UPSC MAINS 2020: Right to Privacy

Topic : Right to Privacy

Topic in Syllabus: General Studies Paper 2: Indian Polity

Context

It has been two years since the nine-judge Supreme Court bench delivered the judgment in the Puttaswamy case. It asserted that Indians have a constitutionally protected fundamental right to privacy.

Background

It held that privacy is a natural right that inheres in all-natural persons and that the right may be restricted only by state action that passes each of the three tests:

  1. such state action must have a legislative mandate
  2. it must be pursuing a legitimate state purpose
  3. it must be proportionate

If the judgment is implemented,

 the outcomes would be

  • Govt will undertake structural reforms to bring transparency and openness in the process of commissioning and executing surveillance projects.
  • Establishing a mechanism of judicial oversight over surveillance requests. 
  • Govt demonstrates great care and sensitivity in dealing with the personal information of its citizens.
  • Legislating a transformative, rights-oriented data protection law that holds all-powerful entities that deal with citizens’ personal data accountable.

Data protection law 

  • with the principle that the state must be a model data controller with a higher standard of observance.
  • proscribes the practice of making access to essential services contingent on the citizen parting with irrelevant personal information.
  • establishes an effective privacy commission that is tasked with enforcing, protecting and fulfilling the fundamental right to privacy implemented through the specific rights under the legislation.

However, that is not the case. Examples of govt’s violation of privacy 

  • The Ministry of Home Affairs authorized 10 Central agencies to “intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer in the country”.
  • Ministry of Information Broadcasting floated a tender for ‘Social Media Monitoring Hub’ to snoop on all social media communications, including e-mail. The government had to withdraw the project.
  • A similar social media surveillance program was floated in by the UIDAI.
  • I-T department has its ‘Project Insight’ which also has similar mass surveillance ends.
  • Economic Survey commends the government for having been able to sell and monetize the vehicle owners’ data in the Vahan database

Steps taken by Government to strengthen Privacy Regime

  • Government appointed a committee of experts for Data protection under the chairmanship of Justice B N Srikrishna that submitted its report in July 2018 along with a draft Data Protection Bill
  • The Report has a wide range of recommendations to strengthen privacy law in India. Its proposals included restrictions on processing and collection of data, Data Protection Authority, right to be forgotten, data localisation, explicit consent requirements for sensitive personal data, etc.
  • Information Technology Act, 2000: The IT Act provides for safeguard against certain breaches in relation to data from computer systems. It contains provisions to prevent the unauthorized use of computers, computer systems and data stored therein.

Privacy Judgement as a guiding tool

  • This landmark judgement fundamentally changed the way in which the government viewed its citizens’ privacy, both in practice and prescription.
  • It requires governments to undertake structural reforms and bring transparency and openness in the process of commissioning and executing its surveillance projects, and build a mechanism of judicial oversight over surveillance requests.
  • It demands from the authorities to demonstrate great care and sensitivity in dealing with personal information of its citizens.
  • It requires to legislate a transformative, rights-oriented data protection law that holds all powerful entities that deal with citizens’ personal data (data controllers), including the state, accountable.

Data use Vs Privacy:

  • The government has shunned a rights-oriented approach in the collection, storage and processing of personal data and has stuck to its ‘public good’ and ‘data is the new oil’ discourse.
  • This is evident from this year’s Economic Survey as it commends the government for having been able to sell and monetise the vehicle owners’ data in the Vahan database and exhorts it to replicate the success with other databases.
  • The Draft Personal Data Protection Bill that urged for a ‘free and fair digital economy’, has the digital economy as the end and the notion of privacy merely being a shaper of the means.

Way ahead

  • A rights-oriented data protection legislation is the need of the hour. 
  • Comprehensive surveillance reform and prohibiting mass surveillance 
  • Institution of a judicial oversight mechanism for targeted surveillance 
  • State ought to be a model data controller as it deals with its citizens’ personal information.

 

Sample Question:

Discuss the areas where privacy comes in conflict with the concept of ‘Public Good’ with reference to Puttaswamy case judgement