When The State Becomes The Exception: Executive Power And Constitutional Privacy Under DPDP Act,2023
Aswathy S Nair, B.A. LL.B., The Kerala Law Academy Law College, Thiruvananthapuram
Harsha M, B.Com. LL.B., The Kerala Law Academy Law College, Thiruvananthapuram
ABSTRACT
Executive exemption and information calling power under the DPDP Act has the effect of placing the State outside the very obligation it creates for others. The paper tries to examine whether these powers given to the Central Government are sufficiently safeguarded to satisfy the constitutional standard that governs any interference with right to privacy. For that the present statutory framework and its evolution across earlier drafts of data protection legislation, along with DPDP rules is examined. The paper also evaluates the framework focusing on the rule making power given to the Central Government, the grounds on which State instrumentalities may be exempted, and the manner in which information may be called for from data fiduciaries and intermediaries. The recognition of privacy as fundamental right has developed through years of judicial interpretation, moving from denial of any standalone right to eventual acceptance of it as important aspect of personal liberty, along with a structured method for testing whether State interference with such right is justified. The study concludes by analysing whether the exemption power and the information calling power meet this standard of sufficient safeguard, and finds that both presently fall short, this being now a matter of ongoing constitutional litigation
Keywords: Digital Personal Data, Executive discretion, Proportionality, State exemption
