This article is written by Yash Singhal, from Vivekananda Institute of Professional Studies, New Delhi. The article provides exhaustive information on various privacy laws in India and whether there should be any limitations to these laws or not.
Every individual values his privacy over everything else for the obvious reasons that they want to maintain the secrecy of some highly sensitive information. They want to protect it from strangers who can potentially use it for intentional unlawful activities. The extent of privacy is a subjective matter with regard to what information is considered sensitive by an individual and what not.
The right to privacy of an individual is a fundamental right in India guaranteed under Article 21 of the Indian Constitution with no one having the authority to infringe this right beyond reasonable limits. It has been included in the Constitution of India, the Indian Penal Code, and the Information Technology (Amendment) Act in different capacities to cover almost every facet of privacy laws in India.
You may wonder why is there a need to have so many statutes for a simple right to privacy? or What is the extent of the right to privacy in India? or Does any authority have powers to limit this right? All these questions would be answered in this article in detail.
Right to Privacy in India
The right to privacy has been recognised as a fundamental right in the Constitution of India. The statutes provide various punishments for violation of right to privacy. No human being or authority shall have the powers to enter the safe/private space of another human being without their consent or without a reasonable cause.
The following are the statutes covering the privacy laws in India:
- Information Technology (Amendment) Act, 2008,
- Indian Penal Code, 1860.
Along with the Constitution of India.
Right to Privacy in the Indian Constitution
The right to privacy in the Constitution of India is enshrined under Article 21 that provides the right to life and personal liberty except and according to procedure established by law. Privacy has been recognised as a fundamental right after a series of judgements providing various interpretations of right to privacy. The privacy of an individual as to control over its sensitive data has been guaranteed under the Constitution. The ambit of Article 21 has been extended by the Supreme Court to incorporate the right to privacy under it.
In Retd Justice K.S. Puttaswamy v. Union of India, the landmark judgement that led the Supreme Court to add the right to privacy within the fundamental rights under the Indian Constitution. The famous Aadhar judgement against the government enabled Indian- citizenship card or Aadhaar card was launched as an all-in-one linked card for every transaction within the Indian territory for tracking of every individual expense or providing subsidies to poor. This biometric system was questioned because it infringes the individual privacy by the government to avail services and benefits. It was contended by the government that the Constitution did not exclusively grant protection for the right to privacy. The court applied the doctrine of proportionality to weigh the benefits of the Aadhar in proportion to the risks it might pose on the fundamental right to privacy, and held that the right to privacy shall be guaranteed under the right to life and personal liberty under Article 21. The principles of decisional autonomy and informational privacy were also discussed in detail. Decisional autonomy deals with the concept of autonomous choice with no state interference in cases of decisions over one’s own body (discussed in Naz Foundation vs Government Of Nct Of Delhi). Informational privacy is the right of an individual over its sensitive information; its collection, storage and distribution.
In A.K. Gopalan v. State of Madras, question over validity of preventive detention law was raised in consonance with the fundamental rights guaranteed in the Constitution. A detained individual moved to the court saying that his detention violated his right to personal liberty under Article 21 and right to freedom of movement under Article 19(1)(d). The court observed that the preventive detention laws are in compliance with the procedure established by law, hence, the detention was under valid law.
In Kharak Singh v. State of UP, the Supreme Court interpreted the scope of Article 21 in the light of Article 19(1)(d). This article provides the citizens with the right to move freely within the territory of India as a right to freedom. Kharak Singh, a man was released due to lack of evidence in a dacoity case. The Uttar Pradesh police under its guidelines subjected the man to strict surveillance with restriction to movement. The Court held that surveillance, even though falling under the sovereign functions of the public authorities, shall not encroach upon an individual’s privacy or the right to movement.
In Govind v. State of Madhya Pradesh, the Supreme Court upheld the verdict of Kharak Singh case, as these two cases were similar in fact. A man contended that he was falsely charged for offences and the police put him under surveillance. The police had regular surveillance visits to his house and this forced him to file a petition in court. Though, the court dismissed the petition but observed the right to privacy as a strong right conferred on the citizens to not be subjected to arbitrary action of public agencies. Also, the court suggested changes to the MP police regulations in respect of surveillance as moving towards unconstitutionality.
In Maneka Gandhi v. Union of India, it was a case of public authority infringing upon the fundamental right of Maneka Gandhi. She received a letter stating the orders of the Regional Passport Office, to submit her passport at their office with immediate effect. It was seen as a political vengeance move by political thinkers for her strong opposition against the ruling government. The Government claimed that the move was in the public interest. The court heard the matter and decided that the orders of the passport office would violate the right to travel abroad as a right of personal liberty under Article 21 of the Indian Constitution. The passport is the personal/private belonging of an individual, hence, this case became a landmark judgement.
The fundamental rights enshrined in the Constitution of India are legally enforceable by the Supreme Court under Article 32 and the High Court under Article 226. The aggrieved party, or whose fundamental rights have been infringed, can file a petition directly in the Supreme Court and it will issue writs for the enforceability of the fundamental rights.
There is no prescribed punishment in the Constitution of India for the violation of fundamental rights but it is based on the discretion of the bench to evaluate the action by the authorities and decide the punishment.
Privacy under Information Technology (Amendment) Act, 2008
The Information Technology (Amendment) Act deals with infringement of privacy of an individual through the use of digital means. The advent of cyberlaw has increased the cases of privacy infringements. There are multiple sections in the statute that states about privacy issues in various fields.
Reasonable security practices
Section 43A of the Act states that every corporate body shall implement reasonable security practices to protect sensitive personal data of any individual. In case of violation of this section, the aggrieved party would be getting damages from the other party. Data protection is the primary duty of the corporate, which shall in no manner whatsoever, be accessible to any third party.
Sending offensive messages
Section 66A of the Act states that any person who uses a communication device to send offensive messages that he knows to be false. The purpose of the message is to cause annoyance or inconvenience or cause intimidation shall be punished with imprisonment for a term extending up to three years with fine.
In Shreya Singhal v. Union of India (2015), Section 66A of the Information Technology Act was declared unconstitutional, being an unreasonable restriction on the freedom to speech and expression conferred under Article 19(1)(a) of the Constitution. People’s Union for Civil Liberties (PUCL) had also filed a petition to the Supreme Court of India to discontinue prosecution under this section. This section has not yet been repealed from the statute through the legislative amendment, hence, it is mentioned according to the statute. The court cannot prosecute any individual under the provisions of this section.
Violation of privacy
Section 66E of the Act states that any person who captures, publishes or transmits the sensitive images of the private area of an individual without their consent amounts to a violation of privacy. The punishment for the violation shall be imprisonment extending up to three years or with fine not exceeding two lakh rupees, or both.
Section 67 of the Act states that any person who transmits or publishes any material in electronic form which is obscene in nature or corrupts the minds of the individuals that are likely to get access to such material. The punishment may extend up to three years and fine extending up to five lakh rupees, in case of first conviction. The subsequent convictions amounting to imprisonment extending up to five years and fine extending up to ten lakh rupees.
Breach of confidentiality
Section 72 of the Act states the condition wherein any person, not having the consent, access the electronic records, document or any other material discloses such information as a mode of breaching confidentiality. The offence is punishable with imprisonment extending up to two years, or fine extending to one lakh rupees, or both.
Privacy provisions under the Indian Penal Code, 1860
The Indian Penal Code, 1860 is another statute dealing with privacy laws in India. The Criminal Law Amendment Act, 2013 introduced certain provisions on privacy along with some pre-existing sections. The sections have defined the offence as well as provided with the punishment for the commission of those offences.
Sale of obscene material
Section 292 of the Code defines the act of selling obscene material, that includes all representations, books, paintings, etc., to corrupt the minds of the individuals having access to such material. The act of selling, hiring or distribution of obscene material would amount to punishment of imprisonment extending up to two years and fine extending up to two thousand rupees for the first conviction, and subsequent convictions to be punished with imprisonment extending up to five years and fine extending up to five thousand rupees.
Section 354C of the Code states that any man watching or capturing the image of a woman engaging in private acts has committed an offence of voyeurism. The act is committed if the woman is being captured in the environment where she has the expectations of not being observed by the perpetrator. The punishment of the offence is imprisonment of not less than one year extending up to three years along with fine on the first conviction. Subsequent convictions leading to punishment of not less than three years extending up to seven years along with fine.
Section 354D of the Code states that any man voluntarily contacts or attempts to contact any woman against her will or consent commits the offence of stalking. This also includes monitoring of movement of the woman using any electronic medium. The punishment for the offence is imprisonment extending up to three years and fine on the first conviction, or imprisonment extending up to five years and fine on subsequent convictions.
Limitations of privacy laws in India
Every law enacted in India shall lie within the Constitutional principles, contrary to which, the Supreme Court and the High Courts have the power to declare them null and void. According to Article 13(2) of the Indian Constitution, it bars the enactment of any law that violates the fundamental rights. The right to privacy is a fundamental right that cannot be violated by any law.
The procedure established by law under the rule of law doctrine states that every procedure shall be reasonable, fair and just to be in consonance with the bodies enacting laws within their authority.
The privacy laws in India deal with the issue of sensitive information of individuals that shall, at any cost, be protected from reaching out to a stranger without their consent. When the law is regarding the personal safety, dignity or any position of an individual where it is open to loss of reputation in any manner, it shall be protected by the public authorities to the maximum extent.
Considering the fact that there are chances of arbitrariness creeping in with absolute authority of an individual over privacy, there should be legitimate and reasonable limitations according to the proportionality of the expected threat to equality or justice.
In matters of state affairs, where the sovereignty of the state can be harmed or any threat to peace and tranquility of the state is present, and someone who is suspected to be aware of the offence, i.e know about any offence committed, shall not be unreasonably protected under the right to privacy from the private investigation. It is to safeguard the national interest and citizens from probable external aggression.
The right to privacy as any other fundamental right shall be subjected to reasonability clause with the aggrieved party having the burden of proof to prove their right being violated with any latest law, else the Supreme Court and the High Courts have the power of Judicial Review that can be used to decide the applicability of enacted law with the fundamental rights.
The statutory provisions of right to privacy in the Information Technology (Amendment) Act, 2008 and the Indian Penal Code, 1860 shall not be read in isolation but within the scope of Article 21 as any infringement into private space of an individual must be equated as a violation of the right to privacy- the fundamental right. The Constitution being the supreme law of the land gives authority to other statutes, hence, the statutory provisions are read with constitutional principles.
The privacy laws in India are provided to safeguard individuals from unreasonable encroachment into their private spaces by any stranger or state. It has been recognised as one of the major issues in India, thus, there are two statutes along with the Constitution of India providing provisions in this respect. Article 21 of the Indian Constitution within its wide scope has included the right to privacy through a series of landmark judgements. The Information Technology (Amendment) Act, 2008 deals with privacy laws in electronic mediums and punishes the offenders. The Indian Penal Code, 1860 has identified infringement of privacy as an offence through its provisions. The privacy laws, even though, are highly significant yet they should not be absolute but reasonably restricted to prevent any sort of arbitrariness.
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