What Privacy Means And How It Is Important For Us?

What Privacy Means: Why It Matters and How We Can Protect It by Siddharth Sonkar analyses the history and understanding – both cultural and political – of privacy in India and establishes why objecting to interference with privacy is the pressing need of the day. An excerpt:

Generally speaking, most people have a tendency to avoid risks. We are careful when we make new purchases. Before purchasing a phone or a laptop, we are circumspect enough to read about the item’s specifications and check its reviews to see how well it is rated. This is because we want to avoid making a bad deal and end up regretting it later. We do not want to incur a financial loss, which is why we prefer to make a well thought decision to get the best possible value for money.

Today, we generally understand these losses in terms of finances – the losses that we can incur from our data seem too remote to us. We are generally concerned about more immediate harms, with a tendency to dismiss remote possibilities. It is important for us now more than ever before to understand the value of our data, and understand the losses that we incur on the basis of oversharing our personal information. For instance, companies can rely on social media platforms to deny a loan request for a bad credit score, or to screen potential employment candidates. Indeed, not taking privacy seriously can have a grave impact on your access to opportunities that are crucial to progress in life.

Almost five years ago (in August 2017), nine judges of the Indian Supreme Court in K.S. Puttaswamy v. Union of India (the Privacy judgement) recognized that the right to privacy exists under the Indian Constitution even though the Constitution-makers did not recognize such a right in expressly written words. The Supreme Court recognized that privacy is an intrinsic element of our fundamental rights
such as the right to life, dignity, personal liberty, freedom of speech and expression, and went on to define what the right
constitutes in terms of content.

The Privacy judgement stressed on the importance of a robust data protection framework in India. Subsequently, the Government of India appointed the Justice B.N. Srikrishna (Retd.) Committee to create a data protection framework in India, which published its report on creating a free and fair digital economy – along with the first draft of the Personal Data Protection Bill, 2018 for comments. This proposed legislation emphasized the importance of the privacy discourse to technology giants as well, since it contained significant penalties and monetary costs for noncompliance. After considerable deliberation on the Bill, the government introduced a revised draft of the Personal Data Protection Bill, 2019 (PDP Bill) before the Parliament in December 2019.

However, soon after, it was referred to a Joint Parliamentary Committee (JPC) comprising several Members of Parliament to further review its provisions. In February 2020, the JPC initiated a consultation process with stakeholders across the spectrum, by inviting comments to these provisions. On 16 December 2021, after about two years of consideration, the JPC submitted its report along with a revised version of
the Bill, renaming it to ‘the Data Protection Bill 2021’ (DP Bill 2021).

Suggested Reading:

Stories Showcasing Aspirations And Challenges Of North-Eastern Women

The DP Bill 2021 has been criticized for reducing many safeguards which existed in the previous draft published in 2018 by the Srikrishna Committee. It enables the central government to notify a list of government agencies to which the obligations under the DP Bill 2021 will not apply under certain circumstances. The introduction of this provision in the DP Bill 2021 has been criticized by Justice B.N. Srikrishna for granting carte blanche powers to the state, in a law which is supposed to apply equally to the state and non-state actors. If government agencies are exempt from the scope of the data protection law, it would defeat its purpose of empowering the citizens of India and protecting
their privacy. Even though the DP Bill 2021 was tabled before the Parliament towards the end of the Winter Session of the Parliament on 16 December 2021, it could not be discussed before the session came to an end. As of 1 January 2022, it remains to be seen when the DP Bill 2021 would be introduced in the Parliament, discussed and deliberated upon, and finally enacted so that India finally has a data protection law.

Each day that goes by without a privacy law means that our fundamental right to privacy remains susceptible to being violated by others – the state fails in its duty to create a framework that enables us to exercise our privacy. This is because fundamental rights such as privacy are typically exercisable directly against the state, and not private entities. In the absence of a law specifically creating rights vis-à-vis private entities that infringe on our privacy, we typically do not have any direct recourse against online businesses which renders our fundamental right to privacy meaningless. Further, in the absence of a data protection law, the precise contents of the right to privacy or what our entitlements specifically are vis-à-vis private entities also remain unclear, reducing our guarantees to the discretion of courts. However, in the absence of a law giving direction to our right to privacy, different courts across India have taken inconsistent and contradictory positions on its contents. For instance, while the Karnataka High Court granted a request by a petitioner seeking to delete their personal information from a published judgement in the interests of their privacy, the Gujarat High Court in another order dismissed a similar request.

Excerpted with permission from What Privacy Means by Siddharth Sonkar.

You can also join SheThePeople's Book club on Facebook, LinkedIn and Instagram.