A COMPREHENSIVE ANALYSIS OF DATA PROTECTION AND RIGHT TO PRIVACY BY - PRATIBHA
A
COMPREHENSIVE ANALYSIS OF DATA PROTECTION AND RIGHT TO PRIVACY
AUTHORED BY -
PRATIBHA
Research
Scholar in Jayoti Vidyapeeth Women’s University, Jaipur, Rajasthan
Abstract
Today internet becomes a very basic necessity
for human being, they depend on internet for everything from buying to make payment
all actively is carried out among the internet. Every crucial information of
user is open on this platform which become advantage for the intruder to
interfere on their personal site and conceal their private information. The
right to privacy is closely related to data protection, which in this
technological and globalized world has become very difficult to achieve.
Furthermore, the violation of the right to privacy by the ruling majority
through discriminatory legislation has also been possible due to the lack of legal
protection of this right. At the same time, numerous allegations of violation
of the right to privacy have been raised in India by both the government and
private commercial entities. Those allegations were also brought before the
courts where the courts had issued landmark rulings that included guidelines
and sentences. Therefore, it is very important to analyze all these legal
developments related to the right to privacy and data protection to understand the
degree of security that the Indian legal framework offers to the citizens with
respect to the right to privacy.
However, it is found that the Indian
legal regime has adequately recognized the right to privacy and therefore
important measures have been taken to prevent data theft and misuse of
sensitive information, but still needed to improve.
Keywords: Privacy; Data Protection; Personal
Information; Sensitive Information; Confidentiality; and Public Interest
Introduction
This stakeholder report
is a contribution from the Internet and Society India (CIS India) and Privacy
International. CIS is a non-profit organization. organization that conducts
interdisciplinary research on the Internet and digital technologies from a
political and academic point of view. Through yours various initiatives, the
CIS investigates, intervenes and promotes discourses and practices on the
Internet and technology in various society of India, and in other places.
The right to privacy is a Fundamental Right
A fundamental human right, privacy
is protected by a number of international laws. It is essential for the defence
of human dignity and one of the instruments of human rights. and serves as the
cornerstone of any democracy. It also works well with other rights that are
strengthened, like the freedom of association, speech, and information. Activities
that limit the right to privacy, such as surveillance and Censorship can only
be justified when prescribed by law and necessary to achieve a legitimate
objective that is proportional to the objective pursued. As innovations in
information technology have previously allowed unimaginable ways to collect,
store and share personal data. the The right to privacy has evolved to
encompass the obligations of the State in this regard with the protection of
personal data. Various international instruments establish data protection
principles, and many national legislatures incorporated these principles into
national legislation. All people are entitled to privacy just by virtue of
their existence. It also extends to physical integrity, individual autonomy,
freedom of expression and freedom of movement or thought. This means that
privacy does not only refer to the body, but extends to integrity, personal
autonomy, data, expression, consent, objections, movements, thoughts and the
reputation. It is therefore a neutral relationship between an individual, a
group and an individual which is not subject to unwanted interference, invasion
or infringement of personal freedom. All modern societies recognize that
privacy is essential and recognize this not only for humanitarian reasons but
also from a legal point of view.
The right to privacy was
not mentioned in the respect of communications surveillance and data protection
in the National Report presented by India.
The right to privacy has not been raised as an issue of concern even by
the United Nations, Member States or external stakeholders.
Domestic laws related to privacy
The Indian Constitution
does not specifically guarantee the right to privacy, However, through various
rulings over the years, the Courts of The country interpreted that the other
constitutional rights give rise to a (limited) right to privacy – mainly
through article 21 – the right to life and freedom. In 2015 this interpretation
was challenged and recalled in a court larger than the Supreme Court (the
highest court in the country). The petition before the court, Justice K.S
Puttaswamy & Another vs. Union of India and Others, the case is currently
pending before the Federal Supreme Court.
The constitutional right to privacy in India is subject to a number of
of restrictions. These restrictions were eliminated by interpretation of
various provisions and rulings of the Supreme Court in India: The right to privacy may be limited through
the procedure established by law. Procedure
should be fair, equitable and reasonable (Maneka Gandhi v. Union of India);
Reasonable restrictions may be imposed on your right to privacy. Interests of
the sovereignty and integrity of India, the security of State, friendly
relations with foreign States, public order, decorum or morality, nor in
relation to contempt of court, defamation or incitement to a crime; (Article 19
(2) of the Constitution of India, 1950) . The right to privacy may be limited
if a serious problem arises. higher compensatory interest (Gobind v. State of
M.P.);
International obligations
India has ratified the
"ICCPR," or International Covenant on Civil and Political Rights. No
one "shall be subjected to arbitrary or illegal intrusions into your
privacy, your family, your home or correspondence, nor to illegal attacks on
his honour and reputation," according to Article 17 of the ICCPR. "Or
The Human Rights Committee noted that States parties to the ICCPR have the
positive obligation to “take legislative and other measures to give effect the
prohibition of such interference and attacks, as well as the protection of this
[right to privacy].”
Major case law
In Justice K.S. Puttaswamy
(Retd.) and Anr. vs Union of India and
Ors.. .
Right to privacy is a
fundamental human right which is protected under article 21 of Indian
constitution.
In
Govind v State of Madhya Pradesh, Mathew, J. accepted
the right to privacy as an enactment of Articles 19(a), (d) and 21, but the
right to privacy is not an absolute right. The concern of "people, not
places" is the right to privacy.
Smt. Maneka Gandhi v.
Union of India & An
In this case, there is seven bench of judge which talks about that the
word personal liberty include numerous right which also include right to
privacy.
Privacy law of 2021
The legal plan establishes: “every person must respect privacy - the
confidentiality of communications received from you - including personal
correspondence, telephone conversations, telegram messages, ordinary mail,
electronic mail and other mediums of communication; confidentiality of his
private or family life; protection of his honor and good name; protection
against the seizure, possession or exposure of legal communications between
individuals; privacy of surveillance; confidentiality of your banking and
financial transactions, medical and legal information and protection of data
relating to physical persons".
Telephone
interception Interception constitutes a serious violation of the
individual's right to intimacy. Is it
constitutionally consented in India? If so, do I have to enter qualifying
limits and qualifying guarantees? The question arises after the Supreme Court
seriously examines the State in the case of Union per civil liberties v. Union
of India. In this case, the dispute over the public interest is a natural
suggestion to protest against the part of the CBI that corresponds to the CBI. Therefore, telephone interception represents a serious violation of
privacy. The procedure must be “scientific, equal and regional”.
In India, the Constitution does
not explicitly recognize the right to privacy. However, after the case of
Kharak Singh vs. State of UP, the Supreme Court first recognized the implicit
right to privacy in the Constitution “article 21” Telephone interception
Interception constitutes a serious violation of the individual's right to
intimacy. Is it constitutionally consented in India? If so, do I have to enter
qualifying limits and qualifying guarantees? The question arises after the
Supreme Court seriously examines the State in the case of Union per civil
liberties v. Union of India. In this case, the dispute over the public interest
is a natural suggestion to protest against the part of the CBI that corresponds
to the CBI.
"Telephone conversations are an important aspect of private
life," the court has determined. The right to maintain a telephone conversation in the privacy of
your home or office, without interfering, could undoubtedly be a “right to
privacy”. Therefore, telephone interception represents a serious violation of
privacy. The procedure must be “scientific, equal and regional”. In India, the
Constitution does not explicitly recognize the right to privacy. However, after
the case of Kharak Singh vs. State of UP, the Supreme Court first recognized
the implicit right to privacy in the Constitution “article 21
Latest guidelines on “RIGHT TO PRIVACY”
Calcutta High Court
rules that an adopted child's right to conduct a "root search" is
subordinated to the biological parent's right to privacy.
The Calcutta High Court
recently ruled that the right to privacy of a biological parent, particularly a
single mother who gave up her child for adoption and subsequently became untraceable,
would override the child's right to conduct an investigation." to discover
its origins.” . Judge Sabyasachi Bhattacharya rejected a Swiss citizen's
request to trace his biological origins.
Calcutta High Court
Declines Swiss Citizen's Plea Against Adoption Agency Which Failed To Preserve
His Adoption Records From 1988 Srinjoy Das 6 Jan 2024 10:30 AM
The Calcutta High Court
has dismissed a Swiss citizen's petition, passed in 1988, against the
specialist adoption agency, through which he was placed for adoption. The
petitioner argued that after reaching the age of majority, he began a
"search for his roots" and wanted to trace his pre-adoption ties, but
given the lack of record keeping of his records by the defendant authorities…
Right to be forgotten: Kerala High Court seeks response from HC
Registry, Google and Indian Kanoon on their request to mask identity during
online trial
The Kerala High Court on Monday considered an appeal filed by the
petitioners who were listed as first and second accused in a criminal case
which was later settled amicably between the parties. The appellants claimed
that the FIR was quashed following a Court judgment in 2012. They claim that
the Court judgment bearing their names was also available on the High Court
website.
Seizure Of Journalists' Digital Devices A Serious Matter,
Better Guidelines Needed To Protect Media Professionals: Supreme Court To
Centre
On Tuesday, November 7,
the Supreme Court voiced concern about the arbitrary seizure of media workers'
digital devices and emphasised the need for stronger regulations to safeguard
their rights. A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was
hearing a public interest litigation (PIL) filed by the Foundation for Media
Professionals.
Requirement
For Disclosures In Criminal Trial Can't Step Over Right To Privacy: Supreme
Court Acquits Woman Accused Of Killing new born
In ruling on a criminal appeal, the
Supreme Court recently addressed an important legal question: whether an
accused woman is required to reveal aspects of her private life during a
criminal trial. The court was hearing an appeal by a woman accused of murdering
her own son and was found guilty of murder and sentenced to life in prison. In
the context of article 313.
Punjab and Haryana High Court
rejects plea to keep police officer's call logs, ruling that he cannot be
violated in order to gather evidence.
The
Punjab and Haryana High Court recently dismissed a petition seeking to preserve
call recordings of a police officer who arrested the appellant under the NDPS
Act, observing that the possibility of creating evidence in favor of the
accused cannot go to the point of violating privacy. of a police officer
Justice Rajbir Sehrawat added that, just to give credence to the petitioner's
hypothesis,.
Right to privacy and thermal imaging
The
Supreme Court of the Directorate of Revenue and Anr v. Mohammed Nisar Holia
(2007) established that “thermal imaging”, an advanced technology, can improve
the feeling of being locked away from home. It can detect if the prisoner has
stored drugs. The person's rights and privacy are violated by the internal
substance. The Court discourages any unnecessary violation of a person's right
to privacy and holds that no unlimited power can be granted to violate a
person's right to privacy. The court overturned the conviction and seizure that
violated the law's registration requirements. Although the legal power to
conduct separate searches and seizures cannot violate the right to privacy, in
such a case the court can at least ensure that this right is not unnecessarily
violated.
The Right to Privacy in
the age of Facebook
In
its case, the Facebook-owned company argues that requiring intermediaries to
identify the source of information on their platforms could put journalists and
activists in India at risk of retaliation, as well as violate fundamental
rights citizens to freedom of expression.
Government steps to
protect privacy
Information Technology Act, 2000:
Provides protection against certain data breaches involving computer systems.
It includes safeguards to prevent unwanted access to computers, information
systems and the data stored there.
CONCLUSION
The
right to intimacy is an essential component of the right to life and personal
freedom in Article 21. The right to intimacy also forms part of the contract,
arising from a specific relationship, more commercial, with a political
dimension. The right to privacy is not an absolute right; it is, therefore, a
regional restriction to prevent reactions or disorders, to protect health or
morals, or to protect my rights and other freedoms. In cases of conflict over
diritti derivati, the right that promotes public morality and public interest
prevails.
FUTURE RESEARCH:
Parliament and the Supreme Court should conduct a thorough review of the
Right to Liberty Act (RTBF) and devise a method to balance the competing rights
to privacy and freedom of expression. Data is a valuable resource in the
digital age that should not be left unregulated. In this scenario, the time has
come for India to have a robust data protection regime.
Reference