RIGHT TO PRIVACY VIS-À-VIS NATIONAL SECURITY - HARMONISING

THE CONFLICTING INTERESTS

Dissertation submitted to National Law University, Assam

In partial fulfillment for the award of the degree of

MASTER OF LAWS

Supervised By- Submitted by-

Dr. Lohit D. Naikar Ms Smriti Katiyar

Visiting Professor of Law SF0219028

2019-2020, Semester II

National Law University, Assam

August 2020

i
 SUPERVISOR CERTIFICATE

It is to certify that Ms. Smriti Katiyar is pursuing a Master of Laws (LL.M.) from National
Law University, Assam, and has completed her dissertation titled ―Right to Privacy Vis-À-Vis
National Security - Harmonising the Conflicting Interests‖ under my supervision. The research
work is found to be original and suitable for submission.

Dr. Lohit D. Naikar

Date: 22.08.2020 Visiting Professor of Law

ii
 DECLARATION

It is to certify that Ms. Smriti Katiyar is pursuing Master of Laws (LL.M.) from National Law
University, Assam, and has completed her dissertation titled ―Right To Privacy Vis-À-Vis
National Security -Harmonizing the Conflicting Interests under my supervision.‖ The research
work is found to be original and suitable for submission.

Date: 22.08.2020 Ms Smriti Katiyar

SF0219028

ii
 Table of Contents

CERTIFICATE……………………………………………………………..………...i

DECLARATION…………………………………………………………….……....ii

PREFACE……………………………………………………………...………......viii

ACKNOWLEDGMENT………………………………………………………..…..xii

TABLE OF CASES ………………………………………………..………...……xiii

TABLE OF STATUTES……….…..…...………………………………….........…xvi

TABLE OF ABBREVIATIONS …………………..………...…………...............xvii

CHAPTER 1…………………………………………………………………….…...1

INTRODUCTION……………………………………………………………….…..1

CHAPTER 2…………………………………………………………………….…...8

RESEARCH METHODOLOGY…...……………………………………….…….…8

2.1. Research Background……………………………………………….….……8

2.3. Aim………………………………………………………………………....10

2.4. Objectives……………………………………………………………….….12

2.5. Scope………………………………………………………………….……13

2.6. Literature Review……………………………………………………….….13

2.7. Research Question………………………………………………………....20

2.8. Research Method Applied to Test Hypothesis……………………….........21

2.9. Research Design……………………………………………………….......23

2.9.1. Approach……………………………………………………………….23

2.9.2. Tools of Data Collection…………………………………………….…23

CHAPTER 3………………………………………………………………………...24

3.1. Philosophy of Privacy……………………………………………….……..24

3.2. Concept of Privacy……………………………………………………........28

iii
 3.3. Need of Privacy……………………………………………………..……...31

3.4. Privacy as a Trade-Off…………………………………………………..…34

3.5. State Power……………………………………………………………..…..40

3.5.1. Genesis…………………………………………………………..……..40

3.6. Constitution and Definition of Constitution………………………..………41

3.7. Importance of ROL in Maintaining Constitutionalism………………….…42

3.8. Limited Government: Origin and Scope…………………....................... 43

CHAPTER 4…………………………………………………………………..…….46

LEGAL FRAMEWORK………………………………………………………..…..46

4.1. Right to Privacy……………………………………………………..………46

4.2. International Perspective of Primary Rights…………………………....…..48

4.2.1. Viewpoints on Privacy…………………………………………..……..50

4.2.2. The USA and the Right to Privacy……………………………..……...51

4.3. Privacy Laws in Other Countries………………………………….………..57

4.3.1. European Union…………………………………………….………….57

i. Expansion of Primary Laws……………………………………….....57

4.3.2. Australia………………………………………………………..………58

4.3.3. Sweden…………………………………………………………..……..58

4.3.4. Germany…………………………………………………………..……59

4.3.5. South Africa………………………………………………………..…...59

4.3.6. Canada…………………………………………………………..………60

4.3.7. Japan…………………………………………………………………….60

4.4. Right to Privacy in India……………………………………………………62

4.4.1. Historical Development in India…………………………………...…62

i. Right to Privacy in India before Independence………………….…...63

ii. Constitution of India Bill, 1895………………………………….…..63

iv
 iii. The Common Wealth of India Bill, 1925…………………….....…..64
iv. The Nehru (Swaraj) Report, 1928……………………………………64
v. Constituent Assembly (CA) Debates on the Right to Privacy………64

4.5. Data Protection Laws in India………………………………………………66

4.5.1. Information Technology Act, 2000……………………………….……67

4.5.2. Information Technology Rules, 2011……………………………...…..69

4.5.3. Intellectual Property Rights…………………………………….………71

4.5.4. Indian Penal Code………………………………………………………71

4.6. Industry Initiative…………………………………………………………71

4.7. Role of Courts: Case Analysis……………………………………………...74

4.8. Analysis of 2017 Judgement of Justice K.S.Puttaswamy and ANR.V

Union of India and DRS Number……………………………………..… .82

CHAPTER 5……………………………………………………………..………….88

NATIONAL SECURITY LEGISLATIONS AND THEIR EFFECT ON

PRIVACY………………………………………………………………..…………88

5.1. The Unlawful Activities (Prevention) Act, 1967………………………...…88

5.1.1. A Brief History of UAPA……………………………………………...88

5.1.2. Reasons for Legislating the Act………………………………………..89

5.1.3. Why was the UAPA unique…………………………………………....90

5.2. Similar Legislation as the UAPA………………………………………...…92

5.3. Further Amendments to the UAPA,

making it as Draconian as it Stands………………………………...………95

5.3.1. The Final Immoral Amendment in 2019……………………………..96

5.4. Privacy Concerns over the said Acts…………………………………..…...99

5.5. Peroration……………………………………………………………….…103

5.6. UAPA as a law being misused………………………………………..…...104

CHAPTER 6…………………………………………………………………...…..107

v
INTERPRETATION AND ANALYSIS……………………………………….…107

6.1. Major Issues and Concerns: Impact of 2017 Judgement……………….…107

6.1.1 Data Protection and Aadhar-The Biometric Authentication System….108

6.1.2. The Linkage Problem……………………………………………….....111

6.1.3. Data Security and Infringement…………………………………….…113

6.1.4. Comparison to Social Security Number………………………………114

6.2. Negative And Positive Aspect…………………………………………….115

6.3. Need of Primary Laws in India…………………………………………...117

6.3.1. Necessity of Legislation of Right to Data Privacy……………………118

6.3.2. Necessity of Legislation of Right to Data Privacy (2017)……………120

6.3.3. Precedents and History………………………………………………..120

6.3.4. Objectives of the Proposed Bill……………………………………….121

i. Establishing the Right to Privacy…………………………………...121

ii. Standard Operating Procedure For
Data Collection Transfer And Storage……………………………...122
iii. National Security Implications………………………………..…….123

iv Safeguards & Constitutional Authority……………………………..123

6.4. Philosophy and Instances of Mass Surveillance…………………………..124

6.5. Indian Privacy Code, 2018………………………………………………...129

6.6. Brief Analysis on How National Security Agencies Pierce the

Right to Privacy of the Citizens under the Excuse of National Security….133

6.7. Mobile Application Ban (2020)…………………………………………...139

6.7.1. Violation of Fundamental Rights……………………………………...139

6.7.2. Whether the Application Ban is Justifiable……………………………141

6.7.3. Invoking the National Security Exception under WTO Framework.....143

vi
 6.8. Peroration………………………………………………………………….143

CONCLUSION…...……………………………………………………………….144

BIBLIOGRAPHY………...………………………………………………………...xx

vii
 PREFACE

If one were to visit the Cellular Jail in Andaman & Nicobar Islands, they
would unwittingly admire the peculiar manner in which the building has been
designed, wherein the six blocks, housing one hundred and sixteen prison cells
each have been built to resemble the spokes of a wheel emanating from a high
watchtower in the center, which was used to station the prison security.
However, very few would realize that the building was designed in this unique
manner not to serve any aesthetic purpose, but to deliberately enable the prison
guards to constantly observe the behaviour of the prison inmates in their
solitary cells, without even being seen by them. Over time, it would allow
those in power, such as the State acting through its prison guards in the present
example, to use the knowledge gathered by observing its subjects, such as the
political prisoners in the jail, to discriminate, blackmail, stifle and oppress
them if they were to ever pose a threat to their power whilst at the same time
maintaining a stronghold over their power by deciding what is and what is not
socially acceptable behaviour. This form of constant monitoring by an
authority in power would ultimately have a chilling effect wherein the subjects
of power would be coerced to unquestioningly abide by any law imposed by
the authority.

Unfortunately, this method of surveillance is still employed in present times by

the modern state and private associations to gather information about the
location, activities, associations, preferences, and behaviour of individuals,
whether incarcerated or innocent, through various technologies such as
CCTVs, whole-body imaging scanners, RFID enabled documents, biometrics
as well as through gag orders and laws that allow roving wiretaps or that make
it mandatory to provide personal information at the time of enrolment or
employment or that allow intercepting personal communication or disclosure
of sensitive personal information in the name of safeguarding national security
and public interest, thereby enabling such entities to constantly intrude into the
personal lives of individuals and gather such information as may be useful to

viii
serve their vested interest. In such a scenario, should we individuals surrender
ourselves at the altar of this invisible power that aims to control us so that it
can further its own end goals? Should we sacrifice our freedoms to attain
greater security and social good? Or do we have a right to be left alone?
Essentially, do we have a right to privacy, whether absolute or qualified?

However, before we can claim that every individual has a right to privacy, it
becomes necessary to establish what we mean by the term privacy.
Unfortunately, the concept of privacy is in disarray because there is no clear
consensus on what constitutes privacy – whether and to what extent it
encompasses space, location, communication, data, behaviour, association,
action, thoughts, and feelings of an individual. The lack of clarity in defining
privacy makes the task of defining the acts that constitute a violation of the
right to privacy all the more difficult. Thus, it becomes easy to infringe the
right to privacy of individuals simply because the grounds on the opposite side
such as security, public interest, executive, and judicial necessity have been
articulated better as concepts qua the concept of privacy. Consequently, issues
of privacy violations are often deflated not only by Courts and policymakers
but also by individuals themselves who routinely give out personal
information without thinking of its larger repercussions. Therefore, it is
necessary to establish the various facets of privacy as an independent concept
and thereafter safeguard the right to privacy of every individual, because not
only is privacy an essential bulwark of a democratic society but also important
for the autonomy, freedom, creativity and psychological well-being of an
individual.

In the backdrop of this growing discussion about privacy in the last few
decades, several multinational laws, guidelines, and directives have been
formulated to protect the right to privacy. For instance, The United Nations
Universal Declaration of Human Rights, 1948 stipulates that ―No one shall be
subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honor and reputation.‖ The
International Covenant on Civil and Political Rights states that ―No one shall
be subjected to arbitrary or unlawful interference with his privacy, family, or
correspondence, or to unlawful attacks on his honor and reputation Similarly,

ix
The European Convention of Human Rights, 1950 provides that ―everyone has
the right to respect for his private and family life, his home and his
correspondence.‖ In pursuance of these international obligations, several
nations across the globe have made an effort to protect the right to privacy. For
instance, even though the constitution of the USA nowhere explicitly mentions
the term privacy, the Courts have interpreted its provisions to include the right
to privacy implicitly, thereby safeguarding the decisions that people make
about their sexual conduct, birth control, and health from any arbitrary and
unwarranted interferences by the State. The UK, on the other hand, has
enacted the Data Protection Act, 1998 which governs how the personal
information of individuals may be used and prevented from breaches by the
State and third parties.

Moreover, the Supreme Court of India, in a recent landmark judgment, has

explicitly granted the right to privacy as an independent right to all individuals.
However, while on one hand, the apex Court has granted all individuals a right
to privacy, the legislature, on the other hand, has been tardy in amending the
existing policies and laws which infringe the right such as the AADHAR Act,
policy on collection and storage of biometric data, policy on maintaining the
privacy of medical records and Section 377 which criminalizes homosexual
acts as well as in enacting additional laws to strengthen protection to the right
in areas where there is a lacuna such as comprehensive laws to protect data,
regulating data trading and safeguarding financial privacy. Therefore, while
the Courts in the UK have not only formulated but also implemented that
―every Englishman‘s home is his castle‖ where the individual has the ―right to
be let alone‖, it will be interesting to view how the right to privacy, which has
been recently guaranteed to the individuals in India, is interpreted, developed
and upheld soon.

In the debate of privacy versus national security, one must not forget that if
privacy is dear to the individual, so is the security of the state, the individual
lives in. How far is one willing to go and waive off his right to privacy in order
to help the state for collection of data and using the information for security
measures? Upto what extent should there be Intervention by state and should
they be given unchechecked, unsolicited and unfettered power to obtain the

x
data through survelliance? Various bills have been passed and measures have
been taken to harmonize the conflicting interests of both.

xi
 ACKNOWLEDGEMENT

First, I would like to express my sincere gratitude to Prof. Lohit. D. Naikar,

Visiting Professor of Law, National Law University, Assam for his consent,
support, and encouragement as well as his invaluable suggestions and inputs
throughout this research. His guidance and direction have been significant in
the completion of this seminar paper for which I am thankful to him

Secondly, I would like to especially thank Prof. (Dr.) J.S. Patil, the Vice-
Chancellor of National Law University, Assam for sharing with us his vast
knowledge in the field of legal research through his vigorous lecture. His
teachings on research methodology have greatly helped me in approach to his
research.

Thirdly, I would like to thank my fellow batchmates and beloved junior who
have helped me in different stages in the preparation of this study

Finally, I am grateful to my parents and friends for their unending support and
for providing all the necessities in preparing this paper.

Thanking You

Yours Sincerely

Smriti Katiyar LL.M. 2nd Semester

xii
 TABLE OF CASES

1. A. K. Gopalan vs. State of Madras

2. Arup Bhuyan v. State of Assam

3. Board of Trustees of the Port of Bombay v. Dilip Kumar

Raghavendranath Nadkarni

4. Bowers vs. Hardwick

5. Carey vs. Population Services International

6. Cleveland Board of Education vs. LaFleur

7. Cruzan vs. Director, Missouri Department of Health

8. District registrar and collector, Hyderabad and another v. Canara Bank

and another

9. Douglas v Hello Ltd

10. Eisenstadt vs. Baird

11. Eisenstadt vs. Baird and Roe vs. Wade

12. Gobind vs. State of Madhya Pradesh

13. Govind vs. State of Madhya Pradesh

14. Griswold vs. Connecticut

15. Hukam Chand Shyam Lal vs. Union of India and Ors.

16. Justice K.S. Puttaswamy and Anr. Vs. Union of India and Ors

17. Kaleidoscope (India)(P) Ltd. vs. Phoolan Devi

18. Kartar Singh v. State of Punjab

xiii
19. Kesavananda bharati v. statate of kerela

20. Kharak Singh vs. State of Uttar Pradesh

21. Lawrence vs. Texas

22. M. Malkani vs. State of Maharashtra

23. M.P. Sharma vs. Satish Chandra

24. Maneka Gandhi vs. Union of India

25. Moore vs. City of East Cleveland

26. Mr 'X' vs. Hospital 'Y'

27. People‟s Union for Civil Liberties (PUCL) v Union of India

28. Petronet LNG LTD v, Indian Petro Group and Another

29. Pierce vs. Society of Sisters

30. Poe vs. Ullman

31. R. C. Cooper vs. Union of India

32. R. Rajagopal vs. State of Tamil Nadu

33. R.Rajagopal v. Union of India

34. Radhakrishan vs. State of U.P

35. Roe vs. Wade

36. Selvi and others v. State of Karnataka and others

37. ShayaraBano&Ors. v. Union of India &Ors

38. Sri Indra Das v. State of Assam

39. State of Maharashtra vs. Natwarlal Damodardas Soni

40. State of UP vs. Kaushaliya

41. Troxel vs. Granville

xiv
42. Union of India v. Students Islamic Movement of India

43. Unique Identification Authority of India& anr v. Central Bureau of

Investigation

44. Veena Seth v. State of Bihar

xv
 TABLE OF STATUTES

1860 - Indian Penal Code

1885 - Indian Telegraph Act

1949 - Constitution of India

1980 - National Security Act

1987 - Terrorist and Disruptive Activities (Prevention) Act

2000 - Information Technology Act

2002 - The Prevention of Terrorism Act

2005 – Right To Information Act

2016 - The Aadhaar (Targeted Delivery of Financial and Other Subsidies,

Benefits and Services) Act

2019 - Unlawful Activities (Prevention) Amendment Act

xvi
 ABBREVIATION

AI Amnesty International
AIR All India Reporter
ALRC Australian Law Reform Commission
AP Andhra Pradesh
APDR Association for the Protection of Democratic
Rights
APPI Act on the Protection of Personal Information

Art. Article
Bom. Bombay
Cal Calcutta
CBI Central Bureau of Investigation
CJI Chief Justice of India
CLAHRO Civil Liberties and Human Rights Organization

CRC. Convention on Rights of Child

Cri LJ Criminal Law Journal
CrLR Criminal Law Review
CrPC Code of Criminal Procedure
Dy SP Deputy Superintendent of Police
ECHR European Commission on Human Rights
Etc. Et cetera
EU European Union
F.I.R First Information Report
FR Fundamental Rights
Govt. Government
HC High Court
HRW Human Rights Watch
IB Intelligence Bureau
ICCPR International Covenant on Civil and Political

xvii
 Rights

INGO International Non - Governmental Organization

IPC Indian Penal Code

IT Information Technology
Ker Kerala
Ltd. Limited
NCRB National Crime Records Bureau
NGO Non - Governmental Organization
NHRC National Human Rights Commission
Ori Orissa
P&H Punjab and Haryana
PAN Permanent Account Number
PIL Public interest litigation
POTA Prevention of Terrorism Act
PUCL Peoples Union for Civil Liberties
PUCLDR Peoples Union for Civil Liberties and
Democratic Rights
PUDR Peoples Union for Democratic Rights
Punj Punjab
Raj Rajasthan
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Sec. Section
SSN Social Security Number
TADA Terrorist and Disruptive Activities (Prevention)
Act
U.K. United Kingdom
UAPA Unlawful Activities Prevention Act
UDHR Universal Declaration of Human Rights
UIDAI Unique Identification Authority of India

xviii
UN United Nations
UP Uttar Pradesh
US United States
WB West Bengal
WP Writ Petition

xix
 CHAPTER 1
INTRODUCTION

“Sometimes, the scandal is not what law was broken, but what the law
allows.”
-Edward Snowden

The safety and security of a country have always been of paramount

importance to every state presently in existence. Security isn‘t something
which has become something of grave consideration as of this day; it has
always been a thing of remarkable importance since the very inception of
human civilisation. All the mythical stories we have heard, all the legends that
we have read, all the stories have been shared with us, all the kings and
empires that history can trace back to, there is only one thing which connects
every one of them, soldiers and wars. Be it, Jesus Christ, be it the Roman
Empire, be it the Spanish Inquisition, and be it Zeus and his war with the
Titans, soldiers, and wars were a part of all of them. This shows that humanity
itself is naturally inclined towards having a sense of security no matter
whether it is in their person, their house, their city, or their whole empire. Even
Abraham Maslow, in his renowned Maslow‘s Need Hierarchy Theory, puts
security needs just above the basic physiological needs of a person in his
pyramid of needs, thereby showing how important it always has been to the
mankind.

What‘s even more profound is the fact that entire empires have been started
from dust, and existing empires have fallen to dust just over the issue of
security. Even the Japanese started invading China and parts of Korea because
they were afraid that they will themselves be attacked if they did not do so.
While the ways have always differed as to what a country perceived a viable
way to secure itself, most of the methods which have been used since time
immemorial cannot be used in the present day scenario. As civilized human
beings, we always have to learn from our past and the mistakes we‘ve made
and strive to evolve from them. We have several accords that prevent us from

1
 doing terrible acts against an individual and crimes against humanity.
Conventions such as the United Nations Convention against Torture
(UNCAT), Geneva Conventions, Nuremberg Principles, etc. have put all the
necessary checks and balances to ensure States don‘t cross boundaries when it
comes to the treatment of prisoners who have harmed or pose a threat to the
security of the state.

While these Treaties and Conventions give a sense of pride and safety to
individuals, their real-life implementation shows a completely different ground
reality altogether. After the passing of the Geneva Convention back in 1949,
states vowed not to do any act which violated the Geneva Convention in any
way, shape, or form. The United States of America, who is a signatory and has
ratified the Geneva Convention, has been a forerunner when it comes to the
gross violations of the said conventions. The most horrifying example of the
same would be when the United States Senate Select Committee on
Intelligence investigated the acts of the Central Intelligence Agency, while it
investigated all known suspects who had any connection to the September 11
attacks on the World Trade Centre. The horrifying acts which were committed
by the CIA were revealed in the Committee Study of the Central Intelligence
Agency's Detention and Interrogation Program. 1 It showed that the CIA have
used methods such as Anal Rehydration, Waterboarding, Mock Deaths, Sleep
Deprivation amongst other cruel and inhumane acts to question the known
suspects of the 9/11 attacks.

Other Countries such as the Russian Federation, People‘s Republic of China,

North Korea, etc. have also been, on numerous occasions criticized by other
countries and International Organizations for their blatant disregard for the
human rights of their citizens. As Nelson Mandela has very rightly put
forward, “To deny people their human rights is to challenge their very
humanity”. Countries cannot, and should not commit any act which even
remotely poses any such threat to individuals.

1
Report of the senate select committee on intelligence committee study of the Central Intelligence Agency‟s
Detention and Interrogation Program, 113TH CONGRESS 2ND SESSION S. REPORT (2014)
https://www.intelligence.senate.gov/sites/default/files/documents/CRPT-113srpt288.pdf

2
While its counterparts around the globe have always been subject to
speculation over the disregard for human rights, India has always managed to
be away from such kind of defamatory criticism. The Indian Government,
since its independence, has lived by the words of M.K. Gandhi who said that
“The greatness of humanity is not in being human, but in being humane.”
India has always stood up for what‘s right, and even in the darkest of times
when individual liberties were threatened, the Supreme Court of India has
always stood firm in protecting the rights of those who are threatened.

That being said, it never was the case that India‘s past has been as white as a
dove when it came to liberties of an Individual. To protect the sovereignty and
integrity of the nation, India has also at times gone to lengths, while having
little to no disregard for individual liberties and freedom. The first stain of
blotted ink on India‘s clean past happened back in the year 1967, when the
Government of India decided to pass the Unlawful Activities (Prevention) Act,
1967, which we more prominently have known as the UAPA. While the 1967
act looks like a piece of cake in front of the act which stands today, it still had
some horrifying provisions inside of it, which gave the Government unfettered
powers to act on their will if a certain crime had been committed and was
punishable under the said act.

The UAPA was legislated solely for the reason that there was a growing sense
of discontentment amongst the population of India, which wanted to secede
from the territory of India. The country as we see today still didn‘t look like it
back in 1967, a handful of states were yet to join, and those who joined had
been voicing their concerns throughout. The State of Tamil Nadu back then
already was extremely disappointed with the Government of India holding
back on its promises, and taking advantage of this disappointment, the DMK
party went on to contest the elections. The party stated in its manifesto that if
elected to power, the DMK would work to secede the state of Tamil Nadu
from India, and create an Independent Country for the Tamil. This scared the
Government even more since it had already lost a part of its territory in Aksai
Chin after the 1962 Sino-Indian War. Therefore, the act which was legislated
simply put forward that any person who commits and ―Unlawful Activity‖

3
 shall be punishable under the said act. Also, any person who is a member of an
―Unlawful Organization‖, shall be punishable under the said act.

The issue with the legislation was the fact that nowhere in the act was it clearly
defined what constituted as an ―Unlawful Activity‖. What was stated, was the
fact that any act, which threatened the Sovereignty and Integrity of the Nation
would be considered as an Unlawful Act, thereby leaving it entirely in the
hands of the Government to decide which act was unlawful and which wasn‘t.
Furthermore, what was even scarier was the fact that the said act allowed
arrests without warrants and preventive detention for up to 180 days to those
who have been charged with this act. This marked the beginning of gross
human rights violations under the said act, which would further go on to
become one of the most draconian laws in India. Hence, this led to the
Government of India having a scary arbitrary power in its hands. As George
Washington has rightly said, “Arbitrary power is most easily established on
the ruins of liberty abused to licentiousness.”

What started with just the UAPA went on and spread like poison in the hands
of the Indian Legislature, Years after legislating on the UAPA, when faced
with a similar issue of internal security. This was after the Operation Blue Star
was conducted by the government in the State of Punjab. The Government
passed the notorious Terrorist and Disruptive Activities Act, 1987, which more
prominently came to be known as the TADA. However, the act was so grossly
misused by the authorities that it had to be repealed merely 6 years after it was
legislated.

The act provided that a person can be detained for up to 1 year without any
formal charges being pressed on him. The Act further provides that a detainee
can be in the custody of the police for up to 60 days, and post than even, he
needs not to be presented before a magistrate, but an Executive Magistrate. 2
Furthermore, the act reverses the presumption of innocence, stating that a
person caught under this act is presumed guilty until his innocence is proven
otherwise. 3 Lastly, any person who is tried under this act cannot appeal

2
Terrorist and Disruptive Activities (Prevention) Act, 1987, S 20.
3
The Terrorist and Disruptive Activities (Prevention) Act, 1987, S 21.

4
 anywhere, except to the Supreme Court of India. 4 For reasons such as this
which are so immoral, the act was allowed to lapse in 1995 when it was due
for renewal. During the 7 years TADA remained in force, 76000 people were
arrested in India under the act.5

After TADA lapsed, and the Indian Parliament was bombed in the year 2001,
the need arose for a new law to prosecute those who have been found guilty of
the said offense. This led to the Indian Legislature passing the Prevention of
Terrorism Act, 2001, which more prominently came to be known as POTA.
Just like TADA, POTA also had numerous provisions that allowed for blatant
misuse of powers. POTA also had the provision for holding a person in
custody for up to 180 days without any filing of the charge sheet. Further, the
laws in India do not accept any confession made to a police officer as evidence
and allow it to be rebutted in a trial. ―This was however not the case in POTA,
and every confession made to a police officer is admissible and can be used
against a person in trial. POTA was misused heavily by the government, and
the police itself misused the act to torture and humiliate prisoners.‖6 As
Norman Finkelstein has rightly put, “No conditions justify torture” and
therefore when the government at the center changed, POTA was accordingly
repealed.

The issue in hand, however, has also been the fact that while states have
blatantly used their arbitrary powers to interfere with the rights of a human
being, one right which has always gotten stepped upon during all of this is the
right to privacy of an individual. The privacy of a person is always something
that is valued the most. As Edward Snowden has said, “Privacy isn‟t about
something to hide, it‟s about something to protect‖. All the legislation which
have been laid forward above has always had one thing in common, which is a

4
The Terrorist and Disruptive Activities (Prevention) Act, 1987, S 19.
5
ZAIDI, S. HUSSAIN, BLACK FRIDAY – THE TRUE STORY OF THE BOMBAY BOMB BLASTS. (Penguin
Books 2003 ) ISBN 978-0-14-302821-5.
6
Nitya Ramakrishnan, Tortured, Humiliated, But Unbroken: An Interview With S.A.R. Geelani, The Wire, Oct.
25, 2019. https://thewire.in/rights/sar-geelani-custodial-torture-nitya-ramakrishnan (Last Visited: 01st August,
2020).

5
 blatant disregard for the privacy of an individual. The forerunner in this
section, however, remains the UAPA.

An instance of the UAPA being misused of such a horrendous act would be

when the Delhi Police barged directly into the home of the AISA President
Kanwalpreet Kaur and seized her mobile phone stating that it was required as a
part of the investigation under the Delhi Riots. When she was handed the
seizure memo, along with a bunch of charges, a few changes were also placed
under the UAPA for seizing her mobile phone. 7

The UAPA has also been criticized by the United Nations Special Rapporteurs
for violating the privacy of a said individual. The amended Act allows for
searches, seizures, and arrests based on the ―personal knowledge‖ of police
officers without a written validation from a superior judicial authority. The
police are empowered by the amendments to enter the premises on a person on
the mere suspicion of her being part of an ―unlawful association‖. The police
have the power to examine the books, and other properties of the accused and
also make inquiries against her. This, the statement declares, is a clear
violation of the right to privacy as per India‘s international law obligations. 8

The Act also interferes with the privacy and liberty of individuals contravening
the provisions which protect against arbitrary or unlawful interference with a
person‘s privacy and home. The Act allows for searches, seizures, and arrests
based on the 'personal knowledge' of the police officers without a written
validation from a superior judicial authority. 9 This interferes with the privacy
and liberty of individuals which is not only by a fundamental right but also
contravenes the provisions of the International Convention on Civil and
Political Rights (ICCPR)‖, which protects against arbitrary or unlawful
interference with a person‘s privacy and home.

7
Special Correspondent, Police bid to intimidate Kawalpreet, claims AISA, THE HINDU (Apr. 29, 2020).
https://www.thehindu.com/news/cities/Delhi/police-bid-to-intimidate-kawalpreet-claims-
aisa/article31462959.ece
8
Ujjaini Chatterji, UN Special Rapporteurs express concerns over UAPA, THE LEAFLET (May 18, 2020).
https://theleaflet.in/un-special-rapporteurs-express-concerns-over-uapa/
9
Aakar Patel, UAPA (Amendment) Bill 2019 violates the very international laws it quotes, defies principles of
natural justice, FIRSTPOST, (Aug. 3, 2019)
https://www.firstpost.com/india/uapa-amendment-bill-2019-violates-the-very-international-laws-it-quotes-
defies-principles-of-natural-justice-7104391.html

6
 The Right to privacy of an individual has to be protected, and so has been time
and again said by the courts. There have been numerous judgments wherein
the courts have asked the government to make laws in accordance with
protecting the privacy of an individual, but the government has somehow or
the other managed to get away without actually doing something to protect the
rights of an individual. The Supreme Court has stressed upon the fact that ―it is
entirely for the Central Government to make rules on the subject of
interception but till the time it is done the right to privacy of an individual has
to be safeguarded.‖10

“If the right to privacy has to mean anything, it is the right of an individual,
single or married, to be free from unwarranted government intrusion.” These
were the words of William Brennan Jr. when asked about the views on
privacy. Well, these words make more sense now than ever, when asked about
the state of privacy in India. If we have to on the morally correct side of
history, we cannot let any act, not even national security supersedes the
privacy of an individual.

10
People‘s Union of Civil Liberties Vs. Union of India, AIR 1997 SC 568

7
 CHAPTER 2
RESEARCH METHODOLOGY

2.1. Research Background/Introductory

The Term Privacy, as defined by the Black‘s Law dictionary refers to ―the
right that determines the non-intervention 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.‖

Now in simple terms, if we talk about the right to privacy then it means the
right to be let alone or the enjoyment of living one‘s life without any kind of
unnecessary intrusion or interference. It plays a very important part in every
individual‘s life and recently the Supreme Court has also considered this right
as the fundamental right of every citizen. Article 21 of the Indian
constitution‘s scope has been expanded to include the right to privacy as a
fundamental right (the given article states that ―no person shall be deprived of
his life or personal liberty except according to the procedure established by
law‖.) Since the ambit of this Article is very wide and a lot of interpretations
have been done by the Courts, therefore, this time after so many contradictory
judgments, finally we can say that right to privacy is now recognized as a
fundamental right under the fundamental right to life and liberty.

The right to privacy has been a very debatable topic since the independence of
our country and this concept has majorly evolved or developed through
various judgments over the last seventy years of our independence as there is
no specific provision for this right guaranteed under the Constitution. Before

8
 the 2017 judgment of Justice K.S. Puttaswamy vs. Union of India11, the right to
privacy was not considered as our fundamental right. In the two earlier
judgments of MP Sharma v Satish Chandra12 in 1954 and Kharak Singh vs
State of Uttar Pradesh13 in 1962, it was held that the right to privacy does not
fall within the ambit of fundamental rights guaranteed under the Constitution.
In the United States Fourth Constitutional Amendment, the protection from
unreasonable searches and seizures was given to its citizens. In the former
case, concerning this contention, it was ruled that it can‘t be read into the
Constitution of India and the court held that ―a power of search and seizure is
in any system of jurisprudence, an overriding power of the State for the
protection of social security and that power is necessarily regulated by law.
When the Constitution makers have thought fit not to subject such regulation
to constitutional limitations by recognition of a fundamental right to privacy,
analogous to the American Fourth Amendment, we have no justification to
import it, into a different fundamental right by some process of strained
construction. Nor is it legitimate to assume that the constitutional protection
under Article 20(3) would be defeated by the statutory provisions for
searches.‖ In the latter case of Kharak Singh, he filed a writ petition that his
fundamental rights under Article 19 (1) (d) and Article 21 of the Constitution
has been violated as he was kept under six measures of ―surveillance‖ as per
Chapter XX of the Uttar Pradesh Police Regulations. The Court, in this case,
held that ―the right of privacy is not a guaranteed right under our Constitution,
and therefore the attempt to ascertain the movements of an individual is
merely a manner in which privacy is invaded and is not an infringement of a
fundamental right guaranteed in Part III (fundamental rights)‖.

For so many years these judgments have been followed and finally, in 2017,
the Supreme Court considered that the right to privacy of an individual is
equally important as other fundamental rights under Part III of the
Constitution. Therefore, the present ruling of the Apex Court considers the
right to privacy as our fundamental right.

11
AIR 2017 SC 4161.
12
AIR 1954 SC 300.
13
AIR 1963 SC 1295.

9
2.3. Aim(s)

In the dissertation, by highlighting the importance of the right to privacy, the

researcher will focus on every possible dimension and scope of this right and
how when cumulatively read and understood with the national security laws
and acts, it stands the test of time and can cope up with the growing need of
privacy and existing requirement of security of the nation. It has been already
stated in the introduction that the right to privacy is now the fundamental right
of every citizen in India, the development of this aspect will be discussed.
Privacy of a citizen could include a lot of aspects in which they want their
personal space and no unnecessary or unreasonable intrusion of public
authorities like telephone tapping, police surveillance, the medico-technical
use of interrogation techniques like narco-analysis by the police and search
and seizure powers of different state agencies. It was a very debatable topic of
discussion, before the Supreme Court considered it a fundamental right under
Part III of the Constitution, as to what extent this right should be granted to the
citizens. The question of the right to privacy of the citizens has been discussed
in many cases. The analysis of the judicial trend is also important because it
will give an idea of the judicial interpretation of the courts concerning the right
to privacy. Likewise, it is important to protect our nation and government
sometimes takes harsh steps which at times are violating personal liberty,
freedom, and privacy of the citizens, in this paper the researcher has tried to
analysed the said situation by analysing the recent amendments and relevant
legislations and has tried to come up with the method for harmonizing both the
interests so that one is not violating the other and can exist in the same space,
while sometimes overlapping but never encroaching the space of the other
right.

The right to privacy is now a fundamental right under the Constitution but if
we talk about any specific legislation or Act which deals with the privacy laws
in India then we will not find any Act in force that deals with the privacy
rights of Indian citizens. In the Constitution also, there is no Article talking
specifically about the privacy rights of the citizen. It has been made a
fundamental right under the ambit of Article 21. Although making it a
fundamental right is one of the major steps taken by the Indian judiciary

10
concerning privacy laws but still there is a need of proper legislation which
could specifically talk in detail with matters connected to privacy and remove
few ambiguities that have been arising since the privacy right became our
fundamental right, this is more important considering that lack of stringent and
well-established laws leaves a lot of space for the autonomy of acting in
whatever way the government deems fit in the name of protecting the national
interest and national security. If we look minutely into few Acts then few
provisions cover the privacy of Indian citizens but this is restricted to a certain
limit. For example, the Information Technology Act, 2000, provides for
provisions regarding the protection of digital privacy and data security of the
citizens. So, this issue will also be discussed in the dissertation.

One of the biggest issues that are in question, after the Supreme Court declared
the right to privacy as a fundamental right, is the issue of Aadhar program and
the security threat it posed while also being called as the black mark on the
face of privacy as a fundamental right. The question arises is the constitutional
validity of it including the Aadhaar Act, 2016. It makes Aadhaar compulsory
for every citizen and the government wants to make mandatory linking of
Aadhaar to avail welfare schemes and other services run by the government.
The government wants every citizen to compulsorily link their mobile number,
bank accounts, PAN, etc.. The Aadhaar contains a lot of personal information
like the demographic information and biometric information which could be
misused in some circumstances by others if not kept confidential. The risk of
the data leak is also associated as Aadhaar applies to commercial purposes and
the private parties can have access to the data and as already discussed; we
have no privacy laws in our country which could deal with these kinds of
situations. Therefore, these are a few problems that are required to be
addressed in detail and hence form a very crucial part of the dissertation.

It is also necessary to understand whether there are any demits or drawbacks in

granting the right to privacy as a fundamental right. Although fundamental
rights are also subject to certain restrictions and are not absolute rights in
comparison to a fundamental right and a statutory right, the fundamental rights
hold more weightage and importance. In the absence of the statutory
legislation regarding the right to privacy and directly making it a fundamental

11
 right seems that some loopholes or ambiguities could be there. To understand
this dimension of the right to privacy, it is required to get into the details of
related cases and legislations. The legislations such as POTA and UAPA are
covered and detailed analysis of how in national security, the right of privacy
is often pierced.

2.4. Objectives (s)

1. To critically analyse the importance of the right to privacy in India.

2. To understand the right of privacy in the ambit of the fundamental right to life
and liberty guaranteed under Article 21 and all the other possible constitutional
dimensions and scope.

3. To critically analyse the judicial trend related to the development of the right
to privacy in India.

4. To do a comparative study of the laws related to privacy rights in other

countries and India and the security laws

5. To analyze and understand the need for specific legislation on privacy laws in
India to understand the loopholes to prevent the encroachment of the right in
the name of national security

6. To do a critical analysis of all the related judgments and legislations to find out
the loopholes or the negative aspects, if any, in making the right to privacy our
fundamental right and Importance of the security legislations present in the
country.

7. To discuss whether every aspect of the right to privacy should be considered to

be our fundamental right or whether there are still some aspects of privacy
which are not considered to be the fundamental rights of the citizen and
whether it is okay to surrender all rights relating to privacy in the name of
national security.

12
8. To analyze the Legislations relating to national security and their loopholes
which they exercise to pierce the right to privacy by understanding and
analyzing real-life incidences.

2.5. Scope and Limitations

The purpose of the study is to establish a nexus between the right to privacy of
an individual and the National Security of the state and come to a conclusion
that how both of them are important in their ways and we cannot overlook one
in the name of other. It focuses on the areas wherein the problem lies and the
issues arise, relating to the encroachment of the right to privacy, which is now
considered to be a fundamental right.

The topics covered ranges from the Data privacy bill, Important judgments
which change the course of the debates under privacy as a right, The national
security legislations such as UAPA, in respect to the violation of fundamental
rights, along with the right to privacy, the mobile application ban imposed by
India on china, due to the arising state of conflict on the borders and to protect
data, the need for data localization The method of the study is doctrinal.

2.6. Literature Review

Books

1. Basu, Durga Das, ―Commentary on Constitution of India‖

According to the author, since the supreme court of India has already
inculcated Right to Privacy in the Right to life and Personal liberty as stated
under Article 21 of the Indian constitution, therefore, the proposal of the
author that a new Article relating to the same, namely 21-B should be inserted
in the constitution.

2. Ravinder Kumar and Gaurav Goyal, ―The Right to Privacy in India: Concept
and Evolution”.

13
 In this book, the authors have carefully analyzed whether the right to privacy
gives the right to invade someone‘s privacy and the jurisprudence behind the
right.

3. Jain, M.P., Constitutional Law: Fundamental Right, Lexis Nexis, 7th end.
2014.

Only a reasonable claim to privacy can be sustained under the custom. In Syed
Habib vs. Kamal Chand, the Rajasthan High Court pointed out that a
customary

Easement of privacy to be valid under Article 19 (1)(f) has to be reasonable as

required by Article 19(5).

4. S.K. Sharma, ―Privacy Law: A Comparative Study”

The book studies every aspect of the subject minutely. Freedom of information
act and the privacy act of the U.S.A. have been analyzed. All the relevant case
laws right from the case-law of Griswold to the case of Govind have been
deeply studies. The case laws relating to the right to privacy and infringement
of privacy as seen in other countries have been analyzed in the detail.

5. Marta Otto, “The Right to Privacy in Employment: A Comparative Study”

According to the author, the term 'privacy' and the concept of privacy gained
and garnered prominence around the globe, but in the field of law and the legal
arena, it is still looked upon as a state of disorganization and in disarray. To
put in inside the box of a legal framework where the encroachment and
overlapping of privacy with other arenas and problems relating to the modern
society which are although complex is also seen more frequently are observed.
The mentioned problems, according to this book can be solved by the
development only lead by the holistic approach, it is also discussed that the
approach should be such that it addresses the issue of not only just for the
contemporary regulations but also the conceptualization and common
perception of employees‘ privacy.

14
6. Richard A. Glenn, ―The Right to Privacy: Rights and Liberties Under the
Law”

This book features a thorough introduction to privacy law, covering landmark

cases, important themes, historical curiosities, and enduring controversies.

7. Adam Carlyle Breckenridge, ―The Right to Privacy”

According to the author, the Right to Privacy is predicated upon the

assumption as well as the belief that the individual has the right to establish the
degree to which he wishes to share of himself with others and has control over
the time, place, and circumstances during which he communicates with others;
that he has the right to pull out of or engage as he sees fit; and therefore the
right to regulate the dissemination of data and information about himself.

8. Brandon Garrett, The Right to Privacy

According to the author, our right to privacy isn‘t specifically protected by the
Bill of Rights, but it‘s implied in various ways within the Constitution. This
book examines just how extensive or restricted that right is, as interpreted over
the years by our system.

9. David L. Hudson, The Right to Privacy

According to the author, the Right to Privacy, a globally garnered concept,

examines issues concerning the media's got to gather news, the government's
power to conduct surveillance, employers' ability to watch and control the
workplace, and therefore the ways technology has challenged this right.

10. Caroline Kennedy and Ellen Alderman, The Right to Privacy

According to the authors, although the word privacy doesn‘t appear within the
Constitution, most folks believe that we have an inalienable right to be left
alone. They surveyed many recent cases during which ordinary citizens have
come up against the intrusions of state, that is the government, businesses,
journalism, and their neighbors.

15
 Articles

1. Vrinda Bhandari and Renuka Sane, ―Towards a privacy framework for India
in the age of the Internet‖.

In this article, the analysts and academicians have put forth a defense for India
to authorize a privacy protection law. Such a law would characterize key
terms, administer the privileges and privacy of clients, detail the commitments
of the State, set down protection standards and exemptions, give direction on
settling security clashes (for example, by applying a European proportionality
test) and would depict different review and remuneration components.

2. Namit Oberoi, ―The Right to Privacy: Tracing the Judicial Approach

Following the Kharak Singh Case”.

According to the researcher, it‘s evident that there‘s an implied,

unremunerated, but judicially evolved and recognized right to privacy under
the Indian Constitution. Although the rulings of the Supreme Court within the
cases of MP Sharma and Kharak Singh, denied the existence of any right to
privacy, in the case of Rajagopalan, the smaller benches and People‘s Union
for civil liberties expressly indicate the existence of such a right. The shift in
judicial interpretation is most notably observed following the Maneka Gandhi
case, wherein this right is recognized, subject to legal restrictions satisfying
what is required and wanted as laid down within the Maneka Gandhi case.

3. Anubhav Khamroi and Anujay Shrivastava, ―The Curious Case of Right to

Privacy in India‖

According to the researcher, it can be duly established that not only the
Judiciary but also the Legislature at certain instances have recognized the
essential Right to Privacy and the need to make it a statutory right.

4. Aashit Shah and Nilesh Zacharias, ―Right to Privacy and Data Protection‖.

According to the researcher, a legal framework needs to be established setting

specific standards relating to the methods and purpose of assimilation of
personal data offline and over the Internet. Consumers must be made aware of
voluntarily sharing information and no data should be collected without

16
 express consent. The future of India‘s trade depends on striking an effective
balance between personal liberties and secure means of commerce.

5. Daniel J. Solove, ―Conceptualizing Privacy”

In this Article, Professor Solove develops a new approach to conceptualizing

privacy. He begins by examining the existing discourse about conceptualizing
privacy, exploring the conceptions of a wide array of jurists, legal scholars,
philosophers, psychologists, and sociologists. Solove contends that the theories
are either too narrow or too broad. With a few exceptions, the discourse seeks
to conceptualize privacy by isolating one or more common ―essential‖ or
―core‖ characteristics of privacy. Expounding upon Ludwig Wittgenstein‘s
notion of ―family resemblances,‖ Solove contends that privacy is better
understood as drawing from a common pool of similar characteristics.

6. Adam D. Moore, ―Privacy: It's Meaning and Value”.

According to the researcher, privacy is valuable for beings like us. The ability
to regulate access to our bodies, capacities, and powers and sensitive personal
information is an essential part of human flourishing or wellbeing. Modern
surveillance techniques, data mining efforts, and media coverage are opening
up private lives for public consumption. Technological advancements in
monitoring and data acquisition are forcing us to rethink our views about the
value of privacy. The unexamined life, as Socrates once said, is not worth
living, but neither is the life examined by police or corporations, or the life
open to inspection by anyone for any reason.

7. Neeraj Grover, ―Right to Privacy in Digital Age: Evolving Privacy Laws and
Their Applicability to Social Media‖.

According to the researcher, it is clear that the law of privacy is still in its
benign stage. It may efficiently cope up with privacy problems that exist in the
real social world but to handle privacy in the cloud digital media, it needs a
more rigorous approach. ―The question shouldn‘t be whether the user expected
that information about him should remain private after sharing it with so many
people‖69 because even despite making ―rational choices‖, users are often met
with situations they never really foresaw and consented to.

17
8. Gautam Bhatia, ―State Surveillance and The Right to Privacy in India: A
Constitutional Biography‖.

According to the researcher, it is unclear how the Court will rule on a

CMS/surveillance challenge. One thing is clear, though: the privacy law
jurisprudence that it has developed over the last fifty years provides it with all
the analytical tools to fulfill its constitutional mandate of protecting civil
liberties. Consistent with the narrow tailoring test, the Supreme Court ought
not to allow the government to baldly get away with asserting a national
security interest but require it to demonstrate not only how national security is
served by dragnet surveillance, but also how dragnet surveillance is the only
reasonable way of achieving national security goals.

9. Afshan Nazir and Ayush Gupta, ―Right to Privacy: Fundamentally Ours‖.

According to the researchers, Freedom of life and liberty is incomplete without

our ability to be who we are away from the glare of those who wish to
overpower us. The ―right to privacy‖ is a fundamental right eventually and we
can now go running to top court if ever someone peeks nose into our matters
unnecessarily. The verdict on ‗Right to Privacy‘ has again widened the
horizons of Article 21 after Maneka Gandhi & Mohini Jain cases.

10. Suhrith Parthasarathy, ―Privacy, Aadhar, and the Constitution”.

In this article, the researcher argues that the present clash over the right to
privacy must encourage us to think more deeply about the deficiencies of our
Constitution. We must engage in a battle to not only have the Constitution
interpreted in an appropriate democratic spirit but also to have inserted into it
certain rights and liberties that require explicit elucidation.

11. Nooraneda Mutalip Laidey ―Privacy v National Security, where do we draw

the line‖?
Privacy is sacred and would normally be expected and preserved by an
individual. Online privacy is no longer about the right to be left alone but also
includes the right not to be monitored. However, with the revelations made by
United States National Security Agency former employee Edward Snowden

18
 that the government is spying on internet communications, individuals‘
privacy can no longer be expected.

12. Entry 2A of List I and Entry 2 of List II, Seventh Schedule:

The petitioner put forth an argument based on two basic features of the Indian
Constitution, in case of Committee for Protection of Democratic Rights v.
State of West Bengal, 2001 Cri.L.J. 2307, that the basic features are federal
setup and separation of powers. The state legislature has jurisdiction over
police matters as per constitutional and statutory provisions. It is to state that
without the consent of the concerned state government, the parliament cannot
encroach upon it 18.

13. Ruma Pal, (Rtd. SC, J.) In his ―Judicial Oversight or Overrich‖:
The Constitution allows for parallelism of power, with hierarchies between the
three organs in particular fields as stated by retired Supreme Court Judge
Ruma Pal. That the subject to checks by the other two, which must be
maintained and balanced by each organ

14. In ADM Jabalpur v. Shiva Kant Shukla case:

In the Constitution and statute law, if the right to personal liberty is limited by
any limitations other than those expressly contained, the Supreme Court
sought to determine. Article 21 is not the sole repository of the right to
personal liberty, without the authority of laws no one shall be deprived of his
life and personal liberty, as observed by Khanna Judge of the Supreme Court.
It flows equally from statutory law like the penal law force, and not merely
from common law in India

15. Dicey, In his ―Law of the Constitution‖:

Dicey in his book law of the constitution mentioned as in the earlier editions of
Dicey that the rule of law is an essential part of accountability, of course, he
modified in later editions there is something inconsistent with the rule of law,

19
 therefore, that conferment of any discretion tends to arbitrariness. The
conferment of some discretion for application to the facts of a given case is
something you cannot do away with, but then, as when time passed that it was
realized by Dicey

16. Birutė Pranevičienė ―Limiting of the right to privacy in the context of

protection of national security‖
―For the last several decades, ensuring human rights and national security has
remained an important goal and a condition for the existence of every state.
The interests of national security often presuppose the need to narrow some
natural rights, such as, for example, the right to privacy, the right to secrecy of
communication, etc. The traditional concept of security is related to ensuring
national security. According to the traditional concept of security, the state is
considered the main object of security; therefore, the states mainly focus on
external threats. It is stated that the most important thing is to protect the state
from external aggression, ensure the protection of state borders and
institutions. The protection of human rights is ensured simultaneously. It is,
however, observed that a secure state does not necessarily mean that the
citizens of the state are secure. The security of a person is under threat due to
limitations imposed on human rights while seeking to ensure national security.
An issue related to the protection of human rights is presented in the article
when limitations on a person‘s right to privacy are foreseen for the protection
of national security.‖

2.7. Research Questions

Issue No. 1) Whether National Security Agencies pierce the Right to Privacy
of Citizens under the excuse of National Security?

Issue No. 2) whether judicial Review is effective as a deterrent towards abuse

of fundamental rights by the government?

Issue No. 3) whether the amendment in UAPA Breaches the right to privacy of
citizens?

20
Issue No. 4) what are all the privacy laws can be adopted from our counterpart
countries, facing the similar dilemma of whether putting national security
above right to privacy or vice-versa and is there any viable way of
harmonizing the both interests

Issue No. 5) how relevant are the Chinese Apps Ban imposed by India, and
whether is it lawful by the WTO treaty which India is a signatory of. Was
there an imminent and grave threat of data leaking and national security matter
or not?

2.8. Research Methods applied to test the hypothesis/hypotheses

The research work that has been conducted has been finished with the
assistance of doctrinal technique which incorporates the lawful structure and
legal frameworks, a comparative study has been carried out in understanding
the concept of limited government and security legislation through the privacy
laws in India and around the world. The researcher has made a report on
Limited government and security enactment, with the emphasis on the privacy
protection laws in India and how for the sake of national security, the
legislature is going over the edge with the surveillance and encroachment of
the laws essential to the people.

The theory of the researcher and the hypotheses formed by the researcher is
that the assurance and protection of the individual freedom and liberty from
the intervention and the smooth running of a fair and democratic government
need separation of power in a check and balance structure yet not in an
unbending and rigid structure with changing nature of the general public and
society

It is to maintain the limited government in the country and how further

development of the same is important so that judicial review can be used as an
important tool and be an effective deterrent towards the arbitrariness with
which certain legislations are formed. The paper sheds light upon the
following and they are discussed at the lengths to reach a conclusion that is
fair, just, and reasonable.

21
For this dissertation, it is assumed that every citizen is entitled to have the right
to privacy. Every right comes with liability and every freedom granted to a
citizen is subject to some kind of restriction which is in the interest of the
public in large. It seems quite obvious that the right to privacy is such a right
that could not be granted to the citizens and at some of the other points, it will
be subjected to certain restrictions depending on the circumstances. With time,
the courts started considering the importance of this right. As there is no
specific legislation, therefore, it was always the responsibility of the courts to
understand and consider this aspect. For as long as one can remember, it was a
common notion and the precedent which clearly emphasized the fact that the
right to privacy is not considered being a fundamental right. Considering that
India has the second-largest population and is still a developing country, where
some people do not even have access to the basic facilities like food, water,
shelter, etc. it was considered unnecessary by the courts to take into
consideration the privacy rights and hence it took a long time for the Supreme
Court to finally recognize the right to privacy as our fundamental right.

The recent step was taken by the Supreme Court in contradiction to the earlier
judgments and making it a fundamental right shows the growth of the Indian
judiciary. This change brought along with it certain questions especially
regarding the constitutional validity of Aadhar. Also, it is presumed that in
absence of a statutory right to privacy or any other legislation on the right of
privacy, the fact that it is our fundamental right, brings few questions in mind
concerning the loopholes associated with it. So, there is a presumption of
demerits or drawbacks which could be cleared only after a detailed study of all
the dimensions and scope of the right to privacy. But keeping the negative
aspect aside, this step is more of a positive change, as other developed
countries consider this right equally important as other rights of the citizen and
have legislations and laws to deal with the different matters related to the
privacy laws. India finally has a law on right to privacy so this is one of the
major steps taken by the Supreme Court recently. Since steps are been taken
for the Right to privacy as a fundamental right, the debate arises that is this
right just given to the citizens and can be infringed at the whims and fancies of

22
the ruling government or will there be sufficient laws to protect the interest of
the people and their newfound right in the name of privacy.

2.9. Research Design

The study design is non-observational. First, the existing literature on the

scheme was looked upon, problem and hypothesis were drafted. After the
collection of data and analysis, a conclusion has been drawn on the outcome of
the study undertaken.

2.9.1 Approach

A qualitative research approach was adopted to collect the data for the
research work. The qualitative data refers to ―textual data‖ and refers to the
non-numerical data.

2.9.2 Tools of Data Collection

(a) Secondary Data

To understand the purpose behind the new data protection bill and the existing
laws relating to privacy and National security and how they are in conflict with
each other and to find a solution based scheme and to comprehend the views
of the judiciary concerning various online databases, newspaper articles and
court judgments were referred.

23
 CHAPTER 3
UNDERSTANDING PRIVACY VIS-À-VIS STATE POWER

―In 1890, in a classic article that many scholars now regard as a seminal work
on privacy, Samuel Warren and Louis Brandeis described privacy in terms of
being let alone or being free from intrusion.‖ ―This conception of privacy, as
non-intrusion, is also evident in the writings of two U.S. Supreme Court
justices: Louis Brandeis in Olmstead v. the U.S.14 and William Brennan in
Eisenstaedt v. Baird.15 ―We should first note that some versions of the no
intrusion theory tend to confuse the condition (or content) of privacy with a
right to privacy.‖ ―This confusion is especially apparent in the writing of no
intrusion theorists, such as Brandeis, who defines privacy as the right to be let
alone16‖, and Brennan, who describes privacy as the “right of the individual . .
. to be free from unwarranted government Intrusion”17
According to Fried, “Privacy is not simply an absence of information about us
in the minds of others, rather it is the control over the information we have
about ourselves.”18 Miller embraces a version of the control theory when he
describes privacy as the individual‘s ability to control the circulation of
information relating to him.

14
277 U.S. 438 (1928).
15
405 U.S. 438 (1972)
16
Olmstead 475, Brandeis dissenting
17
Eisenstaedt v. Baird (p. 453).
18
KENNNETH einar himma and herman t tavani , THE HANDBOOK OF INFORMATION AND COMPUTER ETHICS ,
(john wiley and sons, inc )

24
We observe privacy with such notions as liberty, solitude, autonomy, and
secrecy. Nissenbaum points out that although we have privacy norms (that is,
explicit privacy laws and informal privacy policies) that protect personal
information considered to be intimate and sensitive for example, medical
records and financial records normative protection does not generally extend
to personal information considered to be neither sensitive nor intimate. She
also indicates that most normative accounts of privacy have a theoretical blind
spot when it comes to questions about how to protect personal information in
public contexts or in what she calls spheres other than the intimate. Her
analysis of this problem illustrates some of the controversies associated with
the practice of mining personal data from public sources. At first glance, such
a practice might seem innocuous because of the public aspect of the data
involved.
―A definite legal definition of ‗privacy‘ is not available. Some legal experts
tend to define privacy as a human right enjoyed by every human being by his
or her existence. It depends on no instrument or charter. Privacy can also
extend to other aspects, including bodily integrity, personal autonomy,
informational self-determination, protection from state surveillance, dignity,
confidentiality, compelled speech, and freedom to dissent or move or think. In
short, the right to privacy has to be determined on a case-by-case basis.
Privacy enjoys a robust legal framework internationally.‖
―Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17
of the International Covenant on Civil and Political Rights (ICCPR), 1966,
legally protect persons against arbitrary interference with one‘s privacy,
family, home, correspondence, honor, and reputation. India signed and ratified
the ICCPR on April 10, 1979, without reservation. Article 7 and 8 of the
Charter of Fundamental Rights of the European Union, 2012, recognizes the
respect for private and family life, home and communications. Article 8
mandates the protection of personal data and its collection for a specified
legitimate purpose.‖

25
―Privacy is not a concept like other rights. Moreover, our notions of privacy
have changed and will continue to change. If there is one major catalyst for
this change, it has been technology. Built homes are a simple example of how
we develop a sense of privacy which is influenced by technological
development. Once we have a conception of home, we also have conceptions
of a bedroom, living room, toilet, and kitchen. These spaces and conceptions
created by very simple processes of technology create specific ideas of
privacy.‖
―Two common ways of understanding privacy are through secrecy and
anonymity. We believe that our bank balance must be private. Companies do
not normally make public the salaries of all their employees. Universities do
not make public the marks or grades of their students in a way that violates the
privacy of the student.‖

―These notions of privacy are based on the need for security and protection.
We do not want to divulge certain things about our wealth or life practices
since they may be used by others to potentially harm us. So privacy becomes a
way of protecting individuals or groups. But we also often overthrow privacy
arguments for security purposes. We do not object to giving our biometrics
when we apply for visas or when we join some private jobs.‖
―Contemporary technology has made possible many innovations that have
changed the very meaning and significance of privacy. From smartphones to
the darknet, the fundamental trajectory is one to do with privacy. However,
there are two worrisome aspects. In any discussion on privacy, there is a deep
suspicion of the government and state, most times rightly so. But this
suspicion does not extend to technology and its private agents, those that are
responsible for the breakdown of the value of privacy today‖

―Today, in times of growing privatization, the greatest challenge to privacy

comes from the private sector. It also stems from indifference to our privacy.
We do not seem to value privacy today as in earlier times. Social experiments
have shown that people are willing to have private information about them
made public if they receive some monetary advantages

26
We do this all the time.‖ When we search for a book or a ticket, we start
getting advertisements related to these searches in our supposedly private
emails. What we read, search, buy, talk and perhaps even think, gets stored,
used, and circulated. Everything is tracked and rerouted. We have no clue to
the amount of information about our private lives that are out in the Web. All
because we get free emails and free Internet access! Today, privacy has been
deeply compromised through the offering of ‗free‘ goods.

The State and private players

―Very often when we worry about questions of privacy, it is about the role of
the government or the state. The state too can do much with the information on
individuals that it collects through various voluntary as well as coercive
means. The concern about privacy thus was a concern about the potential
misuse of such information. However, information about individuals is
arguably much more in the private domain today than it is within various
governments. Moreover, the mining of this information is taken up far more
assiduously by the private compared to government institutions.‖

―The idea of privacy has always had a troubled relationship with privatisation.
Private companies often have rules that protect them from being transparent in
hiring policies, in affirmative action, or even making public the salaries of all
their employees. Private groups know best the power of the idea of privacy.
They use this notion to protect themselves from governments and the public.
They also realise that the greatest market that is perennially available to them
is the market of trading information on privacy.‖
―A related problem is that the government has begun to look more and more
like the private sector. Today, almost all politicians are rich entrepreneurs and
hold powerful business interests. The public-private binary does not function
in any useful sense as far as the governing class is concerned. Thus, privacy is
not only open to manipulation by the government but even more so by the
private sector. This is so especially because it is the private sector that is at the
forefront of developing technologies that facilitate this mining, storing, and
sharing of information.‖

27
―The Trojan horse through which the state and private players enter our
domains of privacy is through contemporary technologies. These technologies
have now come to be seen as necessary. The fact that we so unthinkingly buy
into this story shows the success of how these technologies have colonised us
so effectively.‖

―The price we pay for modern technologies is not only money. The economic
model that runs consumerism of modern technologies is quite different from
the model of selling groceries. We are seduced by the number of free things
we get in a technological gadget. The websites are free; we can download
millions of books and songs for which we had to pay earlier. Why are we
being given so much that is free? Like almost everything else in this world,
there are always hidden costs. The major cost that we pay is the cost of our
privacy — the information on each one of our private lives and, through this
information, more effective control on how we act and behave.‖
―This raises deeply troubling questions about making privacy a fundamental
right. How will the Supreme Court judges be able to give a judgment on
privacy as a fundamental right without also making possession, and the
making, of technology as ‗rights‘? How can they do this without imposing
controls on predator technologies that enter the social world in the guise of
making our lives comfortable? Some might argue that technology is only an
intermediary tool that enables certain things, both good and bad.‖

―But to hold this view is to be blind to the changing modes of technological

domination through digital and Internet technologies. Technology is no longer
outside human and social processes; it co-creates and co-constitutes the human
and the social.‖

3.2. Concept of Privacy

The expression "privacy" is utilized regularly in the common language just as

in philosophical, political, and lawful conversations and legal discussion, yet
there is no single definition or investigation or importance of the term in a

28
 broader picture. The idea of privacy and protection of privacy has wide
recorded roots in sociological and anthropological conversations about how
broadly it is esteemed and saved and preserved in different societies.
Additionally, the idea has chronicled origin in notable philosophical
conversations, most outstandingly Aristotle's differentiation between the open
circle of political movement and the private circle related to family and
household life. However authentic utilization of the term isn't uniform, and
there remains disarray over the significance, worth, and extent of the idea and
the concept of privacy. 19

At present, privacy is a general idea, incorporating (in addition to other things)

opportunity of thought, authority over one's body, isolation in one's home,
command over data about oneself, opportunity from observation, assurance of
one's notoriety, and insurance from searches and cross-examinations.
Consistently savants, legal theorist, and law specialists and jurists have
regretted the extraordinary trouble in arriving at a fantastic origination of
protection. Arthur Miller has announced that security is ―difficult to define
because it is exasperatingly vague and evanescent.‖20

“Privacy is the ability of an individual or group to seclude themselves, or

information about themselves, and thereby express themselves selectively. The
boundaries and content of what is considered private differ among cultures
and individuals but share common themes. When something is private to a
person, it usually means that something is inherently special or sensitive to
them. The domain of privacy partially overlaps security (confidentiality),
which can include the concepts of appropriate use, as well as protection of
information. Privacy may also take the form of bodily integrity.‖21

The right not to be exposed to unsanctioned intrusion of privacy by the

administration that is to say the government enterprises or people is a piece of
numerous nations ‗privacy laws, and now and again, constitutions. Practically
all nations have laws which here and there limit security. A case of this would

19
Privacy, Stanford Encyclopaedia of Philosophy,
http://plato.stanford.edu/entries/privacy. (visited on Feb 20, 2018).
20
Daniel J. Solove, Conceptualizing Privacy, California Law Review, Vol. 90, No. 4 (2002),
Available at: http://www.jstor.org/stable/3481326?origin=JSTOR-pdf. (visited on Feb 20, 2018).
21
Supra note 19

29
be law concerning tax assessment, which ordinarily requires the sharing of
data about close to home pay or profit. In certain nations individual privacy
may struggle with the right to speak freely of certain laws and a few laws may
require open divulgence and full public disclosure of data which would be
viewed as private in different nations and societies.

―Privacy could also be voluntarily sacrificed, normally in exchange for

perceived benefits and often with specific dangers and losses, although this is
often a strategic view of human relationships. For example, people could also
be able to reveal their name if that permits them to market trust by others and
thus build meaningful social relations. Research shows that folks are more
willing to voluntarily sacrifice privacy if the info. gatherer is seen to be
transparent on what information is gathered and the way it's used. In the
business world, an individual may volunteer personal details (often for
advertising purposes) to gamble on winning a prize. A person can
also disclose personal information as a part of being an executive for a
publicly-traded company within the USA pursuant to federal law. Personal
information which is voluntarily shared but subsequently stolen or misused
can cause fraud.‖

―The concept of universal individual privacy is a modern construct primarily

associated with Western culture, British and North American in particular, and
remained virtually unknown in some cultures until recent times. According to
some researchers, this concept sets Anglo-American culture apart even from
Western European cultures such as French or Italian. Most cultures, however,
recognize the ability of individuals to withhold certain parts of their personal
information from wider society—closing the door to one's home, for
example.‖

The distinction or overlap between secrecy and privacy is ontologically subtle,

which is why the word ―privacy‖ is an example of an untranslatable lexeme,
and many languages do not have a specific word for ―privacy‖. The distinction
hinges on the discreteness of interests of parties (persons or groups), which can
have emic variation depending on cultural mores of individualism,
collectivism, and the negotiation between individual and group rights. The

30
 difference is sometimes expressed humorously as ―when I withhold
information, it is privacy; when you withhold information, it is secrecy.‖

A broad multicultural literary tradition going to the beginnings of recorded

history discusses the concept of privacy. One way of categorizing all concepts
of privacy is by considering all discussions as one of these concepts:

1. the right to be let alone

2. the option to limit the access others have to one's personal information

3. secrecy, or the option to conceal any information from others

4. control over others' use of information about oneself

5. states of privacy

6. personhood and autonomy

7. self-identity and personal growth

8. protection of intimate relationships

3.3. Need for privacy

1. Exercise the Limit on Power

―Privacy is a limit on government power, as well as the power of private sector

companies. The more a person knows about us, the more power he or she can
have over us. Vital decisions in our lives are made using personal data. It can
be used to influence our position in society; and it can be used to impact our
decisions and mould our behaviour. It can be used as a tool to exercise control
over us. And in the hands of a malicious mind, personal data can cause great
harm to us.‖

2. Respect for Individuals beings

―Privacy is about respecting individuals. If someone is having a valid reason to

keep something private, it is offensive to not pay attention to that person‘s
wishes without an appropriate reason to do so. Of course, the aspiration for

31
privacy can cause clashes with essential values, so privacy may not always win
out in the balance. Sometimes people‘s desires for privacy are rendered
unimportant because of the view that the harm in doing so is minor. Even if
this doesn‘t cause severe injury, it shows a lack of respect for that person. In a
sense, it is saying: ―I care about my interests, but I don‘t care about yours.‖

3. Reputation Management and protection

―Privacy enables people to manage their self-esteem. Our relations, chances

are given to us and overall well-being is affected by how others judge us.
Shielding reputation depends on protecting against not only inaccuracy but
also certain truths or knowing personal details about others. People judge
badly, they judge in haste, they judge out of context, they judge without
listening to the full story and they judge with hypocrisy. Privacy can lend a
hand to people from getting into such exasperating and troublesome
judgments.‖

4. Maintaining and creating Appropriate Social Boundaries

―People tend to make boundaries from others in society, which are both
physical and informational. We need places of solitude to retreat to, places
where we are free of other‘s gaze to get our peace. To make ourselves at ease.
We make informational boundaries for the varied relationships we have.
Privacy helps in the management of these boundaries. Negligence towards
these boundaries can lead to awkward social situations and damage our
relationships. Privacy reduces social friction. People don‘t want others to
know everything about them or want to know everything about others; hence
phrases ―none of your business‖ and ―too much information‖ came in being.‖

5. Trust

―In relationships, be it personal, professional, governmental, or commercial,

we all depend on mutual trust. Breaches of confidentiality are breaches of
trust. In professional relationships, this trust is key to maintaining candour in
the relationship. We trust other people we interact with as well as do business

32
within the same way. If the trust is broken in one relationship it acts as a
hindrance for us to trust in another relationship.‖

6. Control over one‘s life

Personal data affects nearly everything we can think of. It is essential to so

many decisions made about us like, ―Will our loan be sanctioned or not?‖ or
―Will we get our dream job?. It determines whether we have been involved in
illegal activities, been searched at the airport, or been enquired by the
government. Without knowing how our data is being used, we cannot correct it
or to object when this data usage causes us harm, and in turn, makes us
helpless. We cannot have autonomy and control over our own lives if so many
decisions about us are being taken without our participation and awareness.

7. Freedom of Thought, speech, and expression

―The key to freedom of thought is privacy is. A watchful eye over everything
that one reads or watches can push us from discovering ideas outside the
mainstream. It is also the key to protect speaking unpopular messages. And
privacy doesn‘t just provide a shield from fringe activities. We may want to
censure people we know to others yet not share that criticism with everyone. A
person might want to discover ideas that their family or friends or colleagues
don‘t like.‖

8. Freedom of Social and Political Activities

―Privacy provides shield to our ability to relate with others and engage in
politics. A major component of freedom of political association is the capacity
to do so with privacy if one selects. We protect privacy at the ballot because of
the concern that failing to do so would chill people‘s voting their true
conscience. Privacy of the associations and activities that lead up to going to
the voting booth is important due to the fact that is how we form and discuss
our political beliefs. The watchful eye can disrupt and unduly affect these
activities.‖

33
 9. Ability to Change and Have Second Chances

―Many of us are not static; we change and develop throughout our lives. Great
value lies in the ability to have another chance, to be able to move further on a
mistake, to be able to reinvent oneself. This ability is nurtured by privacy. It
permits us to grow and mature without being shackled with all the mindless
things we might have done before. Certainly, not all misdeeds should be
protected, but some should be because we want to cheer up and facilitate
growth and improvement.‖

10. Not Having To Explain or Justify Oneself

―One of the major reasons why privacy matters are not having to explain or
justify oneself. One may do a lot of things and activities, if judged from afar
by others having zero knowledge or understanding, may seem odd or
embarrassing or worse. It can be a heavy burden if we continuously have to
imagine how everything we do will be understood by others and have to be at
the ready to explain.‖

3.4. Privacy as a Trade-off

It is often misconstrued that the only martyr of national surveillance is

personal privacy. This is largely true, however, the impacts of personal privacy
(or the lack of it) on consumer behaviour remains to be largely undocumented.
A hit to privacy may have widespread economic consequences to the
government as well as for-profit organisations. This phenomenon manifested
itself on 6 October 2015 at the European Court of Justice.

The Safe Harbour Privacy Principles were intended to prevent private

companies in the European Union or the United States from accidentally
leaking private customer data stored in their systems. In a verdict 22 in July
2000, the European Commission(EC) decided that US companies which
adhere to seven principles and register that they meet the ―safe harbour

22
Maximillian Schrems v Data Protection Commissioner, C-362/14

34
 scheme‖ (a series of self-certifications), were allowed to move customer data
from the EU to the US. This is referred to as the Safe Harbour decision. 23

This decision was quashed by the European Court of Justice, stating

"legislation permitting the public authorities to have access on a generalised
basis to the content of electronic communications must be regarded as
compromising the essence of the fundamental right to respect for private life"

The decision, though made in the aftermath of revelations by former CIA

employee and contractor Edward Snowden, has a much larger impact on
businesses not just in the US but across the world. Organizations are now
keener to understand the impact of the latest privacy protection laws in states
and what they can do to actively comply as well as go farther to boost
consumer confidence without compromising the revenues. In this case, the loss
of trust of the European consumer in US companies has the potential to hurt
their bottom-line in the long haul. It is now imperative for businesses to assess
privacy protection, benefits from data sharing, pecuniary interests, and
national security as four important pillars of consumer satisfaction and balance
them in the best way possible.

Individuals sub-consciously evaluate the trade-offs between the public and

private status of their data. Companies, the legal system as well as the
government need to quantify the economic worth that people assign to the
security of personal data.

It is imperative to organizations because depending on customers‘ value

assigned to privacy, managers can evaluate positive or adverse reactions at
each step.

Ever-increasing global concerns over privacy have now given businesses a

compelling reason to include it in their broader business strategies. Even so,
organisations are fully aware that not using consumer data for targeted
marketing campaigns can put them in a severe competitive disadvantage.
Often the privacy guidelines recommended by the state are cost intensive and

23
Court of Justice of the European Union, PRESS RELEASE No 117/15, luxembourg, Oct.6, 2015

35
 businesses resort to providing the bare minimum levels of privacy protection
guided by the competition. For instance, for European firms, these are mainly
based on taking customers‘ consent as mandated by the General Data
Protection Regulation (GDPR) Such lackadaisical approach of businesses is a
result of a widespread assumption that however strong the consumers‘
concerns over piracy, their purchasing behaviour seldom reflects these
concerns.

However, a survey conducted by CISCO in 2019 has indicated that such a

strategy may be myopic at best. This survey, with 2601 respondents revealed
that about a third of consumers concerned about privacy are either willing to or
already have changed brand loyalties as a result of the privacy protection
policies of the respective firms. This group is called privacy actives and the
remaining is called privacy non-actives.

The single biggest takeaway from the CISCO survey is how the privacy
actives and privacy non-actives react to opportunities of trade-offs between
benefits of data sharing and privacy of personal data. To the surprise of many,
privacy actives were more likely to share data in lieu of benefits. More than
3/5th were comfortable with providing their buying records for customized
services, compared to only 30% of non-actives. Several other trade-offs later it
was established that privacy actives were roughly twice as likely to be
comfortable to trade-offs as compared to non-actives. Although
counterintuitive, it is clear from the study that the more privacy conscious or
informed the consumers are, the more likely they are to understand the benefits
of sharing data. This conclusion also finds resonance in Alessandro Acquisti‘s
paper ―Privacy in Electronic Commerce and the Economics of Immediate
Gratification, 2004‖24 where he explains further using mathematical modelling
and using the concept of marginal utility.

Businesses and policy makers can use this understanding to balance the
privacy standards and the benefits accrued from sharing of data.

24
Alessandro Acquisti, Privacy in Electronic Commerce and the Economics of Immediate Gratification H. John
Heinz III School of Public Policy and Management, Carnegie Mellon University
[email protected]

36
For businesses, the starting point can be reaching out to their customers and
find out their opinion on the sufficiency or insufficiency of privacy measures
taken by the firm. Overtures like these can help start discussions regarding fair
rewards for the use of their data.

Rather than clamping down on firms by using austere rules on piracy, policy
makers can address the issue of information asymmetry and bounded
rationality faced by the consumers when faced with privacy challenges.
According to the survey, most consumers complain that they do not know
what the company is doing with their data. For instance, only 11% of users
understand the purpose or meaning of cookies and the benefits or
consequences of opting out or opting in, only less than half understood that
cookies give away the geographic location of the computer. The role of the
policy maker is to educate the consumers on privacy challenges, understanding
disclosures, and trade-offs, so that they can make more informed decisions
based on their privacy expectations.

37
On a broader level, the state needs to find a justified valuation of individual
privacy when trade-offs are made for benefits. The first attempt towards this
goal was made by the 104th United States Congress in the form of Health
Insurance Portability and Accountability Act of 1996 (HIPAA) signed by
President Bill Clinton. Enacted with the motive of protecting personally
identifiable information from theft and fraud, the act essentially traded off
privacy protections for increased administrative costs. Now, in order to
understand the worth of this trade-off to the patients, it is essential to quantify
their individual privacy valuations. Multiple researchers have forayed into
answering this puzzle in diverse contexts. We will discuss some of them here.

A study by researchers at Humboldt University Berlin reveals a disjunction

between the privacy preferences as stated by the consumers and their actual
behaviour in market conditions. It appears to support our inference from the
CISCO survey that even the most privacy-conscious individuals are likely to
trade off private information for their choice of
benefits.

The study employs standard multivariate clustering techniques (k-means), to

categorise subjects into four groups with different privacy-attitudes: Privacy

38
fundamentalists (highly privacy conscious subjects), marginally concerned
users, pragmatic users (further subdivided into identity concerned and profile
concerned). The identity concerns being talked about here are name, address,
or/and e-mail, while profile concerns are interests, hobbies, health, and related
personal data.

The results of the study are useful to understand the privacy discourse as it has
proceeded in the IT age. It is one of the first of its kind to provide empirical
evidence of consumers‘ actions regarding sensitive data. It renders a major
assumption hitherto taken as a fact baseless: that privacy attitudes are directly
proportional to privacy behaviours. It is in fact, quite the opposite. It calls for a
change in the formation of privacy regulations: the design needs to protect
individuals from different degrees of self-exposure.

When seen from the economic viewpoint, the focus of privacy research
concluded so far focuses on privacy as simply protection of personal
information. Such protection or concealment is assumed to be intentional and
rational. In a free market, however the individuals can decide to share an
optimal amount of personal information, varying with each individual. The
cost of private information is subjective for each individual. When the
monetary costs of information leak or sharing are quantifiable it still leads to
some uncertainty in the risk (or lack f risk) of such a cost. Precise calculation
of privacy valuations can also be attempted using concepts from behavioural
economics and decision sciences. It is also important to consider the irrational
factors that affect the decision making. In the end the consumers face two
broad categories of choices when it comes to privacy challenges: benefits in
lieu of personal information or cost in lieu of protecting their personal
information.

Studies have focussed on the willingness to accept (WTA) versus willingness

to pay (WTP)

WTA is the minimum price a consumer would accept to share personal

information while WTP is the highest price a consumer would spend to buy
information. WTA tends to be higher, best explained by the risk aversion of
consumers. From the consideration of privacy, this difference between WTA

39
 and WTP can predict how willing a person would be to share personal
information if he has until now not had his personal information shared
anywhere and has now been asked to pay to continue to secure his privacy. On
the other hand, would someone be willing to share information for monetary
benefits would reconsider his decision if this results in loss of privacy.
However, the mathematical models have not been able to quantify how much
consumers would be willing to spend to protect the data and/or the value they
would be willing to accept to share the same. If there is a difference in the two
values then it would not be possible to accurately establish the value assigned
to the protection and/or sell personal information.

3.3 State Power

We discussed the economic aspects, now let us understand state affairs. In the
lines of Lord Acton, ―Power corrupts and absolute power corrupts
absolutely‖25, with the following view this paper deals with the intricacies of
the country and country‘s need to hold on to the idea of constitutionalism
through limited government. The Concept is then discussed about the role
which the judiciary plays in protecting the rights of the citizens of the country.
The paper focuses on the fundamental right of right to privacy under ―Article
21”26 of the constitution.

The question arises that what exactly is a limited government and what is the
provision which deals in the privacy issues and if at all, then how can judiciary
help in bridging the current situation and for harmonization between both; the
government and the citizens of the country, so that neither the fundamental
right under the constitution relating to privacy is curbed while also taking
appropriate but not extravagant measures to keep a check on the security of the
nation nor the unsolicited surveillance that happens at every digital footprint
an individual leaves.

3.5.1. Genesis

25
letter lord Acton wrote to scholar and ecclesiastic Mandell Creighton, dated April 1887
26
INDIA CONST. Art 21.

40
 To understand the concept of the aforesaid mentioned terms such as
―constitutionalism‖, ―limited government‖, ―right to privacy‖, we must first
understand what is the constitution, from where it all started, and the genesis
of the concepts like government, rights, etc. How the rule of law plays and
important role in upholding the constitutionalism and what are the case laws
which helped in developing the right to privacy as we know today.

3.6. Constitution and Definition of Constitution

In simple terms, “The organic and fundamental law of a nation or state, which
may be written or unwritten, establishing the character and conception of its
government, laying the basic principles to which its internal life is to be
conformed, organizing the government, and regulating, distributing, and
limiting the functions of its different departments, and prescribing the extent
and manner of the exercise of sovereign powers. In a more general sense, any
fundamental or important law or edict‖27

It can be understood from the mentioned text that the constitution is the law of
the land and the supreme power vests with the constitution and the division of
power amongst the three organs of the state will be based on the provisions
mentioned in it or according to the constitutional conventions. Ideally, there
should be a separation of power on both personnel as well as the functional
level to prevent any kind of arbitrariness from any of the three organs.

―The legislative department shall never exercise the executive and judicial
powers, or either of them: the executive shall never exercise the legislative and
judicial powers, or either of them: the judicial shall never exercise the
legislative and executive powers, or either of them: to the end it may be a
government of laws and not of men.”28

To maintain this, there should always be a system of checks and balances

where each organ can stop the other from encroaching the jurisdiction of one
another and formulation and execution of law is on the basis of the concept of

27
Black Law‘s Dictionary (9th Ed. 2009)
28
Massachusetts Declaration of rights, Art 30,

41
 ―rule of law‖29, which is nothing but the principles against arbitrary nature of
the superior authority. Rule of law is nothing but, ―Doctrine of Political
Morality‖ and states that balance between rights and power and between the
individuals and the state should always be maintained. But, seldom has it
happened that while making the legislation or while implementing them, the
legislature and the executive body go out of their scope of power and
formulate such laws which are arbitrary in nature and which violates curbs or
abrogates the basic fundamental rights of the citizens.

3.7. Importance of Rule of Law in Maintaining Constitutionalism

Whenever the discussion about the scope of the government to make such laws
takes place, it is inevitable for the discussion to shifts to the scope, application
and position of rule of law in that particular country. The concept of rule of
law is the basic feature of constitutionalism. It is a dynamic concept. It is also
a central feature of constitution system and basic feature of the constitution.
The entire concept is based on, ―Principle of law and not of men‖. Over the
years the supreme court of India has developed some principles of rule of law
and thereby developing the constitutionalism. The best example of the same is
given in the case of ―Veena Seth v. State of Bihar, in which the Supreme Court
extended the rule of law to the poor and down trodden‖30 , the illiterate masses
of the nation and further went on to describe that how in In India no action can
be taken except under the authority of law and duty has been cast upon the
judges to enforce the rule of law, because even though India as a country has
active rule of law in the letter as well as the spirit and it is expected that
constitutionalism is natural corollary to governance in India, but, in experience
last 60 years process of governance is a mixed one. Even after having an
excellent administrative structure for maximum welfare, the excessive
bureaucratization eventually leads to the alienation of the rulers from the ruled.
It is important that the laws made must be in concurrence with the law of the
land and should give equal protection of law and maintain equality before law.
The downtrodden and poor people make bulk of humanity in India and the rule
of law does not merely exist for people in power or who are well off and have

29
John M. Gest, ―THE WRITINGS OF SIR EDWARD COKE‖, 18 Yale L.J. 523, 504-532 (1909).
30
Veena Seth v. State of Bihar, A.I.R 1983 SC 339

42
 means to fight for their rights but also for people who do not have the means,
without being under the influence of the government or with excessive
interference from the government.

3.8. Limited Government: Origin and Scope

Whenever the power of the government, to intervene in the lives and activities
of the people is limited by the constitutional law, that kind of government is
said to be a ―limited government”. Limited government refers to any
government in which its powers over the people are limited by the constitution
of that country whether written or unwritten or overriding rule of law.

The basic concept is to stop ―absolutism‖ 31 and concentration of power which

are bestowed in the hands of a single person, such as monarchs or dictators or
similar sovereign.

―Magna Carta‖32 was the first ever charter which was legally binding and was
formed to limit the powers of the rulers and introduced the concept of limited
government for the first time

The limited government is almost exactly opposite of the doctrine of

absolutism. The ideology behind both of them is completely different. It is
against the Divine Right of Kings, which grant an unlimited sovereignty to a
single person over the people.

The history of limited government dates back to 1215, when Magna Carta was
first introduced in the western civilization. It was not a conclusive and well
defined charter and although it did limit powers of the king, it was only a small
section of English people which could benefit from it but because of this
development, it granted the king‘s barons certain rights which were limited in
nature but could be applied in opposition to the king‘s policies.

After the charter of Magna Carta, other such revolutions broke resulting in
other similar documents which then lead to the strengthening of the concept of

31
King Louis XIV (1643–1715) of France furnished the most familiar assertion of absolutism when he said,
―L'état, c'est moi
32
King John of England (r. 1199–1216) introduced it as a practical solution to the political crisis he faced in
1215, Magna Carta established for the first time the principle that everybody, including the king, was subject to
the law.

43
 the limited government. One such example is ―The English Bill of Rights‖33,
34
arising from the ―Glorious Revolution‖ of 1688, which further limited the
powers of the royal sovereignty. The U.S. Constitution, In contrast to the
Magna Carta and English Bill of Rights, establishes a central government,
which is then limited by the constitution itself along with its amendments; the
government is limited by the document itself by the system of three branches
of government which put limits over each

Other‘s powers and the process is called the system of checks and balances.
This entire process is called the ―Separation of power”

One of the greatest accomplishments of humanity is the Limited Government

,however just a part of mankind is getting a chance to enjoy it and that too they
are enjoying it imperfectly; and where so ever it is enjoyed; its tenure is ever
hazardously prone to fall or crumple or is unstable. The experience of the past
century has made clear the insecurity of constitutional government and the
need for courage in achieving it and vigilance in maintaining it.

The people advocating the phenomenon of limited government are not Anti-
Government as some people claim them to be. Rather they are only belligerent
to concentrations of coercive power and to the arbitrary use of power against
right. With a deep appreciation for the lessons of history and the dangers of
unconstrained government, they advocate for constitutionally limited
government, with the delegated authority and means to protect the rights, but
not so powerful as to destroy or negate them.

The Indian legal system was established to provide limited government. The
intention of the constitution framers was that the independent existence of
India was based on certain truths for example that ―All Men are made
equal”35, that they are bestowed by their Creator with certain unalienable

33
Act signed into law in 1689 by William III and Mary II, who became co-rulers in England after the overthrow
of King James II. The bill outlined specific constitutional and civil rights and ultimately gave Parliament power
over the monarchy.
34
Glorious Revolution (1688-1689) established the supremacy of parliament over the British monarch. It
involved the overthrow of the Catholic king James II, who was replaced by his Protestant daughter Mary
35
Thomas Jefferson , 1776 , beginning of the American Revolution coined the phrase in the original draft of
declaration of independence

44
 Rights, that among these are ―Life, Liberty, and the Pursuit of Happiness‖36 is
there and That to secure these Rights, Governments are established among
Men, getting their equitable Powers from the Consent of the Governed, that at
whatever point any Form of Government ends up ruinous of these Ends, it is
the Right of the People to modify or to abrogate it, and to initiate new
Government, establishing its Framework on such Principles, and sorting out its
Powers in such Form, as to them will appear to be well on the way to impact
their Safety and Happiness.

Masterminds of a welfare society didn't cull those certainties out of anywhere,

nor did they just design the standards of the Indian government. They drew on
their insight into a large number of long stretches of mankind's history, during
which numerous people groups battled for freedom and limited government.
There were both defeats and victories along the way.

―Through the study of history, the Founders learned about the division of
power among judicial, legislative, and executive branches; about federalism;
about checks and balances among divided powers; about redress and
representation; and about the right of resistance, made effective by the legal
right to bear arms, an ancient right of free persons. Liberty and limited
government were not invented in 1947 they were reaffirmed and
strengthened.‖ It is important to understand these concepts to determine,
exactly how much of encroachment on a right can take place, the legality of it,
whether the state has unfettered power or not and whether the acts of the
government in terms of violating the privacy of individuals is a black spot on
the system of checks and balances and what role can judiciary play, if ant, to
work as an effective deterrent towards the unsolicited usage of power. For
further understanding, it is important to understand the legal framework of the
state and how the judiciary, over time has triumphed out as the ultimate
advocate of peoples rights and privacy.

36
United States Declaration of Independence (1948)

45
 CHAPTER 4
LEGAL FRAMEWORK

Richard B. Parker writes:

“Privacy is control over when and by whom the various parts of us can be
sensed by others. By sense, is meant simply seen, heard, touched, smelled, or
tasted. By parts of us, is meant the part of our bodies, our voices, and the
products of our bodies. Parts of us also include objects very closely associated
with us. By closely associated is meant primarily what is spatially associated.
The objects which are parts of us are objects we usually keep with us or locked
up in a place accessible only to us.”37

4.1. Right to Privacy

―Privacy uses the theory of natural rights and generally responds to new
information and communication technologies. In the United States, an article
in the December 15, 1890 issue of the Harvard Law Review, written by
attorney Samuel D. Warren and future U.S. Supreme Court Justice, Louis
Brandeis, entitled The Right to Privacy, is often cited as the first implicit
declaration of a U.S. right to privacy. Warren and Brandeis wrote that privacy
is the right to be let alone and focused on protecting individuals. This approach
was a response to recent technological developments of the time, such as
photography, and sensationalist journalism, also known as yellow journalism‖.

Privacy rights are inherently intertwined with information technology. In his

widely cited dissenting opinion in Olmstead vs. United States (1928), Brandeis
relied on thoughts he developed in his 1890 article -The Right to Privacy. But
in his dissent, he now changed the focus whereby he urged making personal
privacy matters more relevant to constitutional law, going so far as saying ―the
government was identified as a potential privacy invader.‖ He writes,
―Discovery and invention have made it possible for the Government, by means
far more effective than stretching upon the rack, to obtain disclosure in court

37
Richard B. Parker, ―A Definition of Privacy,‖.

46
 of what is whispered in the closet.‖38 At that time, telephones were often
community assets, with shared party lines and the potentially nosey human
operators. By the time of Katz, in 1967, telephones had become personal
devices with lines not shared across homes and switching was electro-
mechanical. In the 1970s, new computing and recording technologies began to
raise privacy concerns, resulting in the Fair Information Practice Principles.

Alan Westin believes that new technologies alter the balance between privacy
and disclosure and that privacy rights may limit government surveillance to
protect democratic processes. Westin defines privacy as, ―the claim of
individuals, groups, or institutions to determine for themselves when, how, and
to what extent information about them is communicated to others‖39. Westin
describes four states of privacy: solitude, intimacy, anonymity, reserve. These
states must balance participation against norms:

Each individual is continually engaged in a personal adjustment process in

which he balances the desire for privacy with the desire for disclosure and
communication of himself to others, in light of the environmental conditions
and social norms set by the society in which he lives.

Under liberal democratic systems, privacy creates a space separate from

political life, and allows personal autonomy, while ensuring democratic
freedoms of association and expression.

David Flaherty believes networked computer databases pose threats to privacy.

He develops 'data protection' as an aspect of privacy, which involves ―the
collection, use, and dissemination of personal information‖. This concept
forms the foundation for fair information practices used by governments
globally. Flaherty forwards an idea of privacy as information control,
―individuals want to be left alone and to exercise some control over how
information about them is used”.

Marc Rotenberg has described the modern right to privacy as Fair Information
Practices, ―the rights and responsibilities associated with the collection and

38
Ibid.
39
Merri Beth Lavagnino, Information Privacy Revealed , EDUCAUSE REVIEW, Jan 28, 2013
https://er.educause.edu/articles/2013/1/information-privacy

47
 use of personal information‖. Rotenberg emphasizes that the allocation of
rights is to the data subject and the responsibilities are assigned to the data
collectors because of the transfer of the data and the asymmetry of information
concerning data practices.

Richard Posner and Lawrence Lessig focus on the economic aspects of

personal information control. Posner criticizes privacy for concealing
information, which reduces market efficiency. For Posner, employment is
selling oneself in the labour market, which he believes is like selling a product.
Any 'defect' in the 'product' that is not reported is a fraud. For Lessig, privacy
breaches online can be regulated through code and law. Lessig claims ―the
protection of privacy would be stronger if people conceived of the right as a
property right‖, and that ―individuals should be able to control information
about themselves‖. Economic approaches to privacy make communal
conceptions of privacy difficult to maintain. 40

4.2. International Perspective of Privacy Rights

The right to privacy is our right to keep a domain around us, which includes all
those things that are parts of us, such as our body, home, property, thoughts,
feelings, secrets, and identity. The right to privacy gives us the ability to
choose which parts in this domain can be accessed by others and to control the
extent, manner, and timing of the use of those parts we choose to disclose.

Privacy is a fundamental human right recognized in the ―UN Declaration of

Human Rights, the International Covenant on Civil and Political Rights”41 and
in many other international and regional treaties. Privacy underpins human
dignity and other key values such as freedom of association and freedom of
speech. It has become one of the most important human rights issues of the
modern age.

Most countries give citizens rights to privacy in their constitutions.

Representative examples of this include the Constitution of Brazil, which says
―the privacy, private life, honor, and image of people are inviolable‖; the

40
Aarushu sahu ,Evolution of Right to privacy,legal bites ,Jan 15 2018
https://www.legalbites.in/evolution-right-privacy-india/. (Visited on Augustl 12, 2018).
41
Assembly resolution 2200A (XXI) of 16 December 1966

48
 Constitution of South Africa says that ―everyone has a right to privacy‖; and
the Constitution of the Republic of Korea says ―the privacy of no citizen shall
be infringed.‖ Among most countries whose constitutions do not explicitly
describe privacy rights, court decisions have interpreted their constitutions to
intend to give privacy rights. Nearly every country in the world recognizes a
right of privacy explicitly in their Constitution. At a minimum, these
provisions include rights of inviolability of the home and secrecy of
communications. Most recently-written Constitutions such as South Africa's
and Hungary's include specific rights to access and control one's personal
information. 42

In the early 1970s, countries began adopting broad laws intended to protect
individual privacy. Throughout the world, there is a general movement
towards the adoption of comprehensive privacy laws that set a framework for
protection. Most of these laws are based on the models introduced by the
Organization for Economic Cooperation and Development and the Council of
Europe.

In 1995, conscious both of the shortcomings of the law, and the many
differences in the level of protection in each of its States, the European Union
passed a Europe-wide directive which will provide citizens with a wider range
of protections over abuses of their data. The directive on the ―Protection of
Individuals concerning the processing of personal data and the free movement
of such data‖ sets a benchmark for national law. Each EU State must pass
complementary legislation by October 1998.43

The Directive also imposes an obligation on member States to ensure that the
personal information relating to European citizens is covered by law when it is
exported to, and processed in, countries outside Europe. This requirement has
resulted in growing pressure outside Europe for the passage of privacy laws.
More than forty countries now have data protection or information privacy
laws. More are in the process of being enacted.

42
Privacy and Human Rights, An International Survey of Privacy Laws and Practice.
http://gilc.org/privacy/survey/intro.html. (visited on April 27, 2018)
43
Ibid

49
In many of the countries where privacy is not explicitly recognized in the
Constitution, such as the United States, Ireland and India, the courts have
found that right in other provisions. In many countries, international
agreements that recognize privacy rights such as the International Covenant on
Civil and Political Rights or the European Convention on Human Rights have
been adopted into law.

Many countries have broad privacy laws outside their constitutions, including
Australia‘s Privacy Act 1988, Argentina‘s Law for the Protection of Personal
Data of 2000, Canada‘s 2000 Personal Information Protection and Electronic
Documents Act, and Japan‘s 2003 Personal Information Protection Law.

Beyond national privacy laws, there are international privacy agreements. The
United Nations Universal Declaration of Human Rights says ―No one shall be
subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honor and reputation.‖ The
Organization for Economic Co-operation and Development published its
Privacy Guidelines in 1980. The European Union's 1995 Data Protection
Directive guides privacy protection in Europe. The 2004 Privacy Framework
by the Asia-Pacific Economic Cooperation is a privacy protection agreement
for the members of that organization.

In the 1960s people began to consider how changes in technology were

bringing changes in the concept of privacy. Vance Packard‘s The Naked
Society was a popular book on privacy from that era and led discourse on
privacy at that time.

4.2.1 View Points on Privacy

In the 1890s, future U.S. Supreme Court Justice Louis Brandeis articulated a
concept of privacy that urged that it was the individual's ―right to be left
alone.‖ Brandeis argued that privacy was the most cherished of freedoms in a
democracy, and he was concerned that it should be reflected in the
Constitution.

The Preamble to the Australian Privacy Charter provides that, ―A free and
democratic society requires respect for the autonomy of individuals, and limits

50
on the power of both state and private organizations to intrude on that
autonomy. Privacy is a key value that underpins human dignity and other key
values such as freedom of association and freedom of speech. Privacy is a
basic human right and the reasonable expectation of every person.‖

Alan Westin, the author of the seminal 1967 work ―Privacy and Freedom,‖
defined privacy as the desire of people to choose freely under what
circumstances and to what extent they will expose themselves, their attitude
and their behaviour to others.

“According to Edward Bloustein, privacy is an interest of the human

personality. It protects the inviolate personality, the individual's independence,
dignity, and integrity.”

According to Ruth Gavison, there are three elements of privacy: secrecy,

anonymity, and solitude. It is a state which can be lost, whether through the
choice of the person in that state or the action of another person.

The Calcutt Committee in the UK said that, ―nowhere have we found a wholly
satisfactory statutory definition of privacy.‖ But the committee was satisfied
that it would be possible to define it legally and adopted this definition in its
first report on privacy.

The right of the individual to be protected against intrusion into his personal
life or affairs, or those of his family, by direct physical means or by
publication of information.

4.2.2. United States and the Right to Privacy

―While the US constitution does not mention right to privacy explicitly, the
Supreme Court has on various instances interpreted various amendments to
state that the right does exist. In particular the 1974 Privacy Act was passed
with the intention of protecting citizens from any federal agency using their
records arbitrarily. It requires agencies to maintain an account of the
disclosure of records they maintain. Further, a federal law maintains the
privacy of the social security number from government inquiries, except in
cases of when the status on taxes being paid has to be produced and in the
case of child support.‖

51
 Eisenstadt vs. Baird and Roe vs. Wade
As the constitutional right to privacy grew, it became more awkward. In
Eisenstadt vs. Baird44, the Court relied on Griswold to invalidate a
Massachusetts ban on the distribution of contraceptives to unmarried people.
Over only one dissent, Justice Brennan wrote that ―if the right of privacy
means anything, it is the right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child.‖ A
differently inclined Justice might have written, ―If the right of privacy means
anything, it does not license a birth-control activist to dole out medical devices
to an overflow crowd of college students.‖ But by the time of Eisenstadt,
―privacy‖ had become a constitutional metonym, a word that resonates with
the vocabulary of common experience but carries a more complicated meaning
in the pages of the U.S. Reports. To be fair, the Court was hardly engaged in
doublespeak. 45

The privacy right at issue was in substance the woman‘s, not Baird‘s, and
when we speak of ―private‖ decision making, we may mean not only that it is
physically cached but that it is closed to external influence or input. The right
to privacy emerges from a powerful, and powerfully American, intellectual
strain. In a liberal society, an individual decision either to risk or to invite
pregnancy is simply not the communities to make, and there is nothing
malapropos in conceiving of that decision as grounded in a right to privacy. A
difficulty arises, however, when the right has to bear the weight of justification
for an exemption from abortion restrictions, as it did the following year in Roe
vs. Wade. 46 Apart from its much-maligned trimester framework, Roe is not a
doctrinal aberration. As Justice Brennan certainly knew, his words in
Eisenstadt could as easily have been describing the right to obtain an abortion.
The Roe Court‘s conclusion — that ―the right of personal privacy includes the
abortion decision, but that this right is not unqualified and must be considered
against important state interests in regulation‖ — was virtually unassailable as
doctrine went. The problem was that the doctrine was inadequate to its broader

44
405 U.S. (1972).
45
Ibid.
46
410 U.S. (1973).

52
 task. The state‘s interest in preserving potential human life is spectacularly
weighty, and only an equally weighty interest could counteract it in a
minimally satisfying way. Framed in privacy terms, the abortion right seems
not to outweigh the state‘s interest but to reject it altogether: asserting a
constitutional right to privacy is precisely a declaration that the state may not
legitimately be interested. To be private is, after all, not to be public.
Extending privacy doctrine to abortion thereby abides conceiving of the
decision whether to terminate a pregnancy as a zero-sum duel between state
and woman, rather than as a respectful weighing of competing but equally
legitimate interests.47

Carey vs. Population Services International

The Court recognized its mistake, at least implicitly, earlier than is often
thought. With the exception of Carey vs. Population Services International 48,
which applied Griswold to the distribution of contraceptives to minors, the
right to privacy has not been used to extend constitutional protection to
previously unprotected acts since Roe. Feel free to reread the previous
sentence, because this fact is easy to lose sight of amid the sequins and
pyrotechnics of judicial confirmation hearings and talk radio. To the extent the
Court has expanded the scope of substantive due process in the decades since
Roe, it has generally done so under the auspices of ―liberty,‖ in harmony with
the Griswold opinions of Justices Harlan and White and, as we will see in Part
II, with the longstanding views of Justice Stevens. 49

Cleveland Board of Education vs. LaFleur

Thus, in Cleveland Board of Education vs. LaFleur50, the Court invalidated a
school board‘s policy of requiring unpaid maternity leave for pregnant
employees, lasting from five months before their expected delivery date until
three months after the child‘s birth. Justice Stewart, who had joined the Roe
majority but had made clear his distaste for a constitutional right to privacy,
referred in LaFleur to ―a right to be free from unwarranted governmental

47
Ibid.
48
431 U.S. (1977.
49
Ibid.
50
414 U.S. (1974).

53
 intrusion‖ in the ―decision whether to bear or beget a child,‖ but he
conspicuously avoided any reference to the word ―privacy.‖ 51

Moore vs. City of East Cleveland

Likewise, in Moore vs. City of East Cleveland52, the Court struck down the
city‘s cramped definition of ―family‖ for the purpose of public housing
eligibility. Justice Powell‘s plurality opinion referenced a longstanding
―freedom of personal choice in matters of marriage and family life‖ and ―a
private realm of family life which the state cannot enter‖ but did not rely on
any right to privacy as such. If there was any doubt that the plurality was self-
consciously distancing itself from the right to privacy, Justice Powell put those
doubts to rest by quoting extensively from Justice Harlan‘s dissent in Poe vs.
Ullman53 and concurrence in Griswold, both of which spoke in terms of liberty
rather than privacy.

Cruzan vs. Director, Missouri Department of Health

Later, in Cruzan vs. Director, Missouri Department of Health54, Chief Justice
Rehnquist wrote that ―the Due Process Clause protects an interest in life as
well as an interest in refusing life-sustaining medical treatment.‖ But
elsewhere in the opinion he was careful to note that ―although many state
courts have held that a right to refuse treatment is encompassed by a
generalized constitutional right of privacy, we have never so held and believe
this issue is more properly analyzed in terms of a Fourteenth Amendment
liberty interest.‖

Troxel vs. Granville

Again, in Troxel vs. Granville55, in affirming the right of a mother to refuse
visitation to her children‘s paternal grandparents, Justice O‘Connor grounded
the Court‘s decision in liberty interests and made no reference to a
constitutional right to privacy.

51
Ibid.
52
431 U.S. (1977).
53
367 U.S. (1961).
54
497 U.S. (1990).
55
530 U.S. (2000).

54
 Bowers vs. Hardwick
Whatever might be said of cases like Cruzan and Troxel, the right to privacy
had no better bellwether than Bowers vs. Hardwick56. In his majority opinion
rejecting Hardwick‘s claim to constitutional protection, Justice White wrote,
―We first register our disagreement with the Court of Appeals and with
respondent that the Court‘s prior cases have construed the Constitution to
confer a right of privacy that extends to homosexual sodomy and for all intents
and purposes have decided this case.‖ Although the Court of Appeals had
indeed relied on the right to privacy in invalidating the statute, Laurence
Tribe‘s Supreme Court oral argument on Hardwick‘s behalf had made no
reference to any general right to privacy. 57 Indeed, at oral argument, only
Michael Hobbs, counsel for the State of Georgia, had framed the requested
right in constitutional privacy terms, and he had done so at three different
points in his argument. Likewise, the state‘s merits brief had mentioned ―the
right of privacy at every available opportunity, even using the phrase as the
title of a section of the brief, whereas the respondent‟s brief had focused much
more on the inadequacy of Georgia‟s purported state interest. Any right
invoked more enthusiastically by its enemies than its friends is not long for this
Earth.‖58

“To say that the Court has not yet succeeded in discovering a formula that can
be applied readily to any situation that may arise is only to recognize a
condition of constitutional jurisprudence that is characteristic whenever
important claims or interests clash. What the Court has been doing in a
somewhat tentative way is to insist that privacy-dignity claims deserve to be
examined with care and to be denied only when an important countervailing
interest is shown to be superior.”59

Although the Constitution does not explicitly include the right to privacy, the
Supreme Court has found that the Constitution implicitly grants a right to

56
478 U.S. (1986).
57
Ibid.
58
Supra Note 57.
59
William M. Beaney, “The Right to Privacy and American Law”, DUKE L.J. (1965)
Available at: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3107&context=lcp. (visited on April
20, 2018).

55
 privacy against governmental intrusion from the First Amendment, Third
Amendment, Fourth Amendment, and the Fifth Amendment. This right to
privacy has been the justification for decisions involving a wide range of civil
liberties cases, including “Pierce vs. Society of Sisters”, which invalidated a
successful 1922 Oregon initiative requiring compulsory public education,
Griswold vs. Connecticut, where a right to privacy was first established
explicitly, Roe vs. Wade, which struck down a Texas abortion law and thus
restricted state powers to enforce laws against abortion, and Lawrence vs.
Texas, which struck down a Texas sodomy law and thus eliminated state
powers to enforce laws against sodomy. The 1890 Warren and Brandeis article
―The Right to Privacy‖ is often cited as the first implicit declaration of a U.S.
right to privacy. This right is frequently debated. Strict constructionists argue
that such right exists (or at least that the Supreme Court has more jurisdiction
to protect such a right), while some civil libertarians argue that the right
invalidates many types of currently allowed acts not to be surveillance
(wiretaps, public cameras film industry, etc.).
Most states of the United States also grant a right to privacy and recognize
four torts based on that right:
● Intrusion upon seclusion or solitude, or into private affairs;
● Public disclosure of embarrassing private facts;
● Publicity which places a person in a false light in the public eye; and
● Appropriation of name or likeness.

―The 4 privacy torts above were introduced by William Prosser, some even
argue this in addition to the right to privacy by Warren and Brandeis form the
basis for modern U.S. privacy legislation. Also, in some American
jurisdictions the use of a person's name as a keyword under Google's AdWords
for advertising or trade purposes without the person's consent has raised
certain personal privacy concerns.‖

Right to privacy and social media content laws have been considered and
enacted in several states, such as California‘s ―online erasure‖ law protecting
minors from leaving a digital trail. However, the United States is still far
behind that of European Union countries in protecting privacy online. For
example, the ―right to be forgotten‖ ruling by the EU Court of Justice protects

56
 both adults and minors. On March 11, 2015, Intelligence Squared US, an
organization that stages Oxford-style debates, held an event centered on the
question, ―Should the U.S. adopt the 'Right to be Forgotten' online? The side
against the motion won with a 56% majority of the voting audience.‖60

4.3. Privacy Laws in Other Countries

4.3.1. European Union

―The Data Protection Directive adopted by the European Union in 1995

regulates the processing of personal data within the European Union. Article 8
of the ECHR61 provides a right to protection of one‘s private and family life
subject to certain restrictions as prescribed by law and necessary in a
democratic society towards a legitimate aim. However, there is no independent
tort law doctrine which recognizes a right to privacy. This has been confirmed
on a number of occasions.‖

Expansion of privacy law

―British Radio Jockey Sara Cox's case against The People newspaper was one
of the first celebrity privacy cases. The media referred to the case as a
―watershed‖. The disc jockey sued after the newspaper printed nude
photographs of her taken while on her honeymoon. However, the case was
settled out of court and so did not establish a precedent. The decision was seen
as discrediting the Press Complaints Commission.‖

The expansion of the doctrine of breach of confidence under the Human

Rights Act began with the “Douglas v Hello Ltd”.62 Decision. Section 6 of the
Human Rights Act requires English courts to give effect to the rights in the
Convention when developing the common law. There is no need to show a
pre-existing relationship of confidence where private information is involved
and the courts have recognized that the publication of private material
represents a detriment in itself. The Human Rights act has horizontal effect in
disputes between private individuals meaning that the Human Rights Act is

60
Ananya Chakraborty, ―The U.S. Should Adopt the 'Right to Be Forgotten‖, NEWS 18 INDIA, Aug 24, 2017,
Available at: www.intelligencesquaredus.org.
61
European Convention on Human Rights, Rome, 4.XI.1950
62
[2005] EWCA Civ 595.

57
 just as applicable as if one party had been a public body. Breach of confidence
now extends to private information (regardless of whether it is confidential) so
as to give effect to Article 8 of the European Convention on Human Rights.
Before this breach of confidence afforded ―umbrella protection‖ to both
personal and non-personal information.

4.3.2. Australia

There is no statutory definition of privacy in Australia. ALRC63 was given a

reference to review Australian privacy law in 2006. During that review it
considered the definition of privacy in 2007 in its Discussion paper. The
ALRC found there is no ―precise definition of universal application‖ of
privacy; instead it conducted the inquiry considering the contextual use of the
term ―privacy‖. In reaching that conclusion, the ALRC began by considering
the concept of privacy:

―It has been suggested that privacy can be divided into some separate, but
related concepts:

● ―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.‖

● ―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.‖

4.3.3. Sweden

―Despite being one of the first countries of the world to give a personal
identification number to its citizens, required to be used in every interaction

63
The Australian Law Reform Commission

58
 with the State, Sweden is also one of the first countries to have a detailed
statute on privacy laws online. The 1973 Data Act protected the privacy of
personal data on computers. The right to protection of personal data is also
found in the Swedish constitution.‖

4.3.4. Germany

―A horrific history of Germany under the Nazi regime, facing constant

surveillance from the government, followed by persecution, has ensured that
the country has emerged extremely cautious of the threat of administrative
attempts at intruding into personal lives of individuals. Over time the Germans
have ensured that privacy laws in the country evolved and remain updated to
match with the social and technological necessities of the time. At present, it
remains one of the strictest countries to enforce privacy laws and most detailed
data privacy laws in the world. In the recent past in fact, the privacy law
Germany has caused much discomfort to organizations like Facebook and
Google which run on the basis of the freedom of the internet.‖ The citizens'
right to protection is stated in the Constitution of Germany, in Art. 2 para. 1,
and Art. 1 para. 1. The citizens' data of Germany is mainly protected under the
Federal Data Protection Act (1977) from corporations, which has been
amended the most recently in 2009. This act specifically targets all businesses
that collect information for its use. The major regulation protects the data
within the private and personal sector, and as a member of the European Union
(EU), Germany has additionally ratified its act, convention, and additional
protocol with the EU according to the EU Data Protection Directive 95/46
EC.64

4.3.5. South Africa

The Constitution of South Africa guarantees the most general right to privacy
for all its citizens. This provides the main protection for personal data privacy
so far.

64
Id at 60

59
 The Protection of Personal Act 65 2013 (POPI) was signed into act, focusing on
data privacy and is inspired by other foreign national treaties like the United
Kingdom. Minimum requirements are presented in POPI for the act of
processing personal data, like the fact that the data subject must provide
consent and that the data will be beneficial, and POPI will be harsher when
related to cross-border international data transfers, specifically with personal
information. However, POPI won't be in full effective until an estimated date
of 2018 as it is still being deliberated by the National Council of Provinces.

The recording of conversations over phone and internet is not allowed without
the permission of both parties with the ―Regulation of Interception of
Communications and Provision of Communications Related Ac.” (2002).

4.3.6. Canada

First brought into place in 1977 as part of the Canadian human rights act, the
privacy law in Canada has evolved over time. Initially, the law was introduced
as a means of data protection. In 1983, the law was expanded to include a
check on how the government can access and disclose personal information.
The last time the privacy law was redefined and developed was in January
2012 when the Canada government stated that the common law recognized the
right to personal privacy as a ―tort of intrusion upon seclusion.‖ 66

4.3.7. Japan

―After European Union, Japan introduced a separate central legislation for

protection of data as the Act on the Protection of Personal Information (APPI).
The Act took partial effect in 2016 and has been enforceable from May 30,
2017. The law defines the scope of the legislation and states on whom the law
is applicable under Article 2-4 of the APPI. As per the Act, it is applicable to
four entities- state institutions, local public bodies, independent administrative
agencies and an entity not having over 5,000 individuals‘ personal information
for more than six months. Similar to the EU law, consent of a data subject
forms the essence of the legislation and has been stated as mandatory in case

65
Government Gazette Notice 37067 on 26 November 2013.
66
Ananya Chakraborty, ―The U.S. Should Adopt the 'Right to Be Forgotten‖, NEWS 18 INDIA, Aug 24, 2017,
Available at: www.intelligencesquaredus.org.

60
of transmitting data to a third party or for any use beyond communication
purposes. The Act on the Protection of Personal Information was fully enacted
in 2005 to protect the rights and interests of individuals while taking
consideration of the usefulness of personal information. The law applies to
business operators that hold the personal information of 5,000 or more
individuals.

61
 4.4. Right to Privacy in India

A nine-judge bench of the Supreme Court headed by Chief Justice JS Khehar,

in the case Justice K.S. Puttaswamy and Anr. Vs. Union of India and Ors.67
ruled on August 24, 2017 states that the Right to Privacy should be a
fundamental right for Indian citizens under the Constitution of India (under
Article 21 of Part III). Therefore, no legislation passed by the government can
violate it improperly. To be specific, the court selected the three-pronged test
required for encroachment of any Article 21 right – legality-i.e. by an existing
law; necessity, in terms of a legitimate state proportionality and objective that
ensures a rational core between the means adopted to achieve that object and
the object of the invasion. This clarification was important to prevent the
dilution of the right in the future on the inclines and promotes the government
in power. This ruling from supreme Court will open debate about the
discarding of the archaic section 377, that criminalizes Homosexual acts of
union. India is the world‘s biggest democracy and after this ruling, it has
joined Canada, United States, UK, South Africa, and the European Union
where they identify this as fundamental right.

4.4.1. Historical Development in India

John Stuart in his essay ―On Liberty‖ threw some light to the need to preserve
a zone within which the liberty of the citizen would be free from the authority
of the state, in 1859. In late 1890, Samuel D Warren and Louis Brandeis stated
the need of right to enjoy life which included ‗right to be alone‘. The right ―to
be let alone‖ therefore represented a form of ―an inviolate personality‖, a core
of freedom and liberty from which the human being had to be free from
intruders. It justifies the need of being left alone along with the early new
developments in newspaper, technology, and photography.

The motive behind introducing such a principle was to protect personal

productions and personal writings, not just from theft and physical
appropriation but also against publication in any form which might not be
consensual in nature. Therefore, at the time when technology and development

67
AIR 2017 SC 4161.

62
 change started threatening the individual in public viewing, many
distinguished jurists referred the right to be let alone as an addition to the law
of privacy.

i. Right to privacy in India before Independence

―Several researchers along with this author and academic scholars and experts
have pointed out with exasperation the absence of a term in most of the
popular languages in India that adequately captures all the facets of the
concept of individual privacy. This is not to argue that there was no favored
notion of privacy in ancient or medieval India. The point is being made that
the local language variants do not include facets such as- beliefs, thoughts,
correspondence, faith, the nearly inviolate privacy of one's home, as we all the
necessity of protecting personal information from getting misused by public or
private agencies or its commercial use without the informed consent of the
person.‖

ii. Constitution of India Bill, 1895

―The idea of a right to privacy as trump against the power and might of the
State to interfere with personal freedoms is first expressed in the Constitution
of India Bill drawn up in 1895 by authors who recognizes is not well
established.‖ Bal Gangadhar Tilak who announced: ―Swaraj is my birth right‖
and Mrs. Annie Besant who founded the Home Rule League in India are said
to be the inspiring leaders behind this Bill. The text of the Bill recognized
that ―Every citizen has in his house an inviolable asylum‖ - a simple
articulation of the classic English notion of privacy- for every man his home is
his castle and the State could not invade it without lawful and legitimate
justification. 68

iii. The Commonwealth of India Bill, 1925

68
―Evolution of Right to privacy‖, RTI Foundation of India, Aug 10, 2015.
http://www.rtifoundationofindia.com/evolution-right-privacy-india#.WvabwIiFM2w (visited on April 12,
2018).

63
 ―Under the Chairmanship of Sir Tej Bahadur Sapru another Bill was taken up
for self-governance in India. Mahatham Gandhi, Bipan Chandra Pal and Mrs.
Sarojini Naidu were members of the Committee that compiled this Bill.‖ This
Bill identifies ―Every person shall have the fundamental right to liberty of
person and security of his dwelling and property.‖ The notion of privacy now
extends to personal liberty and security for one's property apart from one's
home.

iv. The Nehru (Swaraj) Report, 1928

Three years later the Indian National Congress compiled a committee under
the Chairmanship of Motilal Nehru to come up with a plan for Swaraj (self-
rule) for India. Eminent freedom fighter Netaji Subhash Chandra Bose was a
member of this Committee. This Committee creates a negative obligation on
the State vis-a-vis privacy: ―No person shall be deprived of his liberty nor shall
his dwelling or property be entered, sequestered or confiscated save in
accordance with the law‖. The multifarious aspects of the notion of privacy
identified in Anglo-Saxon jurisprudence is evident in this formulation.

v. Constituent Assembly (CA) debates on the right to privacy

―The Constituent Assembly set up an Advisory Committee on Fundamental

Rights, Minorities etc. chaired by Sardar Vallabhbhai Patel. A sub-Committee
on Fundamental Rights was made under the Chairmanship of Acharya J B
Kripalani. Various members of the CA sent their views on what fundamental
rights guarantees must be incorporated in the Constitution and why.‖

On the right to privacy, K T Shah wanted the following formulation

(December 1946): “Every citizen of India has and is hereby guaranteed
security of his person, papers, property, house or effects against unreasonable
searches or seizure.”

K M Munshi's note qoute for this formulation in March 1947:‖ Every citizen...
has the right to the inviolability of his home. Every citizen has the right to the
secrecy of his correspondence. Every person has the right to be free from
interference in his family relations.‖ Two rights were identified for citizens
and one for everybody including non-citizens.

64
Harnam Singh quotes this formulation inspired by the Czech Constitution
(March 1947): Every dwelling shall be inviolable‖. The right to privacy was
expected to be attached to a physical space instead of an individual's person.

Dr. B R Ambedkar gave a more elaborate formulation (March 1947) favoring

towards a collective right over an individual one: ―The right of the people to
be secure in their persons, houses, papers and effects against unreasonable
searches and seizures, shall not be violated and no warrants shall issue, but
upon probable cause, supported by oath of affirmation, and particularly
describing the place to be searched and the persons or things to be seized.‖ Dr.
Ambedkar desired to fit in a strong safeguard against violation of the right to
privacy along with allowing for State action where required under strict
monitoring by judicial

In March 1947, the Subcommittee on Fundamental Rights approved the

following draft formulation for discussion: ―The right to inviolability of his
home - to all persons. The right of secrecy of his correspondence - to
all citizens‖. In late April, the final formulation was accepted and approved as
follows:‖ The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures, shall not be violated
and no warrants shall issue, but upon probable cause, supported by oath of
affirmation, and particularly describing the place to be searched and the
persons or things to be seized. The right of every citizen to the secrecy of his
correspondence.‖ The compromise formula recognized the language proposed
by Dr. Ambedkar and K T Shah and K M Munshi.

However, noted jurist Alladi Krishnaswamy Ayyar, former Editor of

Hindustan Times Sardar K M Panikkar both members of the CA and its
eminent constitutional advisor Benegal Narasingh Rau hampered in this
work. They argued that guaranteeing the right to privacy would hinder law
enforcement and the criminal prosecution of conspirators who will most likely
be captured in their dwellings. They also mentioned that the Constitution of
USA did not explicitly guarantee the right to privacy to its people. So, the
Advisory Committee on Fundamental Rights dropped the proposal to
recognize the right to privacy as a fundamental right. However, the right to

65
property and protection for the person of the individual were added as separate
fundamental rights in Article 19 and 21. Much later the right to privacy was
reduced to a constitutional right and inserted as Article 300A in the
Constitution. So, the Constitution was written and then enforced in 1950
without an explicitly recognizing the individual's privacy as a fundamental
right.

4.5. Data Protection Laws in India

―India‘s existing laws on data privacy are much narrower in scope. The
primary statutes governing data privacy are the Information Technology Act,
2000 (IT Act) and the Information Technology (Reasonable Security Practices
and Procedures and Sensitive Personal Data or Information) Rules, 2011
(Privacy Rules).‖

―First, Indian laws primarily regulate the processing of sensitive personal data
or information (SPDI) which is a subset of personal information. SPDI
includes, among other things, information relating to passwords, financial
information, medical records, sexual orientation, and biometric information.
Non-sensitive personal information is still subject to little regulation in India.
Second, under the Indian legal framework, the requirement for consent from
the individual citizen is vague enough to allow for implied consent. Further,
while Indian laws do confer limited extra-territorial jurisdiction, the
applicability of these laws in certain scenarios remains unclear. For instance, it
is questionable whether the IT Act or the Privacy Rules would apply to a
United States company that collects an Indian citizen‘s/resident‘s SPDI while
the latter is travelling in the United States.‖

―Often confused with trade secrets and confidentiality, privacy refers to the
use and disclosure of personal information and is only applicable to
information specific to individuals. Since personal information is a
manifestation of an individual personality, the Indian courts including the
Supreme Court of India, have recognized that the right to privacy is an integral
part of the right to life and personal liberty, which a fundamental right is

66
guaranteed to every individual under the Constitution of India. As such, the
right to privacy has been given paramount importance by the Indian judiciary
and can only be fettered with for compelling reasons such as, security of the
state and public interest.‖

―Presently, there is no specific legislation with dealing with privacy and data
protection. The protection of privacy and data can be derived from various
laws pertaining to information technology, intellectual property, crimes and
contractual relations.‖

4.5.1. “Information Technology Act, 2000”

―The IT Act provides for safeguard against certain of breaches in relation to

data from computer systems. The said Act contains provisions to prevent the
unauthorized use of computers, computer systems and data stored therein. The
section creates personal liability for illegal or unauthorized use of computers,
computer systems and data stored therein. However, the said section is silent
on the liability of internet service providers or network service providers, as
well as entities handling data. As a result, the entities responsible for safe
distribution and processing of data like the vendors and outsourcing service
providers are out of the purview of this section.‖

―The liability of the entities is further diluted in Section 79 by providing the

criteria of knowledge and best efforts before determining the quantum of
penalties. This means that the network service provider or an outsourcing
service provider would not be liable for the breach of any third-party data
made available by him if he proves that the offence or contravention was
committed without his knowledge, or that he had exercised all due diligence to
prevent the commission of such offence or contravention. It may be noted that
if there is any alleged violation of the IT Act by a company, its key employees
(managers and directors) are made personally liable for intentional or
negligent act resulting in the violation of the IT Act.‖

“The law makes no differentiation based on the intentionality of the

unauthorized breach, and no criminal penalties are associated with the
breach. Section 65 offers protection against intentional or knowing

67
destruction, alteration, or concealment of computer source code while Section
66 makes alteration or deletion or destruction of any information residing in a
computer an offence. Both sections 65 and 66 are punishable with criminal
penalties including imprisonment up to 3 years.”

―The IT Act is not the Act which solely deals with personal data protection.
The provisions related to personal data protection has been inserted in the Act
vide amendments in 2006 and 2008 in response to EU Directive and negative
Press around data theft in call centers. The issue of data protection is generally
governed by the contractual relationship between the parties. The parties are
free to enter into agreements and determine their relationship but subject to
section 43A, 72A and 69 of the IT Act.‖

Section 69 is an exception to general rule of privacy and secrecy of

information. It states that ―the Central or State Government or any of its
officer authorized by Central or State Government can intercept, monitor or
decrypt any information transmitted received or stored through any computer
resource in the interest of

1. Sovereignty or integrity of India,

2. Defense of India,

3. Security of the State,

4. Friendly relations with foreign States or

5. Public order or

6. Preventing incitement to the commission of any cognizable offence relating

to above or

7. Investigation of any offence.‖

It gives the power to the Central and State Government and agency authorized
by them to access information relating to personal in nature also. The
government can interfere with the data subject to recording reasons in writing.

68
 Section 72 of IT Act states- “Breach of confidentiality and privacy - Save as
otherwise provided in this Act or any other law for the time being in force, any
person who, in pursuant of any of the powers conferred under this Act, rules
or regulations made there under, has secured access to any electronic record,
book, register, correspondence, information, document or other material
without the consent of the person concerned discloses such electronic record,
book, register, correspondence, information, document or other material to
any other person shall be punished with imprisonment for a term which may
extend to two years, or with fine which may extend to one lakh rupees, or with
both.”

4.5.2. Information Technology (Reasonable Security Practices And

Procedures And Sensitive Personal Data Or Information) Rules, 2011

―After European Union enacted strict and stringent Data protection laws, the
Ministry of Communications and Information Technology enacted IT Rules in
2011.‖ ―The Act contains provisions with respect to three categories- Body
Incorporates, government and Information Providers. Through a Press note
released in 2011 itself, the Ministry stated clearly that the rules are applicable
to both the corporates and the individuals. It was framed under section 43A of
IT Act after the amendment in IT Act in 2008. It gives definition of sensitive
personal data.‖ It states that ―sensitive personal data includes 69

● passwords;

● financial information, such as bank account or credit card or debit card or

other payment instrument details;

● physical, physiological and mental health conditions;

● sexual orientation;

● medical records and history;

● biometric information;

69
Rule 3 of IT Rules.

69
 ● any details relating to the above clauses as provided to a body corporate for
provision of services; and

● Any information received under the above clauses by a body corporate for
processing, or which has been stored or processed under lawful contract or
otherwise.‖

―The proviso to this definition clearly states that any information which is
freely available or accessible in the public domain or under Right to
Information Act, 2005 shall not be considered as sensitive personal data.‖ The
IT Rules define personal information as ―any information that relates to a
natural person, which, either directly or indirectly, in combination with other
information available or likely to be available with a body corporate, is
capable of identifying such a person.‖ No legislation provides definition of
personal data except IT rules.

―Further the IT Rules cast a duty upon the Body Corporate to provide a
privacy policy which shall be available on the website of such Body
Corporate.‖70 The policy shall deal with the personal information and sensitive
data including purpose of collection and its usage. “The IT Rules moreover
deal with the process and procedure that should be adopted by the Body
Corporate for collection of the personal information and sensitive data.”71

―It also states that the Body Corporate cannot retain the information longer
than it is lawfully required. The Body Corporate is also required to seek the
consent of the information provider before disclosing it to the third party.
Exception is given to Government agencies mandated under the law to obtain
information related to personal information and sensitive data. The Body
Corporate has to comply with reasonable security practices as provided under
Rule 8 of the IT Rules. Therefore, it can be said that the new law is stricter and
stringent and in par with EU laws, the Body Corporate has duty to comply
with IT Rules and ensure transparency in its new privacy policies.‖

70
Rule 4 of IT Rules.
71
Rule 5 of IT Rules.

70
 4.5.3. Intellectual Property Rights

“The Indian Copyright Act prescribes mandatory punishment for piracy of

copyrighted matter commensurate with the gravity of the offence. Section 63B
of the Indian Copyright Act provides that any person who knowingly makes
use on a computer of an infringing copy of computer program shall be
punishable for a minimum period of six months and a maximum of three years
in prison.”72 It is pertinent to mention here that the Indian courts recognize
copyright in databases. ―It has been held that compilation of list of
clients/customers developed by a person by devoting time, money, labor and
skill amounts to ―literary work‖ wherein the author has a copyright under the
Copyright Act. As such if any infringement occurs with respect to data bases,
the outsourcing parent entity may have recourse under the Copyright Act
also.‖

4.5.4. Indian Penal Code

The Indian Criminal law does not specifically address breaches of data
privacy. Under the Indian Penal Code, liability for such breaches must be
inferred from related crimes. For instance, Section 403 of the India Penal Code
imposes criminal penalty for dishonest misappropriation or conversion of
―movable property‖ for one‘s own use.

4.6. Industry Initiative

In India, the efforts at complying with the demands of adhering to privacy

laws have originated mainly from the private sector rather than the
Government. In the absence of a specific legislation, the Indian software and
outsourcing industry has been taking initiatives on its own that would provide
comfort to the foreign clients and vendors. The National Association of
Service & Software Companies (―NASSCOM‖) is India's national information
technology trade group and has been the driving force behind many private
sector efforts to improve data security. For example, NASSCOM has created a
National Skills Registry which is a centralized database of employees of the IT

72
Vinita Bali , Data Piracy: Can India Provide Adequate Protection for Electronically Transferred
Data?, SANTA CLARA LAW DIGITAL COMMONS, 21 TEMP. INT'L & COMP. L. J. 103 (2007)

71
 services and BPO companies. This database is for verification (with
independent background checks) of the human resources within the industry.

Further, a self-regulatory organization has been launched which will establish,

monitor and enforce privacy and data protection standards for India‘s business
process outsourcing (―BPO‖) industry. The organization has already
completed its initial round of funding and the final rollout phase including
industry membership is underway. Additionally, many BPO service providers
in India have engaged in voluntary self-regulation and adopted stringent
security measures to reduce the risks of misuse of non-public personal data. To
reduce the risks of misuse of non-public personal data, the BPO companies in
India have adopted one or more of the following stringent security measures:

● Posting of armed guards outside office premises.

● Restricting entry by requiring microchip-embedded swipe cards.

● Prohibiting bags and briefcases in the work area.

● Making provisions that computers in workstations have no printers or devices

for removable storage.

● Banning or restricting agents or visitors from carrying mobile phones to the

production floor.

● Forbidding phone calls to and from either family or friends in employee

workstations.

● Disallowing image capturing devices like cell phones, scanners or

photocopiers.

● Restricting or prohibiting internet and e-mail access at workstations and inside

most BPO companies.

● Encryption of key information, such as passwords and, thus, unseen by

employees.

● Monitoring employees via closed-circuit television.

72
 The aforesaid protections to tighten security are an attempt by the Indian
industry to ease customer concerns over theft of private information.

India, only being an off-shoring destination, the process of data collection,

seeking consent of the customers/employees regarding the data, etc. is carried
out in India. As such, safe harbor principles and AICPA principles may not
apply on the Indian leg of the operations insomuch so that the data collection
is not being done by the Indian entities. While entering into contracts, the off-
shoring vendors imbibe terms and specific conditions in their contracts for data
protection in line with the Graham-Leach Bliley Act, Health Insurance
Portability and Accountability Act, Fair and Accurate Credit Transactions Act,
etc. Typically, these vendor agreements stipulate how the information can be
disclosed and provide for implementation of administrative, physical and
technical safeguards that reasonably and appropriately protect the
confidentiality, integrity and availability of the data provided to the vendors.

With respect to the personal and financial data being misappropriated by the
employees or any other persons while the data is in possession of the Indian
vendors, Indian legislation recognizes copyright in database 73 and as such, the
foreign entity may take legal action against the infringer. Since the Supreme
Court of India recognizes privacy under right to life, the person whose
personal data has been leaked may also take legal recourse against the alleged
culprit.

The lack of a comprehensive legislation pertaining to privacy and data

protection has been a matter of concern. This concern has been particularly
expressed by foreign companies that are doing business in India and are
transmitting confidential data into the country. Even though the data protection
laws are not specifically laid down in any statute as yet, the Indian industry as
well as the have begun the process of sensitizing the Government and the
masses regarding the importance of privacy. Further, with regulators like the
Reserve Bank of India providing for strict privacy norms in certain areas, it
seems that India is taking a huge step towards privacy norms. It is being felt by
all concerned that a dedicated data protection law would give further impetus

73
Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber, 61,DLT 6(1995)

73
 to not only the outsourcing industry but to the Foreign Direct Investment
Policy at large.

With the changing needs and demands of the society, the laws are evolving
and the scope of the legal rights is being broadened. To understand the concept
of right to privacy we musty first understand what privacy is. According to the
definition, ―the right to be let alone; the right of a person to be free from any
unwarranted publicity; the right to live without any unwarranted interference
by the public in matters with which the public is not necessarily concerned‖74
is called privacy of an individual. It is related to the liberty of the individual
and hence related with Article 21 of the Constitution of India which states that
―No person shall be deprived of his life or personal liberty except according to
procedure established by law‖75. After drawing inference from this article,, it
has been interpreted that the term ‗life‘ includes each of those aspects which
makes a man‘s life meaningful with dignity and worth living. In India the
jurisprudence of the right to privacy is a latest development but over the years
there have been plethora of cases which has helped it to develop.

4.7. Role of Courts: Case Analysis

Important Case Laws Which Helped To Develop Right To Privacy.

 ―M.P Sharma v. Satish Chandra‖76

The question was raised on the constitutionality of search and seizure of
document from the person against whom a FIR has been lodged, the main
question was that whether this was violative of the fundamental right of that
person under the ―Right to property‖77 and ―Right against self-incrimination‖78
of the constitution.
The bench was to ascertain that if there were any constitutional limitation to
the government‘s right to search and seizure and if that would somehow
constitute any breach to the right to privacy of the individual.
74
Black‘s Law Dictionary
75
INDIA CONST. Art 21.
76
M.P Sharma v. Satish Chandra, 1954 A.I.R 3007
77
INDIA CONST. art. 19, cl. 1
78
INDIA CONST. art. 20, cl.3

74
 Since the question of privacy was new and this dimension was not explored,
the court while delivering the judgement did not go into the intricacies of the
right, the interpretation and scope of the right was later broadened in the
subsequent years. In this case the decision by an eight judge‘s bench held that
right to privacy was not a fundamental right. The process of search and seizure
in question was considered to be a reasonable restriction of freedom under the
constitution which could not be held unconstitutional. It was given by the
majority that the process was just a temporary interference and for that matter
the statutory recognition was unnecessary.
 ―Kharak Singh v. The State of U.P‖79 :
Just like its precedent, only the minority opinion recognized the right to
privacy as a fundamental right. Dissenting judge Justice Subbarao, said that
―even though the right to privacy was not expressly recognized as a
fundamental right, it was an essential ingredient of personal liberty under
Article 21. He also held all surveillance measures to be unconstitutional. The
judges were of the opinion that privacy is both the right to personal liberty and
freedom of movement.”80
The majority of the judges were of different opinion than justice Subbarao and
even though after striking down the the provision allowing domiciliary visits,
they held that ―privacy was not a guaranteed constitutional right". It however,
held that ―Article 21 was the repository of residuary personal rights and
recognized the common law right to privacy.‖
In the hindsight if we look at this case, it reeks of the ―destruction caused by
the state of a sanctified personal space whether of the body or of the mind and
which was violative of the guarantee against arbitrary state action‖81.

 “R. M. Malkani vs. State of Maharashtra”82

―In 1972, the Supreme Court decided a case – one of the first of its kind – on
wiretapping. In R. M. Malkani vs. State of Maharashtra the petitioner‘s voice

79
Kharak Singh v. The State of U.P 1963 AIR 1295, 2
80
Priyanka Mitta, Is privacy a fundamental right? Two cases that supreme court will look at, LIVE MINT, July
19,
81
Jayant Das, Increasing intrusion of State into Right to Privacy, THE PIONEER, July 04, 2018, 7:12 PM)
https://www.dailypioneer.com/2018/state-editions/increasing-intrusion-of-state-into-right-to-privacy.html
82
AIR 1973 SC 157.

75
 had been recorded in the course of a telephonic conversation where he was
attempting blackmail. He asserted in his defense that his right to privacy under
Article 21 had been violated. The Supreme Court declined his plea holding
that ―The telephonic conversation of an innocent citizen will be protected by
Courts against wrongful or high handed' interference by tapping the
conversation. The protection is not for the guilty citizen against the efforts of
the police to vindicate the law and prevent corruption of public servants.‖

 “Govind vs. State of Madhya Pradesh 83”

―Govind vs. State of Madhya Pradesh (1975), decided by a three-Judge Bench
of the Supreme Court is regarded as being a setback to the right to privacy
jurisprudence. Here, the court was evaluating the constitutional validity of
Regulations 855 and 856 of the Madhya Pradesh police Regulation which
provided for police surveillance of habitual offenders including domiciliary
visits and picketing.‖ The Supreme Court desisted from striking down these
invasive provisions holding that ―It cannot be said that surveillance by
domiciliary visit-, would always be an unreasonable restriction upon the right
of privacy. It is only persons who are suspected to be habitual criminals and
those who are determined to lead a criminal life that are subjected to
surveillance.‖ The court went on to make some observations on the right to
privacy under the constitution:
―Too broad a definition of privacy will raise serious questions about the
propriety of judicial reliance on a right that is not explicit in the Constitution.
The right to privacy will, therefore, necessarily, have to go through a process
of case by case development. Hence, assuming that the right to personal
liberty. the right to move freely throughout India and the freedom of speech
create an independent fundamental right of privacy as an emanation from them
it could not he absolute. It must be subject to restriction on the basis of
compelling public interest. But the law infringing it must satisfy the
compelling state interest test. It could not be that under these freedoms the
Constitution-makers intended to protect or protected mere personal

83
(1975) 2 SCC 148.

76
 sensitiveness‖ This case is important since it marks the beginning of a trend in
the higher judiciary to regard the right to privacy as ―not being absolute‖.
From Govind onwards, ‗no absoluteness‘ becomes the central defining feature
of this right.

 “Radhakrishan vs. State of U.P.”84

In, Radhakrishan vs. State of U.P. which involved an illegal search in
contravention of the CrPC, the Supreme Court held that: “So far as the alleged
illegality of the search is concerned, it is sufficient to say that even assuming
that the search was illegal the seizure of the articles is not vitiated. It may be
that where the provisions of Code of Criminal Procedure, are contravened the
search could be resisted by the person whose premises are sought to be
searched. It may also be that because of the illegality of the search the Court
may be inclined to examine carefully the evidence regarding the seizure. But
beyond these two consequences no further consequence ensues.”

 Mr 'X' vs. Hospital 'Y'85.

―Does the disclosure by a hospital of the medical condition of an AIDS patient
to his fiancé amount to a breach of the patient's privacy? This question arose in
Mr 'X' vs. Hospital 'Y'. The Supreme Court was confronted with the task of
striking a balance between two conflicting fundamental rights: the AIDS
patient's right to life which included his right to privacy and confidentiality of
his medical condition, and the right of the lady to whom he was engaged to
lead a healthy life. The Supreme Court concluded that since the life of the
fiancé would be endangered by her marriage and consequent conjugal relations
with the AIDS victim, she was entitled to information regarding the medical
condition of the man she was to marry. There was, therefore, no infringement
of the right to privacy.‖

 “R. Rajagopal v. Union of India”86 :

84
AIR 1980 SC 593.
85
(1988) 2 All ER 648.
86
R. Rajagopal v. Union of India, 1994 SCC (6) 632

77
―In this judgment, The right to privacy was said to be included as a part of
right to life and personal liberty and the court further elaborated on whether it
can be treated as fundamental right, actionable claim or both.‖

―Here the court was involved a balancing of the right of privacy of citizens
against the right of the press to criticize and comment on acts and conduct of
public officials. The case related to the publication by a newspaper of the
autobiography of Auto Shankar who had been convicted and sentenced to
death for committing six murders. In the autobiography, he had commented on
his contact and relations with various high-ranking police officials –
disclosures which would have been extremely sensational. Sometime before
the publication, he appears to have been induced to write a letter disclaiming
his authorship of the autobiography. On this basis, the Inspector General of
Prisons issued a letter forbidding the newspaper from publishing the
autobiography claiming, inter alia, that the publication of the autobiography
would violate the prisoner‘s privacy. Curiously, neither Shankar himself, nor
his family were made parties to this petition. The Court decided to presume,
somewhat oddly, that he had ―neither written his autobiography‖ nor had he
authorized its publication. The court then proceeded on this assumption to
enquire whether he had any privacy interests that would be breached by
unauthorized publication of his life story. The right of privacy of citizens was
dealt with by the Supreme Court in the following terms: -

―The right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of this country by Article 21. It is a right to be let alone. A citizen has
a right to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, childbearing and education among other matters. None can
publish anything concerning the above matters without his consent - whether
truthful or otherwise and whether laudatory or critical. If he does so, he would
be violating the right to privacy of the person concerned and would be liable in
an action for damages. Position may, however, be different, if a person
voluntarily thrusts himself into controversy or voluntarily invites or raises a
controversy.‖

78
 ―The rule aforesaid is subject to the exception, that any publication concerning
the aforesaid aspects becomes unobjectionable if such publication is based
upon public records including court records. This is for the reason that once a
matter becomes a matter of public record, the right to privacy no longer
subsists and it becomes a legitimate subject for comment by press and media
among others. We are, however, of the opinion that in the interests of decency
[Article 19(2)] an exception must be carved out to this rule, viz., a female who
is the victim of a sexual assault, kidnap, abduction or a like offence should not
further be subjected to the indignity of her name and the incident being
publicized in press/media.‖

On this reasoning, the court upheld that the newspaper‘s right to publish
Shankar‘s autobiography, even without his consent or authorization, to the
extent that this story was able to be pieced together from public records.
However, if they went beyond that, the court held, ―they may be invading his
right to privacy and will be liable for the consequences in accordance with
law.‖ Importantly, the court held that ―the remedy of the affected public
officials/public figures, if any, is after the publication‖

 “People‟s Union for Civil Liberties v. Union of India”87 :

The SC laid down certain guidelines and regulations that such orders of the
interceptions were to be only issued by the home secretaries only and only
after considering the necessity of the information. This case before the
Supreme Court extended the right to privacy to communications.

“People's Union for Civil Liberties vs. Union of India, involved a challenge to
Section 5(2) of the Telegraph Act, 1885 which permits the interception of
messages in cases of public emergency or in the interest of public safety. The
Supreme Court held that the right to privacy, which was part of the
fundamental right to life guaranteed under Article 21, included the right to
hold a telephone conversation in the privacy of one's home or office.‖ It was
held that telephone-tapping, a form of ―technological eavesdropping‖ infringed
the right to privacy. Finding that the Government had failed to lay down a
proper procedure under Section 7(2) (b) of the Act to ensure procedural

87
People‘s Union for Civil Liberties v. Union of India (1997) 1 SCC 301.

79
safeguards against the misuse of the power under Section 5(2), the Court
prescribed stringent measures to protect the individual's privacy to the extent
possible.

The Court made the following observations:

The right privacy - by itself - has not been identified under the Constitution.
As a concept it may be too broad and moralistic to define it judicially. Whether
right to privacy can be claimed or has been infringed in a given case would
depend on the facts of the said case.‖ However, the Court went on to hold that
―the right to hold a telephone conversation in the privacy of one‘s home or
office without interference can certainly be claimed as right to privacy‖. This
was because ―conversations on the telephone are often of an intimate and
confidential character. Telephone conversation is an important facet of a
man's private life. Right to privacy would certainly include telephone-
conversation in the privacy of one's home or office. Telephone-tapping would,
thus, infract Article 21 of the Constitution of India unless it is permitted under
the procedure established by law.‖

The court also read this right to privacy as deriving from Article 19. ―When a
person is talking on telephone, he is exercising his right to freedom of speech
and expression.‖ the court observed, and therefore ―telephone-tapping unless it
comes within the grounds of restrictions under Article 19(2) would infract
Article 19(1)(a) of the Constitution.‖

―This case made two important contributions to communications privacy

jurisprudence in India – the first was its rejection of the contention that ‗prior
judicial scrutiny‘ should be mandated before any wiretapping could take place.
Instead, the court accepted the contention that administrative safeguards would
be sufficient. Secondly, the Court prescribed a list of procedural guidelines,
the observance of which would save the wiretapping power from
unconstitutionality. In 2007, these safeguards were formally incorporated into
the Rules framed under the Telegraph Act.‖

80
 The three judgments saw and acknowledged privacy as a constitutionally
protected fundamental right, namely, Gobind vs. State of Madhya Pradesh 88 ,
PUCL vs. Union of India (telephone tapping case) and R. Rajagopal vs. State
of Tamil Nadu89 (Court dealt with a conflict between the freedom of the press
and the right to privacy). However, all three judgments were of smaller
benches and left the stakeholders in dilemma with regards to interpretation of
Privacy under Article 21 of the constitution of India or not. In Rajagopal Case
the court held that the right to privacy has two aspects: the first affords an
action in tort in damages for the unlawful invasion of privacy, and the second
is a constitutional right.

 ―District Registrar and Collector, Hyderabad and another v. Canara Bank

and another‖ .
Apex court in this case did not describe the right to privacy as an absolute
fundamental right but connected it with personal liberty, freedom of speech
and expression and freedom of movement, and added that because of these
rights which exist, the right to privacy rises.

 ―Selvi and others v. State of Karnataka and others‖90.

This is one of the very recent examples of how the court upheld the right to
privacy of an individual by giving the individual chance to go through the due
process of law or the process established by law and describing the forced
narcoanalysis, brain mapping, FMRI and polygraph test as violation of the
fundamental right and unconstitutional. such forced tests were said to be self-
incriminatory in nature and violative of the Art. 20(3) .Interestingly, the apex
court made a difference between physical privacy and mental privacy and
related it to the right to privacy.

 ―Unique Identification Authority of India & Anr. v. Central Bureau of

Investigation‖.
Up until this point, the development of the right to privacy as we know it
today, was never perceived as the absolute one. If and when any question used
88
(1975) 2 SCC 14.
89
(1994) 6 SCC 632.
90
AIR 2010 SC 1974

81
 to arise regarding the conflict between the fundamental rights of the two
parties, the right which used to advance the public morality was upheld and
only that would prevail over the other.

 ―Justice K.S. Puttuswamy (Retd.) & Anr. v. Union of India & Ors.‖ 91.
The latest development only happened a couple of years back when along with
the right to privacy; the unique identity scheme was discussed at lengths. The
question raised was that whether the right of privacy was guaranteed under the
constitution or not . The attorney general of Indian argued that it privacy is not
a fundamental right guaranteed to Indian citizens, but, the bench was of the
view that the right to privacy is a sacrosanct facet of Art. 21 of the constitution

4.8. Analysis of 2017 Judgment of Justice K.S. Puttaswamy and Anr. Vs.
Union of India and Ors.92

In 2017, a nine-judge bench of India‘s apex court unanimously held that

Privacy is a fundamental right. The court also ruled that privacy is inscribed
into the Article 21 of the constitution and is intrinsic to life and liberty. The
bench comprised Chief Justice Khehar and Justices A.M. Sapre, Syed Abdul
Nazir, S.A. Bobde, R.K. Agrawal, R Nariman, J. Chelameshwar D.Y.
Chandrachud, Sanjay Kishan Kaul and S.A. Bobde. The judges gave different
arguments leading to a unanimous verdict.

In doing so, the court has overturned the M.P. Sharma vs S Sharma case
verdict of 1958 as well as the K Singh vs state of UP case of 1961 where the
court had denied that right to privacy is protect under the constitution.

The lead judgment of 265 pages, penned by Justice D.Y. Chandrachud and co-
signed by Chief Justice Khehar and Justices Nazir and Agarwal has the below
conclusions:

Conclusions of Justices J.S. Khehar, R.K. Agrawal, D.Y. Chandrachud, S. A.

Nazir

91
Justice K.S. Puttuswamy (Retd.) & Anr. v. Union of India & Ors. 2017 ( 8 ) SCJ 33
92
AIR 2017 SC 4161.

82
The M.P. Sharma verdict states that the right to privacy cannot be held as a
fundamental right in the Indian context under Article 20(3) since the Indian
constitution does not have provisions like the 4th amendment which in
enshrined in the constitution of the United States. The verdict does not clearly
say if such a right may be invoked from the other provisions of the rights
guaranteed by Article 19 or Article 21. It does not conclusively state that
Privacy is not a fundamental right guaranteed by the constitution of India. The
M P Sharma verdict is hence overruled to the extent to which it implies the
contrary.

The Kharak Singh verdict has rightly stated that the expression of life as
mentioned in Article 21 does not merely mean the right to an individual‘s
―animal existence‖. It says that the expression ‗personal liberty‘ is a promise
against incursion into an individual‘s home and personal security. It rightly
states that a person‘s dignity is an integral part of his ‗personal liberty‘. The

The 1st part of the Kharak Singh verdict that invalidates nocturnal domiciliary
visits on grounds that it violates liberty is an implied recognition of privacy as
a right. However, the 2nd part is a contradiction to the current judgement, since
it says that privacy cannot be held as a fundamental right. Hence, Kharak
Singh‘s reference of the verdict of the majority in Gopalan is not reflective of
the correct position in view of the decisions in Cooper & in Menka to the
extent that it holds that the privacy is not protected as a right in the constitution
of India is overruled.

Life and personal liberty are the rights inextricable from a dignified human
existence. Personal dignity, equality amongst people and liberty are the base of
the constitution of India. However these rights are not created by the
constitution, in fact, these are rights intrinsic to the human species; privacy is a
right promised by the constitution of India which primarily emanates from
Article 21;

Legal recognition of the constitutional right to privacy is not intended to

amend the Constitution;

83
Privacy is intrinsic to human dignity. It has a normative as well as a
descriptive function. Normative in the effect that privacy serves the values
upon which the guarantees of freedom, life and liberty are founded.
Descriptive in the effect that privacy suggests a list of entitlements which
forms the foundation of liberty;

Essentially, privacy preserves personal intimacy, sanctity if life, marriage,

procreation and sexual orientation. It is also a right to be left alone. It protects
personal autonomy and relies the right and ability of the person to control his
life. Our plural and heterogeneous culture is protected by privacy.

It is critical to emphasize that privacy is not yielded merely by an individual‘s

presence in a public area. This is true even though the hopes of it may change
from intimate/private spaces to public areas. The right to privacy still holds
because of its inseparability from human dignity.

The intention is not to promise a list of entitlements in the right to privacy but
that to evolve when needed to protect privacy of an individual. The
perceptions during the adoption of the constitution cannot be held as timeless
wisdom, with new challenged birthed by technological advances, many ideas
of the past and present may become obsolete. Hence the basic features of
constitution must always be upheld with the help of flexible interpretations for
the progeny;

As is the case with other fundamental rights like the right to life and personal
liberty under Art. 21, the right to privacy also is not absolute. Permissible
curtailments of fundamental rights need to be take into account in the event of
a new law. Meaning, any intrusion into personal privacy must be justified as
fair before any law can be enacted. Similarly, it should not encroach upon the
right to life and personal liberty under Article 21;

Right to privacy has two aspects: On one hand it means that the state must not
intrude upon the life and personal liberty of an individual. On the other hand it
defines the protection of individual privacy as a duty of the state.

The verdict subsequent to Kharak Singh case, upholding the right to privacy
would be subject to the principles stated above.

84
 The challenges to privacy are not only limited to the state but also from non-
state agencies. Hence regime to protect personal data becomes necessary on
the part of the Government of India. Such regime would need to find
equilibrium between personal rights to privacy and legitimate concerns of the
state. The latter may include national security, crime, business interest, etc. It
has been brought to court‘s notice that the government has already made a
committee headed by Honourable Justice B.N. Srikrishna, a former judge of
the Supreme Court.

Petitioners’ Arguments

Contention that the collection of biometric data for Aadhaar cards risks
exposure, issue and is in violation of the fundamental right to privacy put forth
by the petitioners, former Karnataka high court judge Justice K.S. Puttaswamy
and others.

Prominent advocates G Subramanium, S Divan, S Pooyaya, A Grover & Indira

Jaising and former attorney general S Sorabjee made the followed arguments
on the petitioners‘ behalf:

1. Right to privacy would be included in the right to life under Article 21 of

Indian constitution though it has not been clearly specified.
2. Protection of personal information is an aspect of privacy but it cannot be
regarded as the complete definition of privacy. Subramanium argued,
‖Privacy is about the freedom of thought, conscience and individual
autonomy and none of the fundamental rights can be exercised without
assuming certain sense of privacy‖. 93 Protecting the fundamental rights of
the people is an affirmative obligation of the state. ―Liberty is fundamental
to democracy and citizens cannot exist without privacy.‖
3. Sorabjee stated, ―Privacy is not explicitly laid out in the constitution. But
that does not mean the right does not exist as it has been deduced from the
constitution‖. He held the derivation of the freedom of press from Art. 19

93
Right to Privacy
http://thelegiteye.in/2017/10/24/case-analysis-right-privacy. (visited on Feb 22, 2018)

85
 as a precedent to argue that right to privacy may also be derived similarly
from Art. 21
4. The advances of technology has made it necessary for an individual to
have control on the extend to which he/she wishes to share personal data.
A lacm of protection of personal data results in an intrusion to privacy.
5. Arun Jaitley, the finance minister in the Union government has cleary
stated during the discussions held for Aadhar Bill in the Rajyasabha in
2016 that right to privacy is a fundamental right. A stand which is
contradictory to the current position of the government.
6. Subramanium argued, ―Liberty existed prior to constitutional era and the
law had merely recognized its existence. Liberty, which is fundamental to
democracy and citizens, cannot exist without privacy‖.

Attorney General’s Arguments

The attorney general KK Venugopal, speaking on Centre‘s behalf, pointed out

that a bench of eight judges in 1954 and a bench of six in 1962 had clearly
stated that right to privacy was not a fundamental right.

He stated that right to privacy cannot be claimed as a funadamental right under

Art. 21, Art, 14 or Art. 19, although it was a fundamental right under the
British Common Law.

The nationality and vagueness of the concept of privacy was brought to the
attention of the court as a hindrance with it being qualified as a fundamental
right. ―Every aspect of it does not qualify as a fundamental right, as privacy
also includes the subtext of liberty. No need to recognize privacy as an
independent right. Defining the contours of privacy is not possible. Privacy is
as good a notion as pursuit of happiness,‖ 94

―If privacy were to be declared a fundamental right, then it can be a qualified

right.‖ It was argued that privacy is a limited fundamental right that can be
restricted subject to state interest. It was argued that in Indian context, other
fundamental rights like food, clothing, etc are far more important.

94
Ibid.

86
 ―The government said Aadhaar would not fall under the right to privacy. We
can‘t say every encroachment of privacy is to be elevated to fundamental right.
The claim to liberty has to subordinate itself to right to life of others,‖ he said.

He referred to a statement by the World Bank that an identity system is needed

in developing countries as a counter to arguments against the Aadhar Card
system.

This reference is answered by stating that the inalienable fundamental right to

privacy resides in Article 21 and other fundamental freedoms contained in Part
III of the Constitution of India. M.P. Sharma 95 and the majority in Kharak
Singh96, to the extent that they indicate to the contrary, stand overruled.

As a result a return to later judgements regarding privacy as a right is not

necessary. Hence these cases are returned for adjudication on grounds to the
bench of three hon‘ble judges of the court in light of the current judgement.

95
Supra note 35.
96
Ibid.

87
 CHAPTER 5
NATIONAL SECURITY LEGISLATIONS AND THEIR
EFFECT ON PRIVACY

5.1. The Unlawful Activities (Prevention) Act, 1967

5.1.1. A Brief History of the UAPA

Dissent and Opposition are one of the core values of every existing democracy
in the world. They are one of the very basic principles on which democracy is
based. But, there is a very thin line of difference between Dissent and
Violence, and when one crosses the said line, terrible things are bound to
happen, take Pakistan and Bangladesh for example. The need for the Unlawful
Activities Prevention Act arose when the National Integration Council
appointed the committee on National Integration and Regionalism. The sole
purpose for constituting the committee was to look into the issues concerning
the Sovereignty and Integrity of India. This further led to the passing of the
16th Amendment to the Constitution of India, which then put reasonable
restrictions upon the Fundamental Rights which were guaranteed by Article 19
of the Constitution of India. The said act was passed in the wake of the defeat
which India suffered at the hands of the India-China war of 1962, and for the
purposes of maintaining the sovereignty and integrity of India, because at that
time, the DMK Party was contesting elections from the Tamil Nadu state, and
it posed a great threat to the sovereignty of India because secession from India
was a part of their election manifesto.

The Unlawful Activities (Prevention) Act, 1967 was the Government of

India‘s first legislation which was targeted at countering terrorism and anti-
national activities within the territory of India. With the passage of time, the
act was amended several times.

Although legislated for the benefit of the nation, the UAPA started gaining
active criticism from 2004 when the said amendment was passed, which
contained a majority of the provisions from the repealed Prevention of
Terrorism Act (POTA). This criticism only went upwards from that point,

88
 calling the act out as fascist, and outright unconstitutional. The reasons for the
same aren‘t wrong as well, because the government has time and again maid
arbitrary arrests within the scope of the said act. Furthermore, the act has been
criticized of using very vague and open ended terms to define simple things,
just so that arrests can be made under this act for a wide range of acts without
they actually being something considerate or not.

5.1.2. Reasons for Legislating the Unlawful Activities (Prevention) Act,

1967

As very well stated earlier, there were many reasons which were considered
before the passing of the UAPA. These reasons were:-

 Defeat in the Sino-Indian War: The Indian Army was heavily unequipped
during the Sino-Indian war, and the Chinese were far advanced in their
military technologies as well as their equipment. 97 This led to heavy losses on
the Indian Side. The aftermath of the battle resulted in India losing a
significant portion of the Kashmir Valley, known as Aksai Chin, to the
Chinese. This was a big blow to the sovereignty of India, and a grave concern
to the government back then.
 Rising Insurgency in India: Communists and Chinese Sympathizers were
already starting to assimilate in 1955-56 within West Bengal. India was
already in the process of inculcating the Princely States with the territory of
India, and there was already a growing sense of discontentment within the
Princely States which were already a part of India, because the Government
wasn‘t living up to the promises which were made to them while ceding their
territory to India. There were even more radical insurgencies rising in the State
of Nagaland, claiming direct secession from India. 98
 DMK Contesting Elections in Tamil Nadu: The DMK Party at that time
planned on contesting the elections for the State Legislature of Tamil Nadu.

97
Maj Gen Sheru Thapliyal, 1962 War: A Critical Analysis, Mar. 30, 2018,
http://www.indiandefencereview.com/spotlights/1962-war-a-critical-analysis/ (Last Visited: 01st August, 2020)
98
Namrata Goswami, Indian National Security and Counter-Insurgency: The Use of Force Vs Non-violent
Response, ROUTLEDGE,43. ISBN 978-1-134-51431-1

89
 Tamil Nadu was already a part of India at time, and there was a growing sense
of discontentment amongst the people of Tamil Nadu because the Government
of India had not agreed to separate the states on the basis of language as
promised. This became the topmost agenda of the DMK Party, and officially
in their Election Manifesto DMK declared that if they win the elections, they
will be moving for a secession from the Indian Territory. 99

These reasons started worrying the Indian Government, because that was a
time when India wasn‘t even geopolitically as we see. The territories of Goa,
Pondicherry, and even Sikkim weren‘t a part of India, while the states like
Mysuru and Cochin kept demanding further division on the basis of language.
This combined with a loss of territory in Aksai Chin had the Government
worried about any further losses to the Sovereignty and Integrity of India.
Hence the Government, after amending the Constitution through the 16 th
Amendment Act, and putting reasonable restrictions on the rights provided
under Article 19 of the Constitution of India, moved forward with introducing
the Unlawful Activities (Prevention) Act, 1967.

5.1.3. Why was the UAPA unique?

Several provisions of the Unlawful Activities (Prevention) Act, 1967, were

authoritative, as well as overly broad in their definition, thereby allowing the
government to do a large number of things over a simple authority, just
because it wasn‘t specific enough to point out as to what it was actually
referring to.100

Further, certain things which made the UAPA stand out from other
legislations at that time are:-

 Declare All-India bans on organizations and associations: By far the most

distinct and the most used feature of the UAPA is the power which the act
gives to the government to impose an All-India Ban on Organizations. The

99
ROBERT L. HARDGRAVE, JR., THE DMK AND THE POLITICS OF TAMIL NATIONALISM, Pacific Affairs, Vol. 37,
No. 4 (Winter, 1964-1965), 396-411
100
Unlawful Activities (Prevention) Act, 1967, Sec 2, Sec 3

90
 Government, by virtue of Section 3 of the act could simply announce that an
association is unlawful, by publishing a notice in the Official Gazette, if it is of
the opinion. The section further goes on to provide that the government has to
provide the reasons as to which it opined that the association is unlawful.
However, the proviso to the same subsection provides that nothing in the said
clause could mandate the Government to give reasons for banning an
association if the Government if of the opinion that declaring such reasons to
the public shall not be in the public interest to disclose. 101 This essentially gave
the Government the power to declare any organization as unlawful and not
give any justification whatsoever as to why it chose to declare it as such.
 Vague and Open Ended Interpretation to clauses: Section 2(f) 102 of the
Unlawful Activities (Prevention) Act, defines the term Unlawful Activity, as
any act which intends to bring about cession or secession to any part or
territory of India, or which incites an individual or association to do so, or it
does anything to harm the sovereignty and integrity of India. Now this
definition in itself opens up hundreds of interpretations, because nowhere in
the said legislation has nay act been defined which could be seen as an act
harming the sovereignty or integrity of India. Further, Section 2(g) 103 defines
an unlawful organization as any organization which does unlawful activity, or
whose members do such activity, or which aids in committing of such activity.
 Harsh and Unreasonable Punishments: Section 10 of the Unlawful
Activities (Prevention) Act, provides that any person who is merely a member
of an unlawful association can be punished with imprisonment up to 2 years.
Section 13, on the other hand, punishes who takes part, abets, advises, or
incites the commission of any unlawful activity with an imprisonment of up to
5 years.
 Arrests without Warrants: Section 14 of the Unlawful Activities
(Prevention) Act, 1967, clearly states that any offence which is listed under
this act shall be cognizable only. This therefore allows the police to arrest a

101
―Provided that nothing in this sub-section shall require the Central Government to disclose any fact which it
considers to be against the public interest to disclose.‖
102
Section 2(o) in the present act.
103
Section 2(p) in the present act.

91
 person whom they suspect of being linked to an unlawful association, without
a warrant. Not only an arrest, but the police can actually go further and started
an investigation without even the permission of the court. This actually in turn
grossly overpowers the police in matters related to Unlawful Activities, and
the police can misuse the powers for harassing people and activists without
any valid reasons or authority to do the same. 104
 Protection from Civil Liability: To put the final nail to the coffin, the
Government actually went forward and included Section 18 105 of the Unlawful
Activities (Prevention) Act, 1967, which stated that No Legal Proceeding shall
lie against the government for any loss or damage caused because of any
action taken by the Government while acting under the powers of the said act.
This actually gave the government full immunity from any kind of
responsibility which may arise from the continuous use of the said act.

The act did provide some relief, with provisions for establishment of a
Tribunal in the case of unjustly ruling an organization a terrorist organization,
but little to no relief has been provided through such tribunals, and an
organization which had made its way to be banned under this act has in the end
remained banned. The SIMI is a living example of such act.106

5.2. Similar Legislations as the UAPA

Although the Unlawful Activities (Prevention) Act as of today deals not only
with Unlawful, but terrorist activities as well, the same wasn‘t always the case
when it came to dealing with terrorism and related activities. Prior to inclusion
in the UAPA, terrorist activities within the Territory of India were dealt with
the Terrorism and Disruptive Activities (Prevention) Act, 1987. This act was
brought in by the Parliament after increasing insurgency in the Punjab region

104
Vishwa Mohan & Anam Ajmal, ―Cops use UAPA to block site, call it „goof-up‟ later”, The Times of India,
Jul 24, 2020
http://timesofindia.indiatimes.com/articleshow/77137573.cms?utm_source=contentofinterest&utm_medium=tex
t&utm_campaign=cppst
105
Section 49 of the Present UAPA Act.
106
Union of India v. Students Islamic Movement of India, 2002 SCC OnLine Del 340

92
 due to Bhindrawale.107 TADA was the first act in India which actually went on
and defined terrorism and what it was. TADA defined terrorism as:-

“Whoever with intent to overawe the Government as by law established or to

strike terror in the people or any section of the people or to alienate any
section of the people or to adversely affect the harmony amongst different
sections of the people does any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or lethal weapons or poisons
or noxious gases or other chemicals or by any other substances (whether
biological or otherwise) of a hazardous nature in such a manner as to cause,
or as is likely to cause, death of, or injuries to, any person or persons or loss
of, or damage to, or destruction of, property or disruption of any supplies or
services essential to the life of the community, or detains any person and
threatens to kill or injure such person in order to compel the Government or
any other person to do or abstain from doing any act, commits a terrorist
act.”108

Post the coming in force of TADA, this act was heavily misused, and its
unpopularity started rapidly increasing, because it led to a number of arbitrary
arrests, and misuse by the police force. Apart from this, the TADA had a
number of other faulty features which were grossly unconstitutional and
outright immoral. For example, the act provided that a person can be detained
for up to 1 year without any formal charges being pressed on him. The Act
further provides that a detainee can be in the custody of the police for upto 60
days, and post than even, he needs not to be presented before a magistrate, but
an Executive Magistrate.109 Furthermore, the act reverses the presumption of
innocence, stating that a person caught under this act is presumed guilty until
his innocence is proven otherwise. 110 Lastly, any person who is tried under this

107
21 K.P.S. GILL, ENDGAME IN PUBJAB: 1988-1993, (Ajai Sahni)
https://www.satp.org/satporgtp/publication/faultlines/volume1/Fault1-kpstext.htm
108
Terrorist and Disruptive Activities (Prevention) Act, 1987, Sec 3(1).
109
Terrorist and Disruptive Activities (Prevention) Act, 1987, Sec. 20.
110
Terrorist and Disruptive Activities (Prevention) Act, 1987 ,Sec. 21.

93
 act cannot appeal anywhere, except to the Supreme Court of India. 111 For
reasons such as this which are so immoral, the act was allowed to lapse in
1995 when it was due for renewal. During the 7 years TADA remained in
force, 76000 people were arrested in India under the act.112 Of the people
arrested, 25 percent of the cases were dropped by the police without even any
formal charges being pressed, while only 35 percent of the cases were brought
to trial, resulting in 95 percent conviction. In essence, less than 2 percent of the
people who were arrested were actually convicted. 113 This shows how the
police abused their power when armed with the TADA. This act lapsed in
1995, and was further repealed by the Prevention of Terrorism Act, 2002.

In Kartar Singh v.State of Punjab114, the validity of TADA was challenged on

the ground that it dealt with the issue of ‗public order‘, which was within the
legislative domain of states. Nevertheless, the Court upheld the validity of
TADA. The Court held that ‗public order‘ covered issues of lesser gravity and
more serious threats covered in TADA fell within the Union‘s domain relating
to national defence.

A similar challenge was mounted against POTA in PUCL v Union of India115,

which too was repelled by the Court on similar grounds.

The Prevention of Terrorism Act, 2002, was passed by the parliament after a
lot of controversy because of the already misused Prevention of Terrorism
Ordinance, 2001. The Ordinance was passed in the wake of the 2000 Red Fort
attack and the 2001 Parliament Bombings. The Ordinance already came under
a lot of criticism when the police started overreaching their powers and
misusing the provisions of the act. The Bill to make this Ordinance into an act

111
Terrorist and Disruptive Activities (Prevention) Act, 1987, Sec 19.
112
ZAIDI, S. HUSSAIN , BLACK FRIDAY – THE TRUE STORY OF THE BOMBAY BOMB BLASTS.
(Penguin Books. ISBN 978-0-14-302821-5)
113
Id.
114
AIR 1961 SC 1787
115
1997 (1) SCC 301

94
 failed at the Rajya Sabha,116 but was later passed by a joint session of the
Parliament.

Just like the TADA, POTA also had the provision for holding a person in
custody for up to 180 days without any filing of the chargesheet. Further, the
laws in India do not accept any confession made to a police officer as
evidence, and allow it to be rebutted in trial. This was however not the case in
POTA, and every confession made to a police officer is admissible and can be
used against a person in trial. POTA was misused heavily by the government,
and the police itself misused the act to torture and humiliate prisoners. 117
POTA was later repealed in 2004 when the Government at the center changed.

5.3. Further Amendments to the UAPA, making it as Draconian as it

stands

The first substantial amendment to the UAPA was introduced in the year 2004,
when the Congress Government, as promised, repealed the POTA. However,
the repealing of the POTA had little to no difference in the status quo, because
almost a majority of the provisions of POTA including those relating to
‗Terrorism‘, ‗Terrorist Organization‘, ‗Terrorist Act‘ etc. were all inculcated in
the UAPA. The Schedule of POTA which listed all the Terrorist Organizations
was also added to the UAPA. POTA‘s definition of terror afflicts UAPA too. It
is defined primarily through intent (―intent to strike terror‖), others things
being same. It duplicates a range of criminal law offences, such as causing
death, injuries, damage to public property, disrupting essential services, use of
firearms, explosives etc—all of which are otherwise also covered under a
range of laws.118 This provides latitude to the executive—both police and
government—to subjectively choose what to designate as terror, and what to
dismiss indulgently as ordinary violence. It is in their power then to decide

116
Editorial, ―It‟s not POTA, yet,” Outlook, Mar 21, 2002
https://www.outlookindia.com/website/story/its-not-pota-yet/214958 (Last Visited 01st August, 2020)
117
Nitya Ramakrishnan, Excerpt | Tortured, Humiliated, But Unbroken: An Interview With S.A.R. Geelani,
https://thewire.in/rights/sar-geelani-custodial-torture-nitya-ramakrishnan (Last Visited: 01st August, 2020)
118
Unlawful Activities (Prevention) Act, 1967, as amended in 2019, Sec. 15-23

95
 when to invoke the draconian provisions of UAPA, and when to apply (and in
some cases, never to apply) ordinary criminal law.

What the UAPA hollows out is the constitutional guarantees of fair trial and
right to life and liberty. It thus perverts the very notion of rule of law beyond
recognition. Section 43D(5) of the UAPA, which deals with bail provisions. A
replica of Section 49(7) of POTA, it makes it practically impossible for an
accused to secure bail. Under this section, bail cannot be granted till the public
prosecutor has been heard, and it can be declined if the magistrate concludes,
upon reading the charge sheet, that the charges are true. So, in effect, an
accused has to demonstrate her innocence, that too at the start of the trial, in
order to be even granted bail. UAPA thus explicitly—and legally—denies the
presumption of innocence. Which, of course, is the very bedrock of modern
law.

After 2008 terrorist attack in Mumbai, some provisions of the repealed POTA
and TADA were once again added to the UAPA. These provisions were the
ones referring to the time a person can be detained in police custody. 119 The
2012 amendment to the UAPA further went on to expand the definition of
terrorism to include offences which harmed the economic security of the
nation too.

5.3.1. The Final Immoral Amendment in 2019

―The most recent amendment that came was the Unlawful Activities
(Prevention) Amendment Act, 2019 which dealt with expanding the definition
of terrorist to include individuals under Section 35 and 36 of Chapter VI of the
Act. It allows the DG of NIA seizure of property from proceeds of terrorism
under Section 25 and the powers of officers with the rank of inspectors and
above to investigate cases under UAPA Section 43. A Review Committee to
denotify the individual notified as a terrorist is also constituted by the Central
Government thus removing all the chances of any institutional mechanism for
judicial review.‖

119
Unlawful Activities (Prevention) Act, 1967, as amended in 2019, Sec. 43D(2)(b)

96
 ―The primary objections to the Amendment are under Section 35, in addition
to the categorization of organizations as terrorist organizations, extended the
power to include within its scope the categorization of individuals as terrorists
as well. Secondly, the new Amendment is contrary to the principle of
‗innocent until proven guilty‘ and also violates the International Covenant on
Civil and Political Rights, 1967120 which recognizes the mentioned principle as
a universal human right. Thirdly, it is being used to repress rather than combat
terrorism since the amendment provides that designation of an individual as a
terrorist would not lead to any conviction or penalties.‖ Fourthly, no objective
criterion has been laid for categorization, and the government has been
provided with ―unfettered powers‖ to declare an individual as a terrorist.

5.3. Abuse of powers granted by UAPA and Legal Challenges

The most prominently abuse of the Unlawful Activities (Prevention) Act can
be seen when the Delhi Police arrested Umar Khalid, a student leader at the
Jawaharlal Nehru University in connection with hatching a conspiracy to
create communal violence over the Citizenship Amendment Act. The Delhi
Police further went on to arrest Meeran Haider and Safoora Zargar under the
same draconian provisions. The police said that they were all key in
premeditating a conspiracy to start riots in the national capital.

The Jammu and Kashmir Police arrested the Journalist Masrat Zahra under
Section 13 of the Unlawful Activities (Prevention) Act, 2020 by stating that
she uploaded anti-national videos on Facebook to incite the youth in glorifying
anti-national activities. They also put this same draconian provision on
Peerzada Ashiq when she posted about the diversion of COVID testing kits,
stating that it is against the authorities. The Amnesty International Executive
Director called such acts by the Indian Government as an attempt to curb the
right to freedom of expression of its citizens. 121

120
International Covenant on Civil and Political Rights, 1976. Art. 14, cl. 2.
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (Last Visited: 01st August, 2020)
121
―J&K Police Using Repressive Counter Terrorism Law To Muzzle Access To Social Media‖, Amnesty
International India, Feb 18, 2020.

97
 “The Jammu and Kashmir police had also invoked Section 13 of UAPA
against people who were accessing social media through VPN‟s to dodge
the longest ever internet ban imposed by the government when it scrapped
Article 370 of the constitution to divide the state into two centrally
administered UT‟s.”122 The government said that it was done ―to curb the
misuse of the sites by miscreants for propagating false information/rumors.‖123

The Supreme Court has scrutinized specific provisions of the above

legislations on various occasions. For instance, the Court in ―Sri Indra Das v.
State of Assam”124, read down Section 10 of UAPA and Section 3(5) of
TADA, both of which made mere membership of a banned organization,
criminal. The Court held that, “A literal interpretation of these provisions
would make them violative of Articles 19 and 21 of the Constitution. This was
in line with the previous decision in Arup Bhuyan‟s”125 case where the Court
had held that ‗mere membership of a banned organisation will not make a
person a criminal unless he resorts to violence or incites people to violence or
creates public disorder by violence or incitement to violence‘.

“Manifest arbitrariness, therefore, must be something done by the legislature

capriciously, irrationally and/or without adequate determining principle. Also,
when something is done which is excessive and disproportionate, such
legislation would be manifestly arbitrary. We are, therefore, of the view that
arbitrariness in the sense of manifest arbitrariness as pointed out by us above
would apply to negate legislation as well Under Article 14.”126

https://amnesty.org.in/news-update/jk-police-using-repressive-counter-terrorism-law-to-muzzle-access-to-
social-media/ (Last Visited: 01st August, 2020)
122
Deepali Bhandari & Deeksha Pokhriyal, The Continuing Threat of India‟s Unlawful Activities Prevention Act
to Free Speech, JURIST, Jun 2, 2020.
https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-uapa-free-speech/
123
Editorial, ―Panic in Kashmir as case filed against social media users”, Al-Jazeera, Feb 18,2020.
https://www.aljazeera.com/news/2020/02/panic-kashmir-cases-filed-social-media-users-200218114417864.html
124
(2011) 3 SCC 380.
125
Arup Bhuyan v. State of Assam, (2015) 12 SCC 702.
126
Shayara Bano v. Union of India, (2017) 9 SCC 1.

98
 A Public Interest Litigation has been filed by one Sajal Awasthi127 asking the
Supreme Court to declare the UAPA as unconstitutional because it is violative
of the Fundamental Rights of the citizens. He goes on to explain that the right
to dissent is one the very basic rights of an individual and the curtailing the
same would be grossly against Articles 14,19, and 21 of the Constitution of
India. He also states that the act does not provide any opportunity to the person
arrested to prove that he is not a terrorist, which is very arbitrary to the core.
He further went on to say that:-

“Right to Reputation is an intrinsic part of [a] fundamental right to life with

dignity under Article 21 of the Constitution of India and terming/tagging an
individual as „terrorist‟ even before the commencement of trial or any
application of judicial mind over it, does not adhere to procedure established
by law.”

The Association for Protection of Civil Rights (APCR) filed another petition in
the Supreme Court challenging Section 35 of the UAPA, because after the
2019 amendment it allows the Government me label an individual as a
terrorist, whilst before the same could only be done to organizations and
associations.

5.4. Privacy Concerns over the Said Acts

Questionable Legislations such as the UAPA, TADA, POTA etc. have always
been surrounded with a question of overreach. The said overreach in this
scenario is that to what extent these said acts would go in order to breach the
privacy of the individual. The UAPA till today itself post the 2019 amendment
has been criticized on numerous occasions for having little to no regard for the
privacy of a person whom they just ‗suspect‘ of some act. In simpler words,
the UAPA empowers the investigating agencies to do any act and breach the
privacy of an individual if they deem so reasonable after suspecting the said
individual.

127
Sajal Awasthi v. Union of India https://www.livelaw.in/pdf_upload/pdf_upload-363231.pdf

99
 An instance of the UAPA being misused of such a horrendous act would be
when the Delhi Police barged directly into the home of the AISA President
Kanwalpreet Kaur and seized her mobile phone stating that it was required as a
part of the investigation under the Delhi Riots. When she was handed the
seizure memo, along with a bunch of charges, a few charges were also placed
under the UAPA for seizing her mobile phone. 128

The UAPA has also been criticized by the United Nations Special Rapporteurs
for violating the privacy of a said individual. The amended Act allows for
searches, seizures and arrests based on the ―personal knowledge‖ of police
officers without a written validation from a superior judicial authority. The
police are empowered by the amendments to enter the premises on a person on
the mere suspicion of her being part of an ―unlawful association‖. The police
have the power to examine the books, and other properties of the accused and
also make enquiries against her. This, the statement declares, is a clear
violation to the right to privacy as per India‘s international law obligations. 129

The Act also interferes with the privacy and liberty of individuals contravening
the provisions which protect against arbitrary or unlawful interference with a
person‘s privacy and home. The Act allows for searches, seizures and arrests
based on the 'personal knowledge' of the police officers without a written
validation from a superior judicial authority. 130 This interferes with the privacy
and liberty of individuals which is not only by a fundamental right but also
contravenes the provisions of the International Convention on Civil and
Political Rights (ICCPR)‖, which protects against arbitrary or unlawful
interference with a person‘s privacy and home.

If such acts aren‘t horrendous enough, the UAPA has also been used on little
things such as the use of a VPN. The Jammu and Kashmir Police actually
arrested people under the UAPA from Jammu and Kashmir for allegedly using

128
Editorial, ―Police bid to intimidate Kawalpreet, claims AISA‖, The Hindu, Apr 29, 2020
129
Ujjaini Chatterji, ―UN Special Rapporteurs express concerns over UAPA,‖ THE LEAFLET, May 18,
2020.https://theleaflet.in/un-special-rapporteurs-express-concerns-over-uapa/
130
Aakar Patel, ―UAPA (Amendment) Bill 2019 violates the very international laws it quotes, defies principles of
natural justice,‖ FIRSTPOST, Aug 03, 2019. https://www.firstpost.com/india/uapa-amendment-bill-2019-
violates-the-very-international-laws-it-quotes-defies-principles-of-natural-justice-7104391.html

100
 the internet through a VPN. If that is not enough too, the people who were
arrested were actually slapped with not only the UAPA, but also the repealed
provision Section 66A of the IT Act. For a common man with little to no legal
knowledge, committing such acts is a horrendous abuse of power, and
harassment of individuals while imposing a totally authoritarian regime for
them to live in. 131

Such concerns have not solely been with the UAPA itself, other acts
previously existing in the Republic of India also had such serious flaws in
them which literally allowed them to step over the right to privacy of an
individual. Under Section 7 of the POTA, a police officer investigating an
offence under POTA can seize or attach any property if he has reason to
believe that such property constitutes the proceeds of terrorism. The fear that‘s
permitting a police officer to act on the basis of his belief is "draconian and
unguided".

Section 14 requires any officer or authority of the Central or a State

government, other organisations and institutions, and even individuals to
furnish to an investigating officer information relating to such an offence, and
makes the failure to do so an offence. This provision is against Article 20 of
the Constitution, besides being an onslaught on individual freedom and right to
privacy.

Chapter V of POTA deals with the interception of electronic communications,

which also creates an audit mechanism that includes some provision for
judicial review and parliamentary oversight; however, it remains to be seen
how effective such mechanisms will be in practice. In certain high-risk states
such as Jammu and Kashmir, search warrants are not required and the
government from time to time bans the use of cellular telephones, long
distance phones, and cyber-cafes.132

131
―J&K Police Files FIR under UAPA against Those Accessing Social Media‖, the Wire, Feb 18, 2020.
132
The Prevention Of Terrorism Act, 2002, No. 15 of 2002.
http://www.satp.org/satporgtp/countries/india/document/actandordinances/POTA.htm.

101
 Just because POTA gave police broad, if not indiscriminate, powers of arrest
and detention for a variety of ill-defined and constitutionally untested offenses,
Indian citizens had far more to fear than infringements upon their privacy. The
extent of POTA‘s abuse proved that fear of prolonged, arbitrary detention was
not unfounded or conjectural.

The Right to privacy of an individual has to be protected, and so has been time
and again said by the courts. There have been numerous judgments wherein
the courts have asked the government to make laws in accordance with
protecting the privacy of an individual, but the government has somehow or
the other managed to get away without actually doing something to protect the
rights of an individual. The Supreme Court has stressed upon the fact that ―it is
entirely for the Central Government to make rules on the subject of
interception but till the time it is done the right to privacy of an individual has
to be safeguarded.‖133

The Maharashtra Control of Organized Crime Act, 1999 has provisions for
interception and safeguards for the same. These provisions and their
safeguards similar to the directives laid down by the Supreme Court in
PUCL‘s case. The court observed that though the interception of
communications is an invasion of an individual‘s right to privacy, the right to
privacy is not absolute, thus the court is required to see that the procedure
itself is fair, just, and reasonable. Pursuant to the procedural safeguards
formulated by the Supreme Court in the P.U.C.L case, the Central Government
brought out an amendment to the Indian Telegraph Rules, 1951 but failed to
remove unguided interception. To fill the procedural gap the interception
powers laid out in the Information Technology Act were amended in 2008, and
in 2009 the IT Procedure and Safeguards for Interception, Monitoring, and
Decryption of Information Rules, 2009 (―IT Interception Rules‖) were
notified. The above two development has supplement the procedural lacuna of
Unlawful Activities (Prevention) Act, 1967, 2004, 2008 and 2012 as far as the
procedure for interception is concern. Even the National Investigation Agency
may use the power of interception but only with the procedural safeguard

133
People‘s Union of Civil Liberties Vs. Union of India, AIR 1997 SC 568

102
 which now included under the IT amendment 2008 and IT Interception Rules
2009.134

5.5. Peroration

There has always been a need for a strong hand to counter terrorism and all
such related activities, but if the protection for the citizen came at a cost of
gross miscarriage of justice and violating the basic human, if not fundamental
rights of an individual, then what good does such a protection do? The Right to
Dissent is one of the core founding principles on which democracies are built,
and the UAPA simply tries to take away that right from the people. It is an
assault of citizens‘ right to expression which is also a collective right of groups
and unions to disseminate their views and UAPA majorly targets this right.
Secondly, it can simply be used to bypass fundamental rights and procedures.
For instance, those arrested under UAPA can be incarcerated up to 180 days
without a charge sheet being filed. It thus directly violates Article 21 of the
constitution. Thirdly, it confers upon the government broad discretionary
powers and also authorizes the creation of ―special courts with the ability to
use secret witnesses and to hold closed-door hearings.‖135

Like the TADA and POTA, UAPA also criminalises ideology and association.
By virtue of declaring an organisation ‗unlawful‘ or ‗terrorist‘ and banning it,
these Acts have de facto criminalised their ideologies. Hence mere possession
of any literature of such an organisation or even upholding an ideology
common to that organisation in the absence of any violent act is construed as
an offence. On the other hand, mere membership or association with such an
organisation too becomes an offence. It is by this logic, that very often,
organisations advocating the rights of a certain minority community or that of
oppressed sections are easily labelled as fronts of a proscribed organisation
under the schedule of the Act. Their activists or members get arrested and
remain in prison for years, and are denied bail.

134
State of Maharashtra Vs. Bharat Shanti Lal Shah and others, (2008) 13 SCC 5
135
Chapter VII of the Unlawful Activities (Prevention) Act, 1967. As amended by the 2010 amendment.

103
 Desperate times indeed call for desperate measures, and history is a brave
example that no matter how desperate one gets, nothing is above the human
rights of an individual. The way the UAPA has been drafted clearly puts it in
par with the USA PATRIOT Act, which was criticized way too much for
being violative of fundamental rights. 136 In essence, from a neutral standpoint,
there is no way an act like the UAPA should exist in a democracy like India,
unless we are already an Orwellian State like the US.

5.6. UAPA as a law being misused

The UAPA as a law has been used on several instances to harass, arbitrarily
arrest, or even influence people to do certain acts against their will. While we
live in a country where the rule of law is valued and upheld the most, certain
acts which have been committed by the government and the investigating
agencies make us lower our heads in shame.

In the year 2006, a man called Abdul Wahid Sheikh was arrested by the
Mumbai ATS for his alleged involvement in the 2006 Mumbai Train Blasts.
What transpired after the said arrest is a horror story for the most of us. He was
constantly tortured, abused, harassed, and denied medical care while the
investigation was going on and no formal charges were pressed.
Internationally banned techniques such as waterboarding were used in order to
force confessions out of him. In the year 2015, he was finally acquitted after
spending 9 years in jail on false charges. This shows the heights to which the
UAPA can be manipulated.137

In the year 2011, the ATS arrested members of the artistic group Kabir Kala
Manch (KKM) for their alleged involvement with the Maoists. Several of their
136
Dustin Volz, ―Opposing Trump, conservative bloc demands reforms to internet spy law” , REUTERS, Jun.
16, 2017.
https://www.reuters.com/article/us-usa-intelligence/opposing-trump-conservative-bloc-demands-reforms-to-
internet-spy-law-idUSKBN1962SR (Last Visited: 01st August, 2020)
137
Abdul Wahid Shaikh, Interview: Of Torture, Impunity and the False Charges on Abdul Wahid Shaikh ,THE
WIRE, May 20, 2017.
https://thewire.in/law/abdul-wahid-shaikh-acquitted-interview

104
 members have since been arrested, solely for the reason of writing songs on
social issues. The Bombay High Court has refused to grant bail to any of the
accused, solely because a person charged under the UAPA has to prove his
innocence, and the onus of proof is upon him rather than the state.138

On 9th May 2014, a Professor of the University of Delhi, Dr. G.N. Saibaba was
arrested under the UAPA. What‘s shocking is the fact that the arrest wasn‘t
made through proper legal channels, rather, he was abducted while he was on
his way home. His family wasn‘t informed of the arrest either. He has since
been kept in solitary confinement, and for a man who is 90% disabled, this is
way too excessive. The only reason for his arrest is his alleged link with the
Maoists.139

After the 2020 Delhi Riots, the Delhi Police seized the mobile phone of the
AISA President Kawalpreet Kaur for investigation. In the seizure memo she
was provided, a bunch of sections were charged, along with a few under the
UAPA. Basically, the Delhi Police used the UAPA to now violate the privacy
of individuals, seize their phones and basically do whatever they want under
the pretext of an investigation.140

In early 2020, a Kashmiri photojournalist who goes by the name Masrat Zahra,
was arrested after she has posted some photos online which the police referred
to as, ―disturbing to communal harmony‖. While she was charged under
Section 505 of the IPC, another bunch of sections were also added under the
UAPA. A number of organizations have challenged this arrest, including press
clubs, who say that this arrest is a blatant move of the police against the
freedom of press.141

138
When Poetry is held Unlawful: A Case of Kabir Kala Manch, INDIA RESISTS, Apr. 23, 2015
April 23, 2015 https://indiaresists.com/when-poetry-is-held-unlawful-a-case-of-kabir-kala-manch/
139
Devika Kohli, “Why Is The Government So Threatened By A Man Who Is 90% Disabled?”, YKA, May 19,
2015. https://www.youthkiawaaz.com/2015/05/gn-saibaba-arrest/
140
AISA‟s Delhi head booked under UAPA by Crime Branch, mobile seized, INDIAN EXPRESS, Apr. 29, 2020.
,https://www.newindianexpress.com/cities/delhi/2020/apr/29/aisas-delhi-head-booked-under-uapa-by-crime-
branch-mobile-seized-2136830.html
141
First Post Staff, Masrat Zahra booked under UAPA: Kashmiri photojournalist's work focussed mostly on
women, conflict reporting in Valley, FIRSTPOST, Apr. 20, 2020.
https://www.firstpost.com/india/masrat-zahra-booked-under-uapa-kashmiri-photojournalists-work-focussed-
mostly-on-women-conflict-reporting-in-valley-8278721.html

105
 In August of 2019, internet services and social media was brought to a
complete halt in the Kashmir Valley, after the Central Government abrogated
Article 370 of the Constitution of India, which provided special status of the
state of Jammu and Kashmir. Post that, as of this day, only 2G services have
been restored in Kashmir, and social media still remains banned. When some
people in Kashmir actually tried accessing social media through a virtual
private network (VPN), the police arrested them under the UAPA, and the
already repealed Section 66A of the IT Act.142

Given the monumental instances of blatant abuse of powers, arbitrary arrests,

and disregard for human rights, it is only natural for one to be afraid of the
UAPA, for it is not a law which should exist in a democratic society, but a
weapon of oppression in hands of a mad government.

142
Vishnu gopinath, Why Have People Using VPNs in J&K Been Booked Under UAPA?, THE QUINT, Feb 18,
2020.
https://www.thequint.com/podcast/uapa-jammu-and-kashmir-vpn-social-media-illegal-unlawful-terror-geelani-
video

106
 CHAPTER 6
INTERPRETATION AND ANALYSIS

6.1 Major Issues and Concerns: Impact of 2017 Judgement

The right to protect privacy of an individual is enumerated in the Universal

Declaration of Human Rights, 1948 (UDHR) ―No one shall be subjected to
arbitrary interference with his privacy, family, home or correspondence, or to
attacks upon his honor and reputation Everyone has the right to the protection
of the law against such interference or attacks.‖143 ―The principle of Right to
Privacy is also contained in International Covenant on Civil and Political
Rights, 1976. The requirements under both the International treaty are that the
state shall implement certain legislations to protect the right of privacy and
attacks o reputation. As India is signatory to both the treaties, it is the mandate
duty of India to pass such legislation but still India has not passed any separate
and independent legislation dealing with the subject matter.‖

―The Constitution of India does not explicitly guarantee fundamental right to

Privacy though Judicial Activism has bought it within the realm of
Fundamental rights.‖ Article 21 states ―no person shall be deprived of his life
or personal liberty except the procedures established by law.‖ ―The Supreme
Court of India deduced the Right to Privacy from Article 21 wherein the court
held that personal liberty means life free from any encroachments that is
unsustainable in law.‖ The court in a landmark judgment held that ―the
concept of liberty in Article 21 was comprehensive enough to include privacy
and an unauthorized intrusion in to an individual‘s home and thus disturbance
caused violates his personal liberty.‖ 144 ―In People‟s Union for Civil Liberties
(PUCL) v Union of India145, the court explained right to privacy to be under
Article 21 in consonance with Article 17 of International Covenant on Civil
and Political Rights, 1968. The gross violations of the right to privacy

143
Article 12 of Universal declaration of Human Rights, 1948 to which India is a signatory.
144
Kharak Singh vs. State of U.P. AIR 1963 SC 1295.
145
(1997) 1 SCC 301.

107
 encouraged the Judiciary to take a pro-active role in protecting the right and
providing the affected person adequate compensation and damages.‖

In August 2017, the Supreme Court of India passed a judgment in the case of
Justice K S Puttuswamy vs Union of India146 (Supreme Court of India, WRIT
PETITION (CIVIL) NO 494 OF 2012), in which fundamental rights, as
provided in the Constitution of India, were interpreted to include the right to
privacy. As a consequence of this judgment, the Government of India has an
obligation both to ensure that its actions do not violate a citizen‘s privacy and
to ensure that such rights are not violated as a result of its inaction—including
its failure to enact suitable legislation.

6.1.1. Data Protection and Aadhaar – The Biometric Authentication

System

The case had its inception in 2012, when Justice K S Puttuswamy, a former
Karnataka High Court judge, filed a petition before the Supreme Court
questioning the validity of the ―Aadhaar‖ project on grounds of, amongst other
things, its transgression on the Indian citizen‘s fundamental rights. The
―Aadhaar‖ project is a 12-digit unique identification number that is issued to
Indian citizens based on their biometric and demographic data. It is the largest
biometric database in the world, with over 1.25 billion Indian citizens
registered. The project raised several privacy concerns due to the almost
mandatory requirement of enrolment and the lack of safeguards provided by
the Government to protect the data collected. The argument made by the
Government was that there was no constitutionally guaranteed right to privacy
in India. Reliance was placed on two earlier Supreme Court judgments, M P
Sharma vs. Satish Chandra147 and Kharak Singh vs. State of Uttar Pradesh148,
which denied the existence of a constitutional right to privacy. Since these
cases were decided by six- and eight-judge benches, respectively, the Supreme
Court referred the matter to a constitutional bench of nine judges in 2015. Two

146
AIR 2017 SC 4161.
147
AIR 1954 SC 30.
148
AIR 1963 SC 1295.

108
years later, this bench overruled the two cases to the extent that they decided
that privacy is not a constitutionally guaranteed right.

―The Court decided that the protection of individual autonomy was a valid
justification for the right to privacy, especially in the context of a global,
information-based society. The judgment recognized the right of an individual
to exercise control over his/her personal data. The Court opined that the ability
of a person to control his/her own life would also encompass his/her right to
control his/her existence on the internet. The Court further recognized the
complexity involved in data protection and directed the Government to enact a
comprehensive data protection law.‖

Another important aspect of the Court‘s ruling was the implicit recognition of
a ―right to be forgotten.‖ The Court stated as follows:

―People change and an individual should be able to determine the path of his
life and not be stuck only on a path of which he/she treaded initially. An
individual should have the capacity to change his/her beliefs and evolve as a
person. Individuals should not live in fear that the views they expressed will
forever be associated with them and thus refrain from expressing themselves.‖

―Thus, the European Union Regulation of 2016 has recognized what has been
termed as ‗the right to be forgotten‘. This does not mean that all aspects of
earlier existence are to be obliterated, as some may have a social ramification.
If we were to recognize a similar right, it would only mean that an individual
who is no longer desirous of his personal data to be processed or stored, should
be able to remove it from the system where the personal data/ information is
no longer necessary, relevant, or is incorrect and serves no legitimate interest.
Such a right cannot be exercised where the information/ data is necessary, for
exercising the right of freedom of expression and information, for compliance
with legal obligations, for the performance of a task carried out in public
interest, on the grounds of public interest in the area of public health, for
archiving purposes in the public interest, scientific or historical research
purposes or statistical purposes, or for the establishment, exercise or defences
of legal claims. Such justifications would be valid in all cases of breach of
privacy, including breaches of data privacy.‖

109
 ―These observations may increase the likelihood of the right to be forgotten or
a similar right being incorporated into the forthcoming law. This right is
distinct from the right to privacy which involves information that is not
publicly known. It involves the removal of information that was publicly
known at a certain time so that third parties cannot access it. Opinions about
the right to be forgotten, which is a relatively new concept, differ significantly
between the European Union, where it has more historical support, and the
United States, where the right of free speech and the right to know have
typically been favored over the deletion of truthfully published information.‖

―If the right to be forgotten is codified into Indian law, search engines, social
media platforms and media companies operating in India will be most
affected. These entities may need to reconsider their internal processes and
procedures for receiving and processing requests from members of the general
public for the deletion of data. Google‘s ongoing dispute with the French data
protection agency, CNIL, illustrates how complex matters can become.‖ Now
that the phrase ―fake news‖ has become so common, the debate will become
more urgent globally.

―With much appreciation and fame over the judgement which made Right to
Privacy- a fundamental right‘ by the Supreme Court, there still exists the issue
of Aadhaar being valid or not which is still pending. Much controversy has lit
upon the conflict of Aadhaar, specifically, The Aadhaar Act, 2016 and the
Right to Privacy of every citizen of the country being violated through it. The
problems with the Aadhaar Act, 2016 in concern to privacy are mainly
comprised of two parts: firstly, Aadhaar Act making Aadhaar compulsory for
every citizen and also making its compulsory linkage to other services,
including PAN and phone numbers. It further makes an amendment to the
Income Tax Act wherein for tax returns to be processed, one needs to link their
Aadhaar number to their PAN.149 A failure to do this could also lead to
invalidity of the respective PAN. These legislations are a forced compulsion
for the citizens to link their Aadhaar to these documents which is a problem as
Aadhaar inherently requires a lot of personal and confidential information like

149
Section 139 AA, Income Tax Act, 1961.

110
 biometrics, fingerprints, etc. which connects to the second issue of data
security.‖

The Aadhaar Act, 2016 allows sharing of data under the Aadhaar numbers for
the purposes of national security which a vague and undefined term. Further,
Aadhaar is applicable to commercial purposes as well and has the participation
of private parties in its data access which leaves the citizens a huge risk of data
leak given that there are no existing privacy laws in India. The active
government wants the Aadhaar policy to continue and is gradually making
Aadhaar mandatory for more documents, for e.g., driving license, which is in
plan to also be mandatorily linked to Aadhaar.150

The two core issues of the Aadhaar Act, its contradictions to the right to
privacy and also its further consequences and misuses which have already
started coming to existence. It further mentions the unique identification
program in the United States (i.e, the Social Security Number) and its
comparison to Aadhaar. It reflects upon how there is a much better possible
regard to privacy when it comes to legislation which the intent of providing
unique identity and for national security purposes. This links to the
unnecessary essentials and requirements that are constantly been brought in by
the present government and how it causes fundamental problems in the
society.

6.1.2. The Linkage Problem

The Supreme Court in March, 2017 declared that Aadhaar cannot be made
mandatory for availing governments‘ schemes and subsidies.151 These include
the PAN, Income Tax Filings, booking train tickets, etc., all of which now
mandatorily require Aadhaar number for its processing. The BJP government,
however, in its Financial Bill, 2017 added an amendment to the Income Tax
Act, 1961. This amendment added a section which makes it compulsory for

150
Kiran Rathee, ―Govt plans to link driving licence with Aadhaar,‖ Business Standard, Sep 26,2018.
http://www.business-standard.com/article/economy-policy/govt-plans-to-link-driving-licence-with-aadhaar-
117091600042_1.html.(visited on March 3, 2018).
151
Editorial, ―Supreme Court counters push for Aadhaar,‖ The Hindu, Mar 27, 2017.
http://www.thehindu.com/news/national/aadhaar-cannot-be-mandatory-for-welfare-schemes-supreme-
court/article17671381.ece.

111
 citizens to link their Aadhaar numbers to their PAN for the purposes of Income
Tax processes as well. The compulsory linkage further makes a PAN number
invalid if not linked to the Aadhaar until a prescribed date by the Central
Board of Direct Taxes (which presently is the 31st of December, 2017).

The legislation, by making such compulsory legislation, violated the

Judiciary‘s decisions and observations. This was criticized by the Supreme
Court as well because the compulsory linking of Aadhaar to PAN and further
for the purposes of Income Tax returns makes it practically mandatory for any
citizen to have an Aadhaar. This is in direct contradiction with the Supreme
Court‘s intention to make Aadhaar voluntary. The dependence of Aadhaar on
PAN and other services makes essential services and subsidies exclusive to
only Aadhaar holders. A similar problem was identified by the Rajya Sabha
before passing the Aadhaar Bill in 2016 where it opposed the Lok Sabha on
several grounds one of them being the issue of Aadhaar being mandatory or
not.152

This recommendation was given during the due process of the bill and was at a
later stage accepted by the Lok Sabha before enactment of the bill. 153 As a
result of it, there exists section 7 in the Aadhaar Act, 2016 which states that
any citizen who is not assigned an Aadhaar number will be provided with
alternate and viable means of identification for delivery of a service, benefit or
subsidy. The mandatory linking of PAN with Aadhaar having a further validity
of tax returns is a clear violation of this section as it is ultimately being made
voluntarily mandatory.

The conflict was taken up in the parliament and the Minister of Information
and Broadcasting replied that the citizens not having Aadhaar shall be enrolled
for one and an alternative method will be provided till an Aadhaar number is
assigned to her. This statement directly negates the entire purpose of the
optional clause in the Act. However, the Supreme Court in its judgement on

152
IANS, ―Rajya Sabha returns Aadhaar bill to Lok Sabha with amendments,” Hindustan Times, Mar 16,2016.
http://www.hindustantimes.com/india/rajya-sabha-returns-aadhaar-bill-to-lok-sabha-with-amendments/story-
uCVCaTLOVVyOVwrHqEuOSI.html
153
Editorial, ―Aadhaar bill is through after Opposition scores a few brownie points,‖ Indian Express, Mar 17,
2019.http://indianexpress.com/article/india/india-news-india/rajya-sabha-returns-Aadhaar-bill-to-lok-sabha-
with-oppn-amendments.

112
 the validity of Section 139AA, gave a partial satisfaction to both sides of the
debate as it made the linkage compulsory only for existing Aadhaar holders.154

6.1.3. Data Security and Infringements

An individual's unique identifiers such as fingerprint and retina scans are

linked to his/her Aadhar number. Authentication is carried out by comparing
this information with the stored information of an Aadhaar cardholder. With
the continuous increase in the number of facilities that mandatorily require
Aadhaar information, the possibility of the misuse of Aadhaar information is
also increasing, both by the state and private entities.

The Aadhaar Act has a clause that allows the Aadhaar information of an
individual to be made available for state use in case of matters concerning
"national security". This went through despite objections in the Rajya Sabha
about the possible misuse of the term "national security".

Along with misuse by state, misuse by private agents is also a huge concern
especially since the registration process for Aadhaar is carried out by private
contractors who have access to all the incoming Aadhaar data. Identity theft
then becomes very plausible since that information can be used to avail
government-provided services in the name of the victim.

Another problem is the ease with which anyone can just walk into an Aadhaar
registration center and enroll themselves. Immigrants, especially illegal
immigrants can also enroll which becomes an obvious security threat. There
have been allegations that this ease of enrollment has stemmed from political
motivations of cashing in on the immigrant "vote bank".

One concern is related to data security. There are a number of organizations

which require a customer to share his/her Aadhar information as part of their
"Know Your Customer" policy.There have been multiple instances where

154
VS. Shivshankar, ―Supreme Court Upholds Law to Link Aadhaar with PAN, Grants partial stay on Penal
consequences,‖ The Wire, July 1, 2017.
Available at: https://thewire.in/145800/sc-upholds-law-link-aadhaar-pan-grants-partial-stay/. (visited on March
10, 2018).

113
customers' sensitive information has been leaked/hacked. This raises serious
questions over the state of cyber-security technology in the country and the
risk vs. reward of having a centralized database containing sensitive PII
(Personally Identifiable Information)

6.1.4. Comparison to Social Security Number

fundamental rights directly link to the status of democracy in a country.

Aadhaar is not the only digital identification service run by a government.

Other countries have also been running similar programs, like the Social
Security Number in USA. However, there are some key differences which
make Social Security Number a better alternative to Aadhaar in matters of
security and hence privacy. First, the laws relating to security of personal
information are much more stringent in USA as compared to India. Second,
the use of Social Security Number is restricted only to State agencies which is
in contrast to India, where the use of Aadhaar is continuously increasing in the
private sector as well. Moreover, the design of the SSN system inherently
reduces the risk of data theft by separating the storage of the number from
other sensitive PII.

The push from the government in popularising the use of Aadhaar and linking
it to other user information such as tax records through the Permanent Account
Number are aimed at curbing fraud and other crimes. This gives rise to the age
old security vs privacy debate. While security is a major concern, so is the
privacy and hence freedom of the citizens of a country. If left unchecked,
Aadhaar could become a tool for oppression by enabling individual
surveillance in the hands of the government and a breeding ground for identity
theft in unsecured data stores of private entities.

One way of controlling the blast radius from any security lax is to reduce the
connectivity of Aadhaar to other sensitive PII and use it only as a means of
authentication, much like the Social Security Number of the United States of
America. Going forward, the burning question for us to answer is the
compromise we are willing to make between the security and privacy of the

114
 people of the biggest democracy in the world, a status which could come under
serious threat if the privacy of citizens is ignored.

6.2. Negative and Positive Aspects

The Hon‘ble Supreme Court of India in its 9-bench hearing and judgement has
confirmed the Right to Privacy as a fundamental right. Even earlier it was a
recognized right, but under common law. This makes it clear that Right to
Privacy is a fundamental right. But it is not an absolute right. No Govt.
including the freest of democracies, confer absolute rights on a citizen. It will
come with its checks and balances, even within the scope of right to life and
liberty. (For instance, it has to be subsumed under certain conditions of state
security, public health and public morality).
There are few demerits, except perhaps in understanding and implementation
both by the media and the legislature. A person‘s privacy is not an absolute. It
needs to be defined according to the context. An individual has various levels
of conduct. Roughly speaking:
● At the primary level is he/she with and within himself/herself. Like in food
habits, dress, private behaviour, thoughts, etc.
● Within the close social unit like family and home.
● A little further out - to his/her specific community,
● Then his/her engagement with general society, state, and law systems.
To the extent that the use or misuse of this right is allowed or not, depends on
the effect or repercussions of his/her conduct on those affected entities within
which it functions (like home and family, community, general society). In
short, your rights cannot transgress on the rights of others.
E.g.: Right to privacy in the bedroom is naturally an unambiguous right. But if
it involves something like paedophilia, or bestiality or sadomasochism then it
can definitely come under question.
Or, right to privacy on the Net is a fundamental right. But if it threatens the
safety of someone or society or the security of the State, then it can be
questioned.
So is the case with all fundamental rights. The context has to determine its
application. And the context also has to decide whether it has been

115
 transgressed or not. Also remember, the context can change with time and
social ethos.
Now we will discuss the merits and demerits:

MERITS

● Know about them

● Emergency use
● Protect
● Identity
● Avoidance of copy
● Watchdog

DEMERITS

● Secure
● Leaks of the information
● Proper maintenance
● More technical knowledge
● Technology expertise
● Confinement/Slave
● Hit the freedom
● Fear
The above points have been applicable to nation Fundamental Rights of the
―Right to Privacy‖.
The Supreme Court cannot declare clear judgement regarding to the Aadhaar
card from 2014 to present the action of card process on going till now. Every
parliament rule, once bill has passed before that president have to discussed
with Supreme Court of judges regarding to the bill or advice of laws doubts.
Afterwards, the Supreme Court has it says Ok, conformity of the bill is not
inconsistency with our constitution then only can proceed further actions. On
the ground, Supreme Court knows very well regarding to the Aadhaar card
matters has collection of user biometric information. But, at initial stage the
supreme court has given sanction to the plan of Aadhaar card. Hence, before
final stage told that Right to privacy is Fundamental right. Aadhaar projects

116
 had been spend more money for training of the staff and wastage of time,
unnecessary actions were taken by the people.
Nation security = Right to privacy delete from FRs.
Person security = Right to privacy inserted into the FRs.
―For person, security important than the nation security, when person lives
freely, the country running on smoothly.‖
6.3. Need of Privacy Law In India

Technology has become the backbone of the way things work around us in this
21st century. That has brought a lot of data into our lives and this personal
information is always out there and we are unaware of how this gets used.
Birth dates, financial information, personal audio and video format data
and everything related to our likes and dislikes is available to anyone tech
savvy enough to get it. The same data is used by digital marketing companies
to tailor make ads and target specific groups of people and on the other hand
the same info if used with an ill intent can be used for harassment and ransom.
Disappearing from the radar and living in a pre-historic time period is not a
pragmatic approach and in today's worlds each transaction creates more digital
data and increases our risk and exposure to cause harm to privacy. Time and
again with the identification of bugs and scandals, personal info is leaked and
is available to anyone who knows where to look for it.155

Steps have been taken in the past to get privacy under the ambit of legislation.
In 2009 BJD's Baijayant Panda had introduced a Bill in front of the Manmohan
Singh led UPA-2. The party later drafted its own Privacy Bill and Panda had
once again reintroduced a Bill to raise awareness around the issue. Panda's
latest endeavour titled the Data(Privacy and Protection) Bill, 2017 has been
presented before the House of Commons, Lok Sabha and is pending its
approval. Its previous iteration was called the Prevention of Unsolicited
Telephonic Calls and Protection of Privacy Bill. The crux of this bill was to
prevent the invasion of privacy by call centres who try to forward their
business interests to unassuming common public. The 2009 bill was a private
member bill and it defined privacy stating that, ―every person shall have the

155
Importance of data protection, http://www.bgr.in/features/privacy-why-it-is-important-for-users-to-protect-
their-own-data/ (visited on March 22, 2018)

117
 right to privacy and freedom to lead and enjoy his life without any
unwarranted infringement.‖

Adding to the list of vocal politicians on the need of privacy laws is Rajya
Sabha MP Rajeev Chandrasekhar who had proposed a privacy bill in 2010.
BJP Lok Sabha ,MP Om Prakash Yadav and Trinamool Congress Rajya Sabha
MP Vivek Gupta had also introduced two bills in 2016 but none of these
efforts have received a thumbs up from the Parliament.

Panda‘s latest iteration of the bill points towards the consent aspect of online
data handling and privacy. It states that the person shall have the sole right and
final right to modify or remove personal data from any online database,
present in any part of the country, public or private. Regarding the cases that
will be exceptions to the bill, the resolution is proposed on a case by case
basis.156

6.3.1. Necessity of Legislation of Right to Data Privacy

Ever since the advent of the telephonic and information age in the late 20th
century various legislations have been put in place which cover different
aspects related to Telephones, Cellular data and IT. These legislations do
provide guidelines around the issues pertaining to the mentioned industries but
leaves a lot to be desired in the case of Right to data Privacy. Also the
precedent set by Jurisprudence in our country does not inspire a lot of
confidence as the interpretation is highly subjective. Cases have been there
where a bench has voiced differing opinions in important cases clearly
demonstrating the divergence in understanding. Summing up these issues there
is a rising consensus amongst the Judiciary to put a new legislation in place to
provide Rights to the citizens of this country to protect their identity online.

The laws which are already in place fall short in providing any security or
investigation to the victims of the data attacks on an international scale,
primarily in Nigeria and China. The economic cost of such attacks is

156
Right to privacy: fundamental right,
https://www.indiatoday.in/india/story/right-to-privacy-fundamental-right-parliament-1031136-2017-08-24
(visited on April 17, 2018)

118
 extremely high and several Anti-Virus companies are predicting the rate of
such events to sharply rise in the coming future. Sony, Snapchat, Yahoo,
Apple are just some of the big international players who have been targeted for
user data. Besides our own nation has faced multiple such incidents, Zomato,
Reliance Jio and Aadhar are to name a few.

The Government has risen to the need of the hour and has proposed to enact
specific legislations on Privacy. The proposed bill on being implemented will
empower the user by overriding the IT Rules and giving an individual's
privacy back. Cases pertaining to protection of national security, national
integrity or sovereignty, public order and prevention of crime will be an
exception to the law. The following are the reasons for the delay in implement
the Privacy Bill157

 ―A disagreement between the judiciary and intelligence agencies over whether

or not the agencies ought to be under the scrutiny of a competent court with
respect to interception of personal data when they deem it necessary.‖
 ―A debate over the extension of protection granted by the legislation to all
residents‘ of the country (as opposed to only the citizens).‖

The latest draft of the Bill is being discussed behind closed doors but it is
supposed to be more transparent than the IT Rules. It specifically states that
the personal data should be treated in fair and lawful manner.158 Authorities
involved in handling to such sensitive personal data will be under obligation to
treat it as confidential and in no way share it with any third party. The data
controller and processor must strive to maintain the quality and accuracy of the
data and prevent it from destruction. 159 The Bill also puts the authority of
Intelligence agencies under check and states that the said agencies will have to
minimize the number of people in their organization to whom the data will be
made available and the extent to which such data can be copied.

157
Data protection laws and regulations 2020
http://www.iclg.co.uk/practice-areas/data-protection/data-protection2016/india (
158
Privacy Bill. Sec. 9, Sec. 10
159
Privacy Bill. Sec. 15

119
Data along which the exposure to fraud and privacy invasion also poses the
threat of surveillance. To protect the interests of the citizens Chapter IV of the
Privacy bill handles the issues around the Data Protection authority. It outlines
the process of appointment of key chair people and their removal, functions of
such authority, powers and the powers relating to enquiries.

6.3.2. Necessity of Legislation of Right to Data Privacy (2017)

Orissa MP Baijayant Panda has introduced the Data Privacy and Protection
Bill in the parliament as a private bill with the intention to raise awareness
around the issue of the right to data privacy of individuals in the digital age. A
guiding force behind this Bill was the 9 judge constitutional bench in the
Supreme Court looking into the right of privacy and by extension Aadhar. The
Bill narrows down the issue to data privacy alone but the bench is looking into
privacy as a whole.

6.3.3. Precedents and History

Historically the first nation to introduce guidelines around legal Data

Protection was US, where they introduced the US Privacy Act 1974. Since
then more than 100 countries have integrated rules regarding data Privacy in
their legislation as reported by Privacy International. Data Protection is a legal
right in the UK and it is under review to align with that of the EU which in
itself is said to have one of the most comprehensive rules in this field.

In our own nation there have been multiple instances where the judiciary has
given judgements based on different interpretations of the concept, indicating
on one hand that the matter is subject to national security consideration and yet
on the other hand begs to draft some solid guidelines to eliminate any doubt.
The rulings were the basis of the IT Act of 2002, Indian Telegraph Act of 1885
which provided for extraction of data without any consent. Under these cases
the only way to protect an individual‘s interest was only after the approval of a
senior officer as laid down by the respective acts and the case shall have to be
in the interest of national security or greater public good. Clearly these acts
have an out-dated style and cannot keep up with the modern day advancements
in the cyber data breach incidents. They also do not hold up to the standard of

120
 getting individual consent before processing any personal data. The most the
IT ACT(2008 amendment) provide is penalties for offender and protection
against breach of sensitive data privacy but beyond that it does not crystallise
the process to be followed to collect, store and process data to name a few.

6.3.4. Objectives of the Proposed Bill

The Bill aims to constitute a Data Privacy Authority at a national level which
will strive to protect the digital privacy of its citizens. The gargantuan amount
of data produced everyday on the social media platforms exposes a lot of
personal data and till date they have been protected by the Privacy agreements
signed in accordance to the US law. There have been a lot of data breaches in
the past of such US based companies and then grievance redressal in such
cases becomes a herculean task. Hence the authority will strive to define the
extent of privacy and establish methods to identify data leakages, protection
and monitoring mechanisms.

i. Establishing the Right to Privacy

Consent will be the core value of the Bill, it will give that power in the hands
of the citizen, the way it should be and is followed in other countries. It will
also make provisions to determine the nature of data stored, altering or
rectifying existing data. It also irons out the problem of the uniform storage of
data compatible to universal standards and secure enough to be transmitted
amongst the service providers without any threat.

Features

• Profiling of individuals and setting up data processing is a welcome addition

with the Bill

• Elimination of interpretation by clearly setting down definitions helps

maintaining the balance from tipping into the hands of the state which
oftentimes can use sweeping generalizations in its own favour

121
 • For example, Section 66A of the Information Technology Act, which was
repealed by the Supreme Court in 2015.

•Empowers the individual by following a rights based approach and mandating

consent for collection and processing data

• It also gives the power to alter or delete any information from a public or
private database to the individual itself

•Moreover the exceptions against this right is supposed to be handled on a case

by case consideration

•The bill allows for grievance redressal through the appointment of an

Information assurance officer with an arrangement for offer to the Data
Privacy and Protection Authority (DPPA) 160

•Right to Privacy is proposed to be added to the Fundamental rights to the

citizens of our country

•Ensures that the data collectors and data processors collect and process data in
a predefined law abiding manner

•Ensures the security of the data in transit by setting up obligation on the data
intermediaries

•Surveillance by the state will be limited by the guidelines mentioned in the

interest of Security

•Authorises the Data Privacy and Protection Authority to raise concerns by the
individual against the government or independent institutions and get
compensation for losses and even imprisonment for the guilty Provides the
option for impact assessment and consultation by the DPPA.

ii. Standard Operating Procedure For Data Collection, Transfer And

Storage
Data storage providers land with the responsibility to receive consent from the

160
Ibid

122
 user regarding usage of their data as well as of ensuring secure data storage.
Well outlined provisions have been made for the disabled and minors.The bill
drafts a time framework during which data can be stored.

iii. National Security Implications

The bill integrates the national security aspect in line with the existing bill but
additionally provides for surveillance of individuals and groups under
investigation of activities which could cause national harm or threat of any
sort.
iv. Safeguards & Constitutional Authority

The bill has come up with its own set of penalties and punishments for
offences related to the invasion of data privacy, hacks to confidential data etc.
It shall override the already setup penal conditions under the IT Act and the
Telecom Regulatory Authority of India Act.161

v. Regulatory Structure proposed by the bill

The bill proposes the setting up of a Data Privacy and Protection Authority
(DPPA) which will have members from both the legal and technical
community, preferably equal in count, which will undertake the cases brought
under its purview. They will also be empowered to conduct inspections of data
controllers and processors to ensure no malpractice happens. They can also
have consultations to improve the data security and privacy to meet the
changing needs of the day. This Bill has raised a lot of discussion around the
topic and though in the current scenario the chances of it passing are grim due
to political issues, it still sets the right precedent as and when such a bill gets
passed.

The Bill aims to give the citizens the Right to Privacy as a statutory right under
Section 4 of the Constitution but this right is only pursuant to Articles 19 and
Article 21.162

161
The Data (Privacy And Protection) Bill, 2017
http://www.thedialogue.co/analysis-draft-data-privacy-protection-bill-2017/
162
Ibid.

123
 6.4. Philosophy and Importance of Mass Surveillance

There is a very common sentiment. In this debate even with people who are
comfortable in mass surveillance, They say there is no real harm that comes
from this large scale of mass Surveillance invasion because only people who
are engaged in bad acts have a reason to want to hide and to care about their
privacy. this world view is implicitly grounded in the proposition that there are
two kinds of people in the world: good people and bad people. Bad people are
those who engage in terrorist attacks and violent criminalities. They have
reason to hide, have reason to care about their privacy. By contrast, the
good people are the people who go to work, come home, watch television , and
spend time with family. They use internet not for planning bombing attacks,
rather they use to exchange mails, share recipe and read news and these people
find nothing wrong in surveillance they do not have any reason to fear the
government monitoring them

The people who are saying it, are engaged in a very extreme act of self-
depreciation, what they are really saying is, ―I have agreed to make myself
such a harmless and unthreatening and uninteresting person that I actually do
not fear having the government know what it is that I am doing.‖ This mind-
set has found what I think is its purest expression in an 2009 Interview with
the long-time CEO of Google - Eric schmidh, who when asked about all the
different ways in which his company is causing invasion of privacy for
hundreds and millions of people around the world, he said, ―if you are doing
something you don‟t want other people to know, maybe you shouldn‟t be doing
it in the first place.‖163 Now, there‘s all kinds of things to be said about this
mentality, the first of which is that the people who say that privacy isn‘t really
important, they don‘t actually believe it and the way you know that they don‘t
actually believe it , is it while they say their words that privacy actually
doesn‘t matter but their action takes all kinds of steps to safeguard their
privacy. They put passwords on their e-mails, social media accounts. They put

163
Google CEO On Privacy: „If You Have Something You Don‟t Want Anyone To Know, Maybe You Shouldn‟t
Be Doing It, HUFFPOST, Mar. 18, 2010.
https://www.huffpost.com/entry/google-ceo-on-privacy-if_n_383105

124
 locks under their bathrooms, bedroom doors all steps to prevent people from
entering what they call their privacy and private space.

The very same Eric schmidt ,the CEO of Google, ordered his employees at
Google to cease speaking with an online internet magazine- CNET,after CNET
published an article full of personal, private information about Eric schmidt,
which it exclusively obtained from Google searches and using other Google
products, this same division could be seen with CEO of Facebook, Mark
Zuckerberg who in an infamous interview in 2010 - pronounced that, ―privacy
is no longer include social norm‖164, in 2014 MARK Zuckerberg and his wife
purchased a house along which all 4 adjacent houses in Paulo Alto for 30
million $ so that they can enjoy their privacy

And to prevent other people from monitoring what they do in their personal
lives. Over the last few months while researching about the said topic,
everybody who mentioned that he or she doesn‘t worry about invasion of
privacy because they don‘t have anything to hide , but when asked in return to
take out a pen and give their email addresses and passwords of all email
accounts not just the nice respectable work emails in their name but all of
them, because what harm would there be in just wanting to scroll through what
they‘re doing online, read through what I want to read and publish what I find
interesting after all if they are doing nothing wrong , they should have nothing
to hide, not a single person in reality takes up on that offer.- There is a reason
for that ,that us as human beings even though which of us in words do not
oppose surveillance , we Instinctively understand the profound importance of
it. It is true that human beings are social animals ,which means that we have a
need for other people to know what we are doing , and saying and thinking,
which is why while we voluntarily publish information about ourselves online,
but its equally essential to feel what it means to be a free and fulfilled human
being is to have a place where we can go and be free from the judgemental
eyes of the people, there is a reason why we seek that out and the reason is that
all of us not just terrorists and criminals but all of us have thing to hide.

164
Emma Barnette, Facebook's Mark Zuckerberg says privacy is no longer a 'social norm , THE TELEGRAPH ,
Jan.11 , 2010
https://www.telegraph.co.uk/technology/facebook/6966628/Facebooks-Mark-Zuckerberg-says-privacy-is-no-
longer-a-social-norm.html

125
There are all sorts of things that we do or think or tell our physician or lawyer
or our psychologist or our spouse or our best friend that we would be mortified
for the rest of the world to learn , we make judgements every single day about
the kind of the things that we say or think or do or are willing to have other
people know and the kind of things we say or think or do which we don‘t want
anyone to know about people can very easily in words claim that they don‘t
value their privacy but their actions after negate the authenticity of that being.

There is a reason why privacy is so craved universally and distinctively, it is

not just reflexive thing like drinking water and breathing air, the reason is that
when we are in a state where we can be monitored and where we can be
watched, our behaviour changes dramatically, the range of behavioural options
that we consider, when we think we are being watched on surveillance is
reduce. This is just a fact of human nature that has been recognised in social
science and literature and in religion and other virtually in every field and
discipline. There are dozens of psychological studies which prove that when
somebody knows that they are being watched, or might be watched, the
behaviour they engage in are usually more conformist and compliant. Human
shame is a very powerful motivator and as is the desire to avoid it and that is
the reason that when people are in a state of being watched, they make
decisions not that are the by-products of their own agency but out of the
expectation that the others have of them and the mandates of other societal
orthodox. this realisation was exploited most powerfully for the pragmatic
ends by 18th century philosopher Jeremy Bentham, who set out to resolve an
important problems ushered by in industrial age, where for the first time the
institutions had become so large and centralized that they were no longer to
control or monitor individual members and, the solution he devised was an
architectural design, originally intended to be implemented in the prisons that
he called ―panopticon‖

―The primary attribute of which was construction of an enormous tower in the

centre of the institution where whoever controlled the institution could at any
moment watch any of the inmates, although they could not watch all of them at
all times and crucial to this design was that the inmates could not see into the
panopticon tower so that they never knew if they are being watched or even

126
 when. And what made him so excited about this discovery was that the
prisoners would have to assume that they are being watched at any given
movement which would be the ultimate enforcer for obedience and
compliance.‖ The 20th century French philosopher ‗Michel Foucault‘ realised
that the model could be used not only for prisons, but every institution that
seeks the control of human behaviour - schools, hospitals, factories,
workplaces and what he said that, ―This framework discovered by the
Bentham is the key means of societal control from modern western societies
which no longer need the older overt weapons of tyranny - punishing or
imprisoning or killing the dissidents , or legally compelling because mass
surveillance create a prison in the mind that is a much more subtle and much
more effective means of fostering compliance with social norms over social
orthodoxy and much more effective that crude\brood force can ever be.‖

The most iconic work of literature about surveillance and privacy is George
Orwell‘s novel 1984. Whenever it is brought upon in a debate about
surveillance, people instantaneously dismiss it as inapplicable. The
conversation generally start with, “well in 1984 there were monitor's in
people's home they were being watched at every given moment and that has
nothing to do with the surveillance it that we face.”165

That is an actual fundamental Misapprehension of the warnings that Orwell

issued in 1984. the warning that he was issuing was about a surveillance state
not that monitored everybody at all times, but where people were aware that
they can be monitored at any given moment.

Here is how Orwell‘s narrator, Winston Smith describe the surveillance system
that they faced that, ―There was, of course, no way of knowing whether you
were being watched at any given moment.‖ He went on to say, ―At any rate
they could plug in your wire whenever they wanted to You had to live, did
live, from habit that became instinct, in the assumption that every sound that

165
Robert Draper, They Are Watching You—and Everything Else on the Planet, NATIONAL GEOGRAPHIC
MAGZINE, Feb 2018.

127
 you made was overheard and except in the darkness every
movement scrutinized.”166

― The Abrahamic religions similarly posit that there is an invisible, all

knowing authority who, because of its omniscience, always watches whatever
you are doing, which means you never have a a private moment, the ultimate
for enforcing obedience to its dictates. What all of these seemingly disparate
works recognize, the conclusion that they all reach, is that the society in which
people can be monitored at all times is a society that breeds conformity and
obedience and submission, which is why every tyrant, the most overt to the
most subtle, craves that system. Conversely, and even more importantly, it is a
realm of privacy, the ability to go somewhere where we can think and reason
and interact and speak without the judgemental eyes of others being cast upon
us, in which creativity and exploration and dissent exclusively reside, and that
is a the reason why when we allow a society to exist in which we‘re subject to
constant monitoring, we allow the essence of human freedom to be severely
crippled.‖ In conclusion to this, the last point that has been observed about this
mind-set, ―The idea that only people who are doing something wrong have
things to hide and therefore reasons to care about privacy, is that it entrenches
two very destructive messages, two destructive lessons, the first of which is
that the only people who care about privacy, the only people who will seek out
privacy, are by definition bad people.‖ This is a conclusion that we should
have all kinds of reasons for avoiding, the most important of which is that
when you say, ―somebody is doing bad things,‖ you probably mean things like
plotting a terrorist attack or engaging in violent criminality, a much narrower
conception of what people who wield power mean when they say, ― doing bad
things.‖ for them, ― doing bad things‖ typically means doing something that
poses meaningful challenges to the exercise of our own power, the other really
destructive and even more insidious lesson that comes from accepting this
mind set is there‘s an implicit bargain that people who accept this mind set
have accepted, and that bargain it this that, ―if you're willing to render yourself
sufficiently harmless, sufficiently unthreatening to those who wield political
power, then and then can you be free of the dangers of surveillance. It‘s only

166
GEORGE ORWELL, 1984, (Sevker & Warburg) (1948)

128
those who are dissidents, who challenge power, who have something to worry
about.‖

―There are all kinds of reasons why we should want to avoid that lesson as
well. You may be a person who, right now, doesn‘t want to engage in that
behaviour, but at some point in future you might. Even if you're somebody
who decides that you never want to, the fact that there are other people who
are willing to and able to resist and be adversarial to those in power -
dissidents and journalists and activists and a whole range of others- is
something that brings us all collective good that we should want to preserve.
Equally critical is that the measure of how free a society is not how it treats its
good, obedient, compliant citizens, but how it treats its dissidents and those
who resist orthodoxy. The most important reason is that a system of mass
surveillance suppresses our own freedom in all sorts of ways.‖ It renders off-
limits all kinds of behavioural choices without our even knowing that it‘s
happened. The renowned socialist activist Rosa Luxemburg once said, ―He
who does not move, does not notice his chains.‖ ―We can try and render the
chains of mass surveillance invisible or undetectable, but the constraints that it
imposes on us do not become any less potent.‖

6.5. WHY PRIVACY? Indian Privacy Code 2018

Cambridge analytica, NAMO app, Paytm, adhar card, there is one thing very
common among the controversies that has risen around all these apps in recent
times. It is alleged that all these apps are trying to steal the personal data. So
what is there in the that data that is worth stealing? What is the solution?

The controversy of cambridge analytica shook the Governments across the

entire world. And since then, they have started making laws related to data
protection and data privacy..

In 2018, In the state of Uttar Pradesh, potato farmers wanted to protest against
the controversy which was there at that time due to the intermediaries in the
business and low price at which they had to sell their product. The Farmers
allegedly dumped potatoes outside the houses of the government officials.

129
 Uttar Pradesh government got agitated with this and to catch the people
responsible who exactly had done this, they tapped more than ten thousand
phone calls. It would be some 10-20 people who must have dumped it, but,
extra nine thousand nine hundred and eighty people‘s phone calls got taped.
All the conversations that must‘ve happened between the innumerable people
got taped.167

In another case, in Andhra Pradesh, a government website publicly displayed

people's private information. They did not do it intentionally but since the
website was so insecure that it happened anyway. This data was about a
government medical store and the information about the people, their phone
number and the details of the medicine purchased by them. Stringent data
protection laws must be made where the people carrying sensitive data can be
held accountable for such mishaps and there is proper management system if
and when such leak of data crisis arises.

Furthermore, Privacy is a fundamental right just like the other rights in the
constitution, this was then declared by the SC, After this decision by the SC,
the government was compelled to take the action against it. The government‘s
ministry of information technology had appointed an expert panel to draft the
new data protection law, this expert panel was headed by the supreme court‘s
judge B.N shri krishna. They were given a task to prepare a draft based on
which a law could be made. Considering the draft inadequates, a group of
common people, from every walk of life, the experts and organisations got
together, who felt the need to step forward and take an initiative snd took it
upon themselves to form a strong policy draft to be presented in the
parliament. In this group there were 13 different groups which included, legal
experts, policy analysts and lawyers. Together they all prepared a draft for data
privacy which they have named as Indian privacy code 2018. This draft was
supposed to be a modern bill, which means that if the government wants to
make this as law then they will have to bring this in the parliament and pass
this to make a strong data protection law.

167
Potatoes hurled outside UP CM Yogi Adityanath‟s residence, other prominent places in Lucknow; here‟s
why, FINANCIAL EXPRESS, Jun. 6, 2018.
https://www.financialexpress.com/india-news/potatoes-hurled-outside-up-cm-yogi-adityanaths-residence-other-
prominent-places-in-lucknow-heres-why/1004545/

130
The unique thing about this bill was that those people had brought the entire
draft in front of the common people. Their website was saveourprivacy.in.
Where anybody could read their 20-25 pages draft line by line in this website
and even give the suggestion.

A person could highlight any part, line and annotateit to write their comments
too. it' was the first time such an open law has been kept for the public to
analyse.

A brief summary of the bill to understand why was this so important for
everybody and why it's important to defend this fundamental right to privacy.
As a summary they had given seven principles of privacy :

principle 1 says individual rights are at the centre of privacy. That means that
an individual needs privacy the most. A government or a company does not
need privacy, in fact the more they are transparent, the more it is beneficial for
the country

Second principle says that data protection law must move ahead with the
technology.There should be exceptions in it but they should be clearly defined
and limited, it should not happen that the law gets pressurised under the
exceptions.

Third principle says that a new strong and independent body should be made
named privacy commission. This commission will look after the privacy
related matter and will see how well is this law being implemented. It will
have investigative powers and will also see that the law is not getting outdate
and is getting changed with time.

Fourth principle stated that the government should respect the user's privacy.
That a government should respect an individual's right. This new commission
will have its authority valid on the government as well

Fifth principle says that the surveillance should also be considered in the
privacy. Phone tapping by the government or illegal raid in people‘s house
also comes under infringement of privacy

131
Sixth principle is that the right to information law should also be empowered
here and it should be strengthened and protected

International protections and harmonisation to protect the open internet must

be incorporated. That means if there is any good law being made in the world,
it should be adopted and get inspired to implement them here. Like recently a
very strong data protection law was introduced in Europe called GDPR.

Indian privacy code has taken a lot of inspiration from GDPR, few things are
used as it is. And few areas adopted as per the Indian standards.

Like in GDPR, if you open any website in Europe, then the website will have
to ask you whether they can track you or not? You can either accept or decline.
so, this was a term in GDPR , now Indian privacy code adapted it with a
straight ahead of just accept and decline as majority of the country‘s
population is not well read.

These 7 principles are basically a summary of what is there in the Indian

privacy code, and why is this necessary and it‘s so important there are many
reasons for it.

The earlier stated two examples of Uttar Pradesh and Andhra Pradesh were
mentioned to bring into perspective that how government misuses its power to
carry out surveillances and that in Andhra Pradesh how data when leaked by
mistake also has severe consequences if fallen in the wrong hands, now let‘s
move a step ahead and see how is data which is available publicly can be
misused in a dangerous way example of cambridge analytica and how voting
manipulation can be done using your data seems like a poster case for
everything which is wrong with the system, the ignorance and non-stringent
data protection laws.

Cambridge analytica used to use Facebook likes to spread propaganda for

political parties, by understanding pattern behaviours and likes of the
individuals and accordingly targeting them with spreading selective
propaganda using the things people enjoy, this is nothing but manipulation.

132
 Returning back to the topic of the code, it is also mentioned in the Indian
privacy code 2018 that if government invades privacy then it should have a
legitimate state purpose and that state purpose should be proportional to the
extent of privacy being invaded. So if there is a small crime like someone has
slapped somebody then 10,000 people's phone getting tapped like in the potato
case is infringement of privacy by using arbitrary powers, So proportional
representation should be there here.

6.6. Brief Analysis On How National Security Agencies Pierces The Right
To Privacy Of The Citizens Under The Excuse Of National Security.

Leaving digital footprints

In the digital age that we have stepped in, the most valuable commodity is
data. Data today decides who will have money, power and influence. Majority
of the multibillion dollar companies like Facebook and Google are data based.
They not only process and displace data, they also store and monitor data.
“It was recently exposed that the social media giants and search engines line
Facebook and Google sell data for revenue to private players”. 168

While this is very alarming, there is still the relief for those who have nothing
to do with the internet, the people in the villages who are not tech savvy.
However, the real threat to the privacy of the individuals comes from the most
unexpected source: The Government. The last decade stands witness to the
various incidents of not only agencies snooping data under the government's
nose but incidents of government ordered breach of data privacy.
The governments of the world have always been active when it comes to
snooping data, the digital age just made it a lot easier. In the times of landline
phones, there were phone tapping, which still exists in many countries. There
are now more sophisticated ways to communicate and therefore better ways
for the government to snoop.

168
Facebook's data-sharing deals exposed, BBC (Nov 05, 2019 7:20) https://www.bbc.com/news/technology-
46618582

133
 Today the reality is far grimmer than we can imagine. It is not just our emails
and messages that the government sees, it reaches far beyond our wildest
imaginations. The data which we might think of as useless apparently is very
useful to the government. ―Our complete life including the TV programs we
watch, the restaurants we visit and even the sidewalks we prefer is being
watched by the governments of the world” 169.
The entire list is way too lengthy to describe but certain moves that are
monitored by the governments of the world are -
1. License plates via reader traffic cameras.
2. Sidewalk and public space movement by cameras.
3. Movement via public transportation.
4. Use of Credit and Loyalty cards
5. All data and use activity on phone.
6. TV history
7. Computer activity
8. Emails
Earlier in this decade, the news of the US Government spying on its citizens
and beyond took the internet by storm. It was revealed by a former Central
Intelligence Agency employee Edward Snowden. The revelations told the
world that after 9/11, the government has snooped on each and every activity
of not only its citizens but also people from different countries. From snooping
into emails to even hacking the webcams of the computers. ―The agencies
were not only monitoring this data but also storing it. This was a clear and
gross violation of the right to privacy of the citizens of the world and
especially American citizens.
The snooping had deeper roots than we can comprehend and it was covered by
The Guardian‖170.
It seemed scary at that time but we Indians kept calm, however, that did not
last for long when we came across the snooping that our government has been
doing on all of us.

169
Sara Schwartz, 9 Ways You‟re Being Spied On Every Day, HUFFPOST (Nov 5, 2019, 7:21)
https://www.huffpost.com/entry/government-surveillance_n_5084623
170
NSA Files decoded, The Guardian, (Nov 5, 2019)
https://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-
decoded#section/2

134
 ―It may come as a surprise to most people but as of December 2018, a few
government agencies have been empowered, via a notification in the official
gazette, to snoop on any computer in the country. This order which came from
the Government of India left everyone in shock‖171.

The following agencies are named in the notification:

 “Intelligence Bureau”
 “Narcotics Control Bureau”
 “Enforcement Directorate”
 “Central board of Direct Taxes”
 “Directorate of Revenue Intelligence”
 “Central Bureau of Investigation”
 “National Investigation Agency”
 “Cabinet Secretariat (RAW )”
 “Directorate of Signal Intelligence”
 “Commissioner of Police, Delhi”
These have been named and authorized to snoop on anybody and everybody in
the country. The government says that this has been done to ensure safety for
the citizens and weed out the dangerous elements of society, foreign
infiltrators, spies and other threats to the national security. There is a belief
that there can be no prevention without intelligence and no intelligence
without snooping. The goal to protect the people needs to have some powers
which may infringe some rights of the citizens. Almost all the countries in the
world which have a functioning intelligence system run surveillance over
everyone in their vicinity and beyond. There can be no peace without
apprehending dangers before they materialize and it will require snooping.
However, this snooping often leaves the boundaries of security and becomes
the tool at the hands of the government to use it for political gains. A complete
check on the movement and activity of every citizen, every opponent and
every officer in the country completely nullifies the right to privacy enshrined
in the Constitution itself.

171
10 central agencies can now snoop on "any" computer they want, ET Times, (Dec 21, 2018, 01.30 PM)
https://economictimes.indiatimes.com/news/politics-and-nation/10-central-agencies-can-now-snoop-on-any-
computer-they-want/articleshow/67188875

135
 The most recent blow to the government on snooping came from the Bombay
high court this month where the two judge bench nixes the government on
phone tapping and clearly stated that, ―unless they meet the three criteria set
by the nine judge bench in Puttuswamy case, the government cannot do phone
tapping. The records were ordered to be destroyed‖ 172.

Recent Judgment
As we have already established that the right to privacy is a fundamental right
and infringing the right may be gross violation of the same which is concluded
in a recent judgment. The division bench of justice Kanjit More and justice
N.J. Jamadar : Bombay High Court, granted relief to a 54 years old
businessman based in Mumbai and quashed three separate orders by ministry
of home affairs which allowed central bureau of investigation to intercept
phone calls of the petitioner in the case of bribery which involved a public
sector official working in a public bank.
According to CBI the petitioner gave a bribe of rs10 lakh to the said bank
official for credit related favors.
In three separate orders dated October 29,2009, December 18, 2009 and
February 24,2010, phone tapping or interception of telephone calls of the
petitioner was allowed, soon after CBI registered an FIR against the petitioner
on April 11, 2011
The contention of the petitioner was that this was a gross violation of his
fundamental rights guaranteed under part III of the constitution, and the action
taken was ultra vires of section 5(2) of the Indian telegraph act, 1885.
Senior advocates of eminence, Vikram Nankani along with Dr. Sujay
Kantawalla appeared for the petitioner in the case. They referred to the
landmark judgment given by Supreme Court in 2017 through a nine-judge
constitution bench‘s decision in K.S. Puttaswamy v. Union of India and the
decision given in People‘s Union for Civil Liberties (PUCL) v. Union of India
.
Arguments: that the alleged illegally intercepted the telephonic conversation.

172
Swati Deshpande, Bombay high court nixes government's phone-tap orders as they „violate right to privacy
TIMES OF INDIA (Oct 23, 2019, 9:13 )https://timesofindia.indiatimes.com/india/bombay-high-court-nixes-
governments-phone-tap-orders-as-they-violate-right-to-privacy/articleshow/71713403.cms

136
 That the recordings contained in the charge sheet and any material that was
acquired on the basis of such illegally intercepted telephonic recordings should
not be admissible.
That it would be violation of the provision given under the Indian telegraph
Act, under section 5(2) which states that such interceptions can take place
only on the occurrence of any of the two events, first in the case of some
public emergency, or in the interest of the public safety
The PUCL case was affirmed by Supreme courts constitution bench in the
landmark judgment of KS Puttuswamy. In the same case, another decision of
the Supreme Court was referred to, which was ―R.M. Malkani v. State of
Maharashtra”173 . The bench also scrutinized test to ensure that right to
privacy of an individual is not infringed upon principles of legitimacy and
proportionality.
The test suggests that it is necessary and how to limit the discretion of the state
because of the various concerns which were raised and expressed on the behalf
of the petitioner arising from the mere possibility that the state is infringing the
right to privacy. The following are the key test elements –

 The action must be backed by the law, which means that there should be a
sanction by law.
 The action which is proposed must hold some importance and must be of
absolute necessity in the democratic society and must be for a legitimate
reason or aim.
 The extent of such interference must be proportionate to the extent of need for
such interference.
 In case of such interferences, there must be procedural guarantees.

Justice More who authored the judgment noted- "We are of the view that as
per Section 5(2) of the Act, an order for interception can be issued on either
the occurrence of any public emergency or in the interest of the public safety.
The impugned three interception orders were issued allegedly for the reason of
public safety. As held in PUCL , unless a public emergency has occurred or

173
R.M. Malkani v. State of Maharashtra, 1973 AIR 157

137
 the interest of public safety demands, the authorities have no jurisdiction to
exercise the powers under the said section.” “The expression Public Safety as
held in PUCL means the state or condition of freedom from danger or risk for
the people at large. When either of two conditions are not in existence, it was
impermissible to take resort to telephone tapping”174

While giving the judgment, it was clearly stated that if the direction given by
the supreme court in the PUCL case which was then approved and re-enforced
in the K.T. Puttaswamy case regarding illegally intercepted messages pursuant
to an order having no sanction of law are openly disregarded then they will
amount to nothing else but a serious case of contempt for law, that too in the
matters involving breach of fundamental right of privacy under Article 21 the
constitution of India. Fundamental rights if put outside the scope of protection,
in the administration of criminal law, the concept that the ends would justify
the means would amount to openly stating that the Government authorities
may violate any directions Apex Court or mandatory statutory rules in order to
procure evidence against the citizens. If the situation is observed closely, it is a
gross violation of life and liberty of the citizens, it would do nothing but would
lead to manifest arbitrariness and would promote the minimal regard to the
procedure and fundamental rights of the citizens, and the laws laid down by
the supreme court of India.

“The Supreme Court deliberated on the contours of “Right to Privacy”. A

critique of the development of law pithily puts it thus: All nine judges
unanimously held that the right to privacy was an essential element of dignity
and liberty; and despite holding that the right was not absolute, couched the
same in expensive terms as is beautifully encapsulated in the following
passage from the opinion of Justice DY Chandrachud (speaking for four out of
the nine Judges): “Privacy lies across the spectrum of protected freedoms. The

174
Vinit Kumar and ors v. Central Bureau of Investigation

138
 guarantee of equality is a guarantee against arbitrary state action. It prevents
the state from discriminating between individuals” 175

6.7. Application Ban

Amidst rising tensions with Chinese counterparts, the Indian government

through its Ministry of Electronics and Information Technology has recently
blocked the availability of 59 Chinese applications in India. Apps affected by
this ban include social media apps like TikTok, Helo and WeChat; and also
other highly-used apps like ShareIT, UC Browser, CamScanner and
Clubfactory.

The Ministry has banned the apps by invoking Section 69A of the Information
Technology Act, 2000 (the IT Act) along with the relevant provisions of the
Information Technology (Procedure and Safeguards for Blocking of Access of
Information by Public) Rules, 2009 (the Blocking Rules) deeming apps‘
“prejudicial to sovereignty and integrity of India, defence of India, security of
state and public order.‖ According to the Ministry, the banned apps are
accused of ―stealing and surreptitiously transmitting users‟ data in an
unauthorized manner to servers having locations outside India. The
compilation of this data, its mining, analysis and profiling by elements hostile
to national security, which ultimately impinges the sovereignty and integrity of
India, therefore, is a matter of very deep and immediate concern which
requires immediate measures.‖

6.7.1. Violation of Fundamental Rights

The decision to block access to the Chinese apps has significant consequences,
as a large number of Indian people use these services regularly. For example,
TikTok has more than 100 million active users in India. Along with

175
Jayant Das, Increasing intrusion of state into right to privacy THE PIONEER, Jul 04, 2018,
https://www.dailypioneer.com/2018/state-editions/increasing-intrusion-of-state-into-right-to-privacy.html

139
revolutions such as affordable internet, Tik Tok has brought marginalised
people online to tell their stories in a way no other app has ever been able
to. Transgender, lower caste, villagers, and independent artists from are
creating and broadcasting content on TikTok in a way that was previously
never thought of and was at the monopoly of only groups with a greater social
equity.

Not only is the video app convenient to use, but it is also more accessible as it
has given people who don‘t lead instagrammable lives or even speak English
the confidence to showcase their skills and share their lives.

Reports demonstrate how the app gives voice to entrepreneurs and small
business owners across rural India. It has also been articulated that the ban has
come into being during the pandemic is particularly unfortunate, given the
sense of harmony that it provided to these communities.

―Another community that has been severely impacted by the ban on these apps
are the Tibetan refugees in Delhi who used We Chat to connect with their
families and friends back in Tibet. They also relied on this app to get access to
news and other information. They cannot use other widely-used social media
applications like Facebook or Whatsapp since they are banned in Tibet.
Further, WeChat is easier to use, and voice messaging did not require literacy
in Tibetan, enabling refugees who do not read Tibetan to participate.‖

―Similarly, in the last 10 years or so, many Indian students have enrolled
themselves in Chinese universities. They too were dependent on apps like
WeChat to communicate with their colleagues and college administrations.

Any account of freedom of expression that does not consider how this ban will
affect marginalised communities is not at all credible. Since apps provide a
platform for expression and allow for the dissemination of information are
protected by Art.19(1)(a) of the Indian Constitution, a constitutional challenge
to the ban is very likely.‖

140
 In order for the freedom of speech and expression to be withheld, the right
must be inclusive and available to everyone; not just those with the social
capital to access applications with relatively complex and difficult user
interfaces. This is true because of the extremely low levels of digital literacy in
India. The freedom of expression in this context should be understood to
include the manner in or the platform on which people wish to express
themselves. Further, even if one assumes that the freedom to engage in trade or
business is not available to Chinese app makers(presumably non-citizens),
they continue to exercise the right against under article 14.

Recently, the Kerala High Court in a case, ―Faheema Shirin v. State of

Kerala”176 recognizes that, “interfering with someone‟s access to the internet
actually violates their fundamental right to privacy.”

Subsequently, the Supreme Court in ―Anuradha Bhasin v. Union of

India”177 highlighted that, suspension of the internet could definitely amount
to an abuse of power. However, it fell short of affirming the position laid down
by the Kerala High Court. However, since the decision in Faheema Shirin has
not been overruled, it holds persuasive significance and should correctly be
assumed to be the correct position of law in this situation. Arguably, there does
exist freedom of access to the internet under Article 19, hence, it becomes
important to re-evaluate the effect the geoblock on Chinese Apps has on this
right.

6.7.2. Whether the application ban is Justifiable

Speaking against the ban, Ji Rong, spokesperson of the Chinese embassy in

India, said that the ban violates the World Trade Organization (WTO) rules
and ―abuses the national security exceptions.‖ Indian officials are very
confident that India can defend the move under this exception. I believe India

176
2019(2) KHC 220
177
WRIT PETITION (CIVIL) NO. 1031 OF 2019.

141
 would be successful in invoking the national security exemption to justify the
ban, in the (unlikely) event that China were to approach the WTO.

As a justification, a press release announcing the ban, explained that Indian

users‘ data was being transferred to servers located outside India, in an
unauthorised manner. This may lead to the profiling and mining of users‘ data
by elements hostile to the national security and defence of India which was a
matter of deep and immediate concern, and required emergency measures.

As we know, the move came after the border clash between Indian and
Chinese soldiers in the Galwan Valley, along the Line of Actual Control,
resulting in the death of 20 Indian soldiers.

6.7.3. Invoking the National Security Exception under the WTO

Framework

The national security exception under the WTO framework has been invoked
twice so far –

1. ―Russia‘s justification of a ban on Ukraine‘s trucks from driving within Russia

during the Ukraine crisis (Russia/Ukraine decision)‖ ;
2. ―Saudi Arabia‘s justification for not initiating criminal procedures against a
company which was stealing copyright protected content from a Qatari
company (during the blockade against Qatar) (Saudi/Qatar decision).‖

While the WTO Panel accepted the justification in case of Russia, it was
rejected in the case of Saudi Arabia.

“Article XIV of the General Agreement on Trade in Services (GATS)”178, ―In

its operative part, provides that nothing prevents any Member from taking any
action which is considered necessary for the protection of its essential security
interests” :

178
Article XIV of the GATS sets out the general exceptions from obligations under that. Agreement in the same
manner as does Article XX of the GATT 1994..

142
 i. relating to the supply of services for the provisioning of a military
establishment;
ii. relating to fissionable and fusionable materials and the materials from
which they are derived;
iii. taken in time of war or any other international relations emergency.

India is most likely to take the stand that the ban was necessary for the
protection of its essential security interests and that the decision to ban these
applications was taken in the time of war or any other international relations
emergency.

―This phrase also recently came up as an interpretation by the WTO Panel in

the Saudi Arabia/Qatar decision. Based on the Panel‘s analysis, India will have
to fulfil three conditions: first, there was a situation of ‗war or other
emergency in international relations; second, such a ban was
adopted during such war or emergency; and third and most importantly, the
ban was not remote or unrelated and it was a plausible measure to protect
India‘s essential security interests.‖

6.8. Peroration

At present, there is not sufficient information on precisely how using Chinese

apps in India raises national security concerns to such an extent that the
general public needs to be completely warranted of these apps.
―However, research suggests that Chinese laws require app services to
necessarily share user data upon request. Further, a recent study indicated that
most Chinese apps (including Helo and Shareit) collect excessive information
such as access to microphones, cameras and precise cell-site location
information which is not necessary to render services related to the particular
application.‖

―While this measure objectively indicates that Chinese apps need to increase
underlying privacy safeguards, a study comparing the operability of Chinese
apps with apps made outside China on play store or apple store is yet to be
conducted. In the absence of such a study, a stand-alone review of Chinese

143
Apps may suffer from the absence of a comparative analysis to fare it in
relative terms.‖ Through a careful comparison by measuring the extent to
which Chinese apps relatively raise greater concerns which form the basis of
the Notification would help establish the suitability of directing a ban
specifically against China. ―This would also help corroborate a cogent and
rational connection with national security concerns. Singling out all Chinese
apps may require some unique basis in order to be considered a ‗suitable‘
restriction.‖

144
 CONCLUSION

It is quite evident that various governments of the world have been misusing
the technological means to invade our privacy in the name of security.
Surprisingly, the states which are the champions of peace at the United
Nations and members of the Security Council have been the forerunners in
the abuse against right to privacy.

Our own country India has followed the steps of its allies and have been
vehemently bypassing the right to privacy of the citizens in the name of
national security. The last two decades have seen a rise in the incidents since
technological advancements have not only made governments more able at
doing this, but, also the citizens more prone to snooping. The whole world
of the citizens revolve around their smartphones, laptops and other digital
devices which make remote snooping not only possible but very easy.

The government's control over telecom and software companies also makes
it easier for them to snoop data. Telecom operators share data about our
activities on the phone with the government and practically no calls or text
we send are private anymore.

Companies like Facebook, Google and whatsapp snoop our data and sell it
to the government as well as the highest bidder which makes it more
dangerous. Our complete digital profile is up for the government to have, all
in the name of national security.

The most dangerous part of data snooping is mass-compulsory data

collection programs like the Aadhar. More than a billion people are required
to enter into a database, their details as well as their fingerprints. ―Basically
a collection of more than a billion lives at the mercy of the government to be

145
 used as they deem fit. More importantly, guarded by primitive digital
security which can be ripped apart by a second grade hacker” 179.

The reality as of today is that the government has authorized its agencies to
snoop on its citizens in the name of national security as they feel when it is
in clear violation of the Puttuswamy Judgement180 wherein steps were
mentioned which have to be met in order to snoop on a citizen.

The data snooping can very well be used by the government to eliminate
political competitions by breaching their right to privacy. The power to
breach privacy in the name of national security when coupled with the
amended law of UAPA arm the government with a dangerous tool which
can easily murder democracy.

Any opponent can be snooped thoroughly and titled a terrorist at the whim
of the government without a single court order being needed in the entire
process. The degree to which this sounds dangerous is unimaginable. This is
enough to crush any free speech or remnant of democracy in the country.

The only ray of hope to put a stop to the rampant powers of the government
is the Judiciary through its powers to stop the legislature when it oversteps.
The usual method being judicial review which has worked in the past very
well, however, with the advancement in technology as well as amendments
to the UAPA law, the right to privacy is in a much more imminent threat
than the past.

There has always been a need for a strong hand to counter terrorism and all
such related activities, but if the protection for the citizen came at a cost of
gross miscarriage of justice and violating the basic human, if not
fundamental rights of an individual, then what good does such a protection

179
Volume 3 , ROBERT M. CLARK & SIMON HAKIM, CYBER PHYSICAL SECURITY (Springer) ISBN 978-3-
319-32822-5
https://www.business-standard.com/article/current-affairs/aadhaar-breach-how-rs-500-is-all-it-takes-to-pry-on-
a-billion-indians-118010400169_1.html
180
Justice K.S. Puttaswamy v. Union of India: (2017) 10 SCC 1

146
 do? The Right to Dissent is one of the core founding principles on which
democracies are built, and the UAPA simply tries to take away that right
from the people. It is an assault of citizens‘ right to expression which is also
a collective right of groups and unions to disseminate their views and UAPA
majorly targets this right. Secondly, it can simply be used to bypass
fundamental rights and procedures. For instance, those arrested under
UAPA can be incarcerated up to 180 days without a charge sheet being
filed. It thus directly violates Article 21 of the constitution. Thirdly, it
confers upon the government broad discretionary powers and also authorizes
the creation of ―special courts with the ability to use secret witnesses and to
hold closed-door hearings.‖181

Several provisions of the Unlawful Activities (Prevention) Act, 1967, were

authoritative, as well as overly broad in their definition, thereby allowing
the government to do a large number of things over a simple authority, just
because it wasn‘t specific enough to point out as to what it was actually
referring to.182

The Jammu and Kashmir Police arrested the Journalist Masrat Zahra under
Section 13 of the Unlawful Activities (Prevention) Act, 2020 by stating that
she uploaded anti-national videos on Facebook to incite the youth in
glorifying anti-national activities. They also put this same draconian
provision on Peerzada Ashiq when she posted about the diversion of COVID
testing kits, stating that, it is against the authorities. The Amnesty
International Executive Director called such acts by the Indian Government
as an attempt to curb the right to freedom of expression of its citizens. 183

The Jammu and Kashmir police had also invoked Section 13 of UAPA
against people who were accessing social media through VPN‘s to dodge

181
Chapter VII of the Unlawful Activities (Prevention) Act, 1967, As amended by the 2010 amendment.
182
Unlawful Activities (Prevention) Act, 1967, Sec 3, Sec 2 .
183
J&K Police Using Repressive Counter Terrorism Law To Muzzle Access To Social Media, AMNESTY
INTERNATIONAL INDIA.
https://amnesty.org.in/news-update/jk-police-using-repressive-counter-terrorism-law-to-muzzle-access-to-
social-media/ (Last Visited: Aug 1, 2020)

147
 the longest ever internet ban imposed by the government when it scrapped
Article 370 of the constitution to divide the state into two centrally
administered UT‘s. The government said that it was done ―to curb the
misuse of the sites by miscreants for propagating false
information/rumors.‖184

Desperate times indeed call for desperate measures, and history is a brave
example that no matter how desperate one gets, nothing is above the human
rights of an individual. The way the UAPA has been drafted clearly puts it
in par with the USA PATRIOT Act, which was criticized way too much for
being violative of fundamental rights. 185 In essence, from a neutral
standpoint, there is no way an act like the UAPA should exist in a
democracy like India, unless we are already an ―Orwellian State”186 like the
U.S.

Data snooping is something which has always been looked down upon since
time immemorial. Upon looking at incidents around the globe, one would
easily identify one of the biggest incidents of data snooping which was
Edward Snowden blowing the whistle on the NSA. 187 The United States
came under heavy criticism globally 188 after the world came to understand
the extent to which the NSA was surveilling i.e. not only limited to the

184
Panic in Kashmir as case filed against social media users, AL-JAZEERA, Feb. 8, 2020
https://www.aljazeera.com/news/2020/02/panic-kashmir-cases-filed-social-media-users-200218114417864.html
(Last Visited: 01st August, 2020)
185
Dustin Volz, Opposing Trump, conservative bloc demands reforms to internet spy law, REUTERS, Jun.16,
2017
https://www.reuters.com/article/us-usa-intelligence/opposing-trump-conservative-bloc-demands-reforms-to-
internet-spy-law-idUSKBN1962SR (Last Visited: 01st August, 2020)
186
"Orwellian" is an adjective describing a situation, idea, or societal condition that George Orwell identified as
being destructive to the welfare of a free and open society. It is used to describe a political system in which the
government tries to control every part of people's lives, similar to that described in the novel "Nineteen Eighty
Four", by George Orwell.
187
Edward Snowden: Leaks that exposed US spy programme, BBC NEWS, Jan. 17 2014.
188
Malaysia protests at 'US and Australia spying' in Asia, BBC NEWS, Nov. 2, 2013 .
https://www.bbc.com/news/world-asia-24784895;

148
 citizens of the US, but also citizens of other countries, including India. 189
Therefore, for India to be walking on the exact same steps as a nation who
has been continuously accused for gross violations of human rights is a sign
of authoritarianism. Being snooped in the democracy, which would further
change the status quo of how things are handled within the nation. Hence,
something as deplorable as what the US did shouldn‘t be done by India yet
again.

The speed at which a person's privacy can be abused and his rights usurped
is dangerously high and therefore the judiciary has to be far more active
than just judicial review.

Looking at the mammoth amounts of evidence present in front of us when it

comes to violation of right to privacy, and the outburst to when it is
violated, it is clearly not in the favour of our government, or the nation, to
make a mockery out of the nation by going in for an unplanned idea which
is responsible for keeping the personal data of millions of Indians, including
biometrics. Further, what‘s worse is the fact that when the government is
actually criticized on how they are handling the data of millions of their
citizens, instead of appreciating the gesture and making the necessary
changes to make the system a more secured one, the government went on to
harass and prosecute those who actually revealed the said informatio.190
Punishing the person who reveals your mistake is not only a coward‘s move,
it shows the extent to which the government will go to silence a person who
speaks against the plans of the government. This shows that the democracy
is slowly moving towards autocracy and dictatorship, and when a
government starts doing such horrors while in power, it is always the duty of
the judiciary to put things in check. The Supreme Court of India might‘ve
held mandating the aadhar in certain things as a violation of fundamental
189
Glenn Greenwald, Shobhan Saxena, India among top targets of spying by NSA, THE HINDU, Sep. 23, 2013
https://www.thehindu.com/news/national/india-among-top-targets-of-spying-by-nsa/article5157526.ece
190
Rahul Bhatia, Critics of Aadhaar project say they have been harassed, put under surveillance, REUTERS,
Feb. 13, 2018 / 11:11 AM
https://www.reuters.com/article/india-aadhaar-breach/critics-of-aadhaar-project-say-they-have-been-harassed-
put-under-surveillance-idINKBN1FX0FU

149
 rights191, but it is just a tip of the iceberg and there is a pretty long way to go
before all the wrongs of the government could be rectified.

It has to do judicial activism to nip the threats in the bud.

In the ever-increasing invasion of the state into the right to privacy, it has
become necessary for the entire community to have seminars on the concept
growth and implementation of the concept and the law relating to Right to
Privacy.

Just as national security is paramount to the state; in the same manner right
to privacy is paramount to personal liberty of the individuals. The problem
thus is to harmonize these two conflicting interest. While in the interest of
national security it might be inevitable for the state to adopt measures which
may have the undesirable effect of interfering of the privacy of an
individual, it is necessary to ensure that the state does not assume to itself an
unbridled and unfettered power to encroach upon the privacy of the
individuals in the name of national security. Certain measure and guidelines
must be formulated within the prescribed limits of which only the state can
interfere with the privacy of the individual. In this regard a visit to the
judgment and the view held in KS Puttuswamy 192 would be appropriate and
it must be followed in the letter as well as in the spirit.

A Public Interest Litigation has been filed by one Sajal Awasthi 193 asking
the Supreme Court to declare the UAPA as unconstitutional because it is
violative of the Fundamental Rights of the citizens. He goes on to explain
that the right to dissent is one the very basic rights of an individual and the
curtailing the same would be grossly against Articles 14,19, and 21 of the
Constitution of India. He also states that the act does not provide any

191
Aadhaar not mandatory for bank account, mobile number but must for ITR, LIVE MINT, 27 Sep 2018,
https://www.livemint.com/Politics/wBZFzYhxzw8p2MO3rk5UyI/aadhaar-UGC-neet-CBSE-exams-bank-
account-PAN-mobile-ITR.html
192
Supra at 173.
193
SUPREME COURT OF INDIA, CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 2019

150
opportunity to the person arrested to prove that he is not a terrorist, which is
very arbitrary to the core. He further went on to say that:-

“Right to Reputation is an intrinsic part of [a] fundamental right to life with

dignity under Article 21 of the Constitution of India and terming/tagging an
individual as „terrorist‟ even before the commencement of trial or any
application of judicial mind over it, does not adhere to procedure
established by law.”

The Association for Protection of Civil Rights (APCR) filed another petition
in the Supreme Court challenging Section 35 of the UAPA, because after t he
2019 amendment it allows the Government to label an individual as a
terrorist, whilst before the same could only be done to organizations and
associations.

While PILs such as these definitely go a long way in paving a path for the
protection of individual freedom and fundamental rights, they definitely
aren‘t enough to ensure that each and everything which the government does
is kept in check. Further, PILs most certainly cannot be our only line of
defense against government autocracy, for if the people have to come down
and defend themselves at every instance of wrongdoing then we might as
well start living in an anarchist state, because the Judiciary is as good as
sitting ducks if it doesn‘t act until poked when a wrong is done. Judicial
activism is not only important, it is necessary at the moment to insure than
the rights and freedoms of an individual aren‘t stepped upon every now and
then when the government feels it has the right to do so. The government is
elected by the people, therefore it must always have a sense of responsibility
towards the people itself and not work recklessly to hamper the rights of the
individuals it is so responsible to protect.

After understanding the intricacies, according to me, the first and the
foremost step should be to establish a synergy between both the necessary
evils; the right to privacy is a basic fundamental right but national security is
no joke! For this stint to successfully and legally operate without violation
of the data security laws and without infringement of the privacy laws, it is

151
 very important that there should be inclusion of judiciary in national
security.

One Apex committee should be formed with the members from Supreme
Court to keeping check the involvement of legislature into the functions of
national security branches like CBI and IB.

A mandatory court order to launch full-fledged snooping operation on an

individual under peace-time mission should be protocol to ensure rule of law
as well as protect immediate actions for security from these process.

Third and the most important thing that can be done is, to put in a heavy
investment to build strong cyber protection wing so that the data of the
citizen collected for sovereign use may not fall in the hands of hostile
powers.

Acts such as the UAPA and the NIA need to have strict provisions with
regard to bail and remand so that the investigation agencies to do not abuse
the powers regarding arrest and unlawful detention. Agencies have been
accused numerous times of using the UAPA to harass critics and detain
them for unreasonably long periods. 194 Records also further show that
almost 2/3rd of the cases filed under UAPA get dismissed soon after being
filed. Hence it shows a sleazy attempt by the authorities to use it as a
disguise to harass individuals. 195

To put the final nail to the coffin, the Government actually went forward
and included Section 18196 of the Unlawful Activities (Prevention) Act,
1967, which stated that No Legal Proceeding shall lie against the
government for any loss or damage caused because of any action taken by

194
UAPA Being Misused to Confine Political Prisoners Endlessly: PUDR, THE QUINT, 01 Oct 2018.
https://www.thequint.com/news/india/activist-arrest-bhima-koregaon-how-uapa-being-misused-pudr
195
Chaitanya Mallapur & Devyani Chhetr, Arrested activists: 67% ended in acquittal or discharge under UAPA
Act , BUSINESS STANDARD, Sept. 14, 2018
https://www.business-standard.com/article/current-affairs/arrested-activists-67-ended-in-acquittal-or-discharge-
under-uapa-act-118090800801_1.html
196
Section 49 of the Present UAPA Act.

152
 the Government while acting under the powers of the said act. This actually
gave the government full immunity from any kind of responsibility which
may arise from the continuous use of the said act. No one should be free
from any kind of accountability, the least of those being the government
who is actually using such unfettered powers to harass individuals.
Provisions like this which give the government a license to openly go ahead
and abuse their powers should be the first ones to be actually struck down.

Next, the government needs to stop harassing the whistleblowers, or start

going after them solely because they chose to list out the flaws in the
program which the government was already running or planning on running.
The government doing such acts clearly suggests that the government
simply raises an issue with the free speech in the nation, and therefore free
speech is questionable.

Furthermore, As suggested by a number of learned scholors and activists

and rational thinkers, UIDAI should focus on the localization of data in
India. With a number of firms hosting data outside of India, it is only so
long before there is a malware attack or some kind of hack which once again
puts the data of millions of people at risk. Rajya Sabha MP Subramaniam
Swamy even went on to say that in California, any software specialist can
download for aadhar data for as little as $50. 197

As known by us and the mases, There‘s an attack on the government

websites time and again and it is served by hackers outside of the borders, as
well as breach of Aadhar database raises an eyebrow on the government
collecting data from its citizens and failing miserably at protecting it.

In addition to the aforementioned list of things, There needs to be a greater

transparency in the system thank there is in the current system. Government
agencies are not accountable to anyone other than the government itself. A
comprehensive reform of the surveillance framework in India is long overdue.

197
Rachel Chitra , UIDAI to look seriously into data localisation compliance, ET PRIME, April 16, 2019.

153
The current debate, therefore, is not about ‗whether surveillance at all‘, but
about ‗how, when, and what kind of surveillance‘.

This is also the right time: Across the world, there is an increasingly urgent
debate about how to protect basic rights against encroachment by an
aggressive and intrusive state, which wields the rhetoric of national security
like a sword.

In India, the Supreme Court‘s privacy judgment has taken a firm stand on the
side of rights. Citizens‘ initiatives, such as the Indian Privacy Code have also
proposed legislative models for surveillance reform.

After the Supreme Court‘s 2017 judgment in K.S. Puttaswamy v. Union of

India (‗the Right to Privacy case‘), the Constitutional contours within which
the questions of ‗how, when, and what kind‘ have to be answered have been
made clear.

Any impingement upon the right to privacy must also be proportionate

One of the factors of the proportionality standard is that the government‘s

action must be the least restrictive method by which a state goal is to be
realized. In other words, if the same goal — i.e., protecting national security
can be achieved by a smaller infringement upon fundamental rights, then the
government is Constitutionally bound to adopt the method that does, indeed,
involve minimal infringement.

Reforms in the Indian surveillance regime, should, therefore, incorporate

ethics of surveillance which considers the moral aspects of how surveillance is
employed.

Lastly, ―The regime is opaque. There is almost no information available about

the bases on which surveillance decisions are taken, and how the legal
standards are applied. Indeed, the evidence seems to suggest that there are
none: a 2014 RTI request revealed that, on an average, 250 surveillance
requests are approved every day. It stands to reason that in a situation like

154
 this, approval resembles a rubber stamp more than an independent application
of mind.‖198

Even though the staunchest civil rights advocates will not deny that an
individual reasonably suspected of planning a terrorist attack should be placed
under surveillance, in this context, the evidence demonstrates clearly that a
heavily bureaucratized and minimally accountable regime of surveillance does
nothing to enhance security, but does have significant privacy costs.

―For example, while examining the U.S. National Security Agency‘s

programme of mass surveillance, an American court found that out of more
than 50 instances where terrorist attacks had been prevented, not even a single
successful pre-emption was based on material collected from the NSA‘s
surveillance regime.‖

In India, the existing surveillance framework is complex and confusing.

Simply put, two statutes control the field: telephone surveillance is sanctioned
under the 1885 Telegraph Act (and its rules), while electronic surveillance is
authorized under the 2000 Information Technology Act (and its rules).

“This framework is heavily bureaucratized. “Decisions about surveillance are

taken by the executive branch (including the review process)”199 with no
parliamentary or judicial supervision; indeed, the fact that an individual will
almost never know that she is under surveillance, means that finding out about
surveillance, and then challenging it before a court, is a near-impossibility.‖

―The surveillance regime is also vague and ambiguous. Under Section 69 of

the IT Act, the grounds of surveillance have been simply lifted from Article
19(2) of the Constitution, and pasted into the law.”200 They include very wide
phrases such as ―friendly relations with foreign States‖ or ―sovereignty and the
regime is justified as it strikes a pragmatic balance between the competing
values of privacy and security.

198
Gautam Bhatia, The case against surveillance , THE HINDU, December 25, 2018 .
199
Paz Peña O , The bureaucratization of surveillance, THE MEDIUM, August 31,2017.
https://medium.com/@pazpena/the-bureaucratization-of-surveillance-682c7d27401f
200
Id at 192

155
 European Union general data protection regime on non-personal data :
―In May 2019, the EU came out with a regulatory framework for the free flow
of non-personal data. It suggested that member states of the union would
cooperate with each other when it came to data sharing. Such data, the EU had
then ruled would be shared by member states without any hindrances.‖201

―The authorities must inform the commission of any draft act which introduces
a new data localisation requirement or makes changes to an existing data
localisation requirement.”202

―What areas does India‘s non-personal data draft miss? Though the non-
personal data draft is a pioneer in identifying the power, role, and usage of
anonymised data, there are certain aspects such as community non-personal
data, where the draft could have been clearer. Non-personal data often
constitute protected trade secrets and often raises significant privacy concerns.
The paper proposes the nebulous concept of community data while failing to
adequately provide for community rights.‖

―Other experts also believe that the final draft of the non-personal data
governance framework must clearly define the roles for all participants, such
as the data principal, the data custodian, and data trustees.‖

When considering ―The Unlawful Activities (Prevention) Amendment Act,

2019, it seeks to substantially modify Chapter VI of the Unlawful Activities
(Prevention) Act, 1967 and Section 35 and 36 therein. The new Section 35 of
the UAPA Act, 1967 empowers the Central government to categorise any
individual as ‗terrorist‘ and add name of such a person in Schedule 4 of the
Act,‖203 But the, ―Right to reputation was an intrinsic part of fundamental
right to life with dignity under Article 21 of the Constitution and tagging an
individual as ―terrorist‖ even before the commencement of trial or any
application of judicial mind over it, did not amount to following the procedure
established by law.‖

201
Aashish Aryan, Explained: What is non-personal data? , THE INDIAN EXPRESS , July 27, 2020
https://indianexpress.com/article/explained/non-personal-data-explained-6506613/
202
Id.
203
UAPA amendment: respond to pleas, apex court tells govt , THE HINDU, Sep. 6, 2019

156
―The right of dissent is a part and parcel of fundamental right to free speech
and expression and therefore, cannot be abridged in any circumstances except
for mentioned in Article 19 (2). The UAPA, 2019 empowers the ruling
government, under the garb of curbing terrorism, to impose indirect restriction
on right of dissent which is detrimental for our developing democratic society

There is a need to strike a fine balance between privacy and ensuring that
policing or national security is taken to a level where technology is a facilitator
and not a hindrance for integrity of India

157
 BIBLIOGRAPHY

STATUTES

1. Constitution of India, 1950

2. Information Technology Act, 2000

3. Indian Penal Code, 1860

4. Credit Information Companies Regulation Act, 2005

5. The Aadhaar (Targeted Delivery of Financial and Other Subsidies,

Benefits and Services) Act, 2016.

BOOKS

1. Basu, Durga Das: Commentary on Constitution of India, Lexis Nexis,

8th edn., vol. 6, 2010.

2. Jain, M.P.: Constitutional Law: Fundamental Right, Lexis Nexis, 7th

edn., 2014.

3. Ravinder Kumar and Gaurav Goyal: The Right to Privacy in India:

Concept and Evolution, Partridge India Publication, 2016.

4. S.K. Sharma, Privacy Law: A Comparative Study, Atlantic Publishers &

Dist. Publication, 1994.

5. Marta Otto: The Right to Privacy in Employment: A Comparative

Study, Bloomsbury Publishing, 2016.

6. Richard A. Glenn: The Right to Privacy: Rights and Liberties Under the
Law, ABC-CLIO Publication, 2003.

7. Adam Carlyle Breckenridge: The Right to Privacy, U of Nebraska Press,

1970.

8. Brandon Garrett: The Right to Privacy, Individual freedom, civic

responsibility, The Rosen Publishing Group, 2001.

9. David L. Hudson: The Right to Privacy, Infobase Publishing, 2009.

xi
10. Caroline Kennedy and Ellen Alderman: The Right to Privacy, Knopf
Doubleday Publishing Group, 2010.

JOURNALS AND ARTICLES

1. Vrinda Bhandari and Renuka Sane: ―Towards a privacy framework for

India in the age of the Internet‖, (November 2016), Working Paper No. 179,
NIPFP Working Paper Series.

2. Namit Oberoi: ―The Right to Privacy: Tracing the Judicial Approach

Following the Kharak Singh Case‖, INJlConLaw 11; (2007) 1 Indian Journal
of Constitutional Law 216.

3. Gautam Bhatia: ―State Surveillance and The Right to Privacy in India: A

Constitutional Biography‖, (2014) 26(2) National Law School of India Review
127.

4. Anubhav Khamroi and Anujay Shrivastava: ―The Curious Case of Right

to Privacy in India‖, Indian Constitutional Law Review, Quarterly Law
Journal (2017).

5. Aashit Shah and Nilesh Zacharias: ―Right to Privacy and Data

Protection‖.

6. Daniel J. Solove: ―Conceptualizing Privacy‖, 90 Calif. L. Revs. 1087

(2002).

7. Adam D. Moore: ―Privacy: Its Meaning and Value‖, Vol. 40, No. 3, Jul.,
2003.

8. Neeraj Grover: ―Right to Privacy in Digital Age: Evolving Privacy Laws

and Their Applicability to Social Media‖ (2011).

9. Afshan Nazir and Ayush Gupta: ―Right to Privacy: Fundamentally

Ours‖ (2017).

10. Suhrith Parthasarathy, ―Privacy, Aadhar and the Constitution‖ (2017).

Indian National Security and Counter-Insurgency: The Use of Force Vs Non-
violent Response; ISBN 978-1-134-51431-1

xii
11. Black Friday – The True Story of the Bombay Bomb Blasts; ISBN 978-
0-14-302821-5

12. Nitya Ramakrishnan, Tortured, Humiliated, But Unbroken: An Interview

With S.A.R. Geelani, The Wire, Oct. 25, 2019.

13. Special Correspondent, Police bid to intimidate Kawalpreet, claims AISA,

THE HINDU (Apr. 29, 2020).

14. Ujjaini Chatterji, UN Special Rapporteurs express concerns over UAPA,

THE LEAFLET (May 18, 2020).

15. Aakar Patel, UAPA (Amendment) Bill 2019 violates the very international
laws it quotes, defies principles of natural justice, Firstpost, (Aug. 3, 2019)

16. UAPA amendment: respond to pleas, apex court tells govt , The Hindu,
Sep. 6, 2019

17. Paz Peña O , The bureaucratization of surveillance, The Medium, August

31,2017.

18. Gautam Bhatia, The case against surveillance , The Hindu, December 25,
2018 .

19. Aashish Aryan, Explained: What is non-personal data? , The Indian

Express , July 27, 2020

20. Daniel J. Solove, Conceptualizing Privacy, California Law Review, Vol.

90, No. 4 (2002),

21. Alessandro Acquisti, Privacy in Electronic Commerce and the Economics

of Immediate Gratification H. John Heinz III School of Public Policy and
Management, Carnegie Mellon University

22. Aarushu sahu ,Evolution of Right to privacy,legal bites ,Jan 15 2018

23. William M. Beaney, ―The Right to Privacy and American Law‖, DUKE
L.J. (1965)

xiii
24. Ananya Chakraborty, ―The U.S. Should Adopt the 'Right to Be Forgotten‖,
NEWS 18 INDIA, Aug 24, 2017

25. Vinita Bali , Data Piracy: Can India Provide Adequate Protection for
Electronically Transferred Data? Clara Law Digital Commons, 21 Temp. Int'l
& Comp. L. J. 103 (2007)

26. Maj Gen Sheru Thapliyal, 1962 War: A Critical Analysis, Mar. 30, 2018,

27. Namrata Goswami, Indian National Security and Counter-Insurgency: The

Use of Force Vs Non-violent Response, ROUTLEDGE,43. ISBN 978-1-134-
51431-1

28. Vishwa Mohan & Anam Ajmal, ―Cops use UAPA to block site, call it
‗goof-up‘ later‖, The Times of India, Jul 24, 2020

29. J&K Police Using Repressive Counter Terrorism Law To Muzzle Access
To Social Media‖, Amnesty International India, Feb 18, 2020.

30. Deepali Bhandari & Deeksha Pokhriyal, The Continuing Threat of India‘s
Unlawful Activities Prevention Act to Free Speech, JURIST, Jun 2, 2020.

31. Editorial, ―Panic in Kashmir as case filed against social media users‖, Al-
Jazeera, Feb 18,2020.

32. Deepali Bhandari & Deeksha Pokhriyal, The Continuing Threat of India‘s
Unlawful Activities Prevention Act to Free Speech, JURIST, Jun 2, 2020.

33. Editorial, ―Panic in Kashmir as case filed against social media users‖, Al-
Jazeera, Feb 18,2020.

34. Dustin Volz, ―Opposing Trump, conservative bloc demands reforms to

internet spy law‖ , REUTERS, Jun. 16, 2017.

35. Abdul Wahid Shaikh, Interview: Of Torture, Impunity and the False
Charges on Abdul Wahid Shaikh ,THE WIRE, May 20, 2017.

36. When Poetry is held Unlawful: A Case of Kabir Kala Manch, INDIA
RESISTS, Apr. 23, 2015

xiv
37. Devika Kohli, ―Why Is The Government So Threatened By A Man Who
Is 90% Disabled?‖, YKA, May 19, 2015.

38. AISA‘s Delhi head booked under UAPA by Crime Branch, mobile seized,
INDIAN EXPRESS, Apr. 29, 2020.

39. First Post Staff, Masrat Zahra booked under UAPA: Kashmiri
photojournalist's work focussed mostly on women, conflict reporting in
Valley, FIRSTPOST, Apr. 20, 2020.

40. Kiran Rathee, ―Govt plans to link driving licence with Aadhaar,‖ Business
Standard, Sep 26,2018.

41. Editorial, ―Supreme Court counters push for Aadhaar,‖ The Hindu, Mar
27, 2017.

42. IANS, ―Rajya Sabha returns Aadhaar bill to Lok Sabha with amendments,‖
Hindustan Times, Mar 16,2016.

43. Editorial, ―Aadhaar bill is through after Opposition scores a few brownie
points,‖ Indian Express, Mar 17,
2019.http://indianexpress.com/article/india/india-news-india/rajya-sabha-
returns-Aadhaar-bill-to-lok-sabha-with-oppn-amendments.

April 23, 2015

ONLINE WEBSITES

1. http://plato.stanford.edu/entries/privacy

2. http://www.jstor.org/stable/3481326?origin=JSTOR-pdf

3. http://ssrn.com/abstract=2040940

4. https://www.legalbites.in/evolution-right-privacy-india

5. http://www.rtifoundationofindia.com/evolution-right-privacy-
india#.WvabwIiFM2w

6. http://thelegiteye.in/2017/10/24/case-analysis-right-privacy

xv
7. http://gilc.org/privacy/survey/intro.html

8. https://lawreview.law.ucdavis.edu/issues/43/3/liberty/43-3_Greene.pdf

9.
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3107&cont
ext=lcp

10. www.intelligencesquaredus.org .

11. https://www.news18.com/news/india/right-to-privacy-verdict-how-
other-countries-have-dealt-with-the-issue-1499985.html

12. http://indianexpress.com/article/india/right-to-privacy-how-it-is-
protected-in-other-countries/

13. http://www.business-standard.com/article/economy-policy/govt-plans-
to-link-driving-licence-with-aadhaar-117091600042_1.html

14. http://www.thehindu.com/news/national/aadhaar-cannot-be-mandatory-
for-welfare-schemes-supreme-court/article17671381.ece.

15. http://www.hindustantimes.com/india/rajya-sabha-returns-aadhaar-bill-
to-lok-sabha-with-amendments/story-uCVCaTLOVVyOVwrHqEuOSI.html

16. http://indianexpress.com/article/india/india-news-india/rajya-sabha-
returns-Aadhaar-bill-to-lok-sabha-with-oppn-amendments

17. https://thewire.in/145800/sc-upholds-law-link-aadhaar-pan-grants-
partial-stay/

18. http://www.business-standard.com/article/companies/reliance-jio-does-
a-u-turn-admits-to-data-leak-in-police-complaint-117071300193_1.html

19. http://indianexpress.com/article/india/supreme-court-to-review-section-
377-homosexuality-gay-lesbians-all-your-questions-answered-5016319/

20. http://www.newindianexpress.com/nation/2018/jan/09/relook-at-section-
377-comes-after-right-to-privacy-held-as-fundamental-right-1748409.html

xvi
21. https://www.firstpost.com/india/section-377-what-two-recent-sc-
judgments-tell-us-about-courts-altered-view-on-sexuality-and-privacy-in-
india-4295821.html

22. ,http://www.bgr.in/features/privacy-why-it-is-important-for-users-to-
protect-their-own-data/

23. ,https://www.indiatoday.in/india/story/right-to-privacy-fundamental-
right-parliament-1031136-2017-08-24

24. http://www.iclg.co.uk/practice-areas/data-protection/data
protection2016/india

25. https://byjus.com/free-ias-prep/data-privacy-and-protection-bill-2017

26. http://www.thedialogue.co/analysis-draft-data-privacy-protection-bill-
2017/

27. http://www.legaleraonline.com/articles/data-privacy-and-protection-bill-
2017-what-to-expect

28. https://www.pillsburylaw.com/en/news-and-insights/data-protection-
laws-in-india.html

29. Office of the Commissioner of Human Rights: www.ochcr.org

30. Amnesty International India: www.amnesty.org.in

31. Al-Jazeera: www.aljazeera.com

32. Reuters: www.reuters.com

33. LiveLaw: www.livelaw.in

34. SC Observer: www.scobserver.com

35. SATP: www.satp.org

36. Indian Defence Review: www.indiandefencereview.com

37. The Wire: www.thewire.in

xvii
38 The Times of India: www.timesofindia.indiatimes.com

39 .https://www.intelligence.senate.gov/sites/default/files/documents/CRPT-
113srpt288.pdf

40. https://thewire.in/rights/sar-geelani-custodial-torture-nitya-ramakrishnan
(Last Visited: 01st August, 2020).

41. https://www.thehindu.com/news/cities/Delhi/police-bid-to-intimidate-
kawalpreet-claims-aisa/article31462959.ece

42. http://www.hindustantimes.com/india/rajya-sabha-returns-aadhaar-bill-to-
lok-sabha-with-amendments/story-

43.http://www.thehindu.com/news/national/aadhaar-cannot-be-mandatory-for-
welfare-schemes-supreme-court/article17671381.ece.

44. http://www.business-standard.com/article/economy-policy/govt-plans-to-
link-driving-licence-with-aadhaar-117091600042_1.html.(visited on March 3,
2018).

45. https://www.firstpost.com/india/masrat-zahra-booked-under-uapa-
kashmiri-photojournalists-work-focussed-mostly-on-women-conflict-
reporting-in-valley-8278721.html

46.https://www.newindianexpress.com/cities/delhi/2020/apr/29/aisas-delhi-
head-booked-under-uapa-by-crime-branch-mobile-seized-2136830.html

47. https://www.youthkiawaaz.com/2015/05/gn-saibaba-arrest/

48.https://indiaresists.com/when-poetry-is-held-unlawful-a-case-of-kabir-kala-
manch/

49. https://thewire.in/law/abdul-wahid-shaikh-acquitted-interview

50. https://theleaflet.in/un-special-rapporteurs-express-concerns-over-uapa/

51.https://medium.com/@pazpena/the-bureaucratization-of-surveillance-
682c7d27401f

xviii
52. https://medium.com/@pazpena/the-bureaucratization-of-surveillance-
682c7d27401f

53. https://thewire.in/law/abdul-wahid-shaikh-acquitted-interview

54. https://www.aljazeera.com/news/2020/02/panic-kashmir-cases-filed-social-
media-users-200218114417864.html

55. https://www.aljazeera.com/news/2020/02/panic-kashmir-cases-filed-social-
media-users-200218114417864.html

56.https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3107&context
=lcp. (visited on April

57. Available at: http://www.jstor.org/stable/3481326?origin=JSTOR-pdf.

(visited on Feb 20, 2018).

58. https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-uapa-free-
speech/

59. ttps://www.aljazeera.com/news/2020/02/panic-kashmir-cases-filed-social-
media-users-200218114417864.html

60. http://www.indiandefencereview.com/spotlights/1962-war-a-critical-
analysis/ (Last Visited: 01st August, 2020)

xix