Right to Privacy in India - Evolution, Concerns and the Way Forward

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The Government of India has withdrawn the draft Personal Data Protection Bill, 2019 which was in the public domain for quite a few years and was considered a remarkable development in India’s endeavours to ensure citizens’ right to privacy. The development tends to redirect the focus toward the role and importance of the right to privacy in India and its various connotations in the rapidly evolving digital age.

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Right to Privacy – Definition

Privacy can be defined as the ability of an individual to be left alone and express themselves selectively without being observed and disturbed.
- In other words, privacy is an individual’s right to seclusion, or right to be free from public attention and interference.
- In recent contexts, it is often associated with information privacy which stands for “the right to have some control over how your personal information is collected and used”.
Right to Privacy thus stands for a legal framework that provides individuals with a legal right to protect their or their data’s privacy.

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Importance

The Right to Privacy is central to the protection of human dignity and forms the basis of any democratic society.
It also supports and reinforces other rights, such as freedom of expression, information and association.
The Right to Privacy also has implications for the freedom of opinion and expression since any undue interference with an individual’s privacy can both, directly and indirectly, limit the free development and exchange of ideas.

Indian Context

In India, the Right to Privacy comes under Article 21 (Right to Life and Personal Liberty – a Fundamental Right) of the Indian Constitution which says: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
- The Right to Life enshrined in Article 21, therefore, includes all those aspects of life which make a man’s life more meaningful, complete and worth living.
- To make human life something more than mere survival and mere existence or animal existence, the right to maintain one’s privacy is essential leading to the Right to Privacy becoming an intrinsic part of Article 21.
India is a signatory to the Universal Declaration of Human Rights (1948) which includes a provision on the protection of the privacy of individuals in Article 12.
- Article 12 speaks against arbitrary interference with any individual’s privacy, family, home or correspondence, or attacks upon his/her honour and reputation.
  - It also desires the Member States to protect such laws that deal with the right to privacy of individuals.
India has also ratified the International Covenant on Civil and Political Rights (‘ICCPR’).
- Article 17 of the ICCPR provides for the protection of the privacy of individuals.
- States party to ICCPR have a positive obligation to adopt legislative and other measures to prohibit interference and attacks on the privacy of individuals as well as to protect this right.

Evolution of the Right to Privacy in India

The jurisprudence of the Right to Privacy has evolved and developed through a series of judgments over several years, culminating with the Puttaswamy-I judgment in 2017 which reaffirmed that it is very much a fundamental right.
The issue was raised for the first time in the case of Kharak Singh v. the State of U.P. & Others, 1962 where the Supreme Court held Regulation 236 of the U.P. Police regulation unconstitutional on the grounds of violating Article 21 of the Constitution.
- The Court held that the Right to Privacy is a part of the Right to the Protection of Life and Personal Liberty (Article 21) equating privacy to personal liberty but did not consider it a fundamental or constitutional right.
In Govind v. State of Madhya Pradesh, and Another,1975, the Supreme Court accepted the Right to Privacy to be emanating from Articles 19(a), (d) and 21, but did not consider it an absolute right.
Further, in Smt. Maneka Gandhi v. Union of India & Anr(1978), and Naz Foundation Case (2009), the courts ruled against interference with the personal liberty and privacy of individuals and held the Right to Privacy valid settling the position that the Right to Life and Liberty under article 21 includes Right to Privacy.
However, Justice K.S. Puttaswamy v Union of India, 2017 remains to be a landmark judgement regarding this issue since it affirmed the constitutional right to privacy.
- It declared privacy as an integral component of Part III (Fundamental Rights) of the Constitution of India.
- Thus, the Supreme Court finally settled the principle declaring privacy as a fundamental right.

Executive and Legislative Actions

The executive and legislature in India tried to introduce specific laws defining privacy and providing protection against the breach of privacy of individuals in India time and again but all in vain.
- These include the 2009-private member bill, the Privacy Bill (2011), the Data (Privacy and Protection) Bill, 2017 and others.
Till then, in the absence of a specific law on privacy, this right was legally viewed under the Information Technology Act, 2000.
However, following Justice K.S. Puttaswamy v Union of India, 2017 judgement and issues regarding the regulation of informational privacy in the digital age, a committee headed by Justice BN Srikrishna was appointed to study the key issues and suggest recommendations.
- The Committee submitted its report in 2018 titled “A Free and Fair Digital Economy – Protecting Privacy, Empowering Indians”, along with a draft Data Protection Bill, to the Ministry of Electronics and Information Technology.
- The recommendations included:
  - Processing of personal data only for “clear, specific and lawful” purposes” and “only necessary data to be collected”.
  - Problematic exceptions that allow data processing only when ‘necessary’ for the function of central and state governments and prevention of offence and ‘contravention of the law’.
  - Right to be Forgotten.
  - Data localisation.
  - Explicit consent of users is necessary when the processing of “sensitive” personal data is carried out.
  - Setting up of a Data Protection Authority.
  - Amendments in RTI (Right to Information) and Aadhar Act.
In pursuance of the Srikrishna Committee’s recommendations, the Personal Data Protection Bill, 2019 was introduced.
- However, it was soon sent to a Joint Parliamentary Committee (JPC) for scrutiny.
- It also showed several variations as compared to the draft bill suggested by the Srikrishna Committee.
- Recently, the Government has withdrawn the Bill and proposed to introduce it with a few amendments to address various concerns raised and make it more people and digital-business-friendly.
In February, the Government of India released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
- The guidelines sought to place regulations on two different classes within the digital media ecosystem:
  - Regulation of social media and other intermediaries.
  - Regulation of OTT platforms and digital news media.

Privacy in Digital Age

To date, the Indian data privacy regime is largely focused on obtaining a data subject’s ‘prior consent, and ensuring data security measures are in place.
- Some of them include the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are some rules governing data privacy in India.
However, there is no independent data protection regulator, data subjects have limited rights, and there is almost no history of judicial enforcement of data privacy rights.
The very thought that India needs a new data privacy law is also a direct consequence of the Indian Supreme Court’s ruling in 2017, establishing a right to informational privacy.
However, India has a long way to go in ensuring data privacy in India.

Restrictions on the Right to Privacy in India

Reasonable restrictions
- The sovereignty and integrity of India.
- The security of the State.
- Friendly relations with foreign States.
- Public order, decency or morality.
- Contempt of court, defamation or incitement to an offence
Restrictions as per the judicial interpretations of various constitutional provisions and judgements.
- The Right to Privacy can be restricted by the procedure established by law on the condition of the procedure being just, fair and reasonable (Maneka Gandhi v. Union of India).
- The Right to Privacy can be restricted if there is an important countervailing interest which is superior and if there is a compelling State interest to be served (Gobind v. State of M.P.).
- Protection available under the Right to Privacy may not be available to a person who voluntarily thrusts her/himself into controversy (R. Rajagopal v. Union of India).
- Like most fundamental rights in the Indian Constitution, the Right to Privacy is a vertical right applicable only against the State, and not against private citizens. (Zoroastrian Cooperative Housing Society v District Registrar).

Concerns

Debate regarding permissible restrictions
- Many a time, the governments at different levels resort to arbitrary actions that may be violating the privacy of individuals.
- The grounds used are the reasonable restrictions that may have been deliberately interpreted by the ruling party to further its interest or put a check on the opposition.
- Thus, the permissible restrictions that are put in place are often debated so that the privacy of individuals does not get affected.
- However, the judiciary has tried to resolve them through the interpretation of various provisions and judgements.
Right to Privacy vs. the Right to Information
- There is a clash of two fundamental rights, an appellant’s right to privacy as a part of the right to life and another person’s right to information which would advance the public morality or public interest.
- The debate around the disclosure of information encroaching upon someone’s privacy has often impeded the law-making authorities from drafting a well-balanced law on privacy.
Communication surveillance. It includes issues such as:
- Broad and fragmented standards for surveillance.
- Broad access obligations imposed on service providers. These include the obligation to install hardware for the interception, disclosure of call record details, provision of a mirror image for monitoring etc.
- Lack of judicial authorisation for surveillance orders.
- Lack of comprehensive and independent oversight of state surveillance.
- Lack of comprehensive accountability of law enforcement and intelligence agencies.
- Lack of transparency of state surveillance.
- Blanket subscriber registration for use of postpaid, prepaid, and public wifi services.
- Broad data retention standards.
Data protection issues – These include:
- Lack of comprehensive privacy legislation.
- Lack of data protection standards for the public sector.
- The limited scope of data protection standards.
- Limited definition of personal sensitive data.
- Lack of comprehensive and technically appropriate consent mechanisms.

Way Forward

Right to Privacy is a sensitive issue in India. It thus needs to be dealt with immense care by the executive and legislative bodies keeping in mind the interests of all the stakeholders. Harmonising the legal framework which regulates communications surveillance in India, establishing an independent and effective oversight mechanism with a mandate to monitor all stages of interceptions of communications and establishing independent accountability mechanisms and clear standards for India’s security and intelligence agencies may help. Furthermore, review and reform of regulations, all licensing agreements, the proportionality of data retention requirements and adoption and enforcement of a comprehensive data protection legal framework meeting international standards would help India to achieve its constitutional goals.