Legal provisions that affect privacy

Below you can find provisions of some legislations that affect your right to privacy. This page is a work in progress. More legislations will be added here as time passes. For a list of other legislations, please visit our resources page.

Jump to:

• Information Technology Act, 2000
• Code of Criminal Procedure, 1973
• Indian Penal Code, 1860
• Indian Evidence Act, 1872
• Indian Telegraph Act, 1885
• The Intelligence Services (Powers and Regulations) Bill, 2011
  

The Information Technology Act, 2000

The Information Technology Act, 2000 is India's primary legislation on issues of technology law. Those sections which affect privacy have been reproduced below. In addition to these sections, multiple Rules made under the IT Act also affect privacy. The Act and the Rules made under it are available on our Resources page.

• Section 43A (Compensation for failure to protect data): Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computerresource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected. Explanation for the purposes of this section,
  (i) “body corporate” means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities;
  (ii) “reasonable security practices and procedures” means security practices and procedures designed to protect such information from unauthorised access, damage, use, modification, disclosure or impairment, as may be specified in an agreement between the parties or as may be specified in any law for the time being in force and in the absence of such agreement or any law, such reasonable security practices and procedures, as may be prescribed by the Central Government in consultation with such professional bodiesor associations as it may deem fit;
  (iii) “sensitive personal data or information”means such personal information as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit.

• Section 72 (Penalty for Breach of confidentiality and privacy): Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, 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.

• Section 72A (Punishment for disclosure of information in breach of lawful contract): Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

• Section 66C (Punishment for identity theft): Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.

• Section 66D(Punishment for cheating by personation by using computer resource): Whoever, by means of any communication device or computer resource cheats by personating, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.

• Section 66E (Punishment for violation of privacy): Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. Explanation–For the purposes of this section–(a) “transmit” means to electronically send a visual image with the intent that it be viewed by a person or persons; (b) “capture”, with respect to an image, means to videotape, photograph, film or record by any means; (c) “private area”means the naked or undergarment clad genitals, public area, buttocks or female breast: (d) “publishes” means reproduction in the printed or electronic form and making it available for public; (e) “under circumstances violating privacy” means circumstances in which a person can have a reasonable expectation that–(i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or (ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.

• Section 67 (Punishment for publishing or transmitting obscene material in electronic form): Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter.

• Section 67A (Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form): Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

• Section 67B (Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form): Whoever,–(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or (b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or (c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or (d) facilitates abusing children online, or (e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conv iction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
  Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing,drawing, painting representation or figure is the interest of science, literature, art or learning or other objects of general concern; or (ii) which is kept or used for bonafide heritage or religious purposes. Explanation–For the purposes of this section. “children” means a person who has not completed the age of 18 years.
  
  [Back to top]

Code of Criminal Procedure, 1973

Section 91 of Code of Criminal Procedure, 1973 allows any Court or any officer in charge of a police station to issue a written order to produce a document or any other thing that (s)he considers necessary or desirable for the purposes of any investigagtion, inquiry trial or other proceeding. The full text of this section reads as:

• Section 91 (Summons to produce document or other thing) : Summons to produce document or other thing. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
  
  [Back to top]

Indian Penal Code, 1860

The following sections in the Indian Penal Code, 1860 provide protection to the privacy of individuals by explicitly defining certain acts as punishable crimes.

• Section 354C. (Voyeurism) : Voyeurism—Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

• Section 354D (Stalking) : (1) Any man who (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:

• Section 228A ( Disclosure of identity of the victim of certain offences, etc) : —(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an [offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E] is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is (a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or (b) by, or with the authorisation in writing of, the victim; or (c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of,the next of kin of the victim:Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation.

• Section 229 (Personation of a juroror assessor) : Whoever, by personation or otherwise, shall intentionally cause, or knowingly suffer himself to be returned, empanelled or sworn as a juryman or assessor in any case in which he knows that he is not entitled by law to be so returned, empanelled or sworn, or knowing himself to have been so returned, empanelled or sworn contrary to law, shall voluntarily serve on such jury or as such assessor, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

• Section 377 (Unnatural offences) : Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

• Section 499 (Defamation) : Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
  
  [Back to top]

Indian Evidence Act, 1872

Certain sections of the Indian Evidence Act, 1872 provide for exemptions from being forced to reveal certain information. These are:

• Section 122 ( Communications in marriage): No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents,except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
• Section 123 ( Evidence from unpublished state records): No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
• Section 124 (Communications of public officer): No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
• Section 125 ( Information as to commission of offences): No Magistrate or police - officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue - officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
• Section 126 (Professional Communications): No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure––(1) any such communication made in furtherance of any [illegal] purpose,(2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister,[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation.––The obligation stated in this section continues after the employment has ceased.
• Section 129 (Confidential communications with legal advisers): No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.
• Section 151 (Indecent and scandalous questions): The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.
• Section 152 (Questions intended to insult or annoy): The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

Section 24 makes any confession caused by inducement, threat or promise inadmissible when it is irrelevant in a criminal proceeding. The full text of the section is:

• Section 24 (Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding): A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient,in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
  
  [Back to top]

The Indian Telegraph Act, 1885

Three sections in The Indian Telegraph Act, 1885 affect the right to privacy:

• Section 5 : Power for Government to take possession of licensed telegraphs and to order interception of messages. – (1) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act. (2) On the occurrence of any public emergency, or in the interest ofthe public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so todo in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.

• Section 29A : (Penalty) – If any person, without due authority, - a. makes or issues any document of a nature reasonably calculated to cause it to be believed that the document has been issued by, or under the authority of, the Director-General of [Posts and Telegraphs], or b.makes on any document any mark in imitation of, or similar to, or purporting to be, any stamp or mark of any Telegraph Office under the Director General of [Posts and Telegraph], or a mark of a nature reasonably calculated to cause it to be believed that the documents so marked has been issued by, or under authority of, the Director-General of [Posts and Telegraphs], he shall be punished with fine which may extend to fifty rupees.]

• Section 30 : (Retaining a message delivered by mistake) – If any person fraudulently retains, or willfully secretes, makes away with or detains a message which ought to have been delivered to some other person, or, being required by a telegraph officer to deliver up any such message, neglects of refuses to do so, he shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.
  
  [Back to top]

The Intelligence Services (Powers and Regulations) Bill, 2011 contained the following provisions that infringe on the right to privacy.

• Section 4 (a): Duty of the head of the R&AW to ensure that— no information is collected and used by the R&AW except what is necessaryfor discharge of its functions.
• Section 5 (2a): Duty of the Director of IB to ensure that—no information is collected and used by the IB except what is necessary for discharge of its functions.
• Section 7 (2a): Duty of the Chairman of NTRO to ensure that—no information is collected and used by the IB except what is necessary for discharge of its functions.
• Section 8 (1): Authorisation of certain actions for the R&AW, the IB and the NTRO. (No entry on any property or interference with any form of communication without a warrant)
• Section 11: Unauthorised information : information obtained without specific warrant may only be used for the limited purpose of authorizing fresh warrants.

[Back to top]