TITLE: “RIGHT TO PRIVACY: A COMPREHENSIVE STUDY”

ABSTRACT
This research paper exhaustively talks about the various aspects of the Right to Privacy in India
and the USA. For better understanding of the various facets of the Right to Privacy, an attempt
has been made by the authors to first analyze the concept of the term “privacy” and its related
definitions. This research paper broadly focuses on the aspects such as the right to privacy in
India and the USA, Data Privacy and Technology, the Aadhaar issue, the Privacy and Protection
Bill, 2017(highlights) and the Right to Privacy and Section 377 of the IPC. This research paper
throws light on various other aspects related to the Right to Privacy, such as the origin and
evolution of the Right to Privacy in India and the USA, sources and scope of the Right to
Privacy, International concepts related to the Right to Privacy. The paper also takes into account
the various cases of the Apex court related to the Right to Privacy in India and the USA. More
than 20 cases have been analyzed by the authors in proper chronological order. Further, the paper
also analyses the various implications of technology on personal data and biometrics of
individuals and also bring forth the various steps which have been taken by the government of
India for data protection. Recent data related to “Aadhaar Breaches” in India and the world has
also been covered precisely in this paper. Relevance of the IT (Amendment) Act 2008, in the
protection of data and its various related provisions have also been focused upon. This paper also
mentions about the Justice B.N Srikrishna Committee which has been recently constituted by the
government of India for data protection. This research will endow with valuable information on
the Right to Privacy and its circumscribing issues.
 INTRODUCTION
The peculiar nature of “Right to Privacy” can perhaps be best understood by attempting to
understand first the meaning of PRIVACY.
Privacy is to be certain, for some, privacy is simply a condition of physical separation – the right
to be apart, to live one’s life in seclusion. For others, privacy is about control – the right to
control the intimacies of life. For still others, privacy is about secrecy – the right to determine for
oneself if and to what extent personal information is disseminated.
Etymologically, the word “privacy” stems from the words “privation” and “deprivation”.
Originally, to be private was to be deprived. Thus the term privacy initially had unfavorable
connotations; isolation meant loneliness; seclusion was an effective method of punishment.

DEFINITIONS:-

(i) OXFORD DICTIONARY: - “A state in which one is not observed or disturbed by other
people.”

(ii) CAMBRIDGE ENGLISH DICTIONARY: - “Someone’s right to keep their personal matter
and relationships secret.”

(iii) BLACK’S LAW DICTIONARY: - “Right to be let alone ; the right of a person to be free
from unwarranted publicity ; and the right to live without unwarranted interference by the
public in matters with which the public is not necessarily concerned.”

CONCEPT OF PRIVACY
The terms “privacy” and “right to privacy” can’t be easily conceptualized. It has been taken in
different ways in different situations. Tom Gaiety said that “right to privacy is bound to include
body’s inviolability and integrity and intimacy of personal identity including marital privacy”.
Jude Cooley explained the law of privacy and has asserted that privacy is synonymous to Right
to be let alone.”
Privacy is a neutral relationship between persons or groups or between groups and persons.
Privacy is a value, a cultural state, or condition directed towards individual on collective self-
reliance varying from society to society.
Modern definitions of privacy generally include the following categories of rights, all of which
form separate but indispensable components of “Right to be left alone”:-
1) Privacy of the home, or domestic privacy – dealing with activities within the territorial
limits of the home, the place of work and including public places;
2) Privacy of information, or data privacy – dealing with the regulatory framework relating
to the managing of personal information (data preservation and dissemination).
3) Privacy of the body, or physical privacy – dealing with the freedom from invasion of the
physical self; and
4) Privacy of communication – dealing with the protection of communication via any know
legal medium.
There is until now, however, no universally accepted definitions of privacy.

INTERNATIONAL CONCEPTS OF PRIVACY

 ARTICLE 12 :- UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) (1948)

“No one shall be subjected to arbitrary interference with his privacy, family, home, or
correspondence or to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attack.”

 ARTICLE 17 :- INTERNATIONAL COVENANT OF CIVIL AND POLITICAL

RIGHTS(ICCPR)
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home and correspondence, or to attacks on his honour and reputation.”

 ARTICLE 8 :- EUROPEAN CONVENTION ON HUMAN RIGHTS(ECHR)

“Everyone has the right to respect for his private and family life, his home and
correspondence;
 There shall be no interference by a public authority except such as is in accordance with
law and is necessary in a democratic society in the interests of national security, public
security or the economic well-being of the country, for the protection of health or morals
or for the protection of the rights and freedoms of others.”

RIGHT TO PRIVACY IN USA

ORIGIN: - Privacy is not a new right; it has been an important condition of almost all
civilizations, however primitive. Long before the United States existed, the philosophical and
constitutional foundations for privacy interests were laid. And long before the U.S. Supreme
Court formally recognized privacy as a constitutionally protected right, the common law
foundations were laid.

THE PHILOSOPHICAL FOUNDATIONS

NATURAL LAW AND NATURAL RIGHTS :- In 4th century B.C, the Greek
philosopher Aristotle was the first to articulate the doctrine of natural law, the notion that
human affairs should be governed by certain immutable, ethically binding principles.
Later, in the seventeenth century, Thomas Hobbes and john Locke, among others,
advanced principle of American revolution and its subsequent government - “ the social
contract theory” , this theory says that all men are born free and equal by god – given
right and, therefore, must give their consent to be governed . Two centuries later, john
Stuart mill joined the debate, exploring the limits of government authority. His most
famous political tract, “on liberty” (1859), explored the struggle between individual
autonomy and governmental authority.

THE CONSTITUTIONAL FOUNDATIONS

1) BILL OF RIGHTS: - The bill of rights may be properly viewed as a general

expression of the drafter’s prevalent fear of fundamental rights being deprived by
 government. Several of the provisions in the bill of rights were adopted to protect
individuals in their privacy. The first, third, fourth and fifth amendments, all
contained some privacy component.
 The first amendment guaranteed freedom of conscience in both religious and political
matters and freedom of association, thus protecting the autonomy of the individual.
 The third amendment specifically protected the privacy of the home in peacetime from
soldiers seeking quarters without the owner’s consent.
 The fourth amendment reads, “the right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and seizures, shall not be
violated”
The purpose of fourth amendment was twofold:-
a) To acknowledge man’s sovereignty in his home; and
b) To reject the notion of “police government “ in which an officer of the law,
acting without a warrant, could enter at any time at any room or house, break any
drawer and seize any paper or other item deemed fit”.
 The Fifth Amendment disallowed compulsory self – incrimination, thus protecting the
privacy of one’s thoughts.

2) THE US CONSTITUTION: - The four defining principles of the new constitution

were federalism, separation of power, checks and balances and individual rights. The
incorporation of fourth principal indicated the framers highest ideals – protection of
liberty and property of individuals.
3) SUBSTANTIVE DUE PROCESS OF LAW AND PRIVACY: - The Supreme Court
initially acknowledged protection under the due process clause of the fourteenth
amendment for personal privacy in the areas of education and child rearing.
Beginning in 1965, the justices held that ’privacy’ was a fundamental right
enforceable against the state through the due process clause of the fourteenth
amendment in Griswold v. Connecticut.

4) THE COMMON LAW FOUNDATIONS: - The American courts trace the origin of
the right to privacy as being associated with the right to property. But gradually the
 courts recognized that the protection of privacy must transcend property rights. The
most well-known American cases on privacy are Griswold V. Connecticut1 and Roe
V. Wade2. In Griswold v. Connecticut, the Right to Privacy was invoked to invalidate
a state law that prohibited the use of birth control devices. The case Roe v. Wade
concerned the right of an unmarried pregnant woman to abort. Upholding the
woman’s right to make that choice which concerned her private life.

The right to privacy is not mentioned specifically in the US constitution or in the Bill
of Rights. Through the nineteenth century, common law courts in the United Nations
began to acknowledge a legal right to privacy, most often as a tort protection .In
1905; however, the Georgia Supreme Court formally recognized privacy as an
independent and distinct right under the Georgia constitution. Today, the right to
privacy exists, in some form or another, in all fifty states.

RIGHT TO PRIVACY IN INDIA

Human beings have a natural need to autonomy or control over confidential part of their life.
This need is inherent in human behavior and now this has been recognized as fundamental right
to privacy. It is not a right against physical restrains but it is a right against psychological
restrains or encroachment of right. Right to privacy is not explicit in the constitution of India, so
it is a subject of judicial interpretation. The judicial interpretation of fundamental right brings it
within the purview of fundamental right.

EVOLUTION OF RIGHT TO PRIVACY

The concept of privacy can be traced out in the ancient text of Hindus. In modern India first time
the issue of right to privacy was discussed in debates of constituent assembly where K.S.
Karimuddin moved an amendment on the lines of the U.S constitution, where B.R Ambedkar

1
381 US 479 (1965)
2
410 US 113 (1973)
gave it only reserved support, it did not secure the incorporation of the right to privacy in the
constitution.

The right to privacy in India has originated from two distinct sources: the law of torts and
constitutional law. The tortuous liability arising out of breach of the private space by unlawful
means, which has been recognized by law courts across the world as a means of protecting
privacy finds its place within the Indian framework, though in a limited manner.

Privacy rights in the Indian context are primarily a judicial construct. The right to privacy is not
expressly dealt with in the constitution, either as a separate right or an exception to freedom of
speech and expression under article 19(2), enumerating the various reasonable restrictions that
are imposed upon them.

The first few cases that presented the Indian Supreme Court with the opportunity to develop the
law on privacy were cases of police surveillance.

In MP Sharma v. Satish Chandra3 (1954) the Supreme Court on the issue of “power of search
and seizure” held that they cannot bring privacy as a fundamental right because it is something
alien to Indian constitution and constitution makers didn’t bothered about the right to privacy.

After this case in Kharak Singh Case4 (1962) the supreme court on the issue of whether
surveillance, defined under regulation 236 of the U.P Police Regulations amounts to
infringement of fundamental right and whether privacy comes under the purview of fundamental
right; they denied the right to privacy as a fundamental right and they concluded that right to
privacy is not a guaranteed right under our constitution and therefore the attempt to ascertain the
movements of an individual which is merely a manner in which privacy is invaded is not an
infringement of a fundamental right guaranteed by part 3 of Indian constitution.

3
(1954) SCR 1077
4
(1964) 1 SCR 332
Now comes the R.C.Cooper vs. Union Of India5 (1970). To look into this case we should first
refer to A.K.Gopalan case6 (1950) . In A.K. Gopalan case the Supreme Court said that article 19
and 21 were mutually exclusive. The 7 freedoms of article 19 were not subsumed in the fabric of
life or personal liberty in article 21. However the court in R.C. Cooper case said that these rights
are complement to each other; the new doctrine was firmly established by an 11 judge bench in
R.C.Cooper vs. Union of India (1970). Subsequently, the Supreme Court ruled that the
expression “personal liberty” in article 21 covers a variety of rights some of which have been
raised to the status of distinct protection under article 19. The right to privacy falls under both the
articles.

The next case was the Govind vs. State of Madhya Pradesh 7 (1975) when the right to privacy
was dissuades in detail. The issue was quite similar to the Kharak Singh vs. State of U.P (1962),
but this time the approach of judgment was rather different. They upheld the validity of Madhya
Pradesh Police Regulation, 855 and 856 made under section 56(2) of Police Act, 1961. Under the
reasonable restrictions. Judges were unable to decide whether the right to privacy is a
fundamental right or not and they passed on the burden to the next cases.

Now comes ADM Jabalpur vs. Shivkant Shukla8 (1976) justice chandrachud’s father Y.V.
Chandrachud was part of the majority on the bench that had ruled that the fundamental right to
life was a gift of the constitution which could be suspended during an emergency. Court agreed
with the government to suspend fundamental rights thereby permitting it to hold people in
detention, without any opportunity to move court. More importantly, it gave wide police powers
to the government to pursue state interests at the cost of fundamental rights.

Now comes Maneka Gandhi vs. Union of India9 (1978), Supreme Court interpreted the article
21 in broad sense. They said that both the rights of personal liberty and personal security
recognized by what Blackstone termed “Natural Law” are embodied in article 21. This case

5
(1970) 1 SCC 248
6
AIR 1950 SC 27
7
(1975) 2 SCC 148
8
(1976) 2 SCC 521
9
(1978) 1 SCC 248
started the wide interpretation of right to life, which actually helped the right to privacy to fall
into the scope of right to life.

Next case is R. Rajagopal alias R.R Gopal vs. State of Tamil Nadu10 (1995). It was the first
case which explained the evolution and the scope of right to privacy in detail and also discussed
the right to privacy in the context of the freedom of the press. The Supreme Court held that the
press had the right to publish what they claimed was the autobiography of Autoshankar in so far
as it appeared from the public records, even without his consent or authorization. However, if the
publication went beyond the public record and published his life story that would amount to an
invasion of his right to privacy. Court also held that right to privacy is implicit in the right to life
and liberty guaranteed by article 21.

Now comes People’s Union For Civil Liberties (PUCL) vs. Union Of India11 (1996). In this
case also court relied on its 1994 verdict in R.Rajagopal vs. state of Tamil Nadu, a case that
elevated the right to privacy to constitutional status by virtue of its being “implicit in the right to
life and guaranteed to the citizens of this country by article 21.” a right that may not be violated
except “according to procedure established by law”. The court in that case also expanded the
notion of the right to privacy to include a right “to be let alone” and to “safeguard the privacy of
a person, his family, marriage, procreation, motherhood, child – bearing and education among
other matters.”

Now comes Mr.’X’ vs. Hospital ’Z’ 12(1998) it was decided that right to privacy clashes with
the other fundamental right i.e. right to privacy of one person and right to lead a healthy life of
another (society), then the right which would advance public morality or public interest would
alone be enforced.

10
(1994) 6 SCC 632
11
(1997) 1 SCC 301
12
(1998) 8 SCC 296
Now comes State Of Karnataka vs. Krishnappa13 (2000), in this case court expanded the
doctrine to include sexual offences against women. “Sexual violence apart from being
dehumanizing is an unlawful intrusion of the right privacy and sanctity.”

Next case is Suresh Kumar Kaushal vs. Naz Foundation and Others 14(2006). In this case the
Supreme Court upheld the validity of IPC section 377, which criminalizes “carnal intercourse
against the order of nature” (homosexuality). Justice Chandrachud held that the sexual identity of
the LGBT community is inherent in the Right to Life.

Now comes Selvi vs. State Of Karnataka15 (2010), court noted that right to privacy is enshrined
in article 20(3), the right against self – incrimination”. The right to privacy should account for its
intersection with article 20(3).”

JUSTICE K.S PUTTASWAMY (retd.) vs. UNION OF INDIA16 (2017)

Nine judge bench of the Supreme Court in 2017 has unanimously delivered its landmark
judgment, holding that “right to privacy is protected as an intrinsic part of the right to life and
personal liberty under article 21 and as a part of the freedoms guaranteed by part 3 of the Indian
constitution”.
Crucially, the court has indicated that the contours of privacy mentioned in the judgment t are
not limitations to the right but foundations, over which it will develop over time.
The bench has overruled its previous decisions in M.P Sharma Case (1954) and Kharak Singh
Case (1962) which held that the Indian constitution doesn’t specifically protect the Right to
Privacy.

13
(2000) 4 SCC 75
14
(2014) 1 SCC 1
15
(2010) 7 SCC 263
16
W.R. (CIVIL) No. 494/2012
THE GOVERNMENT’S CLAIM S BEFORE THE NINE - JUDGE BENCH, SEEKING ITS
PLEA:-

1) First, the government argued that the constitution framers never intended to incorporate
the right to privacy, and therefore, to read such a right as intrinsic to the right to life and
personal liberty under article 21 or the rights to various freedoms, would amount to a
rewriting of the constitution.
2) Second, it claimed that since as a concept, was vague, amorphous, and incapable of
precise definition, it cannot be elevated to the status of a fundamental right.
3) Third, it contended that privacy was, at best, a purely elitist concern, and that, it can
never be considered as a value worth universally cherishing.

THE COURTS RESPONSE TO THE GOVERNMENT’S ARGUMENTS:-

1) On the first argument, the court recognizes that much of the text of the constitution,
particularly of the rights enlisted in part 3, are abstract statements of privileges that, in
any event, require interpretations for us to make sense of them. To hold, therefore, that
privacy is intrinsic to personal liberty does not tantamount to rewriting the constitution.
On the other hand, it would merely be a natural product of a proper interpretive
exercise, where the constitution is seen as not merely representing a matter of social
fact but of being a product of morality, of representing a set of larger ambitions and
ideals.

2) The idea that privacy is amorphous and vague is similarly made short shrift of. Privacy,
as a concept, the court finds, it involves not merely a simple right to be left alone, but
extends to protecting a number of different values integral to a person’s most intimate
choices; it constitutes a bundle of liberties, including, as justice Nariman points out, the
right to abort a foetus, the right of same sex couples, the rights as to procreation, to
contraception, and so forth. This holding, in and of itself, should be sufficient to
overrule the courts judgment in Naz Foundation Case, where it upheld the abominable
Section 377 of the IPC, which, among other things, criminalizes homosexual activity.
 3) The argument that privacy is a purely elitist concern is also found to be unsustainable.
Here justice Chandrachud, for example, leans on Amrtya Sen’s work to show us that
liberty and freedom are values that are not only inherent in our constitutional order, but
that they also serve a larger instrumental purpose, in creating conditions that best
further the cause of equality and social justice.

DATA PRIVACY AND TECHNOLOGY

A right to protect one’s data on online platforms constitutes data privacy. Such data could either
be concerned with an individual, enterprise or even a government.
Data privacy (or data protection or information privacy), is the relationship between the
collection and dissemination of data, technology, the public expectation of privacy and the legal
and political issues surrounding them. Going by the definition of European Union’s Data
Protection Guidelines, “information concerning an identified and identifiable natural person”
covers the scope of personal data. Therefore, following this definition, the personal information
provided by individuals during biometrics would be included.
PERSONAL INFORMATION :- it could be in the form of personal interests, medical records,
biological traits such as genetic material, financial records, communications (including mail and
telephone records ) etc.
Privacy concerns exist wherever personally identifiable information or other sensitive
information is collected, stored, used and finally destroyed or deleted – in digital form or
otherwise .
Today man is living in the age of computer technology which poses a great threat to an
individual’s privacy. He could easily be harmed by the existence of computerized data about
his/her which is inaccurate or misleading and which could be transferred to an unauthorized third
party at high speed and at very little cost. Further, many other innovative technologies also make
data easily accessible and communicable.
There have been cases of intercepting mails and telephonic communications of political
opponents as well as of job seekers. Section 5(2) of the Indian Post Office Act and Section
26(1) of the Indian Telegraph Act empowers the central and state governments to intercept
telegraphic and postal communications on the occurrence of public emergency in the interest of
public safety.
In a famous case, People’s Union For Civil Liberties (PUCL) vs. Union Of India (1996) the
supreme court’s landmark judgment was a significant attempt to solve the problem of wide
spread telephone tapping, and it’s influence has been strongly felt in subsequent laws designed to
balance the right to privacy against the state’s power to conduct surveillance. PUCL was a
landmark judgment for two reasons:-
a. First, the court reflected, to some extent upon the existence of a right to privacy in the
Indian law. And, specifically, it considered the question of whether the right to privacy
was a fundamental right guaranteed by the constitution of India.
b. Second, the court laid down detailed guidelines for the exercise of the executive’s
surveillance powers, as a temporary solution to the rampant misuse of these powers.

There is an inherent conflict between right to privacy and data protection. Today, there is an
unprecedented amount of personal data available with government and private sector players.
With the advancing technology, digital India, adhaar, drives have added to the already growing
pool of personal data with various public and private players to pursue their activities.

India witnessed around 27,482 cyber security threat incidents till June 2017, according to
Ministry of State For Electronics. Threat reports include phishing attacks, website intrusions and
defacements or damages to data as well as ransom ware attacks. As per the information reported
to and tracked by the Indian Computer Emergency Response Team (CERT-IN), the numbers of
cyber security incidents reported were:-
 2014 :- 44,769
 2015 :- 49,455
 2016 :- 50,362
 2017 ( till June ) :- 27,482
 CYBER SECURITY ISSUES IN INDIA

 MIRAI BOTNET MALWARE: - This malware affected 2.5 million IoT devices and
many systems in India.

 WANNACRY: - Ransom ware wanna cry swept the world. Few instances of the ransom
ware were reported to have hit banks in India and some businesses in Tamil Nadu and
Gujarat as well during the first wave of the attack Railwaire users were also most affected
by the ransom ware.

 DATA BREACHES: - Zomato said that it was affected by a data breach which led to
details of 7.7 million users being stolen.

The impact of the use of technology on the privacy of people manifests itself in a variety of
areas. These areas include, inter alia the following:-
 The electronic monitoring of people in the workplace. This relates to personal
information. This is often referred to as electronic surveillance.
 The interception and reading of e- mails. This possesses an ethical problem which
relates to the private communication of an individual.
 The merging of databases which contain personal information. This is known as
data banking.
 Closely related to the merging of files, is the increasing use of buying cards by
retail stores.
 Another major threat to privacy is the increase of so called hackers and crackers
which break into computer systems.

The state of privacy in the 21st century is a worldwide concern, given the internet’s global
reach. Different countries find themselves grappling with distinct problems like:-
 CHINA :- Human Search
  JAPAN :- Phishing and RFIDs
 RUSSIA :- Cyber Attacks and Phone Tapping
 U.K. :- Advertisers , Consumers Clash

INDIAN LAWS FOR DATA PROTECTION

With the advancement in IT and BPO sectors, Indian companies handle and have access to
almost all kinds of sensitive details of individuals across the world. These data are stored in
electronic medium and are vulnerable, and hence raise concerns about data privacy.
There is no express legislation dealing with data protection in India. However there exist five
important components namely:-

A. THE CONSTITUTION OF INDIA: - article 21 of the constitution protects an individual’s

right to life and personal liberty. The supreme court of India has repeatedly held that the
right to privacy is simplicity in the right to life and personal liberty. Article 300 A of the
constitution also guarantees the right not to be deprived of one’s property except by
authority of law.

B. JUDGEMENTS OF THE HON’BLE SUPREME COURT OF INDIA: - the supreme court

of India through its various judgments has made right to privacy, a fundamental right
under article 12 of the Indian constitution. Judicial activism has greatly influenced right
to privacy within the realm of fundamental rights.

C. THE COPYRIGHT ACT (1957):- this act also provides some scope for protecting
different types of data as “literary works” which includes computer databases, copying a
computer base, etc. which amount to infringement under this act.

D. THE INDIAN PENAL CODE (1860):- this could also be used to prevent theft of data.
Under this act, “movable property” has been defined to include corporeal property of
every description except land or property that is permanently attached to the earth.
E. THE INFORMATION AND TECHNOLOGY ACT, 2008:- The IT (amendment) Act 2008
provides both civil and criminal liability in case of computer database theft, computer
trespass, unauthorized digital copying, privacy violation etc.

 Section 43 provides for a penalty for a wide range of cyber contraventions.

 Section 43A provides for “compensation for failure to protect data”. There is no
limitation imposed on the compensation that can be awarded.
 The term violation of confidentiality and privacy are described under the IT Act.
Section 66-E of the IT Act, eloquently explains violation of privacy as “whoever,
intentionally or knowingly captures, publishes or transmits the image of a private
area of any person without his or her consent, under the circumstances violating
the privacy of that person”.
 Section 72 provides for penalty for breach of confidentiality and privacy.

PRIVACY AND PROTECTION BILL, 2017 (Highlights)

 The privacy and protection bill, 2017 was introduced as a Private Members’ Bill in the
Lok Sabha in July 2017.
 The Data (Privacy and Protection) Bill, 2017, grants a statutory right to privacy under
Section 4. However, this right to privacy is only pursuant to article 19 and 21.
 This bill not only applies to private corporations, but is equally applicable to state
entities, government agencies or any other persons acting on their behalf.
 The bill also proposes to provide a holistic framework for the data protection in India and
proposes the creation of the data privacy and protection authorities which will act as both
the regulator and adjudicator of disputes arising from the act and will also have the power
to initiate sue motu action against a data controller or processor.
 Another change proposed is the need for the publication of the privacy notice.
 The bill also provides a person with the right to erase any of his data or withdraw consent
or change the data provided.
  The bill also provides the person disclosing any data with the option to hold the data
processor or controller liable, if data is misused.
 Section 10 of the bill provides for the “right” to seek withdrawal of data.
 Section 14 of the bill imposes duty on the data controller/processor or that he should
abide by the provisions of this act.
 Under Section 36, no person can assist in or conduct surveillance of a person. However,
an exemption has been made for state agencies, subject to certain restrictions and prior
approval by the DPPA.
 Lastly, the bill has made all offences under its provisions cognizable offences and has
also increased the monetary penalty and imprisonment period for all existing breaches.

STEPS TAKEN BY GOVERNMENT FOR DATA PROTECTION

A. As per the NCRB data under cybercrimes 589, 1203 and 758 cases of
Publication/transmission of obscene, sexually explicit content (Under section 67 A, 67 B
and 67 C of the Information Technology Act) has been registered during 2012, 2013 and
2014 respectively.

B. After consultation on Cyber Crimes in India held on 23.07.2015, National Commission

for Women has submitted a report which inter-alia recommended for opening of more
cyber cells, dedicated helpline numbers and imparting of proper legal, setting up forensic
labs and technical training law enforcement agencies like police and judiciary to combat
cybercrime.

C. The Information Technology Act, 2000 together with Indian Penal Code have adequate
provisions to deal with prevailing Cyber Crimes. It provides punishment in the form of
imprisonment ranging from two years to life imprisonment and fine / penalty depending
on the type of Cyber Crime. However, the Government has taken following steps for
prevention of Cybercrimes :-
 i. Cyber Crime Cells have been set up in States and Union Territories for reporting and
investigation of Cyber Crime cases.
ii. Government has set up cyber forensic training and investigation labs in the States of
Kerala, Assam, Mizoram, Nagaland, Arunachal Pradesh, Tripura, Meghalaya, Manipur
and Jammu & Kashmir for training of Law Enforcement and Judiciary in these States.
iii. In collaboration with Data Security Council of India (DSCI), NASSCOM, Cyber
Forensic Labs have been set up at Mumbai, Bengaluru, Pune and Kolkata for awareness
creation and training.
iv. Training is imparted to Police Officers and Judicial officers in the Training Labs
established by the Government.
v. The Scheme for Universalization of Women Helpline has been approved to provide 24-
hour emergency and nonemergency response to all women affected by violence.

“THE AADHAAR ISSUE”

The government of India constituted the aadhar scheme in 2009. This system, recognized as the
world’s largest biometric identification scheme, and provides national identification numbers for
all residents. So, it is very important that adequate legal safeguards be implemented to protect the
biometric information collected from individuals who are a part of the aadhaar scheme.

PRIVACY CONCERNS AND VIOLATION OF RIGHTS

1) Wide Mandate: - UIDAI has wide mandate which includes defining the usage and
applicability of Aadhaar for the delivery of various services. Giving so much power to a
body which has no legislative sanction is, indeed, unprecedented and extremely
worrying.

2) Lack of accountability: - The UIDAI also lacks accountability to Parliament if there

is a failure in the system and someone suffers in consequence.
 3) Private Players: - There are many private players involved in the whole chain of
registering for and generation of Aadhaar numbers before the database finally goes to
the government-controlled Central Identities Data Repository (CIDR).

4) ‘Seeding’:- This is about the introduction of the Aadhaar number into different data
bases. Once the number is seeded in various data bases, it makes convergence of
personal information remarkably simple. So, if the number is in the gas agency, the
bank, the ticket, the ration card, the voter ID, the medical records and so on, the state, as
also others who learn to use what is called the ‘ID platform’, can ‘see’ the citizen at
will.

5) Violation of rights :- The critics of the Aadhaar has always maintained that the
UIDAI might share the biometric information of people with other government agencies
thereby violating people’s right to privacy. They also thought that using the biometric
data, people might be singled out, tracked, harassed and have their rights violated.

6) Many a times, there are chances of the data being aggregated in a disorganized manner,
resulting in various claims of information breaches. Misappropriation of personal data
will enable third parties to misuse confidential biometric and demographic information.

7) Lastly, the Aadhaar Act, presently, does not provide for clear damages to the affected
party, even where there has been a failure to protect personal data.

According to the “Breach Level Index” released by digital security firm, GEMALTO, 203.7
million data records were compromised in 18 data breaches in India till June, 2017. The
continuous attacks on Aadhaar data was another significant data breach related to financial
access and identity theft.

This response to an obvious data breach and violation of privacy is extremely worrying. Critics
say that the problem with Aadhaar data is that of accountability. India, in the absence of a
separate law for protecting personal data, lags behind in data protection to a large extent. But the
government recognizing the need for law recently constituted a committee under the
chairmanship of retired Supreme Court judge B.N Srikrishna. This committee has been tasked
with making suggestions that will protect personal information.

RIGHT TO PRIVACY AND SECTION 377, IPC

SECTION 377 OF IPC: - Which came into force in 1862, defines unnatural offences. it says,
“whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or
animal, shall be punished with imprisonment for life, or with imprisonment of either description
for a term which may extend to 10 years, and shall also be liable to fine.” moreover, the law also
mentions that “penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.” Section 377 of IPC, hence, criminalizes homosexuality.

Right to privacy and section 377, IPC have been in conflict since a long time. Section 377 has
undergone many twists and turns ever since the Delhi high court decriminalized it in 2009. In
July 2009, following a PIL by Delhi based Naz foundation, an NGO fighting for gay rights,
providing much relief to the LGBT community in the famous case Suresh Kumar Kaushal v.
Naz Foundation had decriminalized homosexuality among consenting adults, holding it in
violation of article 14, 15 and 21 of the constitution of India. In its 105 page judgment, the bench
comprising chief justice AP Shah and justice S Murlidhar said “as it stands, section 377 denies a
gay person a right to full personhood which is implicit in notion of life under article 21 of the
constitution.”

Then again in 2013, a two judge bench of the Supreme Court turned the clock back on the fight
for equal rights when it said that homosexuality or unnatural sex between two consenting adults
under section 377 of IPC is illegal and will continue to be an offense. And the court hence said
that section 377 did not suffer from any “constitutional infirmity”.

The Supreme Court though backed out, but passed the ball to the parliament to review a law that
considered private sexual activity criminal. And, again a review petition filed by Naz foundation
against the 2013 judgment was dismissed in 2014. The Naz foundation judgment as well as the
2014 judgment in National Legal Services Authority vs. Union of India17 , a case pertaining to
transgender rights, interpreted article 15 that states no one can be decriminalized against, among
various things, on the basis of sex to include even sexual orientation.

The Naz foundation case led the crusade for removing homosexual acts between two consenting
adults out of the purview of the penal code.
In 2017, a nine – judge constitution bench of the Supreme Court accorded the status of a
fundamental right to one’s right to privacy. The giant leap for “Right to privacy” could be a
small step towards decriminalizing the draconian section 377 of the IPC, offering a ray of hope
to the LGBT community. In its landmark judgment ( Justice K.S. Puttaswamy vs. Union Of
India) in 2017, the supreme court said that “sexual orientation is deeply offensive to the dignity
and self-worth of the individual”. The 574 page judgment also added that the right to privacy and
the protection of sexual orientation lie at the core of the fundamental rights guaranteed by
articles 14, 15 and 21 of the constitution. Also, the supreme court in no uncertain words said:
privacy of the home must protect the family, marriage, procreation and sexual orientation which
are all important aspects of dignity”.

The nine judge bench has observed that the rationale behind the Koushal judgment in Naz
foundation case is flawed and unsustainable and that the right of the LGBT persons are real
rights founded on constitutional doctrine and not (so- called rights) as the earlier bench had
described them disdainfully. Also, the astounding claim made in Kaushal vs. Naz foundation
case that there was no need to challenge section 377 because the LGBT community constitutes
only a minuscule minority has been completely discredited.

Transgender, even though insignificant in numbers are entitled to human rights, a bench had
observed in national legal services authority (2014), in a subtle hit at the minuscule minority
formulation in Kaushal case. At another point, it said section 377 had been an instrument of
harassment and abuse, something the earlier judgment had refused to accept.

17
(2014) 5 SCC 438
By the latest verdict of the Supreme Court, sexual orientation is an aspect of the right to privacy
and an inalienable part of human dignity, freedom and personal liberty. This verdict has hence,
laid the foundation for restoring the Delhi high court judgment of 2010 in Naz foundation, which
read down section 377 to decriminalize consensual sex among adults irrespective of gender.

CONCLUSION
This paper clearly mentions that although Right to Privacy is not specifically mentioned in the
constitutions of India and the USA, it is an intrinsic part of an individual’s Right to Life and
personal liberty which can’t be denied. Several privacy concerns have been witnessed all over
the world till date including India and it is high time that the governments of various countries
should take effective measures in the right direction to secure the privacy of individuals and
organizations all over the world.
 REFERENCE
BOOKS:-
1. Bainbridge, David, 2007, Data Protection Law, Universal Law Publishers, New Delhi.
2. Norris, Clive & Wilson, Dean, 2006, Surveillance Crime and Social Control, Ashgate
Publishing Ltd, Cornwall.
3. Gupta, Apar, 2011, Information Technology Act, Lexis Nexis, Gurgaon.
4. Glenn, Richard, 2003, The Right to Privacy, ABC-CLIO, Inc., California

JOURNALS:-
1. Singh, shivshankar, 2011, ’Privacy and Data Protection in India: A Critical Assessment’,
in Journal of Indian Law Institute,53 JILJ (2011), pp.- 663-676
2. Tarafder, agnidipto, 2015,’ Surveillance, Privacy and Technology: A Comparative
critique of the laws of USA & India, in Journal of Indian Law Institute, pp. - 550-555.