laws for protection of data in india

8/8/2019 Laws for Protection of Data in India

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Data Protection- Position in India

Prof. Yuvraj Patil



Introduction

Data Protection is not a subject in any of the three list in

Schedule VII of the constitution of India. But Entry 97 of List 1 states: ³ any other matter not

enumerated in List II & List III..´

Data Protection a Central Subject.

Data protection Law in India is very scattered & foundunder the provisions of different statutes.



1. Constitution of India, 1950

1. Art 19 (1) (a)´ Freedom of Speech & Expression´

Restrictions- the right to privacy is limited againstdefamation, decency or morality.

2. Art .21- ³No person shall be deprived of his life or

personal liberty except according to procedures

established by law´



Cont..

State v. Charulata Joshi

(1999) 4S

CC 65The SC held that: ³ The constitutional right to freedom of

speech & expression conferred by Article 19(1) (a) of the

constitution which includes the freedom of the press is not

an absolute right. The press must first obtain the

willingness of the person sought to be interviews & nocourt can pass any order if the person to be interviewed

expresses his willingness´



Cont..

R. Rajgopal V. State of Tamil Nadu

AIR 1995 SC 264

A citizen has a right to safeguard the privacy of his own,

his family, marriage, procreation, motherhood, child

bearing & education among other matters.

None can publish anything concerning the above matter

without his consent- whether truthful or otherwise &whether laudatory or critical.



Cont..

The rule aforesaid is subject to the exception, once a

matter becomes a matter of public record, the right to privacy no longer subsists.



Cont«

Mr . µX¶ v. Hospital µZ¶

(1998) 8 SCC 296

Right of privacy may, apart from contract, also arise outof a particular specific relationship, which may becommercial, matrimonial or even political. Doctor- patientrelationship, though basically commercial, is

professionally, a matter of confidence &, therefore,doctors are morally & ethically bound to maintain

confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of theright of privacy which may sometimes lead to beinformed.



2. Law of Contract: Indian Contract Act, 1872

Contract Law ± useful means to protect their information. µConfidentiality & privacy clauses¶



3. Indian Penal Code.

The IPC provides for punishment for ³criminal Breach of Trust´ & Cheating & dishonestly inducing delivery of

property. Section 405. Criminal breach of trust

Whoever, entrusted with property, or with any dominionover property,-

A) dishonestly misappropriates or converts to his own

use that property, or



Cont..

Section 406. Punishment for criminal breach of trust

Whoever commits criminal breach of trust shall be

punished with imprisonment of either description for a

term which may extend to three years, or with fine, or

with both.



4. The Public Financial Institution, 1993

This Act codifies India¶s tradition of maintaining

confidentiality in bank transactions. In India the Bankers have an obligation to maintain

secrecy of account.

Transport Corporation Ltd. V. State Bank of India

AIR 1992 Ker. 351,It was held that among duties of the banker towards the

customer is the duty of secrecy, which arises out of the

banker customer relationship.



5. The Indian Telegraph Act

Wiretapping is regulated under the telegraph Act, 1995.

due to numerous phone tap scandals, The SC in PUCL vs. The UoI & others, defined wiretaps,

as ³serious invasion of an individual¶s privacy". except on

the occurrence of any public emergency or public Interest.



Cont..

2) Sec. 66E: Punishment for violation of privacy.

Whoever, intentionally or knowinglya. captures,

b. publishes or

c. transmits the image of a private area of any person

without his or her consent, under circumstances violatingthe 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



Cont..

3) Section 67C: Preservation and retention of informationby intermediaries.

(1) Intermediary shall preserve and retain suchinformation as may be specified for such duration and insuch manner and format as the Central Government may

prescribe.

(2) Any intermediary who intentionally or knowinglycontravenes the provisions of sub section (1) shall be punished with an imprisonment for a term which mayextend to three years and shall also be liable to fine.



Cont..

4) Sec. 72 A: disclosure of information in breach of lawfulcontract.-

Save as otherwise provided in this Act or any other law for the time beingin force, any person including an intermediary who, while providingservices under the terms of lawful contract, has secured access to anymaterial containing personal information about another person, with theintent 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 threeyears, or with a fine which may extend to five lakh rupees, or with both.



M

aster

Ci rc

ular

on C r

edit Car

d oper

ations - 2009:

Protection of customer rights

-Right to privacy

-customer confidentiality

Card issuing bank to maintain a Do Not Call Registry

(DNCR) of customers as well as non-customers



BPO Policies: BS7799 & ISO17799

Even though the government has delayed the implementation of a

legal framework for prosecution of data & privacy breaches, Indian

BPO companies have implemented processes such as the BS7799 &the ISO17799 standards for information security management, which

restrict the quality of data that can be made available to employees of

BPO & call centres.

ISO 17799-

Initially developed from BS7799-1, ISO 17799 is an internationalstandard that sets out the requirements of good practice for

Information Security Management



Cont..

NASSCOM (National Association of Software and Servicing

Companies )

- NASSCOM was set up in 1988, at Mumbai to facilitate business and

trade in software and services and to encourage advancement of

research in software technology.

- It is a not-for-profit organization, registered under the Indian

Societies Act, 1860.- headquartered in New Delhi.



Cont..

- NASSCOM is a global trade body with more than 1200

members, which include both Indian and multinational

companies that have a presence in India.- NASSCOM is the premier trade body and the chamber of

commerce of the IT-BPO industries in India.



NASSCOM FORUMS

Data Security Council of India (DSCI)

DSCI is a not-for-profit organization, established with the key

objective of building a credible and committed body to uphold a highlevel of data privacy and security standards.



Conclusion

The need for a law on data protection is paramount if Indiais to sustain investor confidence, especially among foreign

entities that send large amounts of data to India for back-office operations. Data protection is essential for outsourcing arrangements that entrust an Indian companywith a foreign company¶s confidential data or tradesecrets, and/or customers¶ confidential and personal data.

laws for protection of data in india

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