A fundamental error

A fundamental error


  1. Apar Gupta and Ujwala Uppaluri, practicing advocates, highlighted that the Srikrishna report on data protection misinterprets the Supreme Court’s right to privacy judgment.

Important facts:

2. Last year the Supreme Court judgment on the right to privacy imposed upon the government an obligation to make a law safeguarding a person’s informational privacy, commonly referred to as data protection.

3. Consequently, the Union government had tasked a committee headed by Justice B.N. Srikrishna to formulate such a law in July last year.

4. The committee provides set of recommendations and also produced a draft law titled the “The Personal Data Protection Bill, 2018.

5. The author highlighted that the Srikrishna report on data protection misinterprets the Supreme Court’s right to privacy judgment .

6. The recommendations do not only undermine the legal principles within it but also reinterpret them. The committee stay away from the below two points:

  • It expressly stated the primacy of the individual as the beneficiary of fundamental rights.
  • It rejected the argument that the right to privacy dissolves in the face of amorphous collective notions of economic development.

7. Its report, titled “A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians”, runs into tremendous difficulties as it attempts to put together a regulatory agenda that reconciles the expansion of the digital economy and state control with the principles of the right to privacy judgment.

8. These difficulties reveal themselves in a misunderstanding of the fundamentals of constitutional law.

9. The state’s purpose under the Constitution, says the report, is “based on two planks”.

  • The state is a facilitator of human progress and is “commanded” by the Directive Principles of State Policy “to serve the common good”.
  • Fundamental Rights, which help protect against a state “prone to excess”.

10. The report attempts to open the right to privacy to allow the state the most convenient means by which to realize its regulatory agenda.

11. According to the author, it is not often that the Supreme Court assembles and pronounces a unanimous judgment without dissent. The promise of such a holding becomes more critical when it concerns the liberty of individuals and an attempt to correct an imbalance of power which exists against them.

12. By re-framing and re-interpreting the right to privacy, the report entrenches the positions of the two entities which already wield the most power over ordinary Indians: corporations and the government.

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