Open Access Research Article
RIGHT TO PRIVACY BY – NAGASHREYAS.R
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Article Details
RIGHT TO
PRIVACY
AUTHOR – NAGASHREYAS.R
ALLIANCE
SCHOOL OF LAW, BANGALORE
ABSTRACT
The
right to privacy is recognized as a
basic human rights under Article 12 of the Universal Declaration of Human
Rights Act, 1948, which states that : “No one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor to attack
upon his honour and reputation. Right to privacy is a basic fundamental right
as well it comes under article 21 and article 19.
INTRODUCTION
Privacy can be defined as a
fundamental human right. It is the ability of an individual or group to seclude
themselves or information about themselves and thereby express themselves
selectively. It is the right to keep our personal matters and relationships
secret. It’s the state of being free from another party’s unwanted surveillance
or visitation. [1]The right of a person to be free from
intrusion into or publicity concerning matters of a personal nature.
[2]Information privacy, which involves
the establishment of rules governing the collection and handling of personal
data such as credit information, and medical and government records. It is also
known as ‘data protection’;Bodily privacy, which concerns the protection of
people’s physical selves against invasive procedures such as genetic tests,
drug testing and cavity searches;Privacy of communications, which covers the security
and privacy of mail, telephones, e-mail and other forms of communication; and Territorial
privacy, which concerns the setting of limits on intrusion into the domestic
and other environments such as the workplace or public space. This includes
searches, video surveillance and ID checks . [3]The right that determines the
nonintervention of secret surveillance and the protection of an individual’s
information. It is split into 4 categories
(1) Physical: An imposition whereby
another individual is restricted from experiencing an individual or a
situation.
(2) Decisional: The imposition of a
restriction that is exclusive to an entity.
(3) Informational: The prevention of
searching for unknown information and
(4) Dispositional: The prevention of
attempts made to get to know the state of mind of an individual.
From this we understand what is meant by data
privacy which is the ability of a person to determine for themselves as to what
extent their personal information about them is shared or communicated with.
Data privacy becomes an important thing because it is a part of fundamental
human right and we have the laws to guard the said right. For individuals to be
willing to engage online they should have to trust that their personal data is
handled with care. Organizations use this dadta protection policy to make their
customers believe that their personal datas can be protected with. Personal
datas become a means for criminals to harass the users, the users can get
unwanted marketing advertisement too
RIGHT TO
PRIVACY IN INDIA
Article 21 includes right to life as
one of the very important of all the fundamental rights . The right to privacy
includes the right to life as well.
In the case of Kharak Singh Vs State OF U.P
Justice SUBBARAO had held that right
of privacy was definitely one of the fundamanetal right even though it is not
expressly mentioned . He further mentioned that supervision of one ‘s private
life shows that the regulations were made to violate the right. Since
regulations were not law it did not have the power to prevent the individual
from enjoying his or her fundamental rights.
In the case of Maneka Gandhi Vs UOI
Any law can interfere with the
personal liberty if and only if it has a proper procedure to deal with, the
procedure should abide by the article 19 which is the fundamental right and
should also confer with article 14 which is the right to equality
DIGITAL
PERSONAL DATA PROTECTION BILL, 2022
[4]Personal data is information that
relates to an identified or identifiable individual. Businesses as well
as government entities process personal data for delivery of goods and
services. Processing of personal data allows understanding preferences of
individuals, which may be useful for customisation, targeted advertising, and
developing recommendations. Processing of personal data may also aid law
enforcement. Unchecked processing may have adverse implications for the
privacy of individuals, which has been recognised as a fundamental right.
It may subject individuals to harm such as financial loss, loss of
reputation, and profiling.
Currently, India does not have a
standalone law on data protection. The usage of personal data is
regulated under the Information Technology (IT) Act, 2000. It has been observed
that this framework is not adequate to ensure the protection of personal
data.1 In 2017, the central government constituted a Committee of Experts
on Data Protection chaired by Justice B. N. Srikrishna to examine issues
relating to data protection in the country. The Committee submitted its
report in July 2018. Based on the recommendations of the Committee, the
Personal Data Protection Bill, 2019 was introduced in Lok Sabha in December
2019. The Bill was referred to a Joint Parliamentary Committee which submitted
its report in December 2021.2 In August 2022, the Bill was withdrawn from
Parliament. In November 2022, the Ministry of Electronics and
Information Technology released the Draft Digital Personal Data Protection
Bill, 2022 for public feedback.
The bill was introduced after the
first personal data protection bill,2019 was withdrawn. There are various
principles are
1. The organizations should use the
personal datas properly in a lawful and legal manner
2. The personal data should not be used
for unwanted purposes
3. The data collection should be very
minimal
4. The data should be very accurate
5. The personal data should not be
collected by default and only during a fixed duration
6. Whoever processes such data should be
accountable for the data that he is processing.
This bill
will apply to processing of digital personal data where the data is collected
online , offline and digitized. It also applies outside India where goods are
offered and individuals are profilled . Consent should always be given where processing is necessary for
1. Law related functions
2. Benefits given by state
3. Medical emergency
4. Employment matters
5. Issues like national security , fraud
prevention and information security.
There are various rights and duties of a data principal
1. Obtain information about processing
2. Correction and erasure of personal
data
3. Nominate another person to exercise
rights for the event of death
4. They should not give false complaints
5. They should not impersonate any
person
The data
protection board of India
There are various key functions of the board
first one being monitoring compliance and
imposing the penalties
the second being if there is any data breach
then the data fiduciaries will take the necessary steps to hear the grievances
made by the affected people
the central
government will prescribe to the composition of the board selection process and
the terms and conditions of the appointment and service
Theer are various issues regarding data
protection bill the bill has the right to enable unchecked data processing by
the state such a such a right will violate the right to privacy Under article
12 of the constitution the state includes the central government, the state
government, the local bodies, authorities and the company set up by the government. The central
government can go ahead with exemptions if it is in the interest and the
security of the state and the maintenance of public order. For example under
national security the government agency can collect the data about a particular
citizen and do author profile for their surveillance it can also make use of
data which is retained by various government agencies but this raises the
question whether these exemptions will meet the proportionality test In the
case of P UCL versus union of India the Supreme Court had issued various
safeguards first being establishing necessity, purpose limitation and storage
limitation.
The Sri Krishna committee in the year
2018 had observed that there is a considerate imbalance between the power given
to the individual and the power given to the state for example if the state is
the only provider of a service then the principal data does not have the choice
to refuse the consent in this particular situation the idea of acquiring
consent is quite meaningless it.it is very unclear that such kind of exemption
is extended to all the services which is given by the state. The government
companies can withhold the personal data of the customers without their consent
for an unlimited. But the private sectors cannot do so and it has to obey the
requirements. so this violates the right to equality under article 14 of the
constitution because this bill gives different treatment towards public
entities and private entities who perform the same level of function
If the national crime Records Bureau
for unique identification authority of India has done a data breach then that
will not be reported under this bill similarly under national food Security Act
2013 the obligation to ensure the accuracy and completeness of the data will
also not come under this particular bill Derby this bill does not provide an
individual with any recourse well legal rights may be denied based on
processing of inaccurate data
The right to be forgotten includes
the right of individuals to limit the disclosure of personal data on the
internet. The Sai Krishna committee had observed that the right to be forgotten
is a core idea that attempts to install the limitations of memory into an
otherwise limitless digital sphere. Under this bill the right to be forgotten
is also not pprovided
THERE IS A
CONFLICT BETWEEN RIGHT TO PRIVACY AND RIGHT TO PRESS
The right to press comes under
article 19 1A of the constitution but sometimes what happens is that the right
to press and the right to privacy may be in conflict with each other. The right
to expression of a person might come in conflict with another persons right to
privacy what one person might want to express to the world that will infringe
the privacy of another person. If a person wants to say something out in the
world but it can mean that that particular thing will infringe the private life
of another person so how do we decide on which way do we put the weights on. To
understand this we have to look into the concept of public morality and
interest wwe have to look at this on the basis of moral grounds and the general
interest of the person and the public .The right to press should not invade the
private life of a person in such a manner that it will harm the society as well
as the person.
What is Public morality?
Public morality is like public health
and safety. It is a concern that goes beyond the considerations of law and
public policy Stop the private parties or non governmental organization have
the obligation to respect such public models. Such kind of norms will prevent
the private parties from doing certain things which will harm the public.
Doctor br ambedkar had invoked the phrase constitutional morality in the
constitutional assembly debates after this in the year 2014 the Supreme Court
had mentioned the principle of constitutional morality and since then this has
become the innate voice of the constitution. In the case of Manoj narula versus
union of India
It was held that constitutional
morality means to bow down to the norms of the constitution and I am not to act
in a manner which would become violative of the rule of law or reflective able
of action in an arbitrary manner. It along with commitment to the constitution
is a facet of constitutional morality.
In the post manika Gandhi era article
21 was also seen as a substantive right. Personal liberty has a wide
interpretation because of which article 19 and 21 are seen as 2 sides of the
coin. Article 21 has more superiority than article 19 because the laws which
the state in acts in contravention of such rights can be saved under the
reasonable restrictions under article 19.
AADHAR CARD
AND RIGHT TO PRIVACY
The linking of aadhaar card to the
bank accounts and the UPI application has raised many questions in terms of right
to privacy of a citizen. The Supreme Court has said that the aadhaar meta data
cannot be stored for more than 6 months. The supreme court read the section 2D
of aadhaar act to prevent the government authorities from storing aadhaar
metadata of transaction. To ensure this the court has said that the centre must
bring a robust data protection law immediately The section 57 of the aadhaar
act has said that the private corporations can also verify aadhaar data but
this was considered to be unconstitutional and hence struck down.In in
September 26th 2018 the Supreme Court had said that aadhaar is meant
to help the marginalised section of the society so that they can benefit from
this particular cause it takes into account the dignity of the people from a
community point of view but it had strongly mentioned that it disapproves the
mandatory linking to other sectors and spheres. The UIDAI has made it very
clear that organizations which have user license from UAE Dai can only demand
the use of aadhaar and can keep aadhaar of the customers . Entities such as
films or hotels are not allowed to keep aCopy of aadhaar cards The question
lies whether the aadhaar card is mandatory or it is voluntarily even educated
people cannot understand the logic behind it. For example the police in mumbai
crime branches have reported that there are many fake aadhaar cards being used.
Every country has its own constitutional validity regarding right to privacy.
In India we have justice KS puttaswamy versus union of India where it was held
very clearly that right of privacy is a fundamental right which emerges from
article 21 of the constitution. In the year 2017 a justice BN srikrishna
committee was formed to protect the personal data in a manner of fair and free
digital economy. The objective of the committee was to unlock the data economy
while keeping the data of the citizens secure and protected.
THE CURRENT
SITUATION
The MeitY has formulated a draft bill
titled” THE DIGITAL PERSONAL DATA PROTECTION BILL, 2022”. It has also invited
various comments from the public on November 18 to initiate a stakeholder
consultation exercise on draft bill. MeitY is analyising, processing and
collating the feedback receive with the view to take the bill forward and
intentds to introduce the bill in the parliament at the latest.
CONCLUSION
The data protection bill 2022 which
has been introduced is it a violation of the individuals right or is it a way
to protect the rights of the citizens. It is very difficult to understand
because in one way we can see that the state is tryingto infringe the rights of
the citizen by controlling their lives by having a means to their personal data
.How far is this collection of personal data correct in forming public morality
in the world the bill is still yet to become an act there is a delay in the
system of the government because the government is still unsure as to what it
has to do. There is a lot of controversy regarding this because in one way it
also views the rti act. Dimilarly in the RTI act we see that the government is
planning to amend it because it urges that the citizens should not have all the
access to the public information. Therefore the right of privacy needs to be
balanced with other freedom of expression freedom of media which is fundamental
to the democratic society.
REFERENCE
- https://www.meity.gov.in/writereaddata/files/The%20Digital%20Personal%20Data%20Potection%20Bill%2C%202022_0.pdf
- https://prsindia.org/billtrack/draft-the-digital-personal-data-protection-bill-2022
- https://www.drishtiias.com/daily-updates/daily-news-analysis/digital-personal-data-protection-bill-2022
- https://blog.ipleaders.in/different-aspects-of-right-to-privacy-under-article-21/
[1] https://www.merriam-webster.com/legal/right%20of%20privacy
[2] https://www.alrc.gov.au/publication/for-your-information-australian-privacy-law-and-practice-alrc-report-108/1-introduction-to-the-inquiry-5/the-meaning-of-privacy/
[3] https://thelawdictionary.org/privacy/
[4] https://prsindia.org/billtrack/draft-the-digital-personal-data-protection-bill-2022
Article Information
RIGHT TO PRIVACY BY – NAGASHREYAS.R
Authors: NAGASHREYAS.R
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/07
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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