On 24 August 2017, a nine-judge bench of the Supreme Court of India (Supreme Court) declared privacy as a fundamental right protected under the Indian Constitution (Privacy Judgment)[1]. The Supreme Court while holding the right to privacy as an intrinsic part of the right to life and personal liberty, and informational privacy as a facet of the right to privacy; highlighted the need for government to examine and enforce a robust regime for data protection.

The Supreme Court suggested balance between data regulation and personal privacy as there are legitimate state concerns (like protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits)on one hand and individual interests in the protection of privacy on the other. Appreciating the complexity of all these issues, the Supreme Court (upon being informed of the constitution of an expert committee chaired by Hon’ble Shri Justice B.N. Srikrishna, former Judge of Supreme Court), left the matter for determination by the said expert committee (Expert Committee), which was required to give due regard to what the Supreme Court had held in the Privacy Judgment.

Continue Reading Genesis of (True) Data Protection Framework for India

Image credit: Scroll.in, September 26, 2017

Sociologists know that the formation and survival of civilization is conditional upon the universal adherence to a framework of acceptable norms and guidelines of human conduct and interaction. Moses therefore set out as God’s message, the directive to love thy neighbor, (so as not to have him for dinner) and also to not covet his wife (so that he may not make a meal out of you either).

While the Commandments set out God’s message which would be enforced by the fear of being struck down by lightning or if not then ultimately burning in hell, in later times, monarchies, and subsequently the democracies of the modern day needed to impose more earthly discipline. The judicial systems of to-day enforce not the will of the King but draw their legitimacy from the constitution and enforce laws which are framed by the people’s representatives.

Over the centuries, the singular truism which is well recognized is that the guidelines or laws to be enforced, cannot be mired in time and need to evolve so as to be relevant to the prevailing social and moral context. This truism requires constant change, which like all change is disruptive. History therefore inevitably reveals turbulence and conflict as the legal framework slowly adapts in a struggle to keep pace with social evolution.

The controversy and turbulence is more pronounced and correspondingly also more visible and prone to commentary by historians, sociologists and legal scholars alike, in “common law” democracies. This is because under the common law system, the law of the land is made by the courts since it is the manner in which courts interpret statutes that creates the judicial precedents which then is the established law. A study of how judicial decisions framed or established norms and values which we treasure today and perhaps take unthinkingly for granted can be fascinating.

CAM has embarked on an analysis of a series of such landmark decisions in an attempt to present a hindsight perspective into what exactly happened, the socio-political compulsions of the day and their impact in shaping Indian society and governance today.

This is the first piece in our series entitled “Those Were the Days”, which will be published monthly. We hope you enjoy reading this as much as we have enjoyed putting this together.


The case of Kesavananda Bharati v. State of Kerala (Kesavananda Bharati)[1] is perhaps the most well-known constitutional decision of the Supreme Court of India (Supreme Court). While ruling that there is no implied limitation on the powers of Parliament to amend the Constitution, it held that no amendment can do violence to its basic structure (the “Basic Structure Doctrine”). Further, it established the Supreme Court’s right of review and, therefore, established its supremacy on constitutional matters.

Continue Reading Kesavananda Bharati v. State of Kerala and The Basic Structure Doctrine