In 1890, Samuel D. Warren II and Louis D. Brandeis published an article in the Harvard Law Review positing the idea that individuals have a “right to privacy.” Their essay became a touchstone for countless twentieth-century legal rulings, including Griswold v. Connecticut (1965). In Griswold, a conviction under a statute on a charge of giving information and advice to married persons on contraceptive methods was held to be invalid. The Supreme Court of the United States adverted to the dictum that specific guarantees of the Bill of Rights have penumbras which create zones of privacy. The jurisprudence on privacy developed in Griswold, was later adopted by the Indian Supreme Court in Gobind v. State of Madhya Pradesh (1975) and Kharak Singh v State of Uttar Pradesh (1963).

While these decisions did not guarantee an explicit right to privacy, the minority opinion in Kharak Singh noted that, “It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.” Later, the Supreme Court in Justice K.S. Puttaswamy(Retd) vs Union Of India (2018), unanimously recognized that the Constitution guaranteed the right to privacy as an intrinsic part of the right to life and personal liberty under Article 21. The Court overruled Kharak Singh in so far as the express recognition of the right to privacy was concerned. These decisions did not dive into the interrelation of how privacy was connected with the philosophy of secularism.

The Warren-Brandeis philosophy of privacy was thoroughly secular, as it associated a person’s individuality — as opposed to religion — in a truly American fashion. Justine S. Murison outlines the trajectory of the origins of privacy and notes in Faith in Exposure: Privacy and Secularism in the Nineteenth-Century United States that, the understanding of privacy was thoroughly secular, as it associated a person’s true self not with religion or the soul but with a sacrosanct domesticity and a complex yet self-contained individuality. This theory was rooted in American secularism, which is based on the idea of separation of church and state, which in turn, is based on the principle that the government should be neutral towards all religions.

The idea of secularism is not static, but dynamic. From time to time, the jurisdictions and legal systems have awarded different meanings to secularism and its enforcement.

American and Indian secularism aim to manage the relationship between religion and state. They do so through different frameworks — American secularism generally promotes a non-involvement approach where religious expressions are kept out of governmental functions and the public officials often maintain a rhetoric that supports this separation, although personal beliefs may still influence political decisions. The French model of secularism (Laïcité) is embedded in their constitution and is a separation of civil society from religious affairs, both functioning independently with no interference. Laïcité believes in not displaying any religious characteristics in its political sphere. Similarly, secularism is ingrained in the Indian Constitution. The idea of Indian secularism allows for a more integrated approach where the state can engage with religious groups to promote social welfare and peace, this includes financial support for certain religious institutions and laws that accommodate personal laws based on religious practices.

European Union’s General Data Protection Regulation (GDPR) and the United States Privacy Act of 1974; define ‘sensitive personal data’ and impose stricter requirements on the collection and processing of sensitive data. Data protection regimes based on the French and American ideas of secularism do not address the social problems of a developing nation like India and fail to capture the sociological lens of a diverse nation with its own set of biases. We apply the same principles in our data regime through the Digital Personal Data Protection Act (DPDP Act) of 2023 and the Information Technology Act (IT Act) of 2000.

The Indian Constitution has always strived to protect the interests of minority groups — religious and otherwise — and acknowledged that vulnerable categories of people need protection. However, to protect the interests of vulnerable groups, their data collection and processing ought to be categorized in a way that is different from the GDPR. Using this data in an ethical manner pushes the interests of vulnerable groups and helps agencies identify their needs.

For instance, if a scholarship is instituted in an institution for students from a particular caste/religious/sexual minority group, it helps if the institute has access to the data with information collected from them, as opposed to categorizing it in a restricted format. The framework from the West believes in retaining this information in a restricted format.

However, this is on the assumption that the intent of the data collection and processing is benevolent. Needless to say, any data collection or profiling, which results in systematic biases, religious or community profiling, will be contrary to the constitutional scheme of Indian law.

The Digital Personal Data Protection Act, 2023 is a progressive law passed by the Indian Parliament, however, we will have to watch out against digital ecosystems becoming tools of marginalisation, undermining the constitutional guarantees of justice, equality, liberty and fraternity. Courts, when the time comes, must ensure and uphold India’s secular constitutional promise and prevent exclusion and bias in digital governance.

While the origins of ‘privacy’ — which is the core basis of ‘data protection’ — are borrowed from the American Constitution, it is important to evaluate their origins. For Americans, their idea of ‘privacy’ is viewed through the context of American secularism rooted in ‘individuality’. The same does not stand for Indian secularism which focuses on an approach rooted in ‘unity in diversity’. As India witnesses a development in the area of technology and data protection, viewing the origins of these concepts is paramount from the perspective of retaining the Indian Constitutional ideals of secularism that promises; justice, equality, liberty and fraternity.

The Supreme Court has time and again reaffirmed, most recently in Dr Balram Singh v. Union of India, that secularism forms a part of the basic structure of the Constitution. The promise of secularism should ensure that it is perpetuated through data protection and that data protection, in its origin and evolution, should be true to secularism. Courts should be conscious in preventing data protection from becoming a tool of discrimination and exploitation. With this caveat, we stay hopeful.

This article was originally published in Outlook on 4 February 2025 Co-written by: Varun Pathak, Partner; Vishwajeet Deshmukh, Associate. Click here for original article

Read Less-