The amendments to the IT Act, submitted to the law ministry for approval, have addressed issues never explored in Indian legal history. The issue of privacy, including the definition of what constitutes a private moment and which are the private parts of a human body, has been dealt with in the version of the Act submitted to the law ministry.

According to legal experts, there is strict legislation governing privacy in all developed countries, but this is the first time these issue have been addressed in India. The law on privacy in India as it stands today is limited to the right enshrined under Article 21 of the Constitution of India and case law on the subject. However, like other fundamental rights it is not absolute, and is subject to reasonable restrictions imposed by the state.

The proposed amendment adds a paragraph to the IT Act which states, "Whoever intentionally captures or broadcasts an image of an individual without his consent, and knowingly does so under circumstances violating the privacy of that individual, shall be held liable."

This is the first time that a right to privacy has so expressly found its way on to the statute books in India. Vivek Kathpalia, lawyer with Nishith Desai Associates, says, "Section 72 (3) of the draft of the IT Act, once finalised and brought onto the statute books will not only help in tackling this particular type of invasion of privacy but will help the courts in reaching broader interpretations on privacy in general as the case law build up on the subject." According to Akil Hirani, of legal firm Majumdar & Co, the wording has loopholes. "The repetition of intention and knowingly dilutes this statute. As criminal intent should be reason enough for prosecution." The Act also recommends a compensation of Rs 25 lakh to the person whose privacy has been infringed. The offender can also be jailed and for one year with a fine of Rs 2 lakh.

This means even television channels which carried images of MMS clips can be held liable even though they may not have captured it. Private area has also been defined in the Act in detail to prevent any misinterpretation. But according to lawyers here, while defining this in detail narrows its misuse, the impact of the legislation is reduced.
"Infringement of privacy may not just involve images of a person disrobed or their private parts. Even the law on obscenity does not define privacy, but leaves it to interpretation to capture it in entirety as it may vary from person to person and may even be affected by religious leanings," Akil Hirani says.

Some lawyers feel that by defining the private parts and infringement of privacy the purpose of the legislation has been lost.