- IT’s Input
- What is the Justice K.S. Puttaswamy vs Union of India case?
- Significance of the case
- Data Protection laws
- Mass surveillance projects
- Data use vs. privacy
Privacy no longer supreme
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- In 2017, the Supreme Court held that Indians have a constitutionally protected fundamental right to privacy in Justice K.S. Puttaswamy vs Union of India case.
Background of Justice K S Puttaswamy case
- In 2012, Justice K S Puttaswamy filed a writ petition in the Supreme Court challenging the constitutional validity of the Aadhaar scheme.
- In 2015, court passed an order that a Bench of appropriate strength must examine the correctness of the decisions in M P Sharma v Satish Chandra, District Magistrate, Delhi, 1954 and Kharak Singh v State of Uttar Pradesh, 1964.
- In both the above cases, judges argued that there was no constitutional right of privacy.
- In a historic decision delivered in August 2017, the court overruled decisions in both M P Sharma case and Kharak Singh case and recognised a fundamental right to privacy of every individual guaranteed by the Constitution.
What is the Justice K.S. Puttaswamy vs Union of India case?
- In 2012, Justice K.S. Puttaswamy filed a petition in the Supreme Court challenging the constitutionality of Aadhaar on the grounds that it violates the right to privacy under Article 21 of Indian Constitution.
Supreme court Judgement
In 2017, Supreme court in this case said that Privacy is a natural right that inheres in all natural persons and that the right may be restricted only by state action that passes each of the three criteria:
- Such state action must have a legislative mandate
- It must be pursuing a legitimate state purpose
- It must be proportionate i.e., such state action ought to be the least intrusive of the available alternatives
Significance of the case
- The case changed the way in which the government viewed its citizens’ privacy.
- It undertook structural reforms and brought transparency in the process of executing its surveillance projects, and built a mechanism of judicial oversight over surveillance requests.
- It demonstrated great care in dealing with personal information of its citizens.
- It legislated rights-oriented data protection law that held all powerful entities that deal with citizens’ personal data (data controllers), including the state, accountable.
Data Protection laws
- The data protection law embodied the principle that the state must be a model data controller and prescribed a higher standard of observance for the state.
- The law also recognised and forbid the practice of making access to essential services contingent on the citizen parting with irrelevant personal information.
- This law established an effective privacy commission that is tasked with enforcing, protecting and fulfilling the fundamental right to privacy.
- The data protection law also revolutionised the technology sector landscape, paving way for innovative privacy-aware and privacy-preserving technical solution providers and establishing the country as a global leader in the space.
Mass surveillance projects
- Government continued to commission mass surveillance programmes with the objective of national security.
- The Ministry of Home Affairs, in December 2018, authorised 10 Central agencies to “intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer in the country”. It is presently under challenge before the Supreme Court.
- In July 2018, Ministry of Information Broadcasting published a tender for ‘Social Media Monitoring Hub’, a technical solution to snoop on all social media communications, including e-mail. The government had to withdraw the project following the supreme court’s denial.
- A request for proposal for a similar social media surveillance programme was floated in 2018 by the Unique Identification Authority of India (UIDAI), which is presently under challenge before the Supreme Court.
- The Income-Tax department has its ‘Project Insight’ which also has similar mass surveillance ends.
Data use vs. privacy
- The government has used the personal data against security breach incidents, without looking at whether the using of personal data violates the citizen’s fundamental rights or not.
- This is evident from 2019’s Economic Survey as it praises the government for having been able to sell and monetise the vehicle owners’ data in the Vahan database.
- The Justice Srikrishna committee which has published the draft Personal Data Protection Bill encourages free and fair digital economy, without strongly focusing on privacy.
- There is need for the rights-oriented data protection legislation, which includes comprehensive surveillance reforms, prohibiting mass surveillance and institution of a judicial oversight mechanism for targeted surveillance.
- This mechanism should also recognises the principle that the state ought to be a model data controller as it deals with its citizens’ personal information.