Data ProtectionTechnology Law / Cyber Law

The Run-up to India’s first Personal Data Protection Legislation

Assertedly, India is the largest democracy in the world. Evidentially, India is the second-largest internet market in the world. The lack of legislation on the aspects of privacy and data protection has led to an inability in government control of the use and misuse of data by private players. The bigger concern, however, is the lack of any mechanism for the ordinary citizen to fight back behemoths, including the government, which have access to data of all kinds due to internet penetration and technological advancement. The Supreme Court of India, in its 2017 decision in K. S. Puttaswamy & Anr. v Union of India & Ors., declared and recognized the right to privacy as an inherent fundamental right within the ambit of Part III of the Indian Constitution. The right declared by this judgment, however, has no mechanisms of enforcement to date. The Central Government has attempted to bridge this gap by virtue of the Personal Data Protection Bill (PDPB), 2019 introduced in the Lok Sabha on 11th December 2019. 

History of the Right to Privacy

The idea of privacy has evolved over time. It may be divided into 7 types– territorial privacy, bodily privacy, the privacy of behavior and action, privacy of association (group privacy), communications privacy, privacy of thoughts and feelings, and privacy of data and image. The dawn of the 21st century has linked all the other types of privacy to the final point of privacy of data and images, as every bit of information about an individual connected to the internet is accessible as these form facets of data points and may be represented by the same. It is in this interest that it was imperative to legislate on data protection. 

The understanding of privacy in the Indian context was primarily limited to bodily and territorial privacy. Charting the development of the idea of privacy also enables understanding of the development of the right to privacy, and the ultimate drafting of the PDPB in its current form. 

The right to privacy, as bodily, informational and territorial privacy was discussed during the formulation of the Constitution by the Fundamental Rights sub-committee. It was moved by Shri. Kazi Syed Karimuddin as an addition to the provision which dealt with the right to liberty of life and rights related to the accused during investigations. The attempt was to provide a provision similar to the American Constitution, by the fourth Amendment and multiple other Constitutions across the world, against unfettered power of search and seizure by the police. 

The first notable reported argument on the right to privacy in India was in M P Sharma v Satish Chandra. The Supreme Court, going by the textual interpretation of the law, refused to recognize a right against search and seizure, as the constitution framers had not provided for the same. In Kharak Singh v State of U.P., the Court, although in its minority judgment, acknowledged a right to privacy and stated that continuous surveillance by police was a violation of the right to privacy. However, the majority statement upheld the decision in MP Sharma, and held that the right of privacy is not a guaranteed right under our Constitution
and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right. 

The decision in R C Cooper v Union of India, was a watershed moment in Indian fundamental rights jurisprudence, whereby the strict compartmentalization of fundamental rights was discarded by the Supreme Court. In R M Malkani v. State of Maharashtra, the Court recognized the need to protect the privacy of an innocent citizen. However, it was unwilling to extend such protection to the guilty. Further, in Govind v State of Madhya Pradesh, the Court acknowledged a wider right to privacy on the combined reading of Art 19 and 21. However, it emphatically stated that the same was not an absolute fundamental right. 

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