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The interface between individual right and technological advancement has challenged the Rights-oriented School of thought to strike out the balance between the rights and the benefits of technology in one’s life.
The advancement in technology has left people and their data far more exposed than what has previously been seen. It would be comical to say The Family Man’s dialogue “Privacy is a myth, just like democracy.”, but it is depicting a true picture of the state of data privacy in a data enriched country like ours. The outreach of private companies to the individual’s data is far away without the slightest of appearances, contrary to the person whose data is stored online.
The incident of Cambridge Analytica and recent warnings of Google and Twitter of the possibility of a data breach can’t be seen in isolation of the concrete laws on data protection. Lord Denning asserts the view that “Law is a dynamic concept”, expanding his view, I am of the opinion that the legislator or legislative framers should always keep the dynamic nature of law in mind while framing policies.
It is the gravity of time that becomes an essential aspect to have data protection integrated into the legal and policy framework to protect against the misuse and capturing of data. The Personal Data Protection Bill, 2019, is one such assertive step towards data privacy and security, yet there are key provisions which are effectively hampering several aspects.
In this article, the author analyses how the bill is still not able to protect individual privacy, the Supreme Court’s take on privacy, and what can be the future recourse, keeping in mind the central question that whether the Bill makes India a surveillance State?
Privacy at stake: Government access to data
The Personal Data Protection Bill, 2019 has been drafted by the recommendation of Justice BN Shri Krishna Committee. The Bill seeks to protect the Individual data and their privacy can be processed with the consent of the individuals or their organization.
This is a ground breaking step to envisage to get closer to the dream of Digital India. As Justice Brandish said and I quote here “A lawyer who doesn’t know economics is a public enemy”. In my opinion, every policy should go through the filter of the economic cost, as everything comes with a price, regardless of the trade-off associated with it.
On one hand, it protects the personal data of Indians by empowering them with data principal rights, and on the other hand it bestows enormous power to the Government to access the data in the name of national security, or the data which is against the principal of processing.
The concern is of the fact that it gives the government blanket powers to access the citizen’s data and has a serious implication in a democracy. The basic tenets of the fundamental right of privacy entails the idea that the state should not interfere in the core individual area. To have effective digital economy we need proper balance between data protection and individual privacy.
Salient features of the bill:
- It defines personal data as any information, collected online or offline, that can be used to identify you ; name, address, phone number, location, telephone records, photographs, surfing history, and ownership of devices.
- It also defines “sensitive personal data” which has additional safeguards. This includes data related to health, financial or economic data, sexual orientation, biometrics, caste or tribe, religious and political beliefs.
- This Bill seeks to tackle the protection of Data and individual rights at its core. It allows the collection and processing of Individual data without the consent of individual for “several reasonable purposes” such as in the operation of search engines, whistle-blowing, etc.
Privacy jurisprudence and the Supreme court
“Constitutional guarantees cannot be subjected to the vicissitudes of technology” (Justice K.S. Puttaswamy v.Union of India, Justice Chandrachud ,dissenting opinion) As a Progressive member of the developing society, we should respect the technological development, keeping a check that it doesn’t make individual right subservient to technology.
With due respect to the judiciary, Indian Supreme Court failed to recognize the Right to Privacy as a fundamental right before 2018’s judgement in Justice K.S. Puttaswamy v. Union of India. In the case of M.P. Sharma v. Satish Chandra, an eight-judge bench of the SC refused to recognize privacy as a right and upheld the police surveillance.
However, in 1975, in the case of Govind v. State of M.P both the majority and the dissenting opinion, read in the fundamental right of privacy into Part III of the Constitution of India.
The Constituent Assembly debates reflect the original intent of the framers of the Constitution on the issue of privacy. During the debate, the Constitutional provision safeguarding the privacy of correspondence as proposed by Somnath Lahiri was rejected.
Subsequent attempts made by Kazi Syed Karimuddin and Pandit Thakur Das Bhargva to reinsert it into the constitutional text were rebuffed, despite having Ambedkar’s endorsement. This happened through a controversial voting procedure wherein the Vice-President of the Assembly twice said that ‘the ayes have it’, and was twice contradicted by T.T. Krishnamachari, and the matter was hurriedly postponed after the Division Bench was rung for a vote.
The clause was quietly dropped, leading to bitter condemnation during the third reading of the Constitution. Thus, the Constitution came into being without an express fundamental right to privacy.
Sanctions against violator and future recourse:
The Bill proposes rigorous penalties up to Rs. 15 crores or 4% of an organization’s total worldwide turnover. It can also put people behind the bar, which makes it different from the European Union’s General Data Protection Regulation (GDPR).
The Bill left the window of surveillance capitalism open for private firms and also made State Surveillance plausible. In a mature democracy like ours, where the number of internet users is the second largest after China, law on this point needs to be settled.
This Bill paves the way for civil discourse in our country and if the legislative framer will integrate the fallacies into account, it will open up an optimistic space for data protection and privacy in our country. It will also help us become a staunch leader in the era of technological advancement.
Author: Rajesh Ranjan from National Law University, Jodhpur.
Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.