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Legal System and Democratic Governance

PROJECT ON CONSTITUTIONAL AND STATUTORY ASPECTS OF RIGHT TO PRIVACY

UNDER THE SUPERVISION OF

Prof. Dr. Justice RAJENDRA BABU

: Krishna Prasad S LL. M: 1st year Ist Trimester (Business Laws)

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE. 2013-14

1 Constitutional and Statutory Aspects of Right to Privacy

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LIST OF ABBREVIATIONS

AIR Ch CrPc CriLJ Del Ed HC ILI reporter Ker Pg SC ST SC SCC SCR Vol EWCA US

All India Reporter Chapter Code of Criminal Procedure Criminal Law journal Delhi Edition High Court Indian Law Institute reporter Kerala Page Scheduled Caste Scheduled Tribe Supreme Court Supreme Court Cases Supreme Court Reporter Volume England and Wales Court of Appeal Decisions United States of America

RESEARCH METHODOLOGY
2 Constitutional and Statutory Aspects of Right to Privacy

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AIM AND OBJECTIVES Evaluate the key concept of Right to Privacy and Its Constitutional Aspect and statutory aspect. The objective of the project is to study the impact of Right to Privacy in Indian context such as Information technology act, Indian Telegraph act and with respect with international Aspects

RESEARCH QUESTION 1. Whether Right to privacy Bill is a boon or bane? 2. Whether Right to Privacy has got its importance as a Fundamental Right in the Present Scenario? . HYPOTHESIS This project proceeds with the Hypothesis that the Right to Privacy is accepted as a fundamental right in India and other Jurisdictions through judicial pronunciations and via statutes, but when it comes to other aspects such as National Security, population Census, economic development and other situations the recognition of Right to privacy always comes as a second priority. RESEARCH METHODOLOGY In this Project the researcher has primarily used descriptive and analytical method of Research. He has mainly relied up on primary sources such as statutes and case laws regarding Right to Privacy and Secondary sources, including Books, articles, web sources, and news papers. SCOPE The Project goes through the Constitutional Aspects such as acceptance of Right to Privacy as a Fundamental Right through judicial pronunciations and an overview about the statutory aspects of privacy.

MODE OF CITATION A uniform method of citation is followed throughout this paper.


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ABSTRACT
4 Constitutional and Statutory Aspects of Right to Privacy

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

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CONTENTS

1. Introduction.. 8 2. Constitutional Background for privacy.. 8 2.1. Proposed Amendment to the Constitution.. 15

3. Statutory Protection of Privacy...... 16 3.1. 3.2. The Right to Privacy Bill 2011. 16 Information Technology Act 2000. .. 17

4. International Aspects of Privacy 18 4.1. 4.2. Right to Privacy in US 18 Right to Privacy in UK... 19

5. Privacy in Digital World: Surveillance and Interception 20 5.1. 5.2. Position in US and UK 21 Indian Position.. 22

6. Right to Privacy and UID (AADHAR).. 24 6.1. Privacy and UID.24

7. Privacy in Medical Profession.27 8. DNA and other forensic technologies and Privacy..28 9. Conclusion........... 31 10. Bibliography.32
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1. Introduction
Right to privacy has been the aspect of discussion since time immemorial and it is considered as one of the comprehensive right of the individual or a society. It is considered as a preliminary right in many of the Jurisdiction. In India right to privacy is considered as a part of Right to life under the Constitution of India which is a fundamental right of the Individual. The Supreme court of India and other courts through its decision starting from late 70s have interpreted right to privacy as a fundamental right under right to life under article 21 of the Constitution Same is the case in USA and UK where in USA all though privacy is not defined any where all though in the earlier stage the courts have interpreted the right to privacy in aspect of right to property only, at later stage the right to privacy has widen its interpretation by not only including property, but also, other aspects. In UK all though Common law at the earlier stage did not give much recognition to Privacy, the passing of the Human Rights Act and the European Convention on Human Rights gave a new interpretation to privacy which provides for respect for a private Life.

2. Constitutional background for Right to Privacy


Though the Indian Constitution does not provide a clear reference to Right to Privacy, the right is read in to the constitution by the Supreme Court as a component of two Fundamental Rights: the right to freedom under Article 19 and the right to life and personal liberty under Article 21. It would be necessary to provide a brief background to each of these Articles before dealing deeper into the privacy jurisprudence developed by the courts under them. Part III of the Constitution of India (Articles 12 through 35), which is titled Fundamental Rights, provides for several rights which are regarded as fundamental to all citizens of India (some fundamental rights, notably the right to life and liberty apply all persons in India, whether they are citizens or not). Article 13 prevents the State from making any law which takes away or abridges the fundamental rights. Article 19(1)(a) specifies that All citizens shall have the right to freedom of speech and expression . However this is made competent by Article 19(2) which provides that this will not affect the operation of any existing law, or prevent the State from making any law, in so far as
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such law imposes reasonable restrictions on the exercise of the right in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Thus the Freedom of Expression guaranteed by Article 19(1)(a) is not absolute, but a privileged right that is vulnerable, under the Constitutional scheme, to being curtailed under specified conditions. The other important Fundamental Right from the perspective of privacy jurisprudence is Article 21 which reads 21. No person shall be deprived of his life or personal liberty except according to procedure established by law. Where Article 19 contains a detailed list of conditions under which Freedom of Expression may be curtailed, differentially Article 21 is thinly-worded and only requires a procedure established by law as a pre-condition for the deprivation of life and liberty. However, the Supreme Court has held in the famous case of Maneka Gandhi vs. Union of India1 that any procedure which deals with the modalities of regulating, restricting or even rejection of a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus, understood, "procedure" must rule out anything arbitrary, freakish or bizarre. Shortly after independence, in a case challenging the constitutionality of search and seizure provisions, the Supreme Court gave a blow to the right to privacy in India, holding that When the Constitution makers have thought fit not to subject (search and seizures) to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right.2 Notwithstanding this early setback, five decisions by the Supreme Court in
1 2

(1978) 2 SCR 621

M. P. Sharma v Satish Chandra, AIR 1954 SC 300 (1954), http://indiankanoon.org/doc/1306519/ The court regarded the element of judicial supervision inherent in search orders issued under the CrPC as being sufficient safeguard against constitutional violations. When such judicial function is. interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed. We are not unaware that in the present set up of the Magistracy in this country, it is not infrequently that the exercise of this

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the succeeding five decades have established the Right to Privacy in India as flowing from Article 19 and 21.

The first was a seven-Judge bench decision in Kharak Singh V. The State of U.P3 decided in 1964. The question that came in for consideration in this case was whether "surveillance" under Chapter XX of the U.P.Police Regulations was an infringement of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b) which permitted surveillance by "domiciliary visits at night" was held to be violative of Article 21.The meanings of the word "life" and the expression "personal liberty" in Article 21 were elaborately considered by this court in Kharak Singh`s case. Although the majority found that the Constitution contained no explicit guarantee for "right to privacy", it read that right to personal liberty also include the right to dignity. It held that an unauthorized intrusion into a person's home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man, an ultimate essential of ordered liberty, if not of the very concept of civilization. In the minority judgment in this case, Justice Subba Rao held that the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his "castle" it is his rampart against encroachment on his personal liberty. This case, especially Justice Subba Raos observations, opened the way for later elaborations on the right to privacy using Article 21.

judicial function is liable to serious error, as is alleged in the present case. But the existence of scope for such occasional error is no ground to assume circumvention of the constitutional guarant ee
3

(1964) 1 SCR 332

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In 1972, the Supreme Court decided one of its first cases on the constitutional validity of wiretapping. In R. M. Malkani vs State Of Maharashtra4 the petitioners voice had been recorded in the course of a telephonic conversation where he was blackmailing another person. He stated in his defense that his right to privacy under Article 21 had been violated. The Supreme Court rejected his plea holding that The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed' interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants.5 In another case, Govind vs. State of Madhya Pradesh6, decided by a three- Judge Bench of the Supreme Court, is regarded as being a setback to the right to privacy jurisprudence. Here, the court was assessing the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations which provided for police surveillance of habitual offenders which including domiciliary visits and picketing of the suspects. The Supreme Court abstained from striking down these invasive provisions holding that It cannot be said that surveillance by domiciliary visit, would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that are subjected to surveillance. The court also made some observations on the right to privacy under the constitution: Too broad a definition of privacy will raise serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. The right to privacy will, therefore, necessarily, have to go through a process of case by case development. Hence, assuming that the right to personal liberty. the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them it could not he absolute. It must be subject to restriction on the basis of compelling public interest. But the law
4 5 6

AIR 1973 SC 157, 1973 SCR (2) 417 Ibid (1975) 2 SCC 148

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infringing it must satisfy the compelling state interest test. It could not be that under these freedoms the Constitution-makers intended to protect or protected mere personal sensitiveness This case is important since it marks the beginning of a trend in the higher judiciary to consider the right to privacy as not being absolute. From Govind onwards, non-absoluteness becomes the defining feature and the destiny of this right. This reasoning was continued in Malak Singh v State Of Punjab & Haryana7 where the Supreme Court held that surveillance was lawful and did not violate the right to personal liberty of a citizen as long as there was no illegal interference and it was unobstrusive and within bounds. Nearly fifteen years after this case the Supreme Court elaborated the right to privacy in R. Rajagopal vs. State of Tamil Nadu8. Here the court was involved in a balancing of the right of privacy of citizens against the right of the press to criticize and comment on acts and conduct of public officials. The case related to the publication by a newspaper of the autobiography of Auto Shankar who had been convicted and sentenced to death for committing six murders. In the autobiography, he had commented on his contact and relations with various high-ranking police officials, disclosures which would have been extremely sensational. Sometime before the publication, he appears to have been forced to write a letter denying that he had authored the autobiography. On this basis, the Inspector General of Prisons issued a letter forbidding the newspaper from publishing the autobiography claiming, inter alia, that the publication of the autobiography would violate the prisoners privacy. Curiously, neither Shankar himself, nor his family was made parties to this petition. The Court decided to presume, that he had neither written his autobiography nor had he authorized its publication. The court then proceeded on this assumption to enquire whether he had any privacy interests that would be breached by unauthorized publication of his life story. The right of privacy of citizens was dealt with by the Supreme Court in the following terms: 7

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

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(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicized in press/media. On this reasoning, the court upheld that the newspapers right to publish Shankars autobiography, even without his consent or authorization, to the extent that this story was able to be kept together from public records. However, if they went beyond that, the court held, they may be invading his right to privacy and will be liable for the consequences in accordance with law. Importantly, the court held that the remedy of the affected public officials/public figures, if any, is after the publication9 The final case that makes up the privacy quintet in India was the case of PUCL v. Union of India10, a public interest litigation, in which the court was called upon to consider whether wiretapping was an infringement of a citizens right to privacy, violating the
9

Ibid AIR 1997 SC 568

10

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constitutional safe guards. The case was filed in light of a report brought out by the Central Bureau of Investigation on the Tapping of politicians phones which disclosed several irregularities in the tapping of telephones. The Court made the following observations on the aspect of the right to privacy in India: The right privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. However, the Court went on to hold that the right to hold a telephone conversation in the privacy of ones home or office without interference can certainly be claimed as right to privacy. This was because conversations on the telephone are often of an intimate and confidential characterTelephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. The court also read the right to privacy as deriving from Article 19. When a person is talking on telephone, he is exercising his right to freedom of speech and expression., the court observed, and therefore telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution. This case made two important contributions to communications privacy jurisprudence in India the first was its rejection of the contention that prior judicial scrutiny should be mandated before any wiretapping could take place. Instead, the court accepted the contention that administrative safeguards would be sufficient. Secondly, the Court prescribed a list of procedural guidelines, the observance of which would save the wiretapping power from unconstitutionality. In 2007, these safeguards were formally incorporated into the Rules framed under the Telegraph Act11.

11

Rule 419A of the Telegraph Rules stipulates the authorities from whom permission must be obtained for tapping, the manner in which such permission is to be granted and the safeguards to be observed while tapping communication. The Rule stipulates that any order permitting tapping of communication would lapse (un less

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Thus, to conclude this section, it may be observed that the right to privacy in India is, at its foundations a limited right rather than an absolute one. This limited nature of the right provides a somewhat unstable assurance of privacy since it is frequently made to yield to a range of conflicting interests rights of paternity, national security etc which happen to have a more pronounced standing in law. 2.1.Proposed Amendment to the Constitution In March 2002, the National Commission to Review the Working of the Constitution submitted its report and recommended amending the Constitution to include a slew of new rights including the Right to Privacy. The new Right to Privacy would be numbered Article 21-B and would read: 21-B. (1) Every person has a right to respect for his private and family life, his home and his correspondence. (2) Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions on the exercise of the right conferred by clause (1), in the interests of security of the State, public safety or for the prevention of disorder or crime, or for the protection of health or morals, or for the protection of the rights and freedoms of others.12 There has, so far been no move to amend the constitution to give effect to this recommendation

renewed) in two months. In no case would tapping be permissible beyond 180 days. The Rule further requires all records of tapping to be destroyed after a period of two months from the lapse of the period of interception.
12

Chapter 3: Fundamental Rights, Directive Principles And Fundamental Duties, in REPORT OF THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION (M.N. Venkatachaliah ed., 2002), http://lawmin.nic.in/ncrwc/finalreport/v1ch3.htm

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3. Statutory Protection of Privacy


3.1.The Right to Privacy Bill 2011 For long India ignored this important Civil Liberty despite demands for the same. Finally, Supreme Court of India interpreted Article 21 of the Constitution of India as a Constitutional Source of Right to Privacy in India. . However, exercise of a Fundamental Right is very difficult in India without a support of a

statutory support in this regard. This is the reason why we need to enact a Statutory Law on Right to Privacy in India. Privacy Rights have become even more important in this Information Era where Privacy of citizens is in real danger. Indian Government has launched various Projects like Aadhar, NATGRID, CCTNS, Central Monitoring System (CMS), etc that are openly violating the Civil Liberties, including Privacy Rights, of Indians. This has forced the Law Ministry to consider enacting a Privacy Law of India. Law Ministry has proposed a Right to Privacy Bill of India 2011. Though the Bill begins to establish a strong framework for the protection of the right to privacy in India, there are many ways in which the Bill can be improved and changed to bring about a more comprehensive right that ensures that privacy does not generate over- or under inclusive remedies. The bill creates a statutory Right to Privacy by means of a broad definition and then creates specific of protections for it. Recognizing the Right to Privacy not to be absolute, the Bill identifies various privacy breaches that are permitted. In the Bill, certain prohibited acts are also identified for which civil remedies as well as criminal sanctions are created. The government interception and telephone tapping mechanism is changed moderately from the existing system. The modification is with respect to several procedural safeguards which are put into place to avoid unauthorized and unnecessary tap orders.

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A regulatory mechanism is created through the Data Protection Authority of India. It will exercise supervision over private parties which will engage in the collection and storage of personal data. Further, in the system suggested, the Bill identifies specific officers/position holders in various entities (that may be involved in various breach of the right) who shall be held responsible, in case of any wrong act or any default. Disputes under the Bill will be referred to the Cyber Appellate Tribunal which has been set up under the Information Technology Act. These disputes are primarily in the nature of claims by individuals against private data controllers.13 In the absence of Judicial Scrutiny and Privacy Laws, Indian Citizens are left with no choice but to use Technological Self Defence Measures to protect their Privacy Rights, especially in Cyberspace. Even this is not acceptable to Indian Government as it is harassing service providers like Blackberry, Gmail, Skype, etc that are using Encrypted Measures to protect Privacy Rights and to ensure Security. This is just like committing a wrong and then taking advantage of the same to ones own benefits. But it is to be noted that since long time bill has not been passed and the new recommendations have not been introduced to the bill, there is a clear lag from the part of the government in passing the bill and thus recognizing the right as it should be. 3.2.Digital Privacy: Information Technology Act 2000 The Information Technology Act 2000 contains a number of provisions which can be used to safeguard against online/computer related privacy. The Act provides for civil and criminal liability with respect to hacking (Secs 43 & 66) and imprisonment of up to three years with fine for electronic voyeurism (Sec. 66E), Phishing and identity theft (66C/66D), Offensive email (Sec. 66A). Disclosure by the government of information obtained in the course of exercising its interception powers under the IT Act is punishable with imprisonment of up to two

13

http://www.iltb.net/2011/06/analysis-of-the-privacy-bill-2011

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years and fine(Sec. 72)14 Section 72A of the IT Act penalizes the unauthorized disclosure of personal information by any person who has obtained such information while providing services under a lawful contract. Such disclosure must be made with the intent of causing wrongful loss or obtaining a wrongful gain and is punishable with imprisonment which may extend to 3 years or a fine of Rs. 5, 00,000 or both. The act also contains provisions to restrict cyber privacy. Section 69 of the act gives the central government or the state government the power to issue directions for the interception or monitoring or decryption of any information through any computer resource. Section 69 A provides the central government or authorized officer Power to issue directions for blocking for public access of any information through any computer resource. The grounds on which directions under section 69 and 69 A can be issued are in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence, or for the investigation of any offence.

4. International Aspects of Privacy


The International Covenant on Civil and Political Rights which explicitly affirms the right to privacy in Article 17, which provides that no one shall be deprived or be subject to unlawful and arbitrary interference with his privacy, family and there shall be no unlawful attack to his honour and reputation. Also Article 8 of European Convention on human rights provides that everyone has the right of respect for his privacy, family, home and correspondence. Other than these two no other conventions deal with privacy as such. 4.1.Right to Privacy in US The Legal Frame work for Protection of Privacy In USA is a mixture of common Law, Federal and state statutory laws. In spite of omission of the word Privacy entirely by the constitution, U S courts through its decisions have acknowledged and enumerated Right to Privacy15. Right to privacy was initially associated with right to property16. Gradually the term
14

Prashant Iyengar, Privacy and the Information Technology Act in India , SSRN ELIBRARY (2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1807575
15 16

Tim Wafa, Global Internet Privacy Rights : A Pragmatic Approach : 13. Intell. Prop. L. BULL. 131,133(2009) Durga Das Basu, Law of the Press 5 edition,( 2010), Lexis Nexis Butterworths, Wadhwa Nagpur, P. 83.
th

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privacy began to transcend the realm of property rights17. In Griswold v, Connecticut18 US supreme court struck down a legislation which prohibited the use of contraceptives. Here the term privacy was described as a constitutional right of married couples to use contraception without fear of government surveillance or punishments. In Roe v. Wade19, US supreme court upheld the right of an unmarried pregnant woman to an abortion since it is concerned with her private life. Since Griswold in 1965, the constitutional right of privacy has expanded, including divergent interests in both Decisional Privacy- i.e. The right to make certain profoundly personal decision such as those concerning contraception, abortion or marriage, free form government coercion and Informational privacy, i.e. The right to preserve the confidentiality of certain highly professional information, such as ones medical records in the government possession20.

4.2.Right to Privacy in United Kingdom

Historically, English common law has recognised no general right or tort of privacy, and was offered only limited protection through the doctrine of breach of confidence and a "piecemeal" collection of related legislation on topics like harassment and data protection. The introduction of the Human Rights Act 1998 incorporated into English law the European Convention on Human Rights. Article 8.1 of the ECHR provided an explicit right to respect for a private life for the first time within English law. The Convention also requires the judiciary to "have regard" to the Convention in developing the common law21. The expansion of the doctrine of breach of confidence under the Human Rights Act began with the Douglas v Hello. Section 6 of the Human Rights Act requires English courts to give effect to
17

The premise that property interests control the right of the government to search and seizure has been discredited. We have recognized that the principal object of the fourth amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property rights Walden v. Heyden 387 US 294, 304.
18 19

381 US 479(1965) 410 US 113(1973) Durga Das Basu, Law of the Press 5 edition,( 2010), Lexis Nexis Butterworths, Wadhwa Nagpur, P. 83. http://www.11sb.com/pdf/privacyaftermaxmosley.pdf
th

20

21

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the rights in the Convention when developing the common law. There is no need to show a preexisting relationship of confidence where private information is involved and the courts have recognized that the publication of private material represents a detriment in itself.22 The Human Rights act has parallel effect in disputes between private individuals which means that the Human Rights Act is just as applicable as if one party had been a public body. Breach of confidence now extends to private information (regardless of whether it is confidential) so as to give effect to Article 8 of the European Convention on Human Rights. Before this breach of confidence afforded "umbrella protection" to both personal and non-personal information23.

British radio DJ Sara Cox's case against The People newspaper was one of the first celebrity privacy cases. The media referred to the case as a "watershed"24. The disc jockey sued after the newspaper printed nude photographs of her taken while on her honeymoon. However the case was settled out of court and so did not establish a precedent. The decision was seen as discrediting the Press Complaints Commission25.

5. Privacy in Digital World: Surveillance and Interception.


In the revolutionary article written by Samuel D Warren and Louis D. Brandeis, the authors recognized the need to preserve the core privacy principles especially in the midst of emerging technologies. Information sent through global network may pass through numerous computers amenable to its administrators who may capture and store online information. Further, a persons activities may be monitored by the service provider to which the person have subscribed and by the websites visited by him26. In the view of rapid growth of privacy

22

http://www.ucl.ac.uk/laws/global_law/publications/institute/docs/privacy_100804.pdf

23 24

Supra note 22 Cox privacy case 'a watershed', http://news.bbc.co.uk/2/hi/uk_news/2971330.stm Privacy law remains confused, http://news.bbc.co.uk/2/hi/uk_news/2975718.stm T Basanth, Impact of USA Patriot Act on Cyber privacy: A Revisit, (2006), Vol V IJCL 23, P. 24

25

26

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destroying technologies27 and era of dataveilliance there are no virtually online services that guarantee absolute privacy. Right to Privacy is compliant to the interests of the state. This empowers the law enforcement agencies to gain access to personal information of any person via internet, intercept their communication and put any person under surveillance. Digitization of information has helped law enforcement agency in monitoring a person. With digitization, not only can recorded information be retained indefinitely at little cost, but also the information held by merchants, insurers and government agencies can be readily be shared, opening the way to assembling all the recorded information concerning an individual in a single digital file that can easily be retrieved and searched28.

5.1.Surveillance and Interception in Digital World: Position in US and UK The United States has two separate legislations29 that deal with surveillance of electronic correspondences through these programs. The United Kingdom also employs these surveillance programs through its Regulation of Investigatory Powers Act, 2000. The Wiretap Act of 1968 (US) set the blueprint for all subsequent privacy and surveillance laws by generally protecting the privacy of wire and oral communications while also permitting certain authorized interceptions30. In 1986, congress updated laws that authorized wiretapping, eavesdropping, and clandestine surveillance in the Electronic Communications Privacy Act (ECPA). The ECPA extended wiretap protections to the interception of electronic forms of communication, including cellular phones, e-mail, and computer transmissions. Enacted as title II to the ECPA , the stored Communications Act makes it unlawful for a provider of an electronic communications service to knowingly divulge the contents of a communication while in electronic storage. It also
27

Privacy destroying technologies can be divided in to two categories: those that facilitate the acquisition of raw data and those that allow one to process and collect data in interesting ways A Micheal Froomkin The Death of Privacy,52 stan.l.Rev.1461,1468(2000)
28

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

29

The Electronic Communications Privacy Act 1986(which consists of three sub parts: The Wiretap Act, The stored Communications Act and the Pen register Act ) and Foreign Intelligence Surveillance Act 2006
30

Frederic M, Joyce, Andrew E Bigart, Liability for All, privacy For None: The Conundrum of protecting privacy rights In A pervasively electronic world, 41 Val. U.L Rev. 1481,1486-87 (2007)

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prohibits a person or entity providing remote computing services from knowingly divulging the contents of any communication which is carried on or maintained on that service31. In 1978, congress enacted Foreign Intelligence Surveillance Act and authorized the government to conduct electronic surveillance of foreign agents within the United States. In 2001, in response to the September 11 terrorist attacks, congress passed the USA PATRIOT Act of 2001 which lies above the aspect of Privacy in many cases. It permits the government to use pen registers to capture a vast amount of information, including telephone numbers, comprehensive dialing, routing, addressing or signaling information.32 And potential internet related information such as email and IP addresses. In addition the Act permits the government without court approval to share the contents of intercepted electronic communication among federal law enforcement and intelligence personal 33. In essence the act has enlarged or expanded the scope of surveillance statutes and expanded the coverage of those statutes to include new targets, lowered the governments threshold to engage in surveillance and placed additional responsibilities on communication providers34 .

5.2.Indian Position The principle statutory base for surveillance and interception is the Indian Telegraph Act 1885. Section 5(2) of the act states that On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if

31

Frederic M, Joyce, Andrew E Bigart, Liability for All, privacy For None: The Conundrum of protecting privacy rights In A pervasively electronic world, 41 Val. U.L Rev. 1481,1492(2007)
32

USAPA section 216 USAPA section 203

33

34

USAPA section 210 expands the type of information that a provider must disclose to the Law enforcement agencies, which includes records of session times and duration; any temporarily assigned network address and any means or source of payment. Section 211 amended the wiretap statute to provide that cable companies that offer internet or telephone services should comply with the laws of interception and disclosure of communications by other telephone companies or ISPs. Section 212 enables the ISPs or phone companies to disclose information to the law enforcement agencies. Frederic M, Joyce, Andrew E Bigart, Liability for All, privacy For None: The Conundrum of protecting privacy rights In A pervasively electronic world, 41 Val. U.L Rev. 1481,1492(2007)

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satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be, recorded in writing, by order, direct that any message' or class of messages to or from any person or., class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any tele- graph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order. Section 7(2)(b) of the act permits central government to make rules regarding precautions to prevent the improper interception or disclosure of messages. These provisions were challenged before the supreme court of India as violation of right to privacy under article 21 of the constitution in PUCL v. Union Of India35, in which the honble court held, telephone conversation is an important facet of mans private life. Right to privacy would certainly include telephoneconversation in the privacy of one's home or office. Telephone-tapping would, thus, infract

Article 21 of the Constitution of India unless it is permitted under the procedure established by law.36 When a person is talking on phone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution37. India is a signatory to the International Covenant on Civil and Political Rights, 1966, which required that a persons privacy should not be subject to arbitrary interference38. Unless a public emergency occurred or public safety required the government cannot take action under section 5(2). But the substantive law as laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonable39.

35

Supra note 10 Id, para 19 Id, para 20 Id para 21, Article 17 of the ICCPR.

36

37

38

39

Id para 30

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6. Right to Privacy and UID (AADHAR)


Right to Privacy is a very important Human Right. The UID claims itself to be a voluntary scheme. However, looking in to the complex operational structure that the UID Scheme adopts, the actual task of enrollment lies entirely in the hands of third party Registrars who include a mass of Central and State social security and welfare departments (including the Ministry of Rural Development which administers the Rural employment guarantee scheme), banks and insurance companies. There is nothing in the Aadhar Scheme that prohibits these Registrars from getting access to their services provided, ones consent is obtained to UID registration. In practice, many of them have and will continue to make UID registration a preliminary formality before access is granted to their services. So the citizens freedom to resist UID registration depends on their ability to give up, say, minimum guarantee of the right to employment, cooking gas, banking and insurance services, food rations etc. In addition, the Registrar General of India, the authority responsible for compilation of the National Population Register of India under the Citizenship Act, also happens to be a Registrar for the purposes of the UID. This means that ones registration in the NPR will entail automatic enrollment in the UID. The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 makes it mandatory for everyone to be enrolled in the National Population Register. So, paradoxically, although the Aadhar number does not confer citizenship, one cannot be a citizen anymore without owning an Aadhar number. 6.1.Privacy and UID Although the UIDAI makes repeated statements regarding its intent to respect privacy and ensure data protection, the precise mechanism through which these objectives will be secured is extremely unclear. To begin with, the entire responsibility for developing schemes for safeguarding information during the collection phase rests entirely on the Registrars. The UIDAIs own responsibility for privacy begins only from the time the information is send to it by the Registrars by which time the information may have already passed through many hands including the

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Enrolling Agency, and the Intermediary who passes on information from the Registrar to the UIDAI. Rather than setting out an clear redressal mechanism and a liability regime for privacy violations, the UIDs documents insecurely describes the responsibility of the Registrars as a fiduciary duty towards the resident/citizens information. The Registrars are tasked with maintaining records of the data collected for a minimum period of six months. No maximum period is specified and Registrars are free to make what use of the data they see fit. In addition, the Registrars are directed to keep copies of all documents collected from the Resident either in physical or scanned copies till the UIDAI finalizes its document storage agency.40 The Data Protection and Security Guidelines which the UIDAI requires all Registrars to observe merely contains pious injunctions calling on them to observe care at all stages of data collection and to develop appropriate internal policies. There is mention of the desirability of external audits and periodic reporting mechanisms, but the details of these schemes are left to the individual Registrar to draw up. Although the Draft National Identification Authority of India Bill penalizes the intentional disclosure or dissemination of identity information collected in the course of enrollment or authentication, it does not provide protection against accidental leaks and it is not mandatory that the service providers should positively employ heightened security procedures. Prosecution of offences under the Act can only proceed with the sanction of the UID Authority, which further burdens the task of criminal enforcement in these cases and would make it difficult for individuals to obtain redress quickly. The total absence of a provision for civil remedies against Registrars makes it unlikely that they will take the task of protecting privacy seriously. Now regarding Data sharing although the authorities claim that UID will not disclose any information and will only provide authenticate information with objective answers, but it is not true as it reveals from the documents of UID itself that

40

DOCUMENT STORAGE GUIDELINES V1.2 (2010), http://uidai.gov.in/images/FrontPageUpdates/ROB/D11%20Document%20Storage%20Guidelines%20for%20Regist rars%20final%2005082010.pdf

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The draft NIA Bill, permits the Authority to issue regulations on the sharing of the information of Aadhar number holders, with their written consent, with such agencies engaged in delivery of public benefits and public services as the Authority may by order direct. In practice, prior written consent for sharing is obtained from the resident as a matter of course at the time of enrollment itself, and it is impossible to obtain an Aadhar number without consenting to sharing by the UID Authority. In practice, in India, a large number of forms will be filled in by assistants and the written consent box will be ticked as a matter of course without the resident understanding the full implications of her consent. The draft NIA Bill permits the authority to make any disclosure of information (including identity information) made in the interests of national security in pursuance of a direction to that effect issued by an officer not below the rank of Joint Secretary or equivalent in the Central Government after obtaining approval of the Minister in charge. There is nothing in the Act that requires that this information be made available on an individual basis in other words, it is possible for the data to be shared en-masse with any agency in the interests of national security. There is nothing preventing Registrars who carry out the actual data collection functions from sharing this information with anyone they choose. Thus, for instance, the Aadhar information collected during the exercise of compiling the National Population Register will can be shared in whichever manner the Registrar General of India chooses irrespective of what the UIDAI does with that information. So there are mechanisms already in place to presume that all this information will be made available, on demand, to whichever agency that happens to be interested and so can up to a large extend violate the privacy to a large extend. The National Human Rights Commission, has issued an opinion cautioning against the potential harms of the Aadhar scheme. The Commission noted the possible discriminatory effects of the scheme and the fact that no provision had been made in the Bill for compensation to the victim in case of breach. It was reported in a news paper that The NHRC noted that the "biometric information" and "demographic information" have not been clearly defined and while
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framing the regulations under the Act, precautions should be taken to ensure that individuals are not required to disclose confidential information about themselves41.

7. Privacy in Medical Profession


For improving the standards of medical practice and profession the medical council of India in 2002, notified the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations which contain ethical restrictions backed by disciplinary action in cases of breaches. Several of the articles in these regulations relate to privacy, for instance Every physician is required to maintain medical records pertaining to indoor patients for a period of 3 years from the date of commencement of the treatment. Upon request by the patients or authorized agents or legal authorities involved these documents should be issued within a period of 72 hours. Physicians should also maintain Confidences concerning individual or domestic life entrusted by patients to a physician. Defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the laws of the State. The rules also requires the physician, controversially to evaluate whether his duty to society requires him to employ knowledge, obtained through confidence as a physician, to protect a healthy person against a communicable disease to which he is about to be exposed. In such an instance, the rules advice the physician to act as he would wish another to act toward one of his own family in like circumstances.42 The registered medical practitioner should disclose the secrets of a patient that have been learnt in the exercise of his / her profession except 1. in a court of law under orders of the Presiding Judge; 2. in circumstances where there is a serious and identified risk to a specific person and / or community; and

41

Aadhaar numbers could lead to discrimination: NHRC, DECCAN HERALD, September 18, 2011, http://www.deccanherald.com/content/191739/aadhaar-numbers-could-lead-discrimination.html 42 Article 2.2 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations 2002

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3. notifiable diseases.43 A medical practitioner is also prohibited from publishing photographs or case reports of patients without their permission, in any medical or other journal in a manner by which their identity could be made out. If the identity is not to be disclosed, however, the consent is not needed44.

In Mr. X vs Hospital Z, one of the most important cases to have come up on the issue of privacy, a person sued a hospital for having disclosed his HIV status to his fianc without his knowledge resulting in their wedding being called off. In, the Supreme Court held that the hospital was not guilty of a violation of privacy since the disclosure was made to protect the public interest. The Supreme Court while affirming the duty of confidentiality owed to patients, ruled that the right to privacy was not absolute and was subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others.

8. DNA and other forensic technologies and Privacy


It is evident that the utility of the mass of the forensic technologies and information such as fingerprints, handwriting samples and photographs, DNA data in solving crimes is immense. Without having said a word, it is possible for a person to be convicted based on these various bodily affects,the human body constantly bears witness and self-incriminates itself. Both handwriting and finger impressions beg the question of whether these would offend the protection against self-incrimination contained in Article 20(3) of our Constitution which provides that No person accused of any offence shall be compelled to be a witness against himself. This argument was considered by the Supreme Court in State Of Bombay vs Kathi Kalu Oghad And Others45 The petitioner contended that the obtaining of evidence through

43

Id Article 7.14 Id Article 7.17 AIR 1961 SC 1808 < http://indiankanoon.org/doc/1626264/>

44 45

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legislations such as the Identification of Prisoners Act amounted to compelling the person accused of an offence "to be a witness against himself" in contravention of Art. 20(3) of the Constitution. The court held that there was no infringement of Art. 20(3) of the Constitution in compelling an accused person to give his specimen handwriting or signature, or impressions of his thumb, fingers, palm or foot to the investigating officer or under orders of a court for the purposes of comparison. ..Compulsion was not inherent in the receipt of information from an accused person in the custody of a police officer; it will be a question of fact in each case to be determined by the court on the evidence before it whether compulsion had been used in obtaining the information. Now regarding the validity of DNA the Orissa High court after considering the concerns about privacy Laid Down following principles in the case of Thogorani Alias K. Damayanti vs State of Orissa And Ors46, the necessary cases where or reasons for which DNA tests can be applied: The extent to which the accused may have participated in the commission of the crime. The gravity of the offence and the circumstances in which it is committed. Age, physical and mental health of the accused to the extent they are known. Whether there is less intrusive and practical way of collecting evidence tending to confirm or disprove the involvement of the accused in the crime. The reasons, if any, for the accused for refusing consent . Although there are several such technologies which operate on principles ranging from changes in respiration, to mapping the electrical activity in different areas of the brain, what is common to them all, in Lawrence Liangs words is that they maintain that there is a connection between body and mind; that physiological changes are indicative of mental states and emotions; and that information about an individuals subjectivity and identity can be derived from these physiological and physiological measures of deception.47

46

2004 Cri L J 4003 (Ori) <http://indiankanoon.org/doc/860378/>

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In a case of Ramchandra Ram Reddy v. State of Maharashtra48 the Bombay High Court upheld these technologies by applying the logic of the Kathi Kalu Oghad case discussed above. The court drew a distinction between statements and testimonies and held that what was prohibited under Article 20(3) were only statements that were made under compulsion by an accused. In the courts opinion, the tests of Brain Mapping and Lie Detector in which the map of the brain is the result, or polygraph, then either cannot be said to be a statement. At the most, the Court held, it can be called the information received or taken out from the witness. This position was overruled by the supreme court in the land mark decision of Selvi v. State of Karnataka49. In contrast with the Bombay High Court, the Supreme Court expressly invoked the right of privacy to hold these technologies unconstitutional. The court held Even though these are non- invasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as `Brain Fingerprinting' and `FMRIbased LieDetection' raise numerous concerns such as those of protecting mental privacy and the harms that may arise from inferences made about the subject's truthfulness or familiarity with the facts of a crime. Further down, the court held that such techniques invaded the accusers mental privacy which was an integral aspect of their personal liberty.

47

Keynote address given to the 93rd Indian Science Congress. See http://mindjustice.org/india2-06.htm, cited in Liang, L., 2007. And nothing but the truth, so help me science. In Sarai Reader 07 - Frontiers. Delhi: CSDS, Delhi, pp. 100-110. Available at: http://www.sarai.net/publications/readers/07-frontiers/100-110_lawrence.pdf
48 49

1 (2205) CCR 355 (DB) (2010) 7 SCC 263 http://indiankanoon.org/doc/338008/

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9. Conclusion
So to conclude although Right to privacy is considered as an important right in India and other countries, it is to be noted that priority is given for other rights such as National Security and other reasons in record. Right to Privacy of individuals including citizens is often violated on these grounds which are unnecessary in many cases. Take the situation of India, all though Indian Courts especially the Supreme Court has recognized the Right to Privacy as a Fundamental Right under Article 21 of the constitution though a number of cases, still the Right to Privacy Remains as an Uncertain right. The Provisions of Information Technology Act and Telegraph Act and pending of the Right to Privacy Bill 2011 in Parliament are examples to prove that when certain other factors such as National Security, Census Population Register etc comes in to picture Right to Privacy is given Less Importance. The National Population Register and Unique Identification Number (AADHAR) schemes although claims to be protecting privacy but it is not so the documents of NPR and AADHAR proves that it is not so. Same is the case with USA and UK. The Patriot Act of USA gives the Authorities ultimate power to intercept ones communication or indulge in to privacy without providing any specific reason. All though state that it is for National Security, there is a greater chance of authorities misusing the act and its provisions. So a question is always put up Although Right to Privacy is a universally accepted right, is it given proper recognition as it requires to be given?

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BIBLIOGRAPHY
PRIMARY SOURCES

STATUTES 1) Constitution of India 2) The Right To Privacy Bill 2011 3) Indian Telegraph Act 1885 4) Information Technology Act 2000 5) Telegraph Rules 2008 6) Human Rights Act 1998(UK) 7) European Convention on Human Rights (ECHR) 8) Regulation of Investigatory Powers Act, 2000(UK). 9) The Wiretap Act of 1968 (US) 10) USA PATRIOT Act of 2001 11) Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations 2002 12) CASES 1. British DJ Sara Cox Radio Case. 2. Douglas v Hello! Ltd [2005] EWCA Civ 595 3. Govind vs. State of Madhya Pradesh (1975) 2 SCC 148 4. Griswold v, Connecticut 381 US 479(1965) 5. Kharak Singh V. The State of U.P (1964) 1 SCR 332 6. M. P. Sharma v Satish Chandra, AIR 1954 SC 300 7. Malak Singh v State Of Punjab & Haryana AIR 1981 SC 760 8. Maneka Gandhi vs. Union of India, (1978) 2 SCR 621 9. Mr. X v. Hospital Z (1998) 8 SCC 296
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10. PUCL v. Union of India AIR 1997 SC 568 11. R. M. Malkani vs State Of Maharashtra AIR 1973 SC 157, 1973 SCR (2) 417 12. R. Rajagopal vs. State of Tamil Nadu (1994) 6 S.C.C. 632 13. Ramchandra Ram Reddy v. State of Maharashtra 1 (2205) CCR 355 (DB) 14. Roe v. Wade 410 US 113(1973) 15. Selvi v. State of Karnataka (2010) 7 SCC 263 16. State Of Bombay vs Kathi Kalu Oghad And Others AIR 1961 SC 1808 17. Thogorani Alias K. Damayanti vs State of Orissa And Ors 2004 Cri L J 4003 (Ori)

SECONDARY SOURCES

BOOKS & ARTICLES 1) Shukla V.N., Constitution of India, Singh P. Mahendra, Eleventh Edition, Eastern Book Company 2) Bakshi P.M., TheConstitution of India, Eighth Edition, Universal Law Publishing Co. 3) Jain M.P, Indian Constitutional Law, sixth Edition, LexisNexis Butterworths Wadhwa Nagpur, 2010 4) Durga Das Basu, Law of the Press fifth edition, Lexis Nexis Butterworths, Wadhwa Nagpur, 2010. 5) Tim Wafa, Global Internet Privacy Rights: A Pragmatic Approach : 13. Intell. Prop. L. BULL,2009. 6) T Basanth, Impact of USA Patriot Act on Cyber privacy: A Revisit, 2006, (2006), Vol
V IJCL 23

7) A Micheal Froomkin The Death of Privacy,52 stan.l.Rev.1461,1468(2000) 8) Richard A. Posner. Privacy, Surveillance and Law, 75 U. Chi. L. Rev. 245, 248(2008) 9) Frederic M, Joyce, Andrew E Bigart, Liability for All, privacy for None: the Conundrum of protecting privacy rights in a pervasively electronic world, 41 Val. U.L Rev.

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WEB SOURCES
1. http://lawmin.nic.in/ncrwc/finalreport/v1ch3.htm, REPORT OF THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION (M.N. Venkatachaliah ed., 2002).

2. http://www.iltb.net/2011/06/analysis-of-the-privacy-bill-2011, Indian Law and Technology Blog


Analysis of the Right to Privacy Bill 2011

3.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1807575, Prashant Iyengar, Privacy and the Information Technology Act in India, SSRN ELIBRARY, 2011

4. http://www.11sb.com/pdf/privacyaftermaxmosley.pdf, E Book On Privacy After Max Mosley by Robert Deacon. 5. http://www.ucl.ac.uk/laws/global_law/publications/institute/docs/privacy_100804.pdf, Report on Concerns and Ideas about the Developing English Law of Privacy. 6. http://news.bbc.co.uk/2/hi/uk_news/2971330.stm, Cox privacy case 'a watershed'. 7. http://news.bbc.co.uk/2/hi/uk_news/2975718.stm, Privacy law remains confused. 8. http://indiankanoon.org, Case Law Data Base. 9. http://uidai.gov.in/images/FrontPageUpdates/ROB/D11%20Document%20Storage%20Gu idelines%20for%20Registrars%20final%2005082010.pdf,Document Storage Guidelines Regarding UID. 10. http://www.sarai.net/publications/readers/07-frontiers/100-110_lawrence.pdf,Nothing but the truth, so help me science. In Sarai Reader 07 - Frontiers. Delhi: CSDS, Delhi, 11. http://mindjustice.org/india2-06.htm, cited in Liang, L., 2007, Keynote address given to the 93rd Indian Science Congress.

33 Constitutional and Statutory Aspects of Right to Privacy