Apar GuptaTwenty lawyers file a submission to the Justice Srikrishna Committee on Data Protection
On August 25, 2017 Indian newspapers carried headlines such as,“Privacy Supreme” (the Indian Express), “SC gives India a private life” (the Times of India) and, “Historic Verdict: Right to Privacy Key to Life and Liberty” (the Hindustan Times). These headlines, coming a day after the Right to Privacy judgement, were a celebration of individual rights. Even though the judgement was delivered a few days after our annual independence day celebrations, on the day it was delivered, many Indians felt the true promise of freedom.
While lawyers indiscriminately use adjectives, such as “seminal”, “historic”, or even the snobbish, “locus classicus” to describe judicial precedent, such immediate proclamations are often tested in time. It is not that court decisions are lacking in reasoning or principle but quite often their constitutional promise is dulled, left unfulfilled or even led astray. We should not suffer a similar fate for the right to privacy.
The Right to Privacy judgement raised public expectations, limited the power of an overzealous government, fastening protections on — — arbitrary detention, phone tapping, sexual abuse, prohibitions on the consumption food and drink, sexual choice, press freedom, bodily integrity. It’s expanse like it’s ideal is vast. But a court judgement does little if the principle of constitutionality cannot be effectively enforced. Recognising this the Right to Privacy judgement notes that privacy has both a negative and positive component. It is shield against state intrusion but also an obligation requiring the affirmative act of legislating a data protection law.
In a world where access to government and private services is often dependent on our personal data, a legislative vacuum hurts individuals who are left without any enforceable rights or a meaningful legal process to enforce them. People today increasingly feel powerless, vulnerable and insecure when using technology. Such fear is not limited to those who find technology confusing but also those who understand it quite well. Many realise that we are at a point of time that is awash in the tides of technological euphoria. We have enthusiastically invited a concentration of power over individuals through indiscriminate data collection. This problem has been building for more than a decade and the Justice Srikrishna Committee was tasked last year to fix it.
Given it’s significance and central role in advancing the right to privacy about twenty legal academics and advocates have made a common submission to the Srikrishna Committee with the objective of securing individual rights. They have commented on the concerns of the process but also the substance of the issues, some of which have not been considered by a whitepaper released earlier (read about it here).
The submission rejects any notion of our natural, inalienable right to privacy being soluble in the ether of the vague notions of, “innovation”. It contains suggestions that extensively analyse the role of a data protection law, the proper role of a regulator and due attention and scrutiny of the Aadhaar project. It recommends a framework that builds off the nine privacy principles of the Justice A.P. Shah Committee of Experts and an empowered Privacy Commissioner to enforce them.
To aid greater awareness and participation in this consultation exercise the submission is being proactively published under a Creative Commons BY 2.5 IN license. The authors of the submission hope that it will not only be considered by the Committee but will also be freely shared, copied and extracted by individuals and organisations to aid in spreading awareness on the issues involved.