This edition brings to our readers a featured article titled "Analysis of Right to Privacy and Data Protection in terms of the recent landmark Judicial Pronouncement and the Data Protection regime in India".
The balance between data regulation and individual privacy raises complex issues requiring delicate balances to be drawn between the legitimate concerns of the state on one hand and individual interest in the protection of privacy on the other. This has given way to one of the most debated Supreme Court judgments of recent times on 'right to privacy'. Consequently, a robust regime for data protection is the call of the future.
We continue to highlight certain key judgements passed by the Hon'ble Court as well as changes in Corporate and Commercial laws and updates on Projects, Intellectual Property and Banking.
Your inputs and feedback are always welcome and we look forward to our interactions with you.
Analysis of Right to Privacy and Data Protection in terms of the recent landmark Judicial Pronouncement and the Data Protection regime in India
The balance between data regulation and individual privacy raises complex issues requiring delicate balances to be drawn between the legitimate concerns of the state on one hand and individual interest in the protection of privacy on the other. This has given way to one of the most debated Supreme Court judgments of recent times on 'right to privacy'. Consequently, a robust regime for data protection is the call of the future.
With the increase in usage of technology in our personal lives and businesses, the ease of planning our day and doing business has gone up albeit with consternations about the protection of personal information and data. The concept of data protection and privacy has not been addressed in any exclusive comprehensive legislation in India. However, the Supreme Court of India through a recent landmark judgment has heralded right to privacy as a fundamental right guaranteed to an Indian citizen under Article 21 of the Constitution of India ("Constitution"). Such right to privacy impliedly includes the protection of personal and sensitive data of a person such as age, sex, date of birth, sexual orientation (which are all important aspects of dignity).
Right to privacy and data protection in India vis-à-vis the landmark SC judgment
The sphere of privacy stretches at one end to those intimate matters to which a reasonable expectation of privacy may attach. It expresses a right to be left alone. A broader connotation which has emerged in academic literature of a comparatively recent origin is related to the protection of one's identity. Data protection relates closely with the latter sphere.
On August 24, 2017, in a landmark nine (9) bench ruling, the Apex Court in Justice K.S. Puttaswamy (Retd.) & Anr. Vs. Union of India & Ors.1, unanimously declared right to privacy as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution. The petitioners, in this case, had challenged the Aadhaar scheme which mandates citizens to part with their biometrics, as unconstitutional on the grounds that it violates the right to privacy. Although, the judgment does not comment on whether the Government's demand for Aadhaar to be linked to all financial transactions amounts to an infringement of privacy, it has ordered the Government to ensure a ""robust regime for data protection" that would deliver "a careful and sensitive balance between individual interests and legitimate concerns of the state."
Further, right to privacy as part of a fundamental right must come with certain reasonable restrictions as also stated in the judgment. Hon'ble Justice Abhay Manohar Sapre held that 'right to privacy' is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but is subject to certain reasonable restrictions which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law. Similarly, he held that the "right to privacy" has multiple facets, and therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law.
On the point of data protection, the Apex Court in the same judgment ruled that, since the Government has initiated the process of reviewing the entire regime of data protection, it would be appropriate to leave the matter for expert determination so that a robust regime for the protection of data is put into place.
It is imperative to note here that, past decisions of the Supreme Court in the case of (i) M.P. Sharma Vs. Satish Chandra, District Magistrate, Delhi [(1954) SCR 1077] which held that right to privacy is not protected by the Constitution and (ii) in Kharak Singh Vs. State of U.P [(1964) 1 SCR 332] to the extent that it held that right to privacy is not protected by the Constitution, both stand over-ruled by the aforementioned judgment.
Data protection under the Act
The Information Technology Act, 2000 ("Act") which contains specific provisions intended to protect electronic data (including non-electronic records or information that has been, is currently or is intended to be processed electronically). The Act was amended and a section on compensation for failure to protect data was added to provide for protection of 'sensitive personal data or information' ("SPDI") and deal with compensation for negligence in implementing and maintaining reasonable security practices and procedures in relation to SPDI. As a system of checks and balances, the Act imposes punishment for disclosure of information in breach of a lawful contract or without the information provider's consent and provides for protection of personal information.
Footnote
1 Writ Petition (Civil) 494 of 2012
To view the full article please click here.
This update is authored by Clasis Law, Clyde & Co's associated firm in India
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
