The Constitutional Duty to Forget: Indefinite State Retention of Personal Data After Puttaswamy, NATGRID, and the Personal Data Protection Act, 2023

The acknowledgement of informational privacy by the Supreme Court in Justice K.S. Puttaswamy (Retd.). v. Union of India suggests the positive duty of being able to forget personal information implicitly after the initial purpose of such information is satisfied. However, the Central Identities Data Repository (Aadhaar), CCTNS, NATGRID and the Central Monitoring System will have an indefinite storage of non-conviction data. As shown in this paper, indefinite retention habitually violates the fourth element of the Puttaswamy proportionality test (balancing), and constitutes an insult to human dignity and fraternity, two fundamental elements of the Constitution. Having critically looked at the non recognition of absolute right to be forgotten by the Supreme Court in the case of Katharick Theodore v. State of Tamil Nadu , the paper suggests a constitutionally and administratively practical three-tier model consisting of the following: (i) graded statutory sunset clauses (3-10 years) based on the sensitivity of the data; (ii) an annual bulk-review on by a Data Protection (National Security) Board supervised by the High Court; and (iii) on individual right of memory challenge post-sunset period expiry, which will be subject to reversed onus as proposed by the paper: State of Tamil Nadu (2024) 14 SCC 337, Based on the deletion procedures that have been effectively applied in South Africa and Israel, the framework not only attends to the sincere security considerations, but it also does not compromise on the Indian constitutional principles and administrative abilities.