Definitions[1]:
Privacy[2]:
"No one
shall be subjected to arbitrary interference with his privacy, family, home or correspondence
nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.”
Right of Privacy:
“the right of a
person to go his own way and live his own life that is free from interferences
and annoyances.”
Violation of Privacy:
“the
interference of a person's right to privacy by various means such as showing
photos in public”
Personal Information:
“Any part of
information that is recorded about an individual person. Includes the name,
email, address, ethnicity, race, identifying number, employment history, etc.”
Data Protection:
“Techniques that
keep data integrity. Examples of this are file locking, record locking,
database shadowing, and disk mirroring.”
There
is no exhaustive or all-encompassing definition of “Data Protection” in India. Thus
from the above definitions the concept of data protection can be concluded as-
“the
act of securing any and every piece of personal information relating to an
individual, which if compromised results in the gross violation of his right to
privacy.”
In India there is no specific legislature regulating data protection and its management. However in recent years, due to the increasing data privacy violations taking place, the legislature has enacted various amendments in existing laws, to bring data protection as a concept within its jurisdiction to adjudicate upon.
Important Cases involving privacy violation:
Kharak Singh v State of UP[3]:
Petitioner
appeared before the court under Article 32, pleading for a writ of Mandamus
against the State, he contended that there was gross violation of his freedom of
movement, privacy and liberty, guaranteed to him under Articles 19[4]
and 21[5].
He was on one occasion detained by the policy in the case of dacoity, however
due to lack of evidence against him, the case was never went to trial. Since
then the policy routine harassed him, surveyed upon and called at odd hours to the
police station.
The
question before the court was of the scope of surveillance activities
undertaken by the police and its adverse effect on the fundamental right of
citizens. The court held, violation of Articles 19 and 21, and issued the writ
of mandamus in favour of the petitioner. The court recognized the “Right to
Privacy” as a part of Article 19.
Maneka Gandhi v. Union of India[6]:
In
this case the petitioner’s passport was impounded as per the provisions[7] of
the Passport Act, 1967 by the Central Government. The question before the court
was of the scope of “personal liberty”. Justice P. Bhagwati observed,
“The expression ‘personal liberty’
in Article 21 is of widest amplitude and it covers a variety of rights which go
to constitute the personal liberty of man and some of them have raised to the
status of distinct fundamental rights and given additional protection under
Article 19.”
“The law must therefore now be
settled that Article 21 does not exclude Article 19 and that even if there is a
law prescribing a procedure for depriving a person of personal liberty, and
there is consequently no infringement of the fundamental right conferred by
Article 21 such a law in so far as it abridges or takes away any fundamental
right under Article 19 would have to meet the challenges of that Article.”
The
widest possible interpretation of Article 21 was derived in the case. “Personal
Liberty” was construed to include and protect Article 14[8]
and Article 19.
People’s Union of Civil Liberties v
the Union of India[9]:
Also
known as the “telephone tapping” case. The
question before the court was whether the wiretapping an infringement of the people’s
right to privacy. The Court held, that the Right to Privacy was not identified
by the constitution, however in the current case, the holding of a private and
intimate conversation, via the telephone, in the comfort of one’s own home,
will attract the Right to privacy. As
telephonic conversations have become the modern man’s way of life, it must be
protected. Thus wiretapping is considered an invasion of the Right to privacy
and violates the provisions of Article 21 of the Constitution.
Applicability of Data Protection
laws to companies/employer:
A
corporate entity has been imposed with the liability of Data Protection, as per
The Information Technology (Reasonable security practices and procedures and sensitive
personal data or information) Rules, 2011. The rules specifically lay down the
procedure to be followed by a corporate entity for the protection of every
personal information gathered from its employees as per the policy of the
organization.
The Rules are applicable to every corporate entity, collecting any personal information of a natural person. The personal information so collected must have been obtained through prior consent of employee.
Laws on Data Protection in India,
wrt Corporate Bodies:
1. The Constitution of India:
a.
Article 23: Protection
of life and personal liberty.
2. The Information Technology Act, 2000:
a.
Section 21:
License to issue electronic signature certificates
b.
Section 40A:
Duties of subscriber of Electronic Signature Certificate
c.
Section 42:
Control of Private key
d.
Section 65:
Tampering with Computer Source Documents
e.
Section 67C:
Preservation and Retention of information by intermediaries
1. The Information Technology (Amendment), Act, 2008
a. Section 29:Access to
computers and data
b. Section 43: Penalty and
Compensation for damage to computer, computer system, etc
c. Section 66A: Punishment
for sending offensive messages through communication service, etc.
d. Section 66E: Punishment for violation of privacy
2. The Information Technology (Reasonable security
practices and procedures and
sensitive personal data or information) Rules, 2011
a.
Rule 4. Body
corporate to provide policy for privacy and disclosure of information.
b.
Rule 5: Collection
of information.
c.
Rule 6:
Disclosure of information
d.
Rule 7: Transfer
of information
e.
Rule 8: Reasonable
Security Practices and Procedures
[1]
The Law Dictionary, [1] http://thelawdictionary.org/search2/?cx=partner-pub-4620319056007131%3A7293005414&cof=FORID%3A11&ie=UTF-8&q=privacy&x=0&y=0,
last visited 19/05/2015
[2]
Article 12 UDHR
[3] AIR
1963 SC 1295
[4]
Protection of certain rights regarding freedom of speech, etc.
[5]
“No person shall be deprived of his life or personal liberty except according
to procedure established by law.”
[6] (1978)
2 S.C.R. 621
[7]
10(3)(c)
[8]
Equality before law
[9] (1997)
1 SCC 318
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