NOVEMBER 15, 2024

By Mr M G Kodandaram, IRS. Assistant Director (Retd) ADVOCATE and CONSULTANT

Introduction

JUSTICE Puttaswamy's name has become emblematic of the fundamental right to privacy in India, a cause he championed with unwavering dedication. From his influential roles as a judge and advocate to his bold stance as a litigant, Puttaswamy's life was a testament to his deep commitment to democratic values and constitutional rights. His passing on October 28, 2024, (at the age of 98 years) marks the loss of a legal giant and a steadfast defender of privacy rights, leaving a significant void in India's legal landscape.

From Judge to Litigant - Making of a Privacy Advocate

Koratagere S. Puttaswamy, born on February 8, 1926, in Karnataka's Kolar district, pursued an illustrious career in law after completing his studies at Maharaja's College, Mysore, and the Government Law College in Bangalore. His judicial journey saw him ascend the ranks of Karnataka's legal system, culminating in his appointment as a judge of the Karnataka High Court in 1977. Renowned for his dedication to fairness and commitment to constitutional values, Justice Puttaswamy's tenure was marked by landmark rulings that championed social equity and the rights of marginalized communities. His work extended beyond his judicial career, with roles such as Vice-Chairman of the Central Administrative Tribunal's Bangalore Bench and Chairman of the Andhra Pradesh Administrative Tribunal, positions through which he continued to advance public welfare.

However, Justice Puttaswamy's most profound legacy in Indian law emerged well after his retirement. In 2012, he took on the role of a petitioner, challenging the government's Aadhaar project - a biometric identification system introduced to improve welfare scheme accessibility. While initially promising, the mandatory nature of Aadhaar posed serious threats to individual privacy. Recognizing these risks, his decision to return as a litigant demonstrated his unwavering commitment to justice, ultimately leading to one of the most consequential privacy rights battles in Indian legal history.

The Puttaswamy Judgment

Petitioner Justice K.S. Puttaswamy argued that mandating citizens to provide biometric data to access government services would severely infringe on individual privacy rights. He further contended that such extensive data collection, without a comprehensive legal framework to guard against misuse, opened the door to state surveillance and potential restrictions on personal freedoms. He warned that Aadhaar, in its mandatory form, could easily be exploited to monitor citizens, violating fundamental democratic principles and exposing the public to unchecked state overreach.

The case reached its critical moment in 2017 with the landmark Supreme Court judgment in Justice K.S. Puttaswamy (Retd.) vs. Union of India. (refer - 2017-TIOL-311-SC-MISC-CB) A rare nine-judge bench of the Court ruled unanimously that the right to privacy is a fundamental right, protected under Articles 14, 19, and 21 of the Indian Constitution. This historic ruling not only upheld privacy as a constitutional guarantee but also provided anuanced interpretation of privacy as essential to human dignity, personal autonomy, and individual liberty.

This judgment transformed privacy jurisprudence in India, establishing it as a multi-dimensional right that safeguards citizens against intrusive state actions and affirms their control over personal information and has since influenced legislative discussions on data protection and digital rights, serving as a catalyst for evolving privacy frameworks in India. This case thus stands as a powerful defense of civil liberties in the digital age, ensuring that privacy remains a cornerstone of democratic governance.

The Ongoing Struggle for Privacy

While the judgment represented a major victory for privacy protection seekers, it also exposed significant gaps in India's data protection framework. The Supreme Court's recognition of privacy as a fundamental right was an important milestone, but it did not provide specific guidelines on how to safeguard this right in the rapidly evolving digital landscape. Justice Puttaswamy understood that his legal triumph was just the beginning, emphasizing the need for a comprehensive privacy framework – one that governs data collection, ensures transparency, and protects citizens' personal data from misuse.

Since the 2017 ruling, India has made steady strides in developing a legal framework for personal data protection.(Read - Proposed Indian privacy law DECEMBER 21, 2020; Are commercial interests interfering with the Citizens' Privacy Rights? NOVEMBER 08, 2021, by the Author) Although the path to enacting an appropriate privacy law has been lengthy, in 2023, the government introduced the Digital Personal Data Protection Act (DPDPA), which aims to regulate the collection, processing, and storage of personal data by both the public and private sectors. While the DPDPA represents a significant step forward, it has faced criticism for its lack of clarity, broad exemptions for government agencies, inadequate provisions for addressing harm from data breaches, and limited transparency and accountability mechanisms.(Read - Inadequacies in the Digital Personal Data Protection Act, 2023, AUGUST 21, 2023, by the Author)The Rules and procedures to be followed have not been notified so far and the Data Protection Board of India is not yet established. The reasons behind the delays from the legislature and the government to implement the law remain unclear. (read The Delay Dynamics, SEPTEMBER 17, 2024, by the Author)

The impact of the Puttaswamy judgment reached beyond India, igniting global conversations about privacy law. In recognition of his pivotal role in shaping India's privacy jurisprudence and the subsequent developments, Justice Puttaswamy was honoured with the title "PRIVACY PITAMAHA" during a ceremony at his Bengaluru residence on September 24, 2023. The Author had the privilege of engaging in a conversation with the distinguished figure. Despite the progress achieved, Justice Puttaswamy's pursuit of a comprehensive, just, and citizen-focused privacy framework remains ongoing, and his vision for India's data protection law continues to spark debates among legal professionals and privacy advocates alike.

Realizing Puttaswamy's Vision

Justice Puttaswamy's fight emphasised the need for a robust legal framework that can address emerging privacy concerns, including data surveillance, misuse, and digital rights. As custodians of the rule of law, the legal professionals have an indispensable obligation to push for legislative reforms that align with the spirit of the Puttaswamy judgment and advocate for laws that safeguard citizens' privacy in a meaningful way.

The DPDPA, though a step forward, has yet to establish a truly equitable balance between state interests and personal privacy. (read - India's Privacy Journey - Two Steps Forward, Three Steps Back, OCTOBER 25, 2023, by the Author) For instance, the Act grants the government sweeping powers to exempt itself from its provisions under certain conditions, a loophole that could allow for extensive data collection without adequate oversight. Justice Puttaswamy's commitment to privacy rights would have undoubtedly demanded greater accountability from the state and clearer limitations on its powers. All citizens need to carry forward this demand, advocating for amendments to the DPDPA that introduce strict checks on government exemptions, stronger data breach notification requirements, relief in the form of damages to the victims of harm, (read - DPDP Act 2023 Falls Short on Addressing 'Harm', NOVEMBER 28, 2023, by the Author) and the creation of an independent regulatory body to oversee data privacy in India.

Continuing the Fight for Data Sovereignty

Justice Puttaswamy's case highlighted the importance of data sovereignty - the principle that individual/ Principal should have control over their personal data. With the rise of digital technology and an increasing dependence on data-driven decision-making, ensuring data sovereignty is essential to preserving individual freedoms. Currently, the DPDPA lacks stringent guidelines to ensure that data Principals retain meaningful control over their data. Legal practitioners have the responsibility to push for stronger data sovereignty measures, such as data portability, the right to be forgotten, and enhanced user consent standards.

As technology continues to evolve, privacy rights are becoming increasingly complex. The digital era has introduced new methods of data collection, including facial recognition, artificial intelligence, and surveillance tools capable of tracking movements and behaviours. These technological advancements also pose threats to the personal rights of individuals. To honour Justice Puttaswamy's legacy, legal professionals must remain vigilant in examining emerging technologies and their impact on privacy and other fundamental rights. This requires a balanced approach: proactively advocating for legislative changes to address future privacy issues and challenging policies or technologies that overstep boundaries or infringe on personal freedoms.

Building a Culture of Privacy Awareness in India

Justice Puttaswamy's fight for privacy rights was not only a call to action for the legal community but for society as a whole. Central to his vision was the establishment of a culture in which privacy is respected and safeguarded by every user of digital utilities. In a country with a vast range of socio-economic conditions and differing levels of digital literacy, promoting privacy awareness presents a significant challenge. Legal professionals, together with civil society organizations, have a crucial role in educating the public about their privacy rights and the significance of data protection. (read - Privacy in Peril: Have We Forgotten Our Rights? OCTOBER 07, 2024, by the Author.)

Puttaswamy's legacy transcends a single landmark judgment, serving as a powerful call to action for citizens and stakeholders alike to work toward his vision of a robust and equitable privacy regime in India. His unwavering fight to establish privacy as a fundamental right laid the foundation for national discussions on data protection, personal autonomy, and human dignity. However, his vision of a comprehensive privacy framework is still unfinished. For the legal community, Justice Puttaswamy's mission stands as both a monumental achievement and a reminder of the important work that remains in securing personal data rights for all. It is now up to us to continue the task of protecting individual privacy in an increasingly interconnected global digital society.

[The views expressed are strictly personal.]