Written By Joshita Pai
The privacy debate surrounding the aadhaar proceedings has, in the recent past stirred debate on the constitutional perceptive on privacy. In addition to this, the disastrous National Draft Encryption Policy and the Human DNA Profiling Bill, 2015 have challenged the legal contours of privacy, particularly the understanding of data protection in India. Placing increasing reliance on results of consolidated databases of the processed data has posed glaring questions of accountability and transparency in data handling. The inherent potential for privacy violations through processing of data has brought to focus, the legal framework which monitor such databases. However, there is a dearth of such a framework and the notion of privacy stands on unstable grounds.
Data Protection in India
The ongoing battle on judicial determination of privacy as a constitutional right is scheduled to be taken up by the Supreme Court in the near future. This will in definite terms establish the position of the right to privacy within the ambit of the Constitution of India. Statutory conferment of privacy as a right could be parallelly ascertained but legislative attempts on privacy and on data protection are yet to materialize. The Expert Committee that was set up to review the Information Technology Act submitted its report in August, 2005 to the Department of Information Technology and called for an amendment to certain sections in tune with data protection and privacy standards. Following this, the Act was amended to include section 43A which imposes civil liability on account of failure to protect data. It is significant to note that the amendment paved way for self-regulation in terms of defining what constitutes “reasonable security practices and procedures” and “sensitive personal data or information”. However, while this is a workable attempt, it makes only for stopgap arrangement, and must yield to a more comprehensive regulation.
India’s legislative efforts to singularly respond to privacy as a concept, have been reluctant and disorganized. Sectoral efforts are however evident in a few areas. For communication records, the retention requirements of data, for service providers are found in the ISP and UASL licenses, which are grounded in the Indian Telegraph Act, 1885. In the Health Sector, the Ministry of Health & Family Welfare released a set of recommendations for electronic health records in India.
Taking cue from Other Nations
Article 25(1) of the EU Directive, 1995 which regulates the transfer of data from EU member states to third party country provides that transfer of personal data “may take place only if … the third country in question ensures an adequate level of protection.” To assess India’s framework on data protection,, the European Commission in 2015 brought forth a report on Data Protection in India which highlighted the lacunae in Indian laws pertaining to personal data.
The second edition of the EU-US safe harbour model which rolled into motion at the behest of the ruling in Schrems is eagerly awaited. The Court of Justice in 2015 declared that the existing provisions of the US on protection of data were inadequate and called for a revised version by the end of January, 2016, with better accountability measures for transatlantic flow of data. The new framework will be based on a stronger regime for protecting data by imposing obligations on companies handling EU’s personal data and enshrining transparency provisions. In the midst of this, the European Union adopted a reformed Data Protection Framework in December 2015 which was proposed by the EU Commission in January 2012. In the backdrop of several such developments on data protection, India’s progress in this regard is dissipated and reluctant. Taking cue from South Africa, which until very recently dealt with data protection within its constitutional ambit of privacy, and in 2014 adopted a legislation on data protection, Indian provisions could be consolidated into a formal and binding statute.