Data Protection and Right to Privacy: A Study

Legal research and Methodology Seminar paper

Faculty Incharge:

Dr. Anand Pawar (Professor of Law)

Dr. Manpreet Kaur ( Assistant Professor of Law)

Submitted by:

Jyoti Singh

(22537)

LLM Batch of 2022-2023

Rajiv Gandhi National University of Law, Patiala, Punjab

 Table of contents

Table of cases……………………………………………………………………………..
Table of Statues……………………………………………………………………………….
1. Introduction……………………………………………………………………………..
Research problem……………………………………………………………………………….
Research hypothesis……………………………………………………………………………
Research methodology…………………………………………………………………….
Review of literature………………………………………………………………………..
2. Meaning and concept of Privacy & data Protection………………………………….
3. International scenario of Data Protection and Privacy rights…………………………
4. constitutional perspective of right to Privacy…………………………………………
5. Relevant laws and legislations in India…………………………………………………..
6. Conclusion and suggestions………………………………………………………….
 Table of Cases

Maneka Gandhi v. Union of India

Justice K.S Puttuswamy (Retd.) v. Union of India

M.P Sharma v. Satish Chandra

Kharak Singh v. State of U.P

Gobind v. State of U.P

PUCL v. Union Of India, 2004

State of Maharashtra v. Bharati Shanti Lal Shah, 2008

 Table of Statutes

The Information and technology Act, 2008

The Constitution of India, 1950

The Universal Declaration of Human rights, 1948

United Nations Protection on Child rights, 1989

The American Convention on Human Rights, 1969

The Credit Information Companies Regulation Act, 2005

International Covenant on civil and Political rights, 1966

Indian Penal Code, 1960

Copyright Act, 1857

Indian Contract Act, 1872

Indian telegraph act, 1885

 1. Introduction

Right to Privacy which is deemed as one the most crucial element for the survival of humankind in
a society, is largely threatened these days in the name of “Public Duty” or “ Procedure established
by law” by the public servants. It needs to be assessed often that what will happen in a situation if
an individual doesn’t have any privacy rights that covers rights including of family, workplace, re-
lationships, etc. Privacy in simple meaning, is crucial for human dignity as is oxygen to a human
body, it is the avenue in which an individual actually ensures a peaceful life full of liberty and dig-
nity, which is the essence of Article 21 of Constitution of India. Gradually as our Country is moving
towards technological advancement and digitalisation, and undoubtedly the country is entering into
“Cyber Era”. With increase in utility of social media and Internet in manifold spheres, the Data Pri-
vacy, Data security and Data Protection, which constitutes an essential element in terms of privacy
as digital footprint, has become a National Issue and at the same time as a national obligation that
needs to be ensure for. Data Protection and Right to Privacy are fundamentally inter-connected and
interlinked, and they constitute a very essential and one of the most sensitive space in today’s
emerging legal world. The Indian Judiciary has recognised Right to Privacy as an “Instinct Right”
in one of its landmark judgement, as it is important for us to understand like other developed coun-
tries like USA, UK, Russia, etc, where this right has already been recognised as a fundamental right
since a few decades, as because they were aware of the fact that how key role, privacy plays in the
sustainable development of the Nation, and in all spheres of a peaceful life, which directly results
into the prosperity of the Country.

Research Problem

This research paper aims to study about the meaning and importance of Right to privacy and Data
protection by studying their derivation various international conventions, national and constitutional
legislations. Furthermore, the authors further brings about the issue of need for a concrete law for
data protection in national legislative framework.

Research hypothesis
7. Privacy is an important aspect of Human right and essential for human dignity in a society to
live for and It must be protected at all costs.
8. There is a need for concrete legislation for the protection of Data Privacy, Data security and
Data Protection.

Research Methodology

In this project doctrinal research is used. Doctrinal Research is a research in which those sources
and materials are used which are collected from libraries, archives, etc. Books, journals, articles
were used while making this project. The study done in this research is analytical and interpretive in
nature. As interpretation was being required for explaining the concepts related to the research. Pri-
mary as well as secondary sources have been used in this research work. The primary source which
is used in the completion of the research work is Charter of the United Nation. Secondary source of
data collection was also used which involves in collection of data from books, articles, websites,
etc. No surveys were conducted for this research.

Review of Literature

9. Christopher Kuner in his book EU general Data Protection Regulation (GDPR): A Commentary
gives his insight about the the reforms and need of European Convention Framework for per-
sonal Data Protection. It gives and overview of GDPR and its place in UDHR and other rele-
vant international conventions.
10. A.G Noorani in her article “Right to Privacy” gives her insights about constitutional perspec-
tives, laws and legislations related to right to privacy. She had highlighted on the importance of
Supreme Court Judgements the were passed in recent years.
11. Shraddha Kulhari in her article Data Protection, Privacy and Identity: A complex triad has high-
lighted the concept of Data protection and right to privacy. She has meaningfully and deeply
talked about the definition and multi-dimensional aspect of right to Privacy.

2. Meaning and concept of Privacy and Data protection

Westin defined privacy as: …claim of individuals, groups or institutions to determine for them-
selves when, how and to what extent information about them is communicated to others. 1Privacy
means and is related to control over information of someone in any form and manner, over which an
individual has absolute control. With the advancement of information technology and communica-
tion technology the free flow of transactional information has elevated like never before. Privacy is
a right that all human beings enjoy by virtue of their existence. It is a right that includes the rights to
physical integrity, right to individual autonomy, freedom of speech and expression, and freedom to
movement and thought. Privacy is not only about the body, but also extends to and includes to per-
sonal integrity, personal autonomy, data, speech, consent, objections, movements, thoughts, and
reputation. Therefore, it is a neutral relationship between an individual, group, and an individual
who is not subject to interference or unwanted invasion or invasion of personal freedom. All mod-
ern societies accept that privacy is crucial and they recognise it not only for humanitarian reasons
but also from a legal point of view.

There is no particular or specific piece of legislation in India that governs and protects privacy or
personal data, however, there are various laws pertaining to information technology contracts, intel-
lectual property and crimes that offer protections to individuals and impose civil as well as criminal
liability. Currently, the provisions contained in the Information Technology Act, 2000 (“IT Act”)
and the rules issued thereunder widely the concept of sensitive personal data and information and
provides for the legal framework for protection of data and privacy in India. Apart from the IT Act
and the implied right to privacy under the Indian Constitution stated by various pieces of legislation
that provide for data protection includes the Contract Act, 1872, The Indian Copyright Act, 1957;
Indian Penal Code, 1860 and the Credit Information Companies Regulation Act, 2005, etc.

3. International Scenario of Data Protection and Privacy rights

Like many other laws, right to privacy has transformed itself from many International conventions.
Privacy has is recognised as one of the crucial human rights and keeps its place in a lot of interna-
tional laws and conventions. Privacy is a fundamental right, which is very essential for the protec-
tion of human dignity and autonomy of individual. Therefore, right to Privacy and Data Protection,

1 Shraddha Kulhari, Data Protection, Privacy and Identity: A complex Triad, Nomos Verlagsgesellschaft mbH.
is not only India’s concern, but also Global Concern, like developed nations and developing na-
tions, are keen to focus on Right to Privacy and Data Protection, as in today’s era it is the data,
weather in any sphere of life, it is the biggest strength as well as the biggest weakness of any per-
son, corporation or firm, which needs to be primarily focused and secured upon. It roots as the foun-
dation of manifold kind of human rights. The right to privacy includes multifaceted dimensions of
rights and therefore legal protection of the right to privacy has been recognised in many countries
and territories.
One of the modern privacy yardstick at an international level is the United Nations Declaration of
Human Rights (UDHR) 1948, Article 12: “No one shall be subjected to arbitrary interference with
his privacy, family, home, or correspondence, nor to attacks upon his honour and reputation. Every-
one has the right to the protection of the law against such interference or attacks.” 2 In EU, the right
to privacy is a fundamental right which seeks to protect an individual‟s dignity. The European
Charter of Fundamental Rights (EU Charter) recognises the right to privacy as well as the right to
protection of personal data. The EU possesses a comprehensive data protection framework which
applies to processing of personal data by any means, and to processing activities carried out by both
the Government as well as the private entities, although there are certain exemptions such as na-
tional security, defence, public security, etc. Many declarations and conventions were formed at the
international level to raise the standard of human rights, and state parties were held accountable for
adhering to these conventions and declarations.3

Furthermore, Article 17 of the International Covenant on Civil and Political Rights (ICCPR) 1966,
states that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home, or correspondence, nor to unlawful attacks on his honour or reputation and everyone has the
right to the protection of the law against such interference or attacks.”4

In addition to the above provisions, Article 8 of the European Convention on Human Rights, which
came into effect on 3rd Sept 1953, contains under it that while respecting and protecting one’s pri-
vate and family life, it allows the interference of Public authority only under certain exceptional cir-
cumstances. It showcases that the right to privacy has never been an absolute and that the govern-
ment can intervene in one's private space in the name of national security and public safety reasons.
Moreover, private rights cannot be seeker by jeopardising the health, rights, morals, and freedoms
of others. Article 16, UN Convention on the Protection of Children (UNCPC), Article 14, UN Con-
vention on Migrant Workers (UNCMW), Article 11, American Convention on Human Rights have
framed out the right to privacy in similar manner as that of to the UDHR. India is a signatory to
2 Ibid.
3 ICCPR, 1966, Article 17.
4 1963 AIR 1225
both the UDHR and the ICCPR. However, to date, no concrete legislation specifically for privacy
has been enacted in India to protect the right to privacy, at present, we are were in line with the
pending Data Protection Bill 2021 until it was recently withdrawn by the government of India.

4. Constitutional perspective of right to privacy

Constitution of India is a sacred document for the people of India as it bestows them their constitu-
tional, fundamental and legal right. Right to Privacy is one such right that has took its birth through
Article 21 of Constitution. Privacy is pivotal for human dignity and their development, it is extend
to physical integrity, individual autonomy, freedom of thought and expression, etc. over the years
Right to Privacy has gone through extensive jurisprudential development.

Right to Privacy first came into picture in Kharak Singh v. State of UP 5 where the petitioner chal-
lenged and questioned the validity of surveillance under regulation 236 of UP Police act Regula-
tions which outrightly violated the petitioners right to privacy under the clause of “personal liberty”

5 1975 AIR 1378

under article 21 of the constitution of India, by allowing police officials to do a regular domiciliary
visits and surveillance of a person with criminal records without their consent. In the above men-
tioned case the majority of judges declined to widely interpret right to privacy under Article 21 of
the constitution. Once again, in the case of Govind v. State of Madhya Pradesh 6 the issue and ques-
tion of identifying right to privacy as a fundamental right arose before the court of law. The issue
was similar to that of Kharak Singh’s case, in this the petitioner challenged and questioned certain
police regulations that violated their right to privacy under personal liberty clause. Unlike the previ-
ous case, the bench of judges were more eager and wanting to grant right to Privacy as fundamental
right to the citizens. Justice Mathew asserted : rights and freedoms of citizens are set forth in the
constitution in order to guarantee that the individual, his personality and those things stamped with
his personality shall be free from official interference except where a reasonable basis for intrusion
exists. Liberty against government’ a phrase coined by professor Corwin expresses this idea force-
fully. In this sense, many of the fundamental rights of citizens can be described as contributing to
right to privacy.”7

In 2005, the Supreme Court passed one of its most important privacy related judgments in the case
of District Registrar v. Canara Bank.8 In this case the Supreme Court was required to determine the
constitutionality of a provision of the A.P. Stamps Act which permitted the Collector or ‘any per-
son’ authorised by the Collector to enter any premises to conduct an inspection of any records, reg-
isters, books, documents in the custody of any public officer, if such inspection would result in dis-
covery of fraud or omission of any duty payable to the Government. The main issue, in the case, re-
lated to the privacy of a customer’s records stored by a financial institution such as a bank. The im-
pugned provision was held to be unconstitutional by the Supreme Court on the grounds that it failed
the tests of reasonableness enshrined in Articles 14, 19 and 21 of the Constitution. 9The Court held
that any legislation intruding on the personal liberty of a citizen (in this case the privacy of a citi -
zen’s financial records) must, in order to be constitutional, satisfy the triple test laid down by the
Supreme Court in the case of Maneka Gandhi v. Union of India 10. This triple test requires any law
intruding on the concept of ‘personal liberty’ under Art. 21, to meet certain standards: “(i) it must
prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental
rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also
be liable to be tested with reference to Article 14.”11 The impugned provision was held to have

6 Ibid.
7 AIR 2005 SC 186
8 Ibid.
9 1963 AIR 1295
10 Ibid.
11 Justice K.S Puttuswamy (retd.) v. Union of India (2017) 10 SCC 1, AIR 2017 SC 4161
failed this triple test and therefore, failed to meet the above criteria. More importantly, the Court
ruled that the concept of privacy is related to the citizen and not to the place. The consequences of
such a statement was that it did not see whether the financial records were stored in a citizen’s home
or in their bank account. Therefore, As long as the financial records in question belonged to a citi-
zen, those would be protected under the citizen’s right to privacy.
In the case of Justice K.S Puttuswamy v. Union of India. This case is the cornerstone of the ‘Right
to Privacy’ jurisprudence in India. The nine Judge Bench in this case unanimously held that the
right to privacy as a fundamental right under the Constitution of India. The Court held that the right
to privacy was integral to freedoms guaranteed across fundamental rights, and was an intrinsic as-
pect of dignity, autonomy and liberty.12

5. Relavant laws and Legislations in India

It is needs to be taken into consideration that, the term “Privacy” and “Data Protection” are at no-
place defined in any Statute, legislations, Law, Order and Notification. However, the scope of
Constitution of India has always been extended by Super Court Judgements and various other
Statutes, that are wide enough to cover the Privacy and Data Protection under it. The Laws govern-
ing the above are discussed below-

1. Constitution of India: The Constitution of India, which is known as the largest Constitution in
the World, guarantees its citizens certain fundamental Rights in PART III to the citizens of India.
The Article 21 i.e. Protection of Life and Personal Liberty which states that “No Person shall be de-
prived of his life or personal liberty except according to procedure established by law”13, on the
other hand the Preamble of India ensures to its citizens the Liberty of thought, expression, belief,
faith and worship to all it’s citizens, which covers the individual’s right of privacy under it’s ambit
to rule and govern and provide justice on violation of the same. 14 The Hon’ble Supreme Court of In-
dia in year 2017 relied on the word “Liberty” in Preamble and Article 21 to declare Right to Privacy

12 The Constitution of India, !950, Article 21.

13 Ibid.
14Prof. Anjum Ansari, International Perspective of Right to Privacy (March 16 2022), < https://law.dypvp.edu.in/
blogs/international-perspective-of-right-to-privacy#> accessed 27 September 2022
a fundamental right, which widely includes the notion of Data Protection, as threat or un-authorized
access to any person’s data, in the absence of his explicit consent, directly and grossly amounts to
infringement of Right to Privacy, for which a person can directly knock the doors of Hon’ble
Supreme Court of India, under Article 32 or High Court of the State, under Article 226.

2. Indian Penal Code, 1860- The Code mainly deals with the Criminal Law of India, enunciating
the penalties and punishments for the various crimes committed within the territory of India, some
of the provisions which relates to the Right to Privacy and Data Protection i.e. section 354-C, Sec-
tion-354D, Section 379 etc.

3. Information and Technology Act, 2000: This Act, in particular deals with Cyber Crimes,
Frauds and the offence webs of e-commerce, the provisions of the act are broadly relevant for pre-
venting and curbing the crimes under the cyber space, which is extensively linked with Data Protec-
tion and Privacy.

6. Conclusion and suggestions

Briefly, the author has analyzed the importance of privacy and Data Protection for the mankind and
human dignity for a peaceful living in the society in the this Research Paper. In ancient times, our
ancestors focused and gave us crucial lessons on importance of knowledge, which is regarded as the
key element for success and becoming something great in life, that in ancient times the one who had
more knowledge is regarded as the superior of the place, be it is a city, country or profession. In
present days the same thing is substituted with the ‘Data’, one of the most essential thing today that
a person possess with him, which are not his valuables, money or Jewellery. Same is not with the
case of Data. Therefore, a basic data protection law needs to be brought into force. For improvising
the progress of right to Privacy and data protection a need for data protection authority in India
needs to be setup. Therefore if any nation wants to prosper, the Right to Privacy, Data Protection
and adoption of good data governance should be one of their prime focus.