Data protection law in India: Puttaswami case

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Puttaswami case:

The Supreme Court of India noted following points: -

i) Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. Intrinsically, a regime for data protection is synonymous with protection of informational privacy.

ii) “Uber”, the world’s largest taxi company, owns no vehicles. “Facebook”, the world’s most popular media owner, creates no content. “Alibaba”, the most valuable retailer, has no inventory. And “Airbnb”, the world’s largest accommodation provider, owns no real estate.

iii) The right to privacy as a fundamental right. Right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution and as a part of the freedoms guaranteed by Part III of the Constitution. 

iv) Further, it went on to recognise informational privacy as a facet of the right to privacy and directed the Union Government to put in place a robust data protection regime to ensure protection against the dangers posed to an individual‘s privacy by state and non-state actors in the information age.

v) The Supreme Court in Puttaswamy overruled its previous judgments of M.P. Sharma v. Satish Chandra (M. P. Sharma) and Kharak Singh v. State of Uttar Pradesh (Kharak Singh) which appeared to observe that there was no fundamental right to privacy enshrined in the Constitution of India. 

vi) Justice Subba Rao in Kharak Singh, opined that even though the right to privacy was not expressly recognised as a fundamental right, it was an essential ingredient of personal liberty under Article 21 and thus fundamental. Following this approach of Justice Subba Rao, the nine-judge bench of the Supreme Court in Puttaswamy recognised the right to privacy as an intrinsic part of the fundamental right to life and personal liberty under Article 21 of the Constitution of India in particular, and in all fundamental rights in Part III which protect freedoms in general, and overruled the aforementioned judgments to this extent.

vii) Notably, it was held that the Constitution of India must evolve with the circumstances of time to meet the challenges thrown up in a democratic order governed by the rule of law and that the meaning of the Constitution of India cannot be frozen on the perspectives present when it was adopted.

viii) The right to privacy was grounded in rights to freedom under both Article 21 and Article 19 of the Constitution of India encompassing freedom of the body as well as the mind. It was held that privacy facilitates freedom and is intrinsic to the exercise of liberty and examples of the freedoms enshrined under Article 25, Article 26 and Article 28(3) of the Constitution of India were given to show how the right to privacy was necessary to exercise all the aforementioned rights. 

xi) The Supreme Court acknowledged that the concept of the right to privacy, as seen from jurisprudence in India and abroad has evolved from the basic right to be let alone, to a range of negative and positive rights. Thus it now includes the right to abort a foetus; rights as to procreation, contraception, general family relationships, child rearing, education, data protection, etc. The Court recognised informational privacy as an important aspect of the right to privacy that can be claimed against state and non-state actors. The right to informational privacy allows an individual to protect information about oneself and prevent it from being disseminated. 

x) Further, the Court recognised that the right to privacy is not absolute and may be subject to reasonable restrictions. In order to limit discretion of State in such matters, the Court has laid down a test to limit the possibility of the State clamping down on the right the action must be sanctioned by law, it must be necessary to fulfil a legitimate aim of the State, the extent of the State interference must be proportionate to the need for such interference, there must be procedural safeguards to prevent the State from abusing its power. It has expressly recognised protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits as certain legitimate aims of the State.

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