point out that Constituent Assembly didn’t reject the whole concept of
privacy. Instead, only two aspects of privacy were not acknowledged under the
Constitution and they were correspondence and search and seizures.

In the discussion it was stated that incorporating this provision under the
Constitution is not required as analogous provision can be found under the CrP.C. So,
if there is any unfair encroachment of right to privacy in future than the Parliament of
that time will have the authority to enact legislation.

3.3.5 Privacy after Framing of Constitution

After framing of the Constitution the major developments relating to this right
has been done through the judgments of Apex court. The Apex Court acting as the
guardian and predictor of individual’s rights understood the idea of the Constitution.
Court comes to the conclusion that our Constitution is a living document which is
there for the welfare of community. A wider explanation has been given by the Court
to certain core principles of the Constitution such as Liberty, Equality and freedom.
Our Constitution and its enforcement agencies are committed for the protection of
individual’s right and for the transformation of Nation’s societal and political
institutions.

The jurisprudence relating to privacy as fundamental right has developed

dynamically. It was the demand of various groups that Privacy should be declared as
fundamental right and the same has been held by Apex Court through a chain of
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rulings. Apex Court has been guiding India from 1950 and facilitates the growth of an
autonomous democracy. Initially, Apex Court provides a literal interpretation to the
words used in the Constitution but later Court tries to provide an interpretation which
fulfills the wishes of framers of our Constitution. Initially, this interpretation hindered
the growth of privacy as a right and court remained a silent spectator in case of
infringement of this right. Principle of privacy is based on the presumption that the
judiciary is the suitable organization to decide whether or not any legislation trespass
the boundaries of privacy. Our judiciary has gone far beyond the literal interpretation
of the text of the constitution to acknowledge that privacy is a fundamental right in
the nation. Hopefully, judiciary “will continue to do so for the protection of other
fundamental rights”. Several rights have been acknowledged with the passage of time
which is the result of chain of positive decision given by our Courts.

Right to privacy was taken for granted until it was expressed by State that this
right is not fundamental. With respect to the above statement we will look into the
fact that how the Apex Court with the passage of time has acknowledged this right
and brought revolution in this right. Further, we will look as to how the jurisprudence
relating to privacy was fortified and how it assumed an important role in the
fundamental rights. And what are other aspects of privacy which have been
acknowledged by Supreme Court? In beginning Supreme Court has a divergent view
regarding this right but now the position is settled and clear that Privacy is a
Fundamental right provided and protected under Article21 of Constitution. The major
evolution of this right can be studied in the following headings:

3.3.5.1 Right to Privacy Before 1978

Shortly after the framing of Constitution, the matter relating to protection of

privacy came before the Apex Court this matter relates to the use of power of search
and seizure. This issue came before the Apex Court in the matter of M.P. Sharma v.
Satish Chandra113 this case challenges the constitutional validity of search and seizure
of credentials. Constitutional bench of Apex Court was formed to decide that whether
the power of search and seizure violates Article19 and 20 of the Constitution
especially when an FIR has been filled against an individual. Court has to determine
the restrictions which are applicable to the government with respect to its power of
113
AIR 1954 SC 300

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search and seizure and whether this power breaches the privacy of an individual. In
this ruling the issue relating to privacy was not discussed directly and this judgment is
focuses upon power of search and seizure. Court while denying interpreting right to
privacy under Part III of the Constitution said that when the makers of constitution
does not bothered to incorporate Privacy within the scope of fundamental right than
the court is not concerned to include the same by its judgment. Court was of view that
the search conducted in the instant case cannot be termed as arbitrary and illegal
simply on the ground that it contravenes the fundamental right.

In M.S.M Sharma v. Shri Krishna Sinha and other114 the court was concerned
with the issue to make a balance between the fundamental rights and Parliamentary
Privileges. In this case there was no express mention of right to privacy but it was
asserted that right to privacy is conferred by parliamentary privileges but this privacy
is restricted to the floor of Parliament. Further this right is available only to the
members of the house and this right is available against strangers only. Therefore, a
narrower interpretation was given to the fundamental rights and this was mainly due
to two reasons first, the judges were trained according to English system of law and
secondly, a plain explanation was given to the words of Constitution like an ordinary
law. The opinion of Court started to change after passing of above judgments.

Another major case relating to privacy comes before the court in the matter of
Kharak Singh v. State of U.P. and Others115. This case challenges the constitutional
validity of U.P. Police Regulations which empowers police authorities to carry out
search and seizure. A petition was filed by the Applicant challenging the above
regulations on the ground that these regulations violates Article 19(1)(d) and 21 of the
Constitution. Applicant argued that Power of surveillance as provided by the
regulation not only violates his right to privacy but also the right assured by Article 19
and 21. Rejecting the arguments of applicant court declared that the regulations did
not affect the Article 19 of the Constitution as the said Article is concerned with
corporeal things.

The major issue before the court was with respect to construction of ambit of
Article 21. “Court stated that the term ‘Personal Liberty’ as provided under Article 21

114
AIR 1959 SC 395
115
AIR 1963 SC 1295

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is a compendious term, which includes a number of rights except those which are
dealt under Article 19(1)”. Court while citing the judgment of Munn v. Illinois116
elucidated the meaning of term ‘Life’ which is provided under Article-21. The judge
pointed out that the term ‘Life’ as provided under Article 21 corresponds to the 5 th
and 14th Amendments of Constitution of United States. Further the term Life doesn’t
mean existing like an animal rather it means the right to have all the body parts intact
and living the life of a human being. With respect to the term ‘Personal Liberty’,
Court avowed that this term should be understood rationally and the interpretation
which helps in realizing the constitutional goals should be provided to this term.

Court while citing the verdict of Wolf v. Colorado117 held that the regulations
are violative of Article 21 of Constitution. Court held that essence of Article 21 which
states that there must be a law provides for procedure for taking away the life or
liberty is absent in the present case as in the instant case there is no law which
provides for the domiciliary visits. Court stated that privacy is not expressly
mentioned under the Constitution and an endeavor to decide the movement of an
individual is not violation of his right provided by Article 19. Thus, a similar
treatment was provided to right to privacy which was accorded to this right earlier.

However, there was also a dissenting Judgment in this case which was
delivered by Justice Subha Rao who differs from the verdict of majority and was of
the opinion that the terms used in Article 21 should be interpreted liberally.

The matter relating to Privacy was not settled and it keeps coming before the
Apex court through various cases. An important matter of R.M. Malkani v. State of
Maharashtra118 comes before the Apex court where the issues relating to telephone
tapping was argued. In this case Court held that it was held by the court that
connecting a machine for recording the telephone of a person doesn’t violate the
provisions of the Telegraph Act. The contention that tapping of telephone violates the
right to privacy of an individual was also raised in this case. Court while following the
verdict of Kharak Singh rejected the contention of applicant and refuses to uphold
privacy under PartIII of Constitution.

116
94 U.S. 113 (1877)
117
338 U.S. 25 (1949)
118
(1973) 1 SCC 471

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 After two decades in Gobind v. State of Madhya Pradesh119, the Apex Court
acknowledged that privacy recounts on the concept of liberty provided under
Article21 of Constitution. In this case the validity of M.P. Police Regulations was
challenged by the applicant. It was argued that many frivolous cases have lodged
against him by the Police. Except two cases he was acquitted form all of the cases and
on the basis of which he was declared as habitual offender by the Police. The
Regulations empowers the Police to put habitual offenders under surveillance and
domiciliary visits were conducted at his house during day and night time. His house
was kept under watch and his movements were followed secretly. Further it was
argued by petitioner that due to this there has been degradation in his reputation.
Petitioner mentions that he has to inform the police before leaving the village which
result in harassment. All these have resulted in violation of his Fundamental Rights.

The court held that “Privacy is a fundamental right but cautioned that the
concept of privacy needs to be examined with care and from case to case basis”. Court
mentioned the fact that Privacy is not an unqualified right, so it can be curtailed on the
grounds of countervailing interest of country. But it was also mentioned by the court
that limitations on this right should be constricted. This judgment is significant and its
effect will be seen in future.

3.3.5.2 Right to Privacy After 1978

After the Maneka Gandhi120 judgment the right pertaining to Life and Liberty
has gone a sea change and effect of this judgment can also be seen upon the other
rights. Apex court provided a wider interpretation to Privacy in early 1990s. In the
matter of State of Maharashtra v. Madhukar Narayan Mardikar121 Apex Court held
nobody have the freedom to derogate the privacy of a woman even if she is a lady of
easy virtue. Though Court was not concerned with the fact whether or not
Constitution provides for right to privacy. But Court acknowledged the privacy of
body by mentioning that lady of easy virtue have the autonomy over her body similar
to any other woman.

119
(1975) 2 SCC 148
120
AIR 1978 SC 597
121
(1991) 1 SCC 57

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 R. Rajagopal v. State of Tamil Nadu122 is an important decision with respect to
privacy. In this the Apex Court has to strike a balance between free speech and right
to privacy. This case was filed by the Publisher and editor of a Tamil weekly
magazine against State of Tamil Nadu and Officer In-charge of Jail where R.
Rajagopal was undergoing his sentence. This case is related to a prisoner named
‘Gauri Shankar’ who has been waiting for his capital punishment as his petition to
convert death penalty into imprisonment for life was turned down by the Apex court.
He penned down his autobiography and passes it to his wife who delivered the same
to his lawyer for publishing the same in Petitioners magazine. Petitioner agrees to
publish the autobiography and publicized that the same will be made available to
public in series. Only three parts of the series have been published when the petitioner
received a letter for Jail authorities ordering him to stop the publication on the ground
that it is false and frivolous as Gauri Shankar has not written anything. Further the
petitioner was warned that publishing anything in the name of prisoner is against the
rules of jail and action can be taken against him if the publication is continued.

The editor of the magazine approached Apex Court with a prayer that the Jail
authorities should be stopped from interfering into publication of magazine and the
biography of Gauri Shankar. Court delivered its judgment in favour of the petitioner
and declared that the State or its agencies have no authority to stop the publication.
Further it was also mentioned by Apex court that right to life and liberty includes
right to be Privacy. Privacy is implicitly considered as element of right to life and
personal liberty and this verdict talks about several aspects of privacy such as
wedding, maternity and some other issues. Court mentions that where an individual
himself give up his Right to Privacy than the same cannot be claimed by him later.

Court also points out certain exceptions while deciding this case and scope of
this right. Court pointed out that if publication is based upon public records than
privacy will not come in way. But there are certain exceptions to the above mentioned
rule i.e. in case of woman who are victim of sexual offense, assault, kidnapping and
offenses of like nature. Privacy will not obstruct the working of public officials and
that matter is suitable for publication.

122
(1994) 6 SCC 632

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 This judgment detailed the outlined of Nation’s Right to Privacy, but an
unavoidable confusion was brought by this verdict with respect to applicability of this
right horizontally. Court showing higher compassion towards this right in upholding
the constitutional charter of it. To be more precise, the comments of judiciary provide
an assurance to a wider expression of right to Privacy in India.

People’s Union for Civil Liberties v. Union of India123 is an important verdict

delivered by Apex Court. This case is generally known as Telephone Tapping case
and is a noteworthy decision with respect to privacy. This case arises out of PIL filed
by a society PUCL. In this case the validity of Section 5(2) of Telegraph Act, 1885
was challenged as the said section empowers the government to tape the telephones of
politicians and which was in controversy. Court while deciding the issue of Privacy
held that privacy is a part of Article 21 of the constitution. However, it was also
mentioned by the Court that privacy is not an unqualified right and the same can be
constrained according to the procedure established by statute. Court recognized that
though this right is not mentioned under the Constitution but by judicial activism this
right has been brought under the scope of Article21. A telephonic conversation is a
part of individual’s life and any unauthorized intrusion into it infringes right to
privacy.

Privacy was acknowledged as a fundamental right by the judiciary but the

same was not allowed for the community as various cases that came before the Apex
Court were concerning the issue of Surveillance. But the case of MR. ‘X’ v.
HOSPITAL ‘Z’ 124 presented a new aspect relating to this Right. In this case the
petitioner has donated blood to the hospital and on testing the sample was found to be
HIV Positive and this fact was made known to his fiancé which resulted in
cancelation of his scheduled marriage. Petitioner was condemned and detested by the
community and it was argued that privacy of petitioner has been infringed which
arose from doctor patient relationship.

Court declared that privacy of petitioner has not been infringed rather it is for
the benefit of his fiancé with whom his marriage is scheduled. It was possible that his
fiancé Y would also have been infected if the fact was not disclosed to her. Arriving

123
(1997) 1 SCC 301
124
(1998) 8 SCC 296

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at a conclusion court held that privacy is not an unqualified right and the same can be
curtailed for preventing offense and for protecting rights and liberties of other
individual. Court stated that Y’s right to live a healthy life would have been infringed
if this disclosure has not been made. Explaining further the court said that when there
is a conflict between two fundamental rights than the right which professes morality
and public interest should be preferred over the other. These cases show that how the
harmony should be created between two conflicting rights.

The 21st century “has become the century of big data, and information
technology, the concern about privacy rights are felt by most of the citizens. In India,
courts after Gobind’s judgment have launched privacy as a fundamental right
emanating from Article 21 and other provisions of the Constitution. The courts have
agreed that privacy is a substantial interest, but they also stated the need to balance
this right with other competing rights”.

Apex Court has pointed out the fact that privacy has not been mentioned
explicitly in our Constitution but it has been brought within the ambit Article-21. As
mentioned earlier our “court pointed out that the term privacy cannot be defined as an
extensive term and determined according to each case’s facts. It is very moralistic for
the court to define it”.

Another remarkable ruling which have expanded the ambit of privacy is Selvi
v. State of Karnataka125. This judgment has mended the legislation which provides for
the use of scientific tools in investigation of criminal cases. In this the major issue
before the court was involuntary administration of such as Narco analysis, polygraph
test etc. for conducting investigation. This case involves the conflict between two
issues i.e. the desirability of proficient investigation on one hand and liberty of a
person on the other hand. There were three major issues before the court are as
follows:

1. Whether the involuntary use of these methods infringes Article 20(3)?

2. Whether these techniques contravene right to privacy of an individual?

3. Whether the use of these techniques is against basic human rights?

125
(2010) 7 SCC 263

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 Court held that as Stated by it in Maneka Gandhi’s judgment Article-20(3) has
to be read with Article21 and other fundamental rights and a conjoint reading of both
articles should be done in order to decide the legality of involuntary use of these
methods. And court comes to the conclusion that involuntary use of these methods
does violate the provision of Article-20(3). Citing the sections of Evidence Act, court
explains that confessions made under inducement, threat and promise are not
acceptable. Court is bound to respect autonomy of a person as far as it relates to
option of speaking or keeping quiet. Thus, court declares the use of these methods as
unconstitutional.

Further, the decision of making a statement or not is the personal decision of

an individual and this should not be interfered by any other person. “The court held
that subjecting a person to the impugned techniques when a person is not volunteering
is a violation of his right to privacy. Article 21 does not only address the concern of
physical privacy but also protects mental privacy”. This decision has added another
important facet to this right as this judgment has provided the validity to privacy for
ages to come and the impact of this judgment can be seen in coming years.

3.3.5.3 Evolution of Privacy After 2010

The second decade of 21st Century has witnessed some milestones in form of
Judgment of Apex Court which have brought a sea change in this right. The foremost
judgment among them was delivered in the case of Ram Jethmalani v. Union of
India126 which is commonly known as ‘Money Laundering’ case. This case relates to
publication of the information of an individual who was having Black money
deposited in Swiss Banks. In his reply the respondent took the plea that disclosing the
information regarding his Swiss banks account violates his right to privacy. Court
mentioned that disclosing the bank details of an individual without stating proper
grounds for doing so will amount to contravention of right to privacy of an individual.
Court declared that privacy is a valuable right and it is necessary that individual free
space shall be allowed to individual where they are free from scrutiny of public unless
any unlawful act is committed by them. Court mentioned that difficulty of violation of
one set of constitutional values can’t be solved by making another set of abrogation of
constitutional values.
126
(2011) 8 SCC 1

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 Further Court took the notice of Ramlila Maidan Incidence127 which occurred
in the month of June 2011. About 50000 people were assembled in the Ramlila
Maidan, New Delhi on the notice of Baba Ramdev. People were assembled there to
criticize the government on the issue of corruption and they decided to carry out a
march from Ramlila Maidan to Jantar Mantar on 5th June 2011. But in the previous
night they were dispersed from the ground by Police and other State agencies by use
of force. It was alleged that force has been used by the Police when people were
sleeping. Court taking note of the incident and summoned the Secretary to Home
Ministry and Chief Secretary and Commissioner of Delhi to show cause and file
affidavits before the court stating the circumstances which led to occurrence of this
incident. Court found Baba Ramdev and Delhi police liable for the incident and
directed them to pay damages to injured persons.

Court declared that the act of police is an attack on the democratic setup and
basic values of Constitution. Explaining further Kumar J. states that the decision of
using force on sleeping people is violative of human rights and it shows that there is
arbitrariness in decision making. Court while concluding states that every person has
been “vested with the right to leisure and sleep. The knock at the door at whatever
time it may to search without the authority of law amounts to an incursion into
privacy and thus violation of fundamental right. The right to privacy is an integral part
of Article 21, and illegitimate intrusion is not permissible by authorities. So, no
person can be divested of fundamental rights such as the right to privacy or right to
sleep, without due process of law”.

ND Tiwari v. Rohit Shekhar128 is a famous case relating to privacy. This case

was filed by Rohit Shekhar who asserts that he is the son of Narayan Dutt and prays
the court for declaration of paternity. High Court ordered for DNA test to which
Narayan Dutt Tiwari did not agree and he was not ready to give his blood sample.
High Court ordered for collecting the sample by use of reasonable force. Tiwari went
to Apex Court against the order of High Court on the ground that his right to privacy
is infringed as he is compelled to give his blood against his wishes. Dismissing his
plea Apex court decided that in this case DNA is the only reliable source to recognize
paternity and hence, right to privacy cannot said to be violated. Further, to maintain
127
Ramlila Maidan Incident, In Re, (2012) 5 SCC 66
128
(2012) 12 SCC 554

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confidentiality court directed that the blood sample should be collected from his
house.

Till 2017 Privacy was impliedly recognized as a right and that too trough the
precedents of Apex Court, but this right has neither enjoys the status which is enjoyed
by this right in the other countries nor this right enjoys the status which it deserves,
but this right took utterly completely flip throughout. So, let us see what happens in
2017 why this right took a flip throughout.

3.4 The Landmark Judgment of 2017

2017 is a notable year in the history of jurisprudence relating to privacy as in

this year Apex Court has decided that privacy is a fundamental right originating from
various provisions of Constitution. “It is one of the most landmark judgments of
independent India as this judgment not only learns from the past, but also sets the
wheel of liberty and freedom for future. Apex Court has once again emerged as the
sole guardian of the Indian constitution”.

A Petition is filed against the Aadhar scheme of government which makes it

compulsory for every citizen to have Aadhar card for availing the benefits of
government schemes. This scheme was launched in 2009 and in the same year UIDAI
under the chairmanship of Nandan M. Nilekani was constituted for issuing Aadhar
Cards. The Aadhar is a 12-digit unique identification number which is based on
biometric information of an individual. Legality of Aadhar Act was challenged before
the Apex court by Justice K.S. Puttaswamy on the ground that this Act infringes the
privacy of a person. After hearing the contentions of Petitioner Apex Court passed the
provisional orders which states that an individual will suffer only because of the
reason that he is not having Aadhar Card129. Further interim orders were passed in
2014 where Apex Court directed the state agencies to withdraw their orders which
make Aadhar card mandatory for availing benefit of scheme.

When this matter relating to privacy was pending before the apex Court, in
August 2015 the Attorney General had then argued before a three-judge bench of
Apex court that in several larger benches of Court has denied to recognize Privacy as

129
(2014) 6 SCC 433

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fundamental right and in M.P Sharma (8 judge bench) and Kharak Singh (6 judge
bench), court had refused to accept that the right to privacy was constitutionally
protected. “Consequently, this bench referred the matter to a five-judge bench to
ensure institutional integrity and judicial discipline. Thereafter, the five-judge bench
referred the constitutional question to a bench of nine judges to pronounce
authoritatively on the status of the right to privacy”. On 24th August 2017 a historic
judgment was passed by the Apex Court which affirms the constitutionality of
privacy. The judgment declares privacy as an essential element of PartIII of the
Constitution. However, it was clarified by court that “like other fundamental rights,
this right is not ‘absolute’. Subject to the satisfaction of certain tests and benchmarks,
a person’s privacy interests can be overridden by competing state and individual
interests. Before discussing the judgment in detail, it is essential to note that the
operative part of the judgment, i.e. the binding part, is only the order that has been
signed by all nine judges”.

A detailed argument took place before the bench on the matter that privacy is
not a fundamental right as it is not mentioned under the Constitution. The discussion
which took place before the Constituent Assembly was also presented before the court
and it was pointed out that in their discussion the Constituent Assembly decided to not
to includes this right in the Constitution as it is vague and uncertain. The issues which
were addressed and decided by the court are as follows:

1. Whether there is a constitutionally protected right to privacy?

2. If “there is a constitutionally protected right, whether this has the character of an

independent right or whether it arises from within the existing guarantees of protected
rights such as life and personal liberty”.

3. The doctrinal foundations of the claim to privacy.

4. The nature of the regulatory power of the State.

6. Validity of M.P Sharma and Kharak Singh judgments.

The settled principle of law is that “a case is only an authority for what it
actually decides, not any observations made in the course of the judgment or any

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propositions that may logically follow from it. Hence, to determine what aspects of
the judgment are binding, it is important to examine each opinion and see the point of
agreement amongst a majority of the nine judges. So, if any judge agrees with the
view taken by Justice Chandrachud on any proposition then it would result in a
majority of five out of nine, and hence, be binding on smaller benches and other
courts. For instance, since a majority of the judges agree that privacy is an inalienable,
natural right that forms part of the binding element of the case. With this in mind, let
us now examine each of the opinions in Puttaswamy to see what they hold, how they
construe the right to privacy, and what standard of judicial review they apply”.

3.4.1 Highlights of Justice Chandrachud’s Opinion

Revisiting the issue whether Privacy is protected under the constitution or not
Chandrachud J. mentioned that court has to be sensitive because the digital world
creates a threat to liberty. “And while analyzing the content of this right, the
indication can be given towards its broad contours; the exhaustive list is not possible”.
After discussing the origin, nature and scope of privacy in detail he comes to the
conclusion that privacy is innate and indisputable right.

While discussing the authority of M.P. Sharma case he mentioned that this
matter was not adjudicated on the issue whether Privacy is protected under the
constitution or not and this case was limited to Article 20(3) only. The judgment
cannot be interpreted to eliminate privacy right from other Articles of PartIII, i.e.,
Article19 or 21. “Regarding the correctness of Kharak Singh’s judgment, it was
opined that the majority view suffers from an internal inconsistency as the majority
construed domiciliary visits at night as an unauthorized intrusion into a person’s home
and thus a violation of ordered liberty. He stated that the approach taken by the
majority is illogical and is not in consonance with the settled principles of
interpretation. He concluded that Kharak Singh’s judgment was right on the point that
the expression ‘life’ under Article 21 means not merely animal existence and personal
liberty projects invasion into the sanctity of one’s home. But with regard to the second
part, he stated that it is not correct, i.e., the right to privacy is not guaranteed right
under our Constitution”.

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 Analyzing the nature of privacy Chandrachud J. mentioned that privacy
suggests independence of an individual. The idea of privacy cannot be separated from
character of a person as it allows him to take decisions and control the affairs of his
life. When privacy of a person is protected, “then only the realization of the full value
of life and liberty can be there. Liberty is broader than privacy, and privacy is one of
its facets. Both mental and physical privacy needs to be protected. The freedoms
under Article 19 are to be determined and can be fulfilled only when a person is
entitled to decide upon their likings”.

Though there is absence of provision which deals with privacy but its
substance can be found in dignity because if there is absence of privacy than there is
absence of dignity. “The right to privacy is latent in Article 25 of the Indian
Constitution as it provides the ability to choose faith and freedom to express or not
express. There is a reasonable expectation of privacy by every individual in a society
which is both subjective and objective”.

“Citing an article titled as A Typology of Privacy” Chandrachud J. analyzed

nine primary types of privacy and considering nearly all areas of privacy he expanded
the ambit of this right because previous decision were focused on dwelling, family,
wedding, sex etc. “Another essential development made is that an individual has been
considered the focal point while determining privacy rights, not institutions and
relationships. So, the right to privacy has been located within the individual, and an
individual has the right to create their spaces and make personal decisions. It was
noted that legitimate expectation of privacy might vary from private to a public zone,
and the privacy of the individual is also not lost in a public place. The judgment is a
step toward ensuring individual privacy aspect”.

After examining the discussion held in Constituent Assembly the major issue
before the court was that privacy cannot be read under Article21 of Constitution as the
same was rejected by the Assembly. Rejecting this argument court mentioned that
discussion which took place in the assembly signify that privacy was not integrated as
fundamental right in two definite spheres i.e., communication and searches and
seizures. With respect to the non incorporation of privacy as a fundamental right, it
was stated that Constitution has developed with the time, “and its original
understanding cannot freeze the interpretation of Constitution”.

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 “Using the interpretive framework and emphasizing the evolving nature of the
Constitution, it was pointed out that the Constitution is not for a particular time rather,
it is for a future generation to meet the challenges that may be unknown in past or
present. The beauty of the Constitution is that it is a living document and has the
ability to allow succeeding generations to apply the principles on which it has been
founded. Technology in which we live today was not in existence when the
Constitution was drafted, so it would be unjust not only to the draftsmen of the
Constitution but also to the document itself if interpreted in literal and original terms”.

It was argued by the Attorney General that right to privacy should be

constructed in limited sense. Rejecting this argument it was mentioned that in our
Constitution human being lies at front position and rights are provided to each human
being without looking at his financial condition. It would be “wrong to conclude that
the poor need no civil and political rights and are only concerned with financial well
being. Civil and political rights and socio-economic rights are interlinked, and no one
is subservient to others. Thus, irrespective of social class or economic status, every
person is entitled to autonomy and dignity”.

Informational privacy was also discussed because in the age of technology

where our life is interrelated so our privacy is in danger. “Regarding the collection
and storage of data, he opined that justifiable grounds should be there apart from
national security. Data mining is permissible only for the State’s legitimate purposes,
such as prevention and investigation of crime, projection of the revenue, etc. It is not
lawful for the State to utilize unauthorized data for any extraneous purposes. The
ringing observation on the impact of technology is having relevance in a globalised
world”.

With respect to supreme nature of this right it was clarified that privacy is not
unqualified and the limitations stipulated under Article-21 will apply to privacy.
“Data protection is necessary because it seeks to protect the individual’s autonomy
and expresses a person’s right to be left alone. Also, it imposes upon the State, both
positive and negative obligations. He points out three requirements that apply to all
the restraints on privacy, and these requirements are not new; instead, they emanate
from Article 21 only. These requirements are, First, There must be a valid law to
justify an encroachment. Secondly Legitimating State aims and reasonableness and

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arbitrariness to be checked from Article 14. Thirdly the means adopted by the
legislature are proportional to the object and need sought to be fulfilled by law”.

3.4.2 Highlights of Justice Jasti Chelameswar’s Opinion

Chelameswar’s J. “opinion mainly focused on three pivotal points. His first

concern was to find out is there any fundamental right to privacy under the Indian
Constitution? Secondly, if it is there then, where it can be located and thirdly, what
are its contours”.

For finding the answer to initial question, he revisited the decisions of M.P.
Sharma and Kharak Singh. “While analyzing the previous decision, he opined that
contention in that was whether the U.S. Fourth Amendment contents are imported into
our Constitution or not while interpreting Article 20(3). At that time, the court didn’t
ascertain to understand the silences of the Constitution and just made a literal
interpretation of the Constitution as ordinary legislation. The court didn’t look into
Constitutions dark matter130. As it was the Gopalan era and compartmentalization rule
was dominant”, M.P. Sharma is not an authority on the question of whether the right
to privacy is a fundamental right or not as it didn’t check it under Articles21, 14, 19,
or 25. With respect to Kharak Singh judgment he also arrives at the same conclusion
which is stated above, i.e., there is an inconsistency in the verdict.

“Agreeing with others conclusion, he stated that privacy could be derived from
different rights guaranteed by the Constitution, and it is fundamental to humans. It has
limitations as no legal right can be absolute, and those limitations are to be identified
on case to case basis. Regarding the application of compelling State interest, he stated
that it requires narrow interpretation and claims that deserve the strict scrutiny”.

3.4.3 Highlights of Justice S.A. Bobde’s Opinion

“Answering the first question, he agreed with other judges and stated that the
nature and location of various fundamental rights in Part III brought about by R.C.
Cooper and Maneka Gandhi has removed the foundations of M.P. Sharma and Kharak
Singh. On the point that whether the right to privacy is a common law right or

130
‘Dark Matter’ as an almost perennial and inexhaustible source within the four walls of the
Constitution

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constitutional right, he stated common law rights are horizontal in nature, and
fundamental right provides a remedy against ‘State’. And there is no wrong in
recognizing a single right as a common law right and a fundamental right
simultaneously. Privacy has the nature of both i.e. of common law and constitutional
law”.

With respect to nature and substance of this right he mentioned that a strict
definition of the phrase is not possible. “Many rights cannot be defined in a specific
manner and even the term ‘Life’ under Article 21 can’t be precisely defined, and the
same is the case with many core rights”. This right cannot be defined than it does not
signify that person cannot feel the existence of privacy. Quoting Black’s Law
Dictionary 131 , “he explains privacy as the condition of being free from the public
gaze. It is right to be let alone and power to seclude oneself. This right is not confined
to intimate spaces only, but it is not lost even in a public place”.

“He states that privacy is not merely a descriptive claim but is also a
normative one, as pointed by Chandrachud J. and is an essential condition for the
exercise of most of the right enumerated in Part III. He considered Article 21 to be the
first and natural home for privacy rights and how liberty and privacy are connected.
Then privacy is also necessary for the exercise of rights guaranteed under Articles
19(1), 20, 25, 26, and 28. It is also integral to the cultural and educational rights and
the right to own the property and many rights, as an exhaustive list is not possible”.

With regards to limitations on this right it was clarified that this right is not
absolute and the same can be restricted on the similar grounds which are applicable to
Article21. Though, the limitations should satisfy the principle of being fair, just and
reasonable and the State must satisfy the compelling circumstance which existed for
infringement of this right.

3.4.4 Highlights of Justice Nariman’s Opinion

Nariman J., “while emphasizing international declarations and covenants, to

which India is party, stated that norms which are not explicitly declared as a
fundamental right can be brought into fundamental rights if they are not contravening

131
Black’s Law Dictionary (Bryan Garner, Edition.) 3783 (2004)

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any municipal law. And one such right is the right to privacy as provided under
Article 12 of the UDHR and Article 16 of ICCPR”.

Supporting his brother judges, he pointed out that M.P. Sharma and Kharak
Singh’s verdicts were founded upon Goplan’s judgment which doesn’t hold ground in
today’s time. So both these decision which states that privacy is not a fundamental
right is incorrect to that extent. “The minority opinion of Subha Rao J. in Kharak
Singh is correct on the point of interpretation of fundamental rights, i.e., as regards the
non-acceptance of the right to privacy by the constituent assembly, he observed that it
might be correct when they have framed the Constitution”. But our Constitution
should be construed to fulfill the varying requirement of society.

“Taking into consideration the technological revolution and effects on

individual life, it is important to judge the right to privacy in the present context rather
than the past. And there is no logic in not recognizing the right to privacy just because
millions of people are denied the necessities such as life, shelter, food, cloth. Right to
life and personal liberty is available to both rich and poor against State action; it is not
just a matter of elite. Poor using a phone can come to the court for violation of his/her
right to privacy. He also pointed out that the mere absence of a definition does not
make any right redundant. And there is no justification in not recognizing the right to
privacy as a fundamental right because statutes are protecting the right to privacy”.

It was argued that if “privacy is recognized as a fundamental right than it

cannot be waived and would consequently lead to certain complications like all the
statutory provisions dealing with the aspect of privacy would be vulnerable, the states
would be barred from contractually obtaining any information from the person”. Even
it will not be easy for the court to decide which facets of privacy can be excluded
from Article21. Disagreeing with the above argument Nariman J. clarified that “this
would not act as a hurdle, and provisions are to be satisfied from case to case bases,
and the right to privacy is not an absolute fundamental right”.

“In reference to whether a fundamental right to privacy resides primarily in

Article 21 read with certain other fundamental rights and where does it fit in Part III
of the Indian Constitution, he stated that this right can be brought under Articles
19(1), 20, 25, and 26 read with Article 21 of the Indian Constitution. The term

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‘liberty’ in the Preamble to the Constitution also recognizes the inherent right to
privacy to the individual, and it has many developing facets. The balance is to be
made between individual, societal, and State interests concerning privacy”.

3.4.5 Highlights of Justice Abhay Manoahr Sapre’s Opinion

Agreeing with his brother judges, Sapre J. maintains that phrases ‘liberty’,
‘equality,’ and ‘fraternity’ provided in the preamble should be read with the
provisions of Part III. Words used in Constitution should be interpreted in light of the
Social, financial, and Political situations of country.

He was of the opinion that privacy is a natural right which is having multiple
aspects and can neither be separated nor denied to an individual. “As the right to
privacy has multiple facets, it has to go through case to case development”. This right
springs out from Article 19(1)(a), (d), and Article 21 but this right is not supreme and
same can be reasonably restricted by the government. But the restrictions should be
founded upon compelling conditions which may be social, moral or suitable to the
interest of public at large.

3.4.6 Highlights of Justice Sanjay Kishan Kaul’s Opinion

“Kaul J. agreed that Privacy is a primal, natural right that is inherent to an

individual and is not just a common law right. It is a fundamental right, which is an
important core of any individual existence. It is right to do as you please or right to be
let alone, which may vary from person to person. It is a right recognized worldwide as
a fundamental human right and is a form of dignity and liberty. It is a key to freedom
of thought”.

It is one of the rights which can be asserted against government and private
entities but for asserting this right against Private entity it entails legislative
involvement of government. In today’s data oriented era there is requirement to limit
the level upto which information about person can be collected, complied and utilized.
The power to regulate the distribution of private information also be covered within
the scope of this right. Right facilitates an individual to manage his/her own life and
reputation before other persons.

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 Though, there are many judgments with respect to this right, but none of them
considered this right as fundamental. It was only after the delivery of historic decision
in K.S. Puttaswamy v. Union of India132, where this right has been accorded suitable
appreciation. In the instant matter, Apex Court recognized that “Right to Privacy is an
intrinsic part of right to life and personal liberty under Article 21”. It incorporated this
right in the category of fundamental right emanating from Article21.

Though Apex Court declared Privacy as fundamental right but question arises
here is how does it matter? The right has been declared as fundamental right in
August 2017 and only in a short period of about two years it has shown tremendous
effect in Indian Jurisprudence as this right has lead to partial decriminalizing of
Homosexuality in matter of Navtej Singh Johar v. Union of India133 and upholding the
validity of Living Will and passive Euthanasia in cases of Common cause v. Union of
India134 and many more. All these have been discussed in the next part of this chapter.

3.5 Impact of 2017 Judgment and Way Forward

“Privacy judgment is one of the most landmark judgments of independent

India. It not only learns from the past, but also sets the wheel of liberty and freedom
for future. Apex Court has once again emerged as the sole guardian of the Indian
constitution”. The judgment settled the position of law which has been the major issue
in a number of cases. This judgment has completely changed the opinion of
government regarding privacy. The judgment has cleared the path for the petitions
which claims right to privacy in diverse vicinity. It can be said that this right has
given oxygen to “Right to Life and Personal Liberty” for its sustaining and existence.
This right has been accorded the status of fundamental right in August 2017 and from
than in a short period of about four years it has shown tremendous effect on Indian
Jurisprudence leading to several dimensions.

It was clear that Privacy judgment will have its impact over rights and it
started to show its effect after few days of its delivery. In Independent Thought v.
Union of India135 it was decided that Exception-2 attached to Section-376 of Indian

132
(2017) 10 SCC 1
133
(2018) 1 SCC 791
134
(2018) 5 SCC 1
135
(2017) 10 SCC 800

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Penal Code 136 is violative of privacy of woman. Further in Indian Young lawyers
Association v. State of Kerala 137 court held that practice of temple of compulsory
disclosing their menstrual status and excluding menstruating woman is
unconstitutional and violative of Privacy of female.

Privacy judgment lays the basis for Navtej Singh Johar v. Union of India,
Ministry of Law and Justice138 as in privacy judgment it was stated that the ratio of
Suresh Kaushal is not correct. The verdict of Suresh Kaushal was revisited in the
present case where the constitutional Bench of Apex Court comes to conclusion that
Section 377 of IPC is violative of dignity and privacy of persons of LGBTQI
community. Thus Section 377 of Indian Penal Code was declared as unconstitutional
and violative of privacy of an individual.

In 2018, Supreme Court in the matter of common Cause v. Union of India139

legalizes passive euthanasia and living will. In this case the constitutional bench of
Apex Court overruled the judgment delivered in Aruna Shanbaug case 140 and
declared that person who is adult and of sound mind has the right to say no to
remedial treatment including life saving treatment. Court further declared that
“patient’s right to refuse life prolonging treatment falls within the ambit of privacy,
and treatment cannot be continued against the patient’s will”.

Later in Hadiya’s case141, Apex Court while overruling the verdict of High
Court given in Asokam K.M. v. State of Kerala142 permitted Hadiya to live with her
husband. In this case court said that it is sacred right of individual to choose his/her
life partner and this right falls within the ambit of privacy which cannot be taken
away. Again, playing a pro active role in Joseph Shine v. Union of India143, Apex
Court while declaring Section497 of IPC unconstitutional and violative of right to
privacy said that the said section is pre-constitution and of Colonial period which does
not hold ground in today’s perspective. Highlighting the dignity of a female and

136
Section 376, Exception 2 -Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape
137
2018 SCC OnLine 1690
138
(2018) 1 SCC 791
139
(2018) 5 SCC 1
140
Aruna Shanbaug v. Union of India, (2011) 4 SCC 454
141
Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368
142
2017 SCC On Line 5085
143
2018 SCC On Line 1676

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restraint on female’s sexual freedom the Section-497 was declared as void. Court
recognized sexual privacy as a natural right and facet of dignity under Article21 of
Constitution.

So it can be said that this right has paved the way for many other rights which
were not recognized and provided earlier. But this is not the end rather it is beginning
of the new era where several rights will be provided to an individual.

3.6 Restrictions on the Right to Privacy

In 2017, Apex Court delivered a remarkable ruling in the matter of K.S.

Puttaswamy (Retd.) v. Union of India144 which affirms the legality of right to privacy.
Apex Court acknowledged that privacy is an important element of Part III of
Constitution of India. Though there is absence of explicit stipulation relating to
privacy under our Constitution but the same is acknowledged as a fundamental right
emanating from several other rights; like any other fundamental rights this right is
also not unqualified, and certain rational limitations can be imposed upon it by the
State.

Subject to the satisfaction of certain tests and benchmarks, competing State

and individual interests can override a Person’s Privacy interests. It cannot go beyond
those rights under which it emanates. Liberty granted to an individual under
fundamental rights must be exercised so that it does not offend others’ liberty.
Reasonable limitations can always be applied on right to privacy. What can be the
reasonable limitations on privacy rights is to be determined by the Judiciary. Apex
Court has explicitly recognized certain prerequisites for imposing restriction on the
fundamental rights guaranteed by the Indian Constitution. The court has recently
stated in Puttaswamy case145 that fundamental rights should not be examined in silo,
and any restriction on these rights has to pass the basic tests recognized under
Articles21 and 14 of Constitution. And if the right is read under Article-19 then its
restrictions are applicable.

144
2017 10 SCC 1
145
K.S. Puttaswamy v. Union of India, 2017 10 SCC 1

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3.6.1 Restriction imposed by Court through its Judgment

Apex Court while delivering the landmark privacy judgment has laid down
three-fold restraints on Right to Privacy and those are stated as under:

3.6.1.1 Legality, which postulates the Existence of Law

Article21 of Constitution insists that there must be a procedure established by

law for depriving life or liberty. The first and foremost requirement for curbing this
right is that there should be a legislation which satisfies the intrusion of individual’s
privacy. Article-21 explicitly stipulates that “No person shall be deprived of his life or
liberty except according to the procedure established by law”. Without legal back-up,
no right under Article 21 can be curtailed. Fazal Ali J. stated that ‘Law’ is not just a
statute made by the Parliament but more than that as certain fundamental rules of
justice are enshrined in it. Term “Law” as used in Article-21 signifies valid law and
procedure signifies specific regulations and not just a simple pretext of procedure.
Law as provided under Article 21 has to abide by the other fundamental rights
stipulated under PartIII. Chandrachud J. while talking about restrictions on privacy
stated that the subsistence of valid legislation is the first requirement which is to be
satisfied while abridging the privacy of an individual. It is to be noted that term law
includes ordinance and rules made by the government also.146

3.6.1.2 Law should not be arbitrary

According to Black Law Dictionary, any act is arbitrary, which is not founded
on prejudice or preference. Acts, when are based on irrelevant facts and in ignorance
of relevant conditions, reflect arbitrariness. Article 14 is developed by the courts to
look into the constitutionality of legislative acts and administrative action. Two ways
in which it is developed: Firstly, the classification test is applied to see whether the
impugned act is based on an unreasonable classification. Secondly, the courts look
into whether the act is just, fair and non-arbitrary. The law must have some legitimate
aim. If these two conditions are satisfied, then only law or action is said to be valid or
constitutional. In case it might be possible that procedure is followed by authorities
but reasons are not stated for performing that act, in such type of cases it is manifest

146
A.K. Roy v. Union of India, AIR 1982 SC 710

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arbitrariness. The arbitrariness test was first accepted by Apex court in E.P. Royappa
v. State of Tamil Nadu147. Bhagwati J. stated that where an act is arbitrary, it is not
equal as per political logic and as per constitution. It was noted that equality is
opposite of “arbitrariness and equality and arbitrariness are sworn enemies”.
Arbitrariness is just based on the fancy of an unqualified monarchy. In Indira Nehru
Gandhi v. Raj Narain148 clause 4 and 5 of Article-329A was struck down on the basis
of arbitrariness, and it was held that any act calculated to destroy the rule of law is
arbitrary. L.M. Singhvi states that the restrictions on the right are allowed but that
should not be arbitrary or excessive, and the Parliament should take intelligent care
and deliberation while choosing restrictions.

Later in Maneka Gandhi v. Union of India149 court relied on the same logic
and held that reasonableness is legally and philosophically on essential elements of
equality and non-arbitrariness. Articles 14 and 21 were clubbed, and it was stated that:

“The principle of reasonableness, which legally as well as

philosophically, is an essential element of equality or non-
arbitrariness, pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article
21 must answer the test of reasonableness to conform to
Article 14.”

As the Maneka Gandhi case has widened the ambit of Article-21 and brought
non-arbitrariness under its domain. The jurisprudence of interlinking and broader
interpretating of fundamental rights started in India. The courts started looking into
the law not as only just and fair but also not arbitrary, fanciful, and oppressive. If in
any case arbitrariness in State action is to be found, then that legislative or executive
action can be struck down. Later this principle was developed in A.L. Kalra v. Project
and Equipment Corp.150, and K.R. Lakshmanan v. State of Tamil Nadu151. In Mithu
152
Singh case, statues were held unconstitutional on being arbitrary. The entire

147
AIR 1974 SC 555
148
AIR 1975 SC1590
149
AIR 1978 SC 128
150
(1984) 3 SCC 316
151
(1996) 2 SCC 226
152
Mithu Singh v. State of Punjab, AIR 1983 SC 473

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constitutional scheme permeates with the concept of reasonableness and non-
arbitrariness.

Recently in Shayara Bano v. Union of India 153 the court remarked that if
anything is done randomly, irrationally, and without following the determining
principle, excessively and disproportionately, then it can be declared illegal on the
ground that it is manifestly arbitrary. In Independent Thought v. Union of India 154
Court relied on its previous findings that Exception-2 to Section375 of IPC is
arbitrary and violative of the constitutional principles protected under Article14, 15,
and 21 of Constitution.

3.6.1.3 Test of Proportionality

The concept of proportionality is very well established in the European

Administrative law. The rule guides the judges in deciding and balancing the conflict
between the rights of individuals. In the proportionality test, the court will weigh for
itself the advantages and disadvantages of a government act and upheld the act only if
it is advantageous for the public. Mischievous acts if any done by the government
than the same will be quashed by the Judiciary. The method adopted by the
Parliament should be related to the purpose which is required to be accomplished by
that legislation. The test guarantees against the arbitrary State actions and is the
doctrinal tool evolved by the judiciary to resolve the conflict.

According to the proportionality test, four conditions must be satisfied by law

to be valid. Firstly, a legitimate State goal should be there behind the law; secondly, a
proper means should be devised for furthering the objectives of law; thirdly, there
should not be other effective means to attain the objectives; fourthly, no
disproportionate impact should be there on the right-holder. In the fourth stage, which
is a balancing stage, it is seen by the court that right is properly balanced against the
contending right or interest of individual. It is an indispensable aspect of guarantee
against an unreasonable and illogical act of the State and ensures protection against
unnecessary encroachment on fundamental rights. Reasonableness is the core of the
proportionality test. In M.R.F. Ltd. v. Inspector, Kerala Government155, the Supreme

153
W.P. (C) No.118 of 2016
154
(2017) 10 SCC 800
155
AIR 1999 SC 188

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Court observed that there should be a “direct and proximate nexus between the
imposed limitations and the object sought to be achieved”, and then the only provision
can be considered constitutional.

One of the earliest decisions of the Apex Court which talks about the test of
proportionality was Ranjit Thakur v. Union of India 156 where it was observed that in a
case where a decision of the court, even of the court-martial, is outrageous defiance of
logic, then it is under judicial review. The proportionality doctrine was discussed in
detail in Om Kumar v. Union of India 157 In this case the division bench of court noted
three essential components of the doctrine. First, an act designed by the legislature
must be to achieve a certain rational object. Secondly, the means should be logically
associated with the object sought and should encroach on freedom as little as possible.
Thirdly, most important, there must be proportionality between act and the objective
sought.

In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and Others158, Apex Court
while implementing the principle of proportionality, stated that the appropriate and
minimal restriction should be there on the fundamental rights while making any act or
taking administrative action. And appropriate balance should be maintained between
the adverse effect of the act on rights and liberties. In 2016 Apex Court stated that
proportionality is one of the tests which help in deciding the essential and required
conditions for restricting a constitutionally protected right. The balancing of two
fundamental Aspects, i.e., right and restrictions on that right, is done after taking into
consideration the comparative social values of every competitive aspect.

Chandrachud J. has accepted the applicability of the proportionality test in

case of restricting the fundamental rights. It has been stated that proportionality is an
indispensable feature of guarantee against government’s arbitrary act and it ensures
that the intrusion of the fundamental right is not inconsistent with the idea of
legislation. Sikri J. again in Justice K.S. Puttaswamy (Retd.) v. Union of India 159
discussed in detail the concept of proportionality and held that a portion of Section 57
of Aadhaar Act is invalid as the same doesn’t qualify the test of proportionality. This

156
J.T. 1987 (4) SC 93
157
(2001) 2 SCC 386
158
(2004) 2 SCC 130
159
(2017) 10 SCC 1

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doctrine entails that State should implement the least disturbing measure to achieve
the preferred objective. Ashok Bhushan J. also highlighted that notion of
proportionality as an important facet for protection against arbitrary action of the State
as it seeks to check that there is no disproportionate encroachment on the right.
Chandrachud J., while explaining the test, wrote:

“The test of proportionality stipulates that the nature and

extent of the State’s interference with the exercise of a right
(in this case, the rights to privacy, dignity, choice, and
access to basic entitlements) must be proportionate to the
goal it seeks to achieve.”

This three-fold requirement is an outcome of the inter-dependence between the

fundamental protection against arbitrary action of State and protection of life and
personal liberty. The above rules also protect the right to privacy, emanating from
Article21, and rights embodied under Part III of Constitution.

3.6.2 Certain Grounds for Reasonable Restrictions on Right to Privacy

Privacy has to be read with Article 19 and restrictions under Article 19 and 21
are to be taken into consideration. However, these restrictions are to be read in a
limited sense, and broader interpretation is to be given to the fundamental rights.
Judiciary should not be too literal in interpreting the fundamental right, and broader
protection is given to the rights. Subject of the above three tests lay down, the
restriction on privacy right may be justified on the following grounds:

3.6.2.1 Public Interest

Term ‘public interest’ is used in Article 19(6), but in Gobind’s case the term
“compelling” is added before it. Compelling State interest indicates the element of
strict scrutiny test and narrow tailoring. Public interest is considered compelling only
when it is necessary and is not just a matter of choice. Thus, for Article 21 privacy
right stricter standard of review is there that Article 19.

The doctrine of compelling state interest is evolved by the U.S. judiciary and
is an important tenant of today’s constitutional law. A compelling State Interest test is

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read, along with a strict scrutiny test. These tests increase the protection of
constitutional rights by subjecting governments' actions to more intense judicial
review. The compelling state interest test was established in the late 1950s and early
1960s in the First Amendment.

3.6.2.2 National Security

Article 8 of the ECHR provides that privacy rights can be intrude by the public
authorities if that matter is related to Security of Nation, Safety of general Public, or
economic benefit of the Nation. The Indian courts have expressly stated that under the
head ‘legitimate State interest,’ national security falls. Thus, provisions under various
legislation encroaching privacy are valid if they are for a national security interest.

For example, Section 5(2) of the Telegraph Act empowers the government to
intercept communication in case of “public emergency and public safety.” Similarly,
Section 69 of the IT Act, 2000, can impose reasonable restrictions on the ground that
there is a threat to Security and Integrity of the Nation. In today’s time, when illegal
activities like terrorism, cyber-attacks are so frequent, the absolute right to privacy
cannot be granted.

A greater concern for National Security was raise in India after attack on Taj
Hotel on 26th November 2008. The citizens of the country are ready to surrender their
privacy right if security is granted. Professor Amitai Etzioni contends that individual
can and must surrender their privacy for the good of society. Privacy and security
both rights are essential to human beings, but often they come in conflict. Policy
makers should always endeavor to attain community goals with as little encroachment
on privacy as possible. Digital surveillance is relevant in the case of protecting
citizens against terrorism, other motivated crimes specially targeted against members
of minority groups. Sometimes loss of privacy can mean a better life.

There exists a thin line between national security and privacy, and both are
deeply linked every time, national security does not signify surrender of privacy and
appropriate stability should be maintained between them. Under the garb of security,
the State cannot be turned into a surveillance State. In the aftermath of revelations by
Edward Snowden, it should be seen that global surveillance is not correct and
favorable for a democratic society. There should be a legitimate privacy law before
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the collection of information for security purposes. The NSA and its Pegasus spyware
scandal cannot be permitted under the head security. Surveillance should never gain
prominence over privacy.

3.6.2.3 Search and Seizure

Intrusion on the privacy rights is permitted in the matter of search and seizure.
Income Tax Act permits the officers to conduct a search in order to recover
undisclosed income, similarly Customs Act, 1962 prescribes for search so as to find
the goods which are produced or imported after violating rules or regulations of a
Statute, while Narcotics Act permits search of an individual who have violated the
provisions of this Act, with or without a warrant. Similarly, Cr.PC allows the search
to be carried out at places that are suspected of having properties which might be
stolen or forged and Section 165 stipulates that such searches shall be carried out by
the police on reasonable grounds.

The power of search and seizure should not be excessive and arbitrarily
encroaching on privacy rights. In District Registrar and Collector v. Canara Bank160
court dealt with the constitutionality of a provisions of Indian Stamp Act 1899, as
amended by the Andhra Pradesh Act. The amendment empowered “any person” to
enter upon premises to take notes or extracts from, seize or impound registers, books,
records and proceedings. This provision was challenged by a number of banks on the
ground of breach of confidentiality. Court accepted the contention and also declared
that this provision violates the right to privacy. Apex Court stated that present
amendment authorizes not only public authorities but also private persons to enter
upon and search individual’s home without reasonable cause. This per se is a
contravention of right to privacy.

3.6.2.4 Other Fundamental Rights

On several occasions Privacy has been in conflict with other fundamental

rights. One individual’s privacy might fall within the scope of other’s right to know.
Similarly there may be a clash between privacy and other rights such as right to

160
(2005) 1 SCC 496

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security, right to food, right to development, and many more. All these rights are
essential human rights in modern society.

If we look into the privacy and right to information, both have been held as
important rights by the court. In R. Rajagopal v. State of Tamil Nadu161 the court
explained that it is necessary to create a balance between the freedom of the press and
privacy of an individual. Court concluded that privacy is a fundamental right, but
prior restraint or prohibition of publication cannot be imposed upon the proposed
publication on the ground of privacy protection. The petitioner has the right to
publish, and the privacy of the prisoner is to be protected if he has not consented. In
N.D. Tiwari case also court refused to protect the privacy of N.D. Tiwari on the
ground that knowing the fatherhood of Rohit Shekhar is important.

Recently in Aadhaar case Court upheld the legality of the Aadhaar scheme on
the ground that through this scheme, people can have food, subsidies, and other
government benefits, which is a facet of Art. 21. If the government takes some data
for giving benefit, then it is not violating privacy right as such.

3.6.2.5 Tax and Welfare Schemes

The growth in the data and electronic financial transactions presents tax
collecting bodies’ opportunities to utilize this information to work more effectively
and collect more taxes. The authorities can easily check tax avoidance/evasion, and
management can be more productive. In traditional reporting, authorities have to rely
on information provided by taxpayers and the third party. But now, data collection
and process have made things much easier, and if some encroachment on privacy is
there, then that is permissible. If data is collected voluntarily in welfare schemes, it
acts as acceptable constraint on privacy rights. For encouraging innovation and
spreading knowledge, restriction on privacy is permitted. In case of “friendly relations
with foreign States, for preventing incitement to an offence, investigation purposes,
the right to privacy of the individual” or group can be restricted.

These are not exhaustive lists of restrictions that can be reasonably imposed.
The situation determines the restriction on privacy rights. If we look into the present

161
(1994) 6 SCC 632

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scenario, then COVID patients have to surrender their privacy rights so that the
infected person can be traced, and further infection can be controlled. In the situation
of the pandemic, we cannot claim health privacy. The government can, through
various means, restrict the right to privacy. Same is the case where excessive illegal
acts are there, or terrorism is there. We need to acknowledge that privacy rights
cannot be claimed for abusing human rights. Domestic violence cannot be tolerated
under head family privacy.

3.7 Current Data Protection Laws in the Country

At present there is no explicit legislation in the country which provides for

data protection. “The protection of privacy and data protection is looked at by
different laws pertaining to information technology, criminal law, intellectual
property rights, and contractual relations”. In 2012, the Planning Commission of India
constituted an expert committee headed by justice A.P. Shah. “The committee
developed principles for the protection of the right to privacy. The usage and transfer
of personal data are mainly regulated by the IT Act (2000) and its Rules. The Act
along with the rules provides laws regulating the collection, transfer, and use of
personal information. This Act mainly intends to protect electronic data and other
aspects of information technology such as cybercrimes and electronic commerce”.
This Act mainly deals with e-commerce, not privacy, as it was enacted because of the
UNCITRAL model laws adoption on e-commerce in 1996.

A robust legislation in the field of data privacy is the need of the hour. Despite
several steps by different organs of the government towards a data protection
regulation, so far, the Indian Government has failed to come up with comprehensive
legislation. Demand for protection of informational privacy has been raised by various
groups and recent judgments from the court also highlight the dire need for effective
legislation. Incidents, like unacademy information on sale on the dark web162, CA
Scandal, Pegasus spying row and many other similar breaches raise concern about
data security in India. The intend of data protection law is not just limited to
protecting one’s data rather its goal is to secure the basic rights and freedoms related
to person’s data. A comprehensive data protection provisions are not only necessary

162
Anandi Chandrasekhar, “Unacademy information on sale on the dark web”, The Economic Times,
May 8, 2020

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for protection of rights but it also ensure fair and consumer friendly commerce. The
two chief concern of data regulation are: protecting privacy of the individual on one
hand and using the same data for economic benefit. These two fit uneasily with each
other therefore there is a need to resolve this conflict while drafting data legislation.

Looking into the rapid increase in technology, the lack of comprehensive

legislation to protect individual data is an issue of distress for the Nation. In the 21st
century, data is similar to oil in the 18th Century, i.e., untapped valuable assets. Non
availability of ample Law relating to safety of data is an issue of concern for citizens.
The legislatures have taken several steps towards the framing of comprehensive
legislation since 2006, but till now the country does not have proper legislation in
place. The main Bills brought by the government are as follows:

3.7.1 The Personal Data Protection Bill, 2006163

It can be stated that this bill was the first serious attempt towards the
protection of data privacy. The bill was tabled in the Upper House of Parliament on
8th December 2006 by M.P. Vijay J. Darda but was not passed and lapsed. The Bill’s
purpose was to provide for safeguarding the personal data and person’s information.
The Bill comprised of 14 sections which limited the usage and disclosure of private
information. The main concern in the bill was over the misuse of personal data by
marketing companies. It imposed an obligation on both government and private
organizations not to disclose information for advertising or any other commercial
gain.

3.7.2 Approach Paper for Legislation on Privacy, 2010164

Government of India has issued the approach paper for making law which
protects privacy for seeking opinions and public views on October 18, 2010. The
paper discussed the need for such legislation despite having norms by companies to
look into breach of privacy. The concern regarding the co-existence of data legislation
with other statues was also dealt in the paper. The distinction between the personal
sensitive data and rights relating to collection of data needs to be applied and all
163
The Personal Data Protection Bill, 2006, India, available at:
http://164.100.24.219/billstexts/rsbilltexts/asintroduced/xci_2006.pdf
164
Approach Paper for a Legislation on Privacy, 2010, available at:
http://documents.doptcirculars.nic.in/D2/D02rti/aproach_paper.pdf

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bodies collecting data should be brought under the legislation. The paper
recommended the law for India after looking into privacy laws in 13 different
jurisdictions. This Paper highlighted the need for law relating to privacy as the trend
towards centralization of government database has started, and big private entities are
involved in the collection of data.

3.7.3 Right to Privacy Bill, 2011165

A Bill was drafted by the government in 2011 which affords right to privacy to
the individuals of Nation. The Bill aimed to regularize the collection, preservation,
use, and distribution of individual’s confidential information and provide for penal
action if there is violation of any provision. The bill talks about the protection of
privacy in case of surveillance, collection of health information, DNA, and other
samples and data protection under separate chapters. Establishment of Data Protection
Authority, their qualification, the term of office, powers, removal, functions were also
dealt with in the bill. The cyber appellate tribunal, set up under the IT Act, was given
the power to adjudicate the disputes under the bill. Certain laws such as RTI were
exempted from the privacy right under Section 90 of the Bill. Civil and criminal, both,
remedies were provided to the aggrieved person under this Bill.

3.7.4 Report of the Group of Experts on Privacy166

In 2012, Government constituted an expert committee under the leadership of

A.P. Shah. This committee was given the task to suggest government on the matter of
Privacy and to provide its opinion whether there is a requirement of law relating to
privacy. The constitutional basis of the right to privacy was specified. “Notice, choice
and consent, collections limitation, purpose limitation, access and correction,
disclosure of information, security, openness, and accountability” were nine pivotal
principles to the right of privacy outline by the committee. The committee
recommended a detailed framework for the protection of privacy and recommended
the establishment of the system of co-regulation. The report suggested the setting of
privacy commissioners at the centre and state level and additional protection of SPD.

165
Right to Privacy Bill, 2011, available at:
https://cis-india.org/internet-governance/draft-bill-on-right-to-privacy
166
Report of the Group of Experts on Privacy, 2012, available at:
https://niti.gov.in/planningcommission.gov.in/docs/reports/genrep/rep_privacy.pdf

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Certain exceptions were also highlighted in the report, such as Security of Nation,
public order, public interest, criminal offences and protection of other rights. It stated
that these exceptions must be measured against the principles of proportionality,
legality, and necessity. “Referring to social networking sites and search engines,
which have their own privacy code; Committee said these would either have to follow
the model provided in the proposed act or have a self-regulatory mechanism approved
by the privacy commissioner”.

3.7.5 The Privacy (Protection) Bill, 2013

In 2014 a bill similar to the Bill of 2006 was again tabled in the Upper House
of the Parliament by Vijay J. Darda. This Bill talks about protection of all persons and
their data from governments, public authorities, private entities, and others bodies
which collect their data.

3.7.6 The Right to Personal Data Bill, 2016167

Om Prakash Yadav, M.P. introduced the Right to Privacy of Personal Data

Bill, 2016 in Lok Sabha. Apart from providing security against data breach, the bill
also stated establishing a National Do-Not-Disturb Registry and creating awareness
about protection of personal data. The Bill also stipulates for constitution of the
National Research Centre for Excellence in Data Management and compulsory
education of privacy of personal data in educational institutions.

The Supreme Court in 2017 judgment declared that protection of Personal

information is a critical facet of privacy. Following this observation of Apex Court
government formed a Committee and Justice B.N. Srikrishna was appointed as the its
chairperson. The committee examined several problems related to data protection and
submitted its 176 pages report along with the draft of Personal Data Protection Bill,
2018. The report discussed three approaches which are in existence for protecting the
data in several countries of world, i.e., the U.S., EU, and China. In light of K.S.
Puttaswamy (Retd) v. Union of India168 it was noted that the State has to formulate a
data protection framework. The framework should protect citizens from dangers to

167
The Right to Personal Data Bill, 2016, available
at:http://164.100.47.4/billstexts/lsbilltexts/asintroduced/3365.pdf
168
2017 10 SCC 1

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informational privacy against both government and private entities. The report sets the
framework, which can be instrumental in shaping the discourse on data protection in
the country.

3.7.7 The Personal Data Protection Bill, 2018169

The Bill presented by Srikrishna committee was comprehensive enough and

consisted of 15 Chapters and 112 Sections. The draft used the term data principal and
data fiduciary to confer autonomy to the person whose data is used. The rights of data
principals and duties of data fiduciary are discussed. The Bill allows certain kinds of
exceptions in national security, legal proceedings, and journalistic purposes. SPD is
defined in the bill and specifies more stringent grounds for SPD processing, i.e., there
is a need for explicit consent while processing SPD. Creating a Data Protection
Authority for supervision and regulation of data fiduciaries is provided in the draft
Bill.

Transmission of data outside the Nation is allowed only under certain

permissible circumstance, except SPD, which is critical. Under the bill, offenses and
penalties are also dealt with.

3.7.8 Personal Data Protection Bill, 2019170

The Ministry of Electronics and Information Technology solicited suggestions

on Bill of 2018 from public and various stakeholders. Based on those comments and
suggestions, a revised Draft Bill of 2019 was tabled in the Lower House of Parliament
by the then Law Minister on 11th December 2019. The Bill was sent to Standing
Committee of Parliament, and the Standing Committee has to submit its views before
the Budget Session of 2020 but to outbreak of novel corona virus the time has been
extended till Monsoon Session.

169
The Personal Data Protection Bill, 2018, available at:
https://www.prsindia.org/sites/default/files/bill_files/Draft%20Personal%20Data%20Protection%20Bil
l%2C%202018%20Draft%20Text.pdf
170
Personal Data Protection Bill, 2019, available at:
https://www.prsindia.org/sites/default/files/bill_files/Personal%20Data%20Protection%20Bill%2C%20
2019.pdf

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3.8 Analysis of Personal Data Protection Bill, 2019

The Bill of 2019 proposes for safeguarding the privacy of an individual. The
bill is designed for processing data and creating a relationship of trust. Faith and
belief are to be maintained between persons whose data is processed and entities
processing a person’s data. It prescribes the procedure for handling the personal data,
i.e., provides regulations for social media, intermediary, transmission of data outside
the country, and other related issues.

3.8.1 Salient Features of the Bill

i. Application of the Act

This Bill regulates the handing of an individual’s data in case it is collected,

disclosed, shared, or otherwise processed in India. (i) Government, (ii) Companies, a
citizen of India or any persons incorporated under Indian Law, and (iii) data
fiduciaries or data processors who are dealing in India with personal data are covered
in the bill.

ii. Definition Clause

The Bill defines the terms, in particular data, personal data, SPD, anonymized
data, biometric information, data fiduciary, data principal, data processor, financial
data, and other such related terms. Personal data mainly refer to data that concerns
personality or other qualities of character through which natural persons can be
identified. Bill categorizes specific personal data as SPD such as: Economic data,
Health data, “Official identifier, Sexual life and orientation, Biometric data and
genetic data, Transgender status and intersex status, Caste, tribe, religious or political
belief or affiliation; or and any other data set out by the government, in consultation
with the authority and sectoral regulator”.

Further, for sharing anonymized data, an exception has been carved out. For
enhanced targeted delivery of services or making of strategy which is based on
evidences, the government can ask for anonymized data sharing. As proposed by the
draft Bill, 2018, anonymized data is kept out of the current Bill’s purview. Further,

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small entities that are processing manually are also kept out of the ambit of certain
provisions of Bill.

iii. Prohibition and Limitation

The Bill forbids the processing of personal data without lawful authority.
Every person should undertake or process the data of an individual in a just and
reasonable manner and to the extent to which consent has been granted. A clause in
bill also limits data collection by providing that data of a person should be taken only
to the limit, which is imperative for processing.

iv. Obligations of Data Fiduciary

Data fiduciary is a person who ascertains the use and methods of proceeding
with collected data. The person here includes the State or its agency and any private
entity which is working either alone or jointly with the government. The Bill lies
down that all information should be made available to the data principal before their
consent is sought. The bill rests certain obligations for data fiduciaries, which are to
be stated in a clear, concise, and easily comprehensible manner before taking
information.

v. Consent Managers

The Bill classifies the data fiduciaries in a new category, known as consent
managers. The consent manager’s task is to enable data principals to manage their
consents. They provide handy and apparent platform to data principals. The terms and
conditions for being grouped as a consent manager and other qualifications for
registration with the authority will be notified under regulations by the government of
India.

vi. Protection of Child Data

Chapter IV of the bill seeks to protect children’s personal data. Data protected,
in turn, protects the rights of children. Before processing the child’s data, which is
personal, the data fiduciary will need to substantiate his age and secure his parent or
guardian’s permission. Those violating norms using children’s data will not be barred.

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vii. Rights of Data Principals

Under Chapter-V of the Bill, certain rights of data principals are highlighted.
The rights which are available to data principal are namely First, Authorization
regarding the processing of personal data. Secondly, maintaining record identity of
the data fiduciaries with whom his data has been shared to be accessed at one place,
Third, Correction, upgradation and erasure of data, Fourthly, Portability of Data and
fifthly, to check and curb the disclosure of data.

viii. Significant Data Fiduciaries and Impact Assessment

A data fiduciary can be appraised as a ‘significant data fiduciary’ by the

Authority, including social media intermediaries. All notified intermediaries, which
have users above a notified threshold, and whose activity can influence or control
electoral democracy or public order, are bestowed with some obligation. The
obligation is to provide for a voluntary user verification mechanism for Indian users.
It is mandatory for significant data fiduciary to record correct and up-to-date
information.

Social media intermediaries are mediators who facilitate the online interaction
of two or more users. It permits them to organize, upload, part, disseminate, allocate,
alter, or access information. Search engines (such as Google, yahoo), e-commerce
entities (e.g., manufactures, retailers), internet service providers, email and storage
service, and online encyclopedias are not to be brought under the ambit of significant
data fiduciary.

Data fiduciary has to take up a data protection impact assessment. This

assessment is carried if he manages SPD, or large scale profiling is done, or it
involves new technologies and bears a danger of serious harm to the data principal.
The obligation on any third party, who are recipient of personal data, and task it
manages are regulated by the Bill. It provides that the data fiduciary must have a
contract with data processor and such data processor who receives data can process
such personal data after following the directions of the data fiduciary. The data
processor is prohibited from sub-contracting unless explicitly permitted by data
fiduciary and had duty to keep data confidential.

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ix. Grievance Redressal Mechanism

Data fiduciary should have a workable mechanism for dealing with data
principals’ complaints. The compliant made by the data principal should be resolved
speedily. It should be resolved within 30 days from the date of receiving the
grievance. If the data principal is dissatisfied with a data fiduciary response, a further
complaint may be filed with the Data Protection Authority.

x. Personal data not to be transferred outside Country

The data localization requirement, which was taken care of in previous Bill,
has been narrowed substantially in the present Bill. SPD may be conveyed outside
India; however, it shall continue to be kept in India. The vital personal data can only
be processed within India. The critical personal information can be transferred outside
the Nation if it is related to health service or emergency service, or the Central
Government deems such transfer necessary.

xi. Exemptions

The Central Government has the authority to exclude any government agency
from the purview of the act. It can exempt in the following case:

1. Sovereignty and integrity of Nation.

2. Threat to the security of Nation.

3. Friendly relations with other Countries.

4. Public order.

5. For averting the provocation of any offense with respect to the matters stated
above.

The Bill also provides certain other grounds were government agency can be
exempted, such as: “prevention, investigation, or prosecution of any offense, or
personal, domestic, or journalistic purposes”. In the above cases, processing should be
for a particular and legitimate purpose, with proper safety measures. The Government
has been empowered to accept the processing of personal data of data principles,

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outside the boundaries of Nation and certain other data processors. In case of
research, archiving, or statistical purpose exemption can be given by the authority.
Some particular provisions of Act are not applicable where the processing is done
manually by a small entity.

xii. Data Protection Authority

The Bill seeks to set up a Data Protection Authority, which shall comprise of a
chairperson and not more than six members (of which at least, one member should
have qualifications and knowledge in law). All the persons of the authority shall have
tenure of 5 years or till they attain the age of sixty-five years (whichever is earlier).
However, they are not entitled for re-appointment. The chairperson or other members
can be removed by the Central Government on grounds mentioned in the act. The
duty of the authority is also provided in the Act.

xiii. Penalties

A company has to pay a penalty of up to 15 crores rupees or 4 percent of

global turnover if found guilty of violating the provision of Act. In case the company
fails to conduct a data audit, then it is punishable with a fine of 5 Crores or a certain
percentage of the company’s gross turnover of the previous year, whichever is higher.
Penalty in case of failure to comply with data principal, failure in furnishing report,
returns, relevant data, direction, or order issued is dealt within the Act. This Bill
punishes the re-identification and processing of de-identified personal data if it is
without valid permission. Punishment for the same is imprisonment of up to three
years, or fine, or both. An offense under the Act is cognizable and Non-bailable.
Nevertheless, bill restricts the court from taking cognizance except when the authority
makes the complaint.

xiv. Adjudicating Officer

The Bill also stipulates for the appointment of an adjudicating officer who
shall have the powers to adjudicate and impose the penalties upon the party at fault
and award compensation to the victims under Section 64.

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xv. Provision of Compensation

The data principal has the power to ask for damages from the data fiduciary or
data processor if they have violated the provisions of Bill. The amount of damage
shall be finalized by the adjudicating officer, and the mechanism for addressing a
complaint under this provision shall be determined by government. Other
punishments are not affected by compensation or penalty inflicted under this
provision. The Bill also provides that if the amount of compensation is not paid within
the stipulated time then the same can be recovered as arrears of land revenue and
attributed to Consolidated Fund.

xvi. Appellate Tribunal

An Appellate Tribunal shall be established by the Government which will hear

and decide the appeal filed against the order of adjudicating officer or authority. “Any
person aggrieved by the decision of authority may file an appeal before tribunal
within 30 days of the passing of order”. Under the Act, the tribunal is not compelled
to stick to the provisions of CPC, 1908, but is vested with a civil court’s power for
discharging functions under the Act. An appeal against the order of the tribunal can be
filled before Apex Court within 90 days of passing of decision but only on substantial
question of law.

xvii. Powers of Central Government

The Bill provides the miscellaneous powers to the Government which includes
the power to give any orders to the authority which it deems fit. Some defined
interests are stated below on which the government has the power to issue directions
are:

1. Sovereignty and Integrity of Nation.

2. For maintaining Security of Nation.

3. Managing relations with other Countries.

4. Keeping public order.

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 Policies can be formulated by the Central Government to look into digital
economy specifically concerning security, integrity and prevention of misuse of it, but
that policy should not administer personal data. Government after consulting the
authority can make it mandatory for data fiduciary or data processor to impart any
specified or unspecified data for improvement of services and policies. Government
has been empowered by the Act to formulate policy for removal of difficulties which
occurs while implementing the provisions of this Act.

xviii. Amendments to other law

The Bill will amend the IT Act, 2000 to some extent. It amends the provisions
relating to compensation to be paid by the companies for their negligence in
protecting the personal data of an individual. Now in light of the Aadhar judgment,
this exclusion needs to be tested.

3.8.2 Critical Analysis of Bill

No doubt, the Bill is significant legislation that stipulates for the establishment
of authority for safeguarding the personal data. However, this Bill is pending for
considerations before the Joint Parliamentary Committee. This Bill has been coupled
with the basic rights and principles that are protected in any democratic society. The
bill is meant to protect the constitutional guarantees of privacy. The bill is to provide a
just and equitable vision to India's digital economy in the future.

The Personal Data Protection Bill is based on both the laissez faire approach,
U.S. law, and the much stricter regimen of GDPR, the European Union. The bill is
designed to strike a balance between the two most essential imperatives in any nation,
i.e., privacy and security. It encompasses the attributes which have latterly entered the
legal dictionary, like the right to be forgotten. It is a greatly wanted stepping stone
towards a growing digital economy and society. All the stakeholders are kept in mind
while drafting the Bill and the consequential upshot for political economy and
industry are seen.

But this Bill is not far from a criticism, and it is heavily condemned by civil
society groups, companies, lawyers, and academicians across the country. B.N.
Srikrishna J. himself warned about the unbridled power and exemptions accorded to

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the Government. He postulated it as a “dangerous trend, potentially leading to an
Orwellian State”171. The critical opprobrium generated about the Bill is that it requires
verification of users from the social media platforms, though it is voluntary but a
disastrous move. Other concerns revolves around scrutiny, the government’s access to
anonymized and non-personal data with companies, lack of transparency about data
localization requirements, and dilution of Data Protection Authority’s powers by
giving extensive powers to the Central Government. Certain critical points to be
considered in the bill are:

 Unbridled power to Central Government

The most attacks are done on provisions which grant excessive power to
Government. For the purpose of surveillance, the open-ended exceptions provided to
the government have been opposed by civil society groups.

Srikrishna J. also remarked that the “Government can always dominate the
Data Protection Authority, and exemptions for surveillance by government have
Sinister implications”. The bill grants many other powers to Government, which
includes determination of meaning of SPD, making rules, appointments, etc. While
the new bill is stern for private bodies, it tenders ample leeway to the government and
its agencies. The Bill grants the power to Government to excuse any of its agencies
from the application of this Act. No limitation, such as in the case of data security,
criminal investigations, and crime prevention, the government is going to exercise its
power. It has been stated that a separate law should authorize these exceptions to
government agencies as no limitation has been mentioned in such cases. Data in such
conditions should be collected in an urgent situation and should be proportionate to
the government’s interests. The bill states that government can allow any of its
agencies to process such personal data so long as it is satisfied that it is required for
the purpose of preventing incitement to commission of any offense.

 Sharing anonymized or Non-Personal data

The technology industry is concerned about sharing non-personal data or data

that is anonymized. The committee of experts on Non-Personal Data Governance

171
Karishma Mehrotra & Manoj C G, “Data Bill gives dangerous power Orwellian, says author of first
draft,”, The Indian Express, Feb. 22, 2020

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Framework has made a recommendation for separate legislation in this regard.
Consent in case of non-personal data should also be there. The vague and generalized
declaration to provide non-personal data or anonymized data will afford discretion to
government agencies to acquire non-personal data. There is also a need to define non-
personal data to protect intellectual property rights and promote innovation.

 Social Media Intermediaries and voluntary verification

The major social media platforms are Whatsapp, Telegram, Facebook,

Instagram and Twitter. It has been stated that voluntary verification makes social
media companies more responsible. But this verification obligation will lead to more
data collection than data minimization. These social platforms are going to collect
more information about users than necessary. Apar Gupta, Executive Director,
Internet Freedom Foundation, has raised concern about this provision and stated that
it would lead to greater and more accurate surveillance and profiling172.

The threat of companies leaking user’s data will be a significant concern if

verification is made a mandatory feature of social media in the country. Next, we
cannot assure that companies collecting data will not use that internally to profile
users. Thus, having the above provision in the bill will not secure privacy; instead, do
the reverse.

 Dilution of provision relating to data localization

This Bill only covers the critical and sensitive Personal Data and makes
regulatory provision for the same. The bill says sensitive personal data can be passed
outside the territory on a condition that it be stored in India. No parameter has been
mentioned in the bill for the transfer of data abroad. The authority can approve the
transfer of data without specifying the adequacy of decisions. Regarding critical
personal data, it has been stated in the bill that it shall only be processed in India. The
Central Government has been given the discretion to define critical personal data. In
support of this provision, the government has stated that it will help concerned
authorities in investigation and enforcement.

172
Apar Gupta, “The Data Protection Bill only weakens user right”, The Hindu, Dec. 27, 2019,
available at <https://www.thehindu.com/opinion/lead/the-data-protection- bill-only-weakens-user-
rights/article30405339.ece>

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 Srikrishna J. wrote a letter to the Joint Parliamentary Committee in which he
remarked that “data localization requirement has been watered down because of
lobbying by foreign companies”173. This Bill does not mention about prior sanctioning
of the government for copying of personal data in other countries. Several
stakeholders, such as Reliance and PhonePe, argue in favour of data localization as
these are large corporations and can build their own data centers and bear other
expenses related to it. But some industrial associations such as NASSCOM are not in
favour of data localization provision because it is a costly affair for start-ups and will
bring hurdles for technological innovations in India. Data localization is not favored
by giant technology players such as Google, Facebook, and Microsoft. At the G20
Leaders’ Summit in Osaka, the US President Trump has vehemently averse the data
localization. PDP has not considered the disproportionate cost of business for start-
ups in such cases and government schemes for Make in India.

 The time frame for notifying the data breach

Section 25 of the Bill doesn’t mention about the time frame for reporting the
data breach. The data protection authority has been given the power to notify the time
frame. And section also requires data fiduciaries to notify data protection authority
about the breach. Logically any company will try to cover-ups reports relating to the
data breach. So, the bill should have obligated the data fiduciaries to report to every
violation, not just that which harms data principal. Reporting of a data breach should
also be to the individual, not only to the authority.

 No reforms in the system of Surveillance

The current bill does not deal with any surveillance reform. The bill
conventionally deals with data collected by consent and does not apply when data is
utilized without permission. Without consent, here does not mean that it is not legally
permissible; instead, it is legally permitted and falls under surveillance.

173
Sumanti Sen, “Data Protection Bill May Endanger Citizens’ Privacy: Author of First Draft Justice
Srikrishna”

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 Exemption to Small Businesses

The proposed bill allows exceptions in case of small business which look after
customers’ personal information manually. But it does not prescribe any qualification
for such exemption and gives power to the Data Protection Authority.

These are some of the shortcomings of the Current Bill relating to Privacy.
This Bill fails to succeed fully as it is not able to deliver its promises and raises
apprehension about protection of privacy. The Bill has not given individual protection
rather it has just shifted the power form private agencies to government agencies.
Certain issues in the bill need more pragmatic approach. The Bill requires social
media Platforms to “verify the identities of social media users to fight fake news,
forced transfer of non-personal data to the government”. Further, State exception of
agencies of the government is one of the serious threats in the Bill. These threats to
privacy India’s “protectionism may backfire on India’s own young start-ups that are
attempting global growth, or on larger firms that process foreign data in India”.

3.9 Epilogue

Privacy has not been a matter for discussion under Indian jurisprudence. But
the recent happenings and with the introduction of Aadhar Scheme has ignited the
discussion relating to privacy and the development of science and technology and
social media forced the Apex Court to recognize this right as fundamental. “India’s
right to privacy has been developed mainly in three aspects, i.e., physical,
informational, and decisional. Privacy is a part of every society and is recognized as a
basic human value. It is an umbrella term which includes the various aspect of human
life. It preserves one’s individuality and acts as a shield in case of intrusion by an
individual or State. The issue is not that simple; it is related to many realms of life, so
it can’t be read in isolation. It is an essential component of many rights, and number
of times conflict with other necessary rights. It is a broad term and cannot be cabined
or confined to one aspect of life”.

“The idea of privacy is based on the concept of liberty and freedom. It is

freedom from unauthorized or arbitrary interference into one’s personal affairs. It is a
state of affairs where one does not want anyone’s interference; it is a place of

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seclusion. A person needs both mental and physical privacy. Several great jurists have
tried to define the term ‘privacy’, but no specific definition of privacy has been found
yet. The ongoing changes in the elements of the individual’s private sphere make it
challenging to define the term”.

India does not have any statute which affords protection to privacy but certain
aspects of privacy are assured by law and customs. Though this right is not explicitly
provided under the Constitution but the same has been declared to be part of Article21
by Apex Court. Initially this right was secured by Article 21 but now court declared
that this right can be traced under various provisions of Constitution such as Article-
19(1)(d). Though Judiciary has avowed and acknowledged this right again and again
but due to conceptual inconsistencies this right has been classified into controlled by
State and its agencies.

Our Courts has been vested with wide powers and by making use of that
power courts have determined the ambit of privacy. However, the approach of court
has been different in different cases and express acknowledgment to this right has
been given by court only after 1975 which resulted in evolution and development of
this right. After 1975 this right has been acknowledged as a fundamental right.

“Govind, Rajagopal, and PUCL (telephone tapping) cases are true parents of
privacy doctrine in India. These cases have undoubtedly assured the existence of
privacy rights. Fortified by American decisions, the judicial attitude shifted from R.C.
Copper to Maneka Gandhi, wherein wider interpretation is given to Article 21, and
interlinking of a fundamental right was done”. The most important judgment relating
to privacy is Justice K.S. Puttaswamy (Retd.) v. Union of India174 which has settled
the discussion by declaring that privacy is a fundamental right. Besides confirming
the status of this right this judgment also focuses upon protection of individual
privacy from government and private agencies. “Privacy is a natural right which
protects one’s personhood. No one can violate the personhood of an individual.
Privacy is not restricted to just informational privacy; rather, it has a broader ambit”.

Privacy is not an unlimited right and like other rights limitations can also be
imposed on it. But those limitation should be just, fair and reasonable after following

174
(2017) 10 SCC 1

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the procedure established by law. Judiciary has provided several limitations while
determining the ambit of right through various case laws. But judiciary has always
pointed out that there should compelling reasons which completely justify the
encroachment of privacy. The restrictions should be based upon the benefit public at
large. “State has to justify that there is no other way to achieve their purpose, and it is
the last resort”.

“The most important aspect of the right to privacy, which is most discussed
now a days is digital privacy. No doubt, technology has brought significant positive
changes across the world and has made life more comfortable. But the evil aspect of
the advanced technology cannot be ignored, especially with reference to privacy.
Newly invented optical and acoustic devices can easily gather our information.
Technology has the knowledge of everything what we are doing, what we are
watching, what we are buying and eating, whom we are in a relationship, etc. There is
an urgent need for the legal protection of our personal data from both State and non-
state actors. The ownership over the data should be given to the individual whose data
is taken. A proper balanced procedure needs to be developed to regulate the
circulation of data. A more profound concern needs to be generated to protect every
citizen’s data”.

“Data privacy issues need serious consideration by the legislature. The draft
Data Privacy Bill, 2019, requires a reconsideration to give minimal protection for
personal data. The Bill needs to stand the test of time in the era of artificial
intelligence and new challenges in addressing data privacy. The bill creates the
monopoly of State actors, dilutes property rights in data, and private companies
worldwide have a significant compliance burden. The current bill does not correctly
address privacy-related issues in the present world of technology. The sweeping
powers given in the Bill to the government opens up the possibility of mass
surveillance and thus encroaches on individuals’ privacy”.

“The outbreak of COVID-19 and steps taken by the governments across the
world again raised serious concern with regard to privacy protection. Our Government
is collecting data on a large scale, and people have to share their data, which is even
published by the governments. The Aarogya Setu app which has been launched by our
Government takes demographic information and tracks the location of a person

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infected. The app lacks privacy and in absence of effective data protection legislation
number of questions remains unanswered. The government knows through this app
more about you than your parents. So, it is the right of citizens to know about the
app’s safety protocol correctly. Taking medical data or having a record of a person’s
health is not always per se invasion of privacy. But it has to be seen that if the
information is taken from individuals, then the conditions set by the court are fulfilled
or not”.

“The right to privacy gives us the freedom to enjoy a secluded life, but that
does not mean that a human being should be left alone by society to lead a destructive
life. Society has a duty to look after a person who remained secluded for a long time.
In this sense, the right to privacy is limited and can always be curtailed in the public
interest as well as for the larger benefit of mankind as a whole. This is the bottom line
of the right to privacy, and the States should follow this bottom line while enacting
the legislation on the right to privacy”.

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