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Taking a Fresh Guard
The Supreme Court inK S Puttaswamy v Union of India has acknowledged the existence of a fundamental right to privacy. This judgment will have an impact on the protection of individual data, especially in the context of the constitutionality of the Aadhaar Act, currently under challenge before the apex court.A response is offered by conceptualising “data as property” and adopting a data protection law in line with international best practices. Also, its ramifications on cross-border data transfers and international diplomacy, a question of vital interest in an increasingly digitised world, are highlighted.
Since it was initially popularisedin William Gibson’s 1984 classic Neuromancer, the term “cyberspace” has come to define much more than an abstraction independent of the physical realities that shape it. It is now the chief determinant of financial transactions, physical transportation, economic disruption, and, in doing so, has come to define individual relationships and, ultimately, the individual itself. As India remains steadfast in its path towards digitising its economy and, consequently, society, we must develop robust norms on how this society perceives an individual’s data and, thus, shapes protocols for its adequate protection.
While there has been fragmented discourse on developing a cohesive set of norms, the judgment of the nine-judge bench of the Supreme Court inK S Puttaswamy v Union of India (2017), which held privacy to be a fundamental right, could jerk all relevant stakeholders into action and catalyse a stride towards a functioning digital society. The remainder of this year will see two crucial developments in this regard. The first is the decision of the Supreme Court in the constitutional challenge to Aadhaar in November. As we outline later in thisarticle, the verdict will be only as crucial as the guidelines and reasoning imposed in its support. The second is the report of the Justice B N Srikrishna Committee that has been tasked with framing a data protection law.
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