DailyPost 3032
RIGHT TO PRIVACY – THE DARK ROAD AHEAD!
The translating of fundamental rights to reality, to each and everyone of us, is easier said than. The tryst of the nation still continues in this regard. How far they have reached is a subjective one, the opinion being radically different depending on where one is positioned in the democratic set up of the nation. Despite that one fact that cannot be denied, that all laws enacted to safeguard fundamental rights have not diluted the letter and spirit of the constitution. The enforcement machinery has also maintained a similar tone and tenor, in its actions. That does not seem the case with the latest of the fundamental rights; the right to privacy.
Buoyed with pioneering legislations in other parts of the world, the legal battle leading to the Right to Privacy judgement was an arduous one. The judgement was delivered by a nine member SC bench, that too unanimous one. This speaks of the unison of thought in the top judicial minds of the nation. The judgement was delivered in Aug 2017, but now in Jan 2025, the judgment has not been brought to legal fruition. The Justice BN Srikrishna Committee constituted to submit a report with the draft of the Personal Data Protection Bill and it did so in July 2018.
This was a golden period for having seen it through, with the same format and content. But that was not to happen. Justice BN Srikrishna’s draft data protection bill underwent significant changes before being presented in the parliament for legislation. From there it landed in the lap of the JPC which took its own sweet time and each had their own vested understanding of the Data Protection Act which was still to become a statute. By this time the Right to Privacy judgement was nearly forgotten. In the meantime the world and more so India had become a bystander to the utter loss of privacy. In this background, the Digital Personal Data Protection 2023 was passed.
Now in 2025 we have the Draft Digital Protection Rules issued in Jan 2025. This projects the regressive nature of the enforcement of this Act. Contrary to what it is meant for, the Rules prioritise accountability to the government and end up undermining privacy rights. Draft rules fail to put users at the centre of the legislation. Several provisions of the Rules fail to meet the constitutional requirements mentioned in the KS Puttaswamy judgement. Centre’s power to call for information from data fiduciaries is without any kind of limitation or safeguards. Necessity and proportionality is violated. Additionally, the government is exempt from seeking user consent to process their personal data in case of subsidies, licenses etc. It is a blanket exemption, it does limit action to a specified purpose. The consultation process was marked by a checkbox approach, the public was conspicuous by its absence.
WHAT DO WE DO WITH A FUNDAMENTAL RIGHT WHICH REMAINS ONLY IN THE JUDGEMENT?
Sanjay Sahay