Right to privacy; data protection law

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Abstract:

This paper discourse about the right to privacy; data protection laws which has been recently introduced in India. reasonable restriction as a part of privacy which is there either in providing the right or using them, therefore, the privacy is given to the people to protect them from unreasonable interference o the state in their right to life and personal liberty and the people too have the right with a certain restriction which are important for the proper regulation of the right to avoid misuse of it. For example, some section of the society very much support and are ease in accepting the homosexual, on the other hand, some sections do not like their sexual orientation, therefore, it would be their choice to be open or jot to tell anyone about their sexual orientations now if there is any infringement of the state against the right to privacy it will be subject to action. Though India has recently adhered to this right, therefore, it is in process of making it a strong law which is the demand of the hour as with the pace of developing technology and nation the privacy plays a vital role. The importance of Article 21 as privacy is an implicit part of personal liberties. The data protection law bill for which has been drafted but not yet been passed by the government as it is given to the joint elect committee. 

Introduction:

The right to privacy is robust with the international framework. The right to privacy has been declared by the supreme court of India as one of the fundamental rights under Part III of the Indian constitution In the KS Puttaswamy vs Union of India case. It gives us enforcement and protection to other fundamental rights as it helps in the enjoyment of liberty and freedom by avoiding constant surveillance of the state. Not just fundamental rights but civil liberties to get under surveillance which prohibits citizens from enjoying their rights. Before the Aadhar case, there have been many cases that stated the right to privacy as the fundamental right though the Supreme Court never gave judgement in its favour. It limits the power of the government from intervention and restricts the state, private individual from using someone’s data without knowledge or permission from that person. An international instrument that promotes the framework of privacy are:

  • universal declaration of human rights,
  • the international covenant on civil and political rights and
  • European convention on human rights. It is useful in keeping the data privacy which is to be protected from arbitrary and illegal interference.

These frameworks shall be kept in consideration to make laws that would help India in regulating the data of its citizens with other countries and would give a form of basic uniformity internationally in the regulation of the data. As of right orientation in procuring, processing and regulation of the data is need of the hour as there are many loopholes there in the policies due to which the data of the citizens are at risk and would prove to be harmful to the country as well.

Article 21:

It is amongst one of the most important fundamental rights which is provided to the citizens by the constitution of India. As it is of great importance it is amongst one of the Articles which cannot be taken away by the government even during the proclamation of emergency provisions in the country. The amplitude of Article 21 has been interpreted many times to make it effective and useful to the people. It states that no one either citizen or non-citizen of the country shall not be deprived of life and personal liberty except for the procedure that has been established by law. It gives enforcement and increases the importance of all the other right that is given to the citizens. Personal liberty being of great importance as many or all the rights that gives value to life and help in making it full of freedom and liberty. In no worst-case scenario, it can be taken away as it is against the basic structure of the Constitution which has been given by the Constitution makers to the people of India. Right to Privacy has been interpreted from the aforesaid article as it is one of the many rights that are the inclusion of personal liberty to add value to the Article. From time-to-time Supreme Court has come to make new rights by interpreting the Article. It is amongst the Articles which have foremost important value in the Constitution. Though its earlier interpretation was very narrow as life meant nothing more than mere animal existence. But gradually and slowly it has evolved to make life meaning for all and by facilitating it to make it worth living. It would ensure that only that information are made public to which one has given consent or to the extent which is important for any sort of work.

Concept of trinity:

The doctrine of Trinity was introduced in the Maneka Gandhi case the Supreme Court basically stated for the purpose of justifying that any right falls in the ambit of Fundamental Right it needs to justify all the three Articles of Part III of the Indian Constitution. It is also named as “golden triangle” it includes Article 14, 19 and 21 in it.

  • Article 14 states about the right to equality i.e., rule of law and equal protection of the law which is of great importance as it ensures to promote equality to the citizens by prohibiting all types of discrimination which are a hindrance in making a healthy environment.
  • Article 19: ensures all types of freedom to the citizens to promote liberty. As it states to give freedom of speech and expression which is an important factor in nurturing and making the concept of democracy toughly to it. The concept of democracy in its true way provide freedom to the citizens to work according to their desire with reasonable restriction to ensure that there is no misuse of the right.
  • Article 21: states to give meaning to life by ensuring healthy living and personal liberty. No one can be deprived of their life at the will of the others but there must be a proper procedure to be allowed for the same by ensuring this the constitution maker restricted the arbitrary use of the power of the government by providing this right to the citizens.
  • These three Articles together ensures that the power of the government is restricted and there is no arbitrary use of their power. By the help of these Articles, any right justifies it plays an important role in ensuring that basic right that is needful to the people are provided to them. The concept of Right to Privacy passed this test and justified to come in the ambit of Fundamental Rights henceforth it is to be treated like other fundamental rights and thereupon in today’s era, it is of due diligence as due to technical development all-around privacy of an individual is being interrupted or basically is being compromised. At least with the introduction of this right, it would help citizens to ensure their personal pieces of information which play a vital role in dealing with one’s personal life financially, psychologically, socially etc. 

Right to privacy:

A nine-judge bench in the Aadhaar case finally gave legitimacy to the right to privacy which has been debated for a long by filling a writ petition against the Aadhaar project that was being worked upon by the government after five years of a long battle. finally, the Supreme Court gave unanimous judgement in the favour of the public (right to privacy) declaring it as one of the fundamental rights though it is not explicitly mentioned it can be interpreted through article 14, 19 and 21 of the Indian constitution. It is an integral part of the right to life and personal liberty which is a natural and inalienable right. As it is an integral part of “personal liberty” therefore its amplitude is very wide. There have been several cases starting from M.P Sharma vs Satish Chandra the case was filed to challenge the constitutionality of search and seizure of the document of the person against whom the FIR has been lodged the bench of eight-judge held that the right to privacy is not a part of the fundamental right, therefore, these may be considered as temporary interference. Kharak Singh vs State of Uttar Pradesh in the case domiciliary visit that is surveillance and regulation of Uttar Pradesh police act was put into question on the thing that right to privacy was one of the fundamental rights. The six-bench judge held that it was not part of the fundamental right. Gobind vs State of Madhya Pradesh after 11 years of the trial of the case the apex court the bench of three-judge gave some recognition to the privacy as one of the fundamental rights, the same was same as the Kharak Singh case as it challenged the validity of the domiciliary visit and of an act. Maneka Gandhi vs Union of India in this case the court linked and gave the concept of “golden triage” which are Article 14,19 and 21 it was held that any right which passed all the three Article significantly will be considered as one of the fundamental rights. The case was related to the ceasing of passport where the concept of “personal liberty” amplitude was widened by recognising it to be more than mere animal existence as in earlier cases the court held the right to life and personal liberty as mere animal existence and no other rights were included in it which would facilitate to live a healthy life. People’s Union Of Civil Liberties vs Union Of India the case was relating to the tapping of the phone called the court held that conversation of the phones are confidential in nature and therefore, tapping it would be a violation of someone’s privacy which is against the fundamental right which is inclusive of Article 21 personal liberty. Considerably through all this judgement, the concept of privacy has got recognition and finally, in the Aadhaar case its finally was held as one of the fundamental rights under the concept of personal liberty. The concept has evolved to include all the rights that would make life comfortable and easy to live as personal liberty add value to the golden trinity that has been introduced through the Menaka Gandhi case. With the change in time, the right to privacy has come to be recognised as one of the fundamental rights as it protects the ambit of freedom and liberty.  

K.S. Puttaswamy vs union of India:

  • The retired judge of high court K.S. Puttaswamy filed the writ petition challenging the constitutionality of the Aadhar card programme which was started by the government to mandate specific identity to everyone with would make mandatory in the government services.
  • The petitioner was of the contention that the right is privacy is an implicit fundamental right as made clear by apex courts in many of its judgement though it has not been specifically mentioned. Therefore, he petitioned to clearly mention it as one of the fundamental rights clearly.
  • The respondents were of the contention that the Right to Privacy has been nowhere clearly mentioned in any of the judgement passed by the Supreme Court therefore it will be akin to judicial overreach to consider it as one of the fundamental rights and stated that as it is being said to be implicit of Article 21, there is no judgement where it has been implemented.
  • Held: it is a landmark judgement that held the right to privacy to be an integral part of Part III of the constitution specifically Article 21 which is guaranteed by the constitution of India. as it would put conflict of opinion between the state making laws for the welfare of the citizens and in the exercise of individual’s fundamental right of Privacy, therefore, it not an absolute right but it comes with a certainly reasonable restriction which would try to create a balance between the two
  • The incursion of privacy either by state or non-state actors must pass a triple test to prove that it’s for the welfare of the citizens and does not prohibits the citizens in the exercise of the right which is: legitimate aim, proportionality, legality these are the three test which after passing which the action of state or non-state actors will be justified.  

Significance of Right to Privacy:

  • Trespass of personal data done by private, and government should be protected while exchanging the data without the consent of the data principal as it is arbitrary and can be illegally used by the people.
  • Medical data are of great gravity where the consent of the people whose data is being transferred needs to be informed as to its of imperative potential.
  • Financial records too are very important as with the increase in the number of financial fraud that is happening around the records shall not be made easily available to others and must be considered under the subject of data privacy.
  • The surveillance that is done by the employees on the employers shall also be limited as unwanted or excessive interference is a hindrance in the path of privacy. 

Data protection law:

  • To protect the interest of the people of the country robust data protection law is necessary. Currently, the ways of collecting data and using them are governed by the Information Technology Act 2000, which however falls short in providing proper protection to the personal data of the users.
There are current loopholes or issues there in the IT act which provides be not fully efficient to deal with the level of protection that is required at this moment of time. They are as follows:
  • Consent: it is one of the biggest issues as the data aggregators entities who provide a big list of terms and conditions are very lengthy and technical to understand for the general public henceforth, the data aggregators take the permission to use their data and the user stays aware of the fact.
  • Data privacy: IT Act was framed to promote data security and not for data privacy therefore it lacks and does not have very strong or rigid law in the case of data privacy. Herein If the entities provide measures that are to protect data, they lack in respecting the preference of the users which is essential in data privacy.
  • Large vacuum: this basically means that the IT act protects the data from the private individual and not from the government agencies I.e., state which means that there is no security or privacy of the data when the government is collecting it in junks.
  • Becoming superannuated: this means that IT Act was passed back in 2000 and amended in 2008 which is a long gap. This means that the vacuum between the present and past is drastic, and the aforesaid law is not updated in its own area which is data protection than how can it deal with data privacy which is very new in this regime.

Data protection bill 2019: (was introduced in Lok Sabha and is now under the joint elect committee for going through it thoroughly.)

  • It is a retrospective act which means it will be applicable from the date of its enforcement and not to the past judgements that have been delivered already.
  • It seeks to protect data privacy not only from the private entities but also from the government in all the sectors which lacks in the IT Act 2000.
  • Definition: Data principal: the one whose data is being collected and processed, Data fiduciary: the one who collects and process the data, Data processor: the one to whom the data fiduciary may give the data to process that is third-party.
  • Obligations: the data fiduciary who is collecting the data shall process the personal data only for specific, clear and lawful purposes. In addition to this, the entities must also keep transparency and accountability for the same through security safeguards, grievance redressal mechanisms etc.
  • Data Protection Authority: the companies must have a data protection officer wherein there must be a data protection authority to audit, inquire, record, maintenance and more.
  • The entities must verify the gap of the user and if it seems to be minor than parental consent would be required for processing the personal information.
  • The consent of the individual is precedent in the process of using the personal data though there are exceptions to it that is in certain case the data can be processed without consent they are when: medical emergency, legal proceedings and for the benefit of the people.
  • Certain rights are provided to the individual in the way to process their own data that is: if there is any mistake, inaccuracy or out-of-date personal data they make seek for correction, may ask the fiduciary to transfer their data from him to someone else, restrict from disclosing certain or all type of personal data when one feels needless.
  • The right to restrict the use of personal data is there with the individual and to receive the data from the fiduciary in a way that it is readable by the machine.
  • Adjudicating authority: on the complaint of the principal whose data is being misused the officers from the DPA may call the people against whom the principal has given a complaint about inquiry and determine penalties and compensation accordingly. Though the decision of the adjudicating authority can go for the appeal in the appellate tribunal and from the tribunal to the Supreme Court.
  • The central government may provide exemptions to any agencies if required and is in interest, security, sovereignty and integrity of India or friendly relation with the foreign state.
  • The act describes certain offences with penalties which are if the fiduciary who has the personal data of the individual processes or transfers it in a way which is in violation of the act shall be punishable with the fine of rupees 15 crores or 4% of his annual turnover whichever is higher and if in case of failure of conduction of the data audit the entities shall be punishable with five crore rupees or 2% of annual turnover whichever is higher. The law is very rigid in providing data privacy which is essential for the individual in this regime.
  • Section 6 of the act states that the processing of personal data should only be done to the extent that is necessary and not more than that. Section 7 mandates giving off the notice whenever the data of an individual is being collected, the nature of the information, and the purpose for which the data is being collected for the purpose of analysis and processing.

Concerns:

  • Appointment of the members of the DPA is not going to be an independent body but by the people belonging to the bureaucrats or appointed by the government for this purpose.
  • The power of the exemption from the act of data protection which is given to the central government is unlimited where they will be able to process the data without taking any safeguard into consideration which would create a severe security issue. As they have open-ended power in the same without any check on it.
  • The issue of intellectual property right would raise an issue and threaten the identity of individuals by allowing the companies to transfer non-personal data.
  • A watchdog is there in the act which has no functionary autonomy for the purpose of dealing with the issues arising out of the personal-data problem.

Conclusion:

Right to privacy is amongst the most needful Article in today’s technical era as it provides the citizen by safeguarding their data from unwanted interference. As in the digital era, data is the most asset for anyone around therefore it needs proper regulation and protection. The privacy Article has been in debate for ages now it has finally resolved and got legal validity from the Supreme Court though proper legislature for the same still lacks but as the bill has been drafted someday soon it would receive the validity to become a proper statutory law which would help in regulating the data privacy which the country lacks at the point. Privacy with data protection law is of utmost importance as it would ultimately increase the value of other rights that are provided as it would protect them to keep the privacy of the detail that one does not want to do public. The government would play a very crucial role in the same by prohibiting the wrongdoer and penalising them. As the right to privacy is one of the fundamental rights it should be protected and promoted likewise all the other fundamental rights though privacy is not an absolute right but has certainly reasonable restriction so that it is not misused and to keep a balance. Though the proper framework is still missing the landmark judgements application paved its way in two very important judgement which has been passed after the Aadhar case which is Navtej singh Johar vs Union Of India the case was related to decriminalisation of homosexuality which is mentioned under Section 377 of IPC which was a long battle for getting recognition to the LGBTQ++ community and later, Joseph Shine vs Union Of India which was related to ending the provision of the adultery mentioned under Section 497 of IPC. 

Author: Shikha Singh, Amity University, Noida

Editor: Kanishka VaishSenior Editor, LexLife India.

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