DOUBLE TROUBLE IN 2020 - TACKLING COVID-19 WHILE PROTECTING THE RIGHT TO PRIVACY

Background

Dire times call for ingenious, and often, radical measures. The COVID-19 pandemic, which has led to actions being taken under the Epidemic Diseases Act, 1897, and the Disaster Management Act, 2005, in India, is one such unprecedented and grim event. While governments and health workers all over the world are grappling to curb the spread of the virus, it has been realised that surveillance of affected persons is of paramount importance in order to assess and implement preventive and control measures.

Data tracking and analysis has emerged as an unlikely hero. This analysis has enabled governments to implement measures to stop the pandemic at its source and to prevent deaths, social disruption, unnatural burden on the healthcare system and economic loss. As government authorities are required to control the pandemic not only in their own country, but also understand how the same is evolving in other countries, governments all over the world have taken the stance that free flow of information that is updated in real time will allow for the formation of a steady global picture and help in curbing the spread of the pandemic.
Continue Reading Double Trouble in 2020 – Tackling COVID-19 while Protecting the Right to Privacy

Surveillance in the Post-Puttaswamy Era - Right to Privacy

In 1997, the Supreme Court of India (Supreme Court) pronounced its judgment in the case of People’s Union for Civil Liberties (PUCL) v. Union of India (SC, 1997) (PUCL Case), which laid the groundwork for the right to privacy in the context of telephonic surveillance (i.e. wiretaps) and constitutional freedoms.

This article analyses the Supreme Court’s stance on the right to privacy in the PUCL Case, which was upheld in the 2017 landmark judgment by the nine-judge bench in KS Puttaswamy v. Union of India (SC, 2017) (Puttaswamy Case) that declared privacy a fundamental right. The applicability of the right to privacy has recently received further validation in the context of wiretaps in the October 2019 judgment in Vinit Kumar v. Central Bureau of Investigations and Ors (Bom HC, 2019) (Vinit Kumar Case), wherein the Bombay High Court outlined the ambit of the State’s power to surveil its subjects particularly on matters that do not fall within the category of ‘public emergency’ or ‘in the interest of public safety’.
Continue Reading Surveillance in the Post-Puttaswamy Era

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