Community Data and Decisional Autonomy: Dissecting an Indian Legal Innovation for Emerging Economies

Key Takeaways

• Concerned with the power asymmetries between big tech companies and Indian citizens in terms of data sharing and processing practices, the Indian government has put in place a number of policies seeking to unlock the developmental potential of data for Indian citizens.

• While several policy instruments are still works in progress, and need improvement to be in line with India’s constitutional framework, international human rights law, and economic welfare, they have advanced some important conceptual innovations. One such innovation is “community data,” which attempts to delineate the rights and interests a community would have in its data.

• However, the existing framework does not satisfactorily define community, and does not sufficiently balance the privacy and decisional autonomy of individuals with the interests of the community and the nation in economic and social empowerment.

• The gap can be addressed by looking at Indian jurisprudence on privacy and decisional autonomy, and analysing how existing case law (T Sareetha and Venkat Subbaiah and KS Puttaswamy I v Union of India)can be applied to the digital era. As Europe grapples with debates“technological sovereignty,” the framing of community data in line with Indian privacy jurisprudence may be valuable.

Policy Recommendation 1:

By studying unique Indian case law on privacy that deals with the question of individual and group rights, we find that decisional autonomy is the fulcrum of privacy jurisprudence, and thus should be the edifice for any policy framework. In a case of conflict between individual and group rights, individual rights must prevail.

Policy Recommendation 2:

Providing communities with adequate rights and interests while also prioritising individual rights is very much in line with human rights principles espoused by Europe, and endorsed in the GDPR, and Europe should consider how an improved version of India’s community data approach may be used to further its digital sovereignty vision without compromising on European human rights ethos.

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Acknowledgments

We are indebted to Pooja Saxena for thoroughly editing, reviewing and greatly improving the piece. We would also like to thank Agnidipto Tarafder, Katharina Naumann, and the anonymous peer-reviewer for insights. All errors remain our own.

This case study is part of an edited volume of case studies ‘Digital Asia: highlighting digitization trends in Asia’ co-published by Konrad-Adenauer-Stiftung Regional Programme Political Dialogue, Singapore, and Digital Asia Hub.