Puttaswamy and the fading promise of a right

Source: The post is based on the article “Puttaswamy and the fading promise of a right” published in “The Hindu” on 27^th August 2022.

Syllabus: GS 2 Important Provisions of the Constitution of India

Relevance: 5 years of Right to privacy judgment.

News: Five years ago, on 24 August 2022, a nine-judge Bench of the Supreme Court of India delivered a very crucial judgment in Justice K.S. Puttaswamy (retd.) vs Union of India (2017).

About the Judgment

The SC judgment recognised the right to privacy as being a fundamental right. This right stems from the right to life and personal liberty, guaranteed under Article 21 of the Indian Constitution.

The right to privacy is intrinsic to an individual’s ability to exercise bodily autonomy.

However, the right to privacy is not an “absolute right”. It is subjected to certain limitations in a manner similar to those placed on the right to free speech and expression.

What are the issues in enforcement even after 5 years of Right to privacy judgment?

So far, the recognition of the right has not been upheld in letter or in practice. This can be understood from the nature of the relationship shared among consumers and companies.

Data not protected: Data security breaches which result in the loss and theft of personal, sensitive data continues unabated. The Personal Data Protection Bill, 2021 has been withdrawn after an unnecessarily long period of stagnation.

Data collection: In India, any person or business can procure the personal information for a vast majority of the people. These data are used and consumed most often by some legitimate advertising agencies, unscrupulous telemarketing firms, and cyber criminals.

This status quo leaves the people open to a range of harms like phishing attacks, financial scams, as well as other harmful activities based on information about an individual.

‘Spying’ from above: There are apprehensions about the unauthorized or illegal state surveillance in the name of the security and integrity of India. For example, this is validated with the allegation of the misuse of the Pegasus spyware by the Indian government.

Other ‘transgressions’: The Government has demanded the VPN service providers, most of which operate in jurisdictions outside of India, to ensure start collecting and maintaining KYC records on Indian nationals who seek to avail their services. The kind of information requested to be collected and stored includes full name, phone number, home address, etc., which generally is not sought by VPN service providers.

What should be done?

The government must adhere to the judgment and put into place all of the checks and balances which are necessary to prevent Government overreach and abuse of power.