DATA PROTECTION AND PRIVACY
BRIEF
ON PRIVACY AND DATA PROTECTION
(SHUBHAM
BUDHIRAJA)
This Article
pertaining to the core issue of modern digital economy. It is undisputed fact
that the constitution is a living document and so is the environment we live
in. with this note on, this is to submit here that:In landmark verdict
of Justice K. S.
Puttaswamy (Retd.) and Anr. vs Union Of India And Ors,
it was held by 9 judge bench that Right to Privacy is a Fundamental right under
Article 21 to the constitution of India and the Hon’ble Supreme Court set aside
its earlier judgment of MP Sharma (8 Judge bench) and Kharak Singh
(6 Judge Bench). However, in Judgment of 547 Pages, it contains 6
different opinions of different judges on what exactly amount to privacy. It is
pertinent to note that by virtue of bare reading of this judgment, one can find
major obiter-dicta and few ratio-decidendi only.
The Point where chandrachud J (Plural judgment he gave on behalf
of four including itself) whereupon Kaul J agreed, amounts to binding
Part of the judgment. i.e. Test of Infringement of Privacy.- Law,
Legality and Proportionality.
Further, it is noteworthy
to mention here that the Privacy is a subjective matter and like any other
Fundamental right. the same is subject to certain restrictions. The same
restrictions are nothing but Test of Infringement of Privacy as outlined in Puttsawamy
Judgment.
1.
There is existence of law
2.
There is legitimate goal behind the
act
3.
There is nexus between the act and
goal.
It is also important to note that State is also
under constitutional mandate to provide welfare state to its citizens under
Article 38 to the constitution of India. Thus, the State Surveillance over its
citizen Privacy is majorly a debatable issue of modern era.
Position of Present law on Data privacy is a weak
law and not in consonance with the Right to Privacy. The loopholes can be
viewed under Information Technology act, 2000 and rules made thereunder.
Presently the section 43A of IT Act which Provides
compensation for Failure to Protect data and (Reasonable security practices and
procedures and sensitive personal data or information) Rules, 2011 (SPD RULES)
which deals with obligation upon Intermediaries to manage, store and deal with
sensitive personal data.
The Present law is not in line with Right to
Privacy and so is observed in Puttaswamy Judgment. Further, the
Sri Krishna committee report on Data Protection law has also observed the limitations and loopholes of present law on data protection. Few issues are
1.
Consent- The report pointed out that
the consent cannot be same as of a traditional approach under section 14 of Indian
contract act, 1872 rather it must be in line with modern digital economy. That
is , consent must be specific, free, informed, adequate, clear and explicit.
2. Right to be erasure and Right to be
forgotten- The Present law allow the intermediary to retain the data for period
of 90 days even after the account is deleted. Further, the right to be
forgotten is not explicit under present law and recently the Karnataka high Court in Sri Vasunathan vs The
Registrar .has
recognized right to be forgotten in India as underlying of western approach to
data privacy. It is pertinent to mention here that the Data Protection Bill
2018 which is yet to be tabled in Lower house is nothing but Indian version of General
Data Protection Regulations (GDPR).
3.
Further, the Present law take away the
consent mechanism if the data so required by investigating agency. One legal
argument in this regard is that it is within the purview of Article 38 and for
a greater social cause whereas the counter argument is that Test of
Proportionality is not complied here because the State cannot completely
surveillance over data on name of national security.
4.
One Legal argument is that the Intermediary guidelines of 2011 whereby which
the intermediary can retain the data for period of 90 days and cannot be made
liable for data breach within purview of safe harbor rule under section 79 of
Information Technology act,2000. However, the counter argument Probably be
that:
a)
The existence law in itself in
question and mere existence of law doesn’t uphold privacy keeping in mind the
test of proportionality.
b)
The Present law on Data Protection is
a weak law and same has duly observed in Justice K. S. Puttaswamy (Retd.) and Anr.
vs Union Of India And Ors and Sri
Krishna committee report on data protection.
c)
Further, the Shreya Singhal v. Union of India
has also observed that the Rule 3(2) and Rule 3(4) of said guidelines are
self-contradicting.
d)
Further, the role of intermediary has
duly questioned and efforts has been made to cut down its immunity under safe
harbor rule by introducing the concept of active intermediary and passive
intermediary in matter of Christian
Louboutin SAS v Nakul Bajaj & Ors CS (COMM) 344/2018.
Thus,
we are living in era of Digital economy where the state has to strike the balance
between its actions to respect Fundamental rights of individuals and to
maintain the welfare state. Further, the Justification to infringe Privacy and
rule of proportionality cannot be overlooked upon and will depend on merits of
each case.
The
author is company secretary by qualification and is undergoing its management
trainee with a reputed corporate law firm. Further, he is First Year Law
student at faculty of law, University of Delhi. He is also enrolled as Para
Legal volunteer with Delhi State Legal Service authority and also active
Participant in Moot Court.
+919654055315
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