The Right To Privacy Judgment Is A Year Old, But Not A Year Wiser

August 24 marks the first anniversary of the Supreme Court’s seminal judgment on the right to privacy in Justice KS Puttaswamy (Retd.) v. Union of India, which was a watershed moment in Indian fundamental rights jurisprudence. Now, it is not often that nine judges of the Apex Court of the country come together to pronounce a unanimous judgment. However, the developments since its pronouncement have only battered the tall principles laid out by the Constitution Bench instead of making these rights stronger, or even implementing them in letter and spirit—citizens are still being forced to opt for Aadhaar and the Justice Srikrishna Committee report was practically an attempt at diluting the principles so gleefully celebrated after the Puttaswamy judgement, while the judgment on Section 377 of the Indian Penal Code is being eagerly awaited.Saving our privacy? The proposed data protection regimeIt may be recalled here that the Government’s efforts to introduce a data protection and surveillance oversight legislation for the protection of citizens data privacy rights as a consequence of the Attorney General for India’s attempts to alleviate the criticism of Aadhaar and like programmes during the right to privacy hearing.The committee, set up in July last year under the chairmanship of Justice BN Srikrishna, a retired judge of the Supreme Court, submitted its report last month, after a year of secrecy-shrouded on its deliberations. While since then activists and legal experts have pointed out several gaps in the draft bill and the report as such, the most striking feature of the recommendations is its undermining of the legal principles propounded by the right to privacy judgment, with its attempts to place digital economy ahead of individual’s rights over data.As Advocates Apar Gupta and Ujwala Uppaluri point out, that committee report, “A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians”, propounds the apparent hierarchy in its title: the common good and economy take precedence over individual rights. This runs in a direction opposite to the Puttaswamy judgment, which had rejected the argument that the right to privacy dissolves in the face of amorphous collective notions of economic development.Now, the Puttaswamy judgment was precisely celebrated because of the hope that individual rights would be accorded the pedestal that they deserve. The report, however, gives the state carte blanche in the legitimate tension between data privacy rights and the imperatives of governance and security. Naturally, its acceptance in entirety or even in parts by the government would be a travesty of justice, until significant reforms are carried out not just in the recommendations made by the committee but also in the non-transparent and non-inclusive approach adopted by it.Sabka Aadhaar: By hook or by crookWhile a robust data protection regime is expected to significantly alleviate the concerns on Aadhaar, the current state attitude towards the scheme is nevertheless worrisome, to say the least. Citizens are still being compelled to opt into the scheme by “threatening” denial of the same, despite Supreme Court orders warning against it, and the allegations of major data breaches in the Aadhaar system are only worsening the citizens’ apprehensions.Advocate Prasanna S., who assisted Senior Counsel Shyam Divan while representing the four privacy petitioners, feels that while the pronouncement of the judgment was monumental, it hasn’t shown the desired effect on the ground. He told LiveLaw:“…it has to be said that the pronouncement of the judgment has done very little in terms of altering state practice. The unlawful and indiscriminate collection, interception, use and disclosure of personal data continues unabated and unjustifiable and there is an urgent need to bring in an institutional mechanism to justice and enforce the right to privacy through a comprehensive central law. We have also seen that Aadhaar, the context in which the 9-judge bench judgment was delivered, continues without altering any of its practices. People continue to be threatened with denial of one service or another for want of Aadhaar or for want of successful authentication. People also continue to be asked by government and private entities alike to link their Aadhaar number with every transaction even as the final judgment on the constitutionality of Aadhaar and its extent is still awaited.”Section 377: A colonial BurdenPerhaps the most awaited impact of the right to privacy judgment has been on Section 377 of the Indian Penal Code, the British-era law that criminalizes “carnal intercourse against the order of nature”, excluding same-sex relations between adults in private and hence, effectively decriminalizing homosexuality.To give a quick recap, the provision was read down in 2009 by the Delhi High Court, which decriminalised consensual sex between adults from the purview of the provision, asserting that the provision “grossly...

The Right To Privacy Judgment Is A Year Old, But Not A Year Wiser

Apoorva Mandhani

Tags