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The Supreme Court judgement of 9-member bench in Aug 2017 unanimously ruled Privacy as the fundamental right of every citizen. This is the ultimate constitutional guarantee of Privacy to the country. From 24th of Aug 2017 to 27th Nov 2021 has not been sufficient time for enactment of the law, as per the constitutional provisions. In the interregnum a committee had gone into it and has provided a blueprint for the same. The JPC recommendations on the issue is certainly one more step towards the enactment of the law. Has these years gone by increased the understanding of privacy by the powers that be, inclusive of the law makers? Is it being treated as enactment of any other law and not for  a fundamental right, which has ultimate sanctity.

Only this understanding will propel us to try and create a law ideally suited for our times. What is outside the purview of privacy in the digital world is very difficult to say? Privacy thus primarily means privacy of data and thus data protection comes into the picture. Handling of data is not as simple as it looks and the impact is even more complex as the most of the world is realizing now. The core thought of it being declared a fundamental right is the thought process, that but for this nature of legal provision, the citizen cannot be safe. The citizen is in the cross fire of what we call the automatic, covert and ubiquitous surveillance by the private IT behemoths, government and any agency which has developed the capability to do so and get away with it.

Now we come to the core question for whom are the laws being enactment? For the legislature, the government is just one stakeholder in the game, they cannot be allowed to have the drivers seat. Can we expect the same level of neutrality that we get from the judiciary. The law makers are the representatives of the people and their concern should emanate out of their deep connect with the electorate and the responsibility to take care of their well-being. There is no denying the fact that laws are made for citizens in mind and not to provide an unequal lever for the governments to operate. Law making has to finally become a game of expertise, intention and attitude. In cannot be allowed to be a hot bed of power play.

For the record, the present recommendation’s Section 35 allows for Union government to exempt its agencies including processing of data. Public order is also there as an exemption, which can interpreted in any manner. Necessary or expedient are defining words and not just, fair and proportionate. Personal data can be processed without consent for government benefits and for issue of licenses, certifications and permits. Bringing social media under its purview, they would be treated as publishers. The data fiduciary provision will not apply to the government. The Data Protection Authority, which will regulate how data is to be managed and processed, should be bound by the directions of the Union government in all cases. Data protection laws in other countries have not been able to make any dent on the IT behemoths and now the govt intends to use our data in this manner. Where to do we go from here?


Sanjay Sahay

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