Does the DPDPA 2023 strengthen the Right to Privacy in India?: A Constitutional Perspective
Authored by Advocate Sayantani Dutta
Data protection and privacy are two of the most crucial and contentious issues in the digital age. As more and more personal data is collected, processed, and stored by various entities, such as the government, private companies, and social media platforms, the risks of data breaches, misuse, and abuse also increase. Therefore, there is a need for a robust and comprehensive legal framework to regulate the data protection regime and safeguard the privacy rights of individuals.
In India, the Digital Personal Data Protection Act (“DPDPA”) is the latest and most significant legislation that aims to achieve this objective. The DPDPA was enacted by the Parliament in 2023 after a long and rigorous process of consultation and deliberation. The DPDPA is based on the recommendations of the Justice B.N. Srikrishna Committee, which submitted its report and draft bill in 2018. The DPDPA seeks to balance the interests of data subjects, data fiduciaries, and data processors while ensuring compliance with constitutional principles and international standards.
The DPDPA has a direct and profound impact on the right to privacy, which is a fundamental right under Article 21 of the Constitution of India. The right to privacy encompasses various aspects of personal life, such as bodily integrity, personal autonomy, informational self-determination, dignity, and identity. The right to privacy has been recognized and expanded by the Supreme Court of India in several landmark judgments, such as K.S. Puttaswamy v. Union of India, Justice K.S. Puttaswamy (Retd.) v. Union of India, or Navtej Singh Johar v. Union of India.
The main argument of this blog is whether the DPDPA strengthens the right to privacy in India by providing a clear and comprehensive framework for data protection, which is consistent with constitutional values and judicial interpretations or not.
Overview of the Digital Personal Data Protection Act (DPDPA), 2023
The DPDPA 2023 marks a significant milestone as India’s first comprehensive data protection legislation. In an era where data privacy has become paramount, this Act aims to safeguard the personal information of individuals within the country. It addresses the critical need for regulating data processing by organizations and protecting the rights of data principals. As we delve into the DPDPA, we’ll uncover its key provisions and analyze its implications in the evolving landscape of data protection in India.
The Digital Personal Data Protection Act (DPDPA) of 2023 is India’s inaugural legislation dedicated to data protection and privacy. This landmark act outlines crucial principles and provisions that govern the processing of personal data. It introduces the concepts of data principals as mentioned under Section 2(j) of DPDPA, 2023 (individuals whose data is collected) and data fiduciaries as mentioned under Section 2(i) of DPDPA, 2023 (entities responsible for data processing) while emphasizing the importance of individual rights. Compared to its 2019 predecessor, the DPDPA reflects several changes, making it more robust and nuanced. The Act lays down guidelines for data usage, consent, and the right to erasure, placing the control of personal data firmly in the hands of individuals.
Analysis of the DPDPA’s Impact on Privacy Rights
The Digital Personal Data Protection Act (DPDPA) of 2023 represents a significant step forward in addressing privacy concerns and data protection for individuals in India. It builds upon the foundations laid by earlier drafts, taking into account the evolving landscape of data privacy and global best practices.
One of the DPDPA’s notable strengths is its emphasis on the right to consent. It places control over personal data firmly in the hands of data principals, ensuring that their data cannot be processed without explicit consent, except in certain legitimate circumstances. This aligns with the concept of informed and voluntary consent, a fundamental pillar of data protection worldwide. Furthermore, the DPDPA introduces the right to erasure, allowing individuals to request the removal of their personal data, bolstering their control over their digital footprint.
The Act also addresses data breach reporting comprehensively. Unlike previous drafts, which left room for interpretation regarding which breaches should be reported, the DPDPA mandates that every personal data breach must be reported to the Data Protection Board of India and the affected data principals. This ensures transparency and accountability, enabling individuals to take necessary actions in the event of a breach.
The DPDPA, however, diverges from its predecessors in certain aspects. Notably, it excludes provisions related to the right to data portability and the right to be forgotten. While these rights were present in the 2018 and 2019 drafts, their absence in the DPDPA is a noteworthy departure. This raises questions about the extent to which data principals can exert control over their data and their ability to switch between service providers seamlessly.
Examining the DPDPA’s impact on the right to privacy under Article 21 of the Indian Constitution, it’s evident that the Act reinforces and strengthens this constitutional right. Article 21 guarantees the right to privacy as a fundamental right, and landmark Supreme Court judgments, such as K.S. Puttaswamy v. Union of India and Navtej Singh Johar v. Union of India, have expanded its scope and recognition.
The DPDPA aligns with these constitutional principles by providing individuals with greater control over their personal data. It safeguards against unreasonable surveillance, identity theft, and loss of reputation, all of which can constitute infringements on the Right to Privacy. By empowering data principals to seek compensation in the event of harm caused by data processing, the DPDPA further underscores the seriousness of privacy violations.
Therefore, the DPDPA 2023 represents a substantial leap in India’s efforts to protect privacy rights and regulate data processing. While it omits certain provisions present in earlier drafts, it introduces robust mechanisms for consent, breach reporting, and data erasure. Moreover, it strengthens the right to privacy under the Indian Constitution by promoting transparency, accountability, and individual control over personal data, in line with the evolving global standards and landmark judicial decisions.
Challenges and Concerns
While the DPDPA 2023 represents a significant advancement in safeguarding privacy rights and data protection, it is not without its limitations and concerns. These challenges have the potential to impact individuals’ privacy rights and the overall effectiveness of the legislation.
One of the foremost concerns is the extensive exemptions granted to government agencies under the DPDPA. While the Act aims to strike a balance between privacy and national security, these exemptions may enable unchecked data processing by the State, potentially violating the fundamental right to privacy. The absence of clear provisions for data deletion after the purpose of processing is fulfilled raises questions about the proportionality of data collection and retention by government agencies for surveillance and profiling.
The Act’s provisions that override individual consent for purposes like benefit provision, service, license, permit, or certificate may undermine the principle of purpose limitation, allowing the combination of data collected for various purposes. This could lead to the profiling of citizens, raising concerns about data privacy and autonomy.
Moreover, the DPDPA lacks regulatory measures to address harms arising from the processing of personal data, which were present in earlier drafts. The absence of the right to data portability and the right to be forgotten further diminishes individuals’ control over their data.
Additionally, the mechanism for regulating cross-border data transfers is deemed inadequate, as it relies on government notifications without a comprehensive evaluation of data protection standards in each country.
Lastly, the short two-year appointment term for members of the Data Protection Board of India, with the possibility of re-appointment, raises concerns about the independence of the Board, which plays a crucial role in monitoring compliance and adjudicating penalties.
Addressing these challenges and concerns is essential to ensure that the DPDPA effectively balances privacy rights with the needs of the state and other stakeholders while providing robust data protection for individuals.
The Role of Implementation and Enforcement
Effective implementation and enforcement of the DPDPA 2023 is crucial to ensure that the law serves its intended purpose of safeguarding privacy rights and data protection in India. However, several challenges must be addressed to guarantee compliance by both government agencies and private entities.
One significant challenge lies in defining the boundaries of legitimate data processing under contractual obligations. The DPDPA should provide clear guidance or be supplemented with rules to clarify whether businesses can enforce contracts as a legitimate basis for processing personal data or if explicit consent remains mandatory. Furthermore, limitations on data principal rights when data is processed for legitimate uses must be carefully examined to avoid discrimination against individuals whose data was collected for such purposes without their consent.
The absence of obligations related to data mapping and inventory maintenance poses challenges for managing data principal rights and auditing larger organizations effectively. Additionally, the lack of clarity behind exemptions granted to certain data fiduciaries, especially regarding children’s data processing, requires further elaboration.
To address these issues, robust guidelines, rules, and a transparent framework for implementation and enforcement should be developed. This may involve fostering a culture of data ethics and value realization, ensuring data privacy compliance, implementing sound data governance practices, and strengthening data protection measures to enhance trust and reliability. Effective collaboration between regulatory bodies, organizations, and stakeholders is essential to implement and enforce the DPDPA successfully.
DPDPA 2023 represents a significant milestone in India’s journey towards safeguarding data protection and privacy rights. While the DPDPA introduces valuable provisions such as the right to consent, penalties for data breaches, and regulatory oversight, its impact on strengthening the right to privacy under Article 21 of the Indian Constitution is a mixed bag. The DPDPA brings much-needed clarity and structure to the data protection landscape, setting the stage for more responsible data practices. It acknowledges the importance of data fiduciaries obtaining consent for processing personal data and lays the foundation for greater accountability.
However, several challenges and concerns must be addressed. Exemptions for government agencies and the lack of regulation on harm arising from data processing raise questions about proportionality and the preservation of privacy. The absence of key rights like data portability and the right to be forgotten limits individuals’ control over their data. To fully realize the potential of the DPDPA, effective implementation and enforcement, as well as continuous refinement of the law, are essential. It is imperative that future regulations and guidelines strike a balance between data protection and business interests, ensuring that individuals’ privacy rights are upheld while fostering innovation and growth.
The DPDPA, with its strengths and limitations, signifies India’s commitment to data protection and privacy. Its success will depend on how well it addresses these challenges and adapts to the evolving data landscape, ultimately determining its impact on strengthening the right to privacy in the digital age.