THE PERSONAL DATA PROTECTION BILL, 2019

THE PERSONAL DATA PROTECTION BILL, 2019

Recently, the Personal Data Protection Bill, 2019 was introduced in Lok Sabha.

The need for Data Protection Bill

Protection of privacy:

  • India has more than 62 crore internet users, whose personal data is shared online. With supreme Court declaring Right to Privacy a Fundamental right (K.S. Puttaswamy case) protecting individual privacy is constitutional duty of the state.

Check snooping or surveillance by various agencies:

  • Recently, 121 Indian citizens’ WhatsApp accounts were hacked by an Israeli software called Pegasus. The Facebook–Cambridge Analytica data scandal of 2018 where personal data of millions of peoples’ Facebook profiles without their consent was used for political advertising purposes.

Economic losses:

  • The average cost of data breach in India is Rs 12.8 crore, with per capita cost per lost or stolen record reaching Rs 5,019 in 2018, as per a study by IBM; Moreover, data is being considered as new oil in 21st century. Without proper data regulations or data localisation norms, Global firms like Google, Face book are benefitting from data collected from Indians.
  • Increasing sophistication of cyber-crimes: The root cause for 51 per cent of data breaches was malicious or criminal attacks, in India as per IBM study.

Key features of the Personal Data Protection Bill

Personal data (data that can identify an individual):

The bill talks about various types of personal data, such as:

    • Sensitive personal data (related to finances, health, official identifiers, sex life, sexual orientation, bio-metric, genetics, transgender status, intersex status, caste or tribe, religious or political belief or affiliation)
    • Critical personal data (military or national security data and the government can define it from time to time)
    • General personal data- other than sensitive and critical personal data.

Applicability of the Data Protection Bill

  • The Bill governs the processing of personal data by, Government, companies incorporated in India and foreign companies dealing with personal data of individuals in India.
  • Obligations of data fiduciary (an entity or individual who collects and decides the means and purpose of processing personal data):
    • Personal data can be processed only for specific, clear and lawful purpose.
    • All data fiduciaries must undertake certain transparency and accountability measures such as:
      • implementing security safeguards (such as data encryption and preventing misuse of data)
      • instituting grievance redressal mechanisms to address complaints of individuals.
  • Rights of the data principal (the individual whose data is being collected and processed): These include the right to:
    • obtain confirmation from the fiduciary on whether their personal data has been processed
    • restrict continuing disclosure of their personal data by a fiduciary, if it is no longer necessary or consent is withdrawn. It also includes the right to be forgotten which will allow users to erase their personal data published online and give them the freedom to ask entities such as Facebook and Twitter to delete any data they do not want in the public domain.
  • Grounds for processing personal data: The Bill allows processing of data by fiduciaries only if consent is provided by the individual. However, in certain circumstances, personal data can be processed without consent. These include:
    • if required by the State for providing benefits to the individual
    • legal proceedings
    • to respond to a medical emergency

Social media intermediaries:

  • Platforms with larger number of users and having potential to impact electoral democracy or public order, have certain obligations, which include providing a voluntary user verification mechanism for users in India. According to official sources, while the process can be voluntary for users and can be completely designed by the company, it will decrease the anonymity of users and “prevent trolling”.

Data Protection Authority:

  • The Bill sets up a Data Protection Authority which may, take steps to protect interests of individuals, prevent misuse of personal data, ensure compliance with the Bill.

Transfer of data outside India:

  • Sensitive personal data may be transferred outside India for processing if explicitly consented to by the individual and subject to certain additional conditions. However, such sensitive personal data should continue to be stored in India. Critical personal data can only be processed in India. Personal data other than sensitive and critical personal data don’t have such localisation mandates.

Exemptions:

  • The central government can exempt any of its agencies from the provisions of the Act, in interest of security of state, public order, sovereignty and integrity of India and friendly relations with foreign states, for preventing incitement to commission of any cognizable offence (i.e. arrest without warrant) relating to the above matters.
  • Processing of personal data is also exempted from provisions of the Bill for certain other purposes such as, prevention, investigation, or prosecution of any offence, personal, domestic, journalistic purposes
  • Sharing of non-personal data with government: The central government may direct data fiduciaries to provide it with any, non-personal data, anonymised personal data (where it is not possible to identify data principal) for better targeting of services.

Criticisms of the bill

  • There are significant departures in the current bill from the draft Bill prepared by the Justice B N Srikrishna committee in 2018.
  • Data Protection Authority’s composition is dominated by the government, as contrasted with the diverse and independent composition as suggested in the committee’s draft.
    • There is a blanket power of exemption from all provisions of the law (including access to personal data without consent, citing national security, investigation and prosecution of any offence, public order) in favour of a government agency. This could amount to surveillance.
  • A report from the IT Ministry’s Artificial Intelligence (AI) Committee contradicts foundational aspects of the Bill, as it suggests:
    • India should maintain free flow of data stating that India has been one of the biggest beneficiaries of the global data flows. Limitations on the free and open flow of data can seriously hinder the ability of economy to remain competitive.
    • Focus should be placed on implementation and enforcement instead of over-regulation. Sectoral entities are more appropriate regulators than an overarching authority.
    • Legislation alone is not enough unless supported by an adequate implementation ecosystem including an effective grievance redressal system and user awareness.
      • E.g. security and government access are not achieved by mere localisation, as the encryption keys may still be out of reach of national agencies.

Conclusion
Considering the data privacy as the fundamental right of a citizen and economic downturns of the potential breaches in data, government need to reconsider all the above pending issues. A robust Personal data protection law is the need of the hour. Due importance needs to be given on public awareness, better implementation and regulation and efficient grievance redressal as well.

DOCTRINE OF POLITICAL NEUTRALITY

DOCTRINE OF POLITICAL NEUTRALITY

Why in news?

In recent times, constitutional offices have come under the scanner of Supreme Court (SC) on the grounds of Doctrine of Political neutrality.

POLITICAL NEUTRALITY

Learning from Mahatma Gandhi

Background

Through its various judgement, Supreme Court has highlighted the need for authorities like Speaker and Governor to be faithful to doctrine of neutrality and not vacillate under “prevailing political pressures” and thus maintaining Political Neutrality.

 

Understanding Doctrine of Political Neutrality

  • It is a bedrock of a constitutional democracy. Neutrality is about being ‘a third’ vis-à-vis a conflict between others.
  • The claim of neutrality is a claim addressed to the belligerent parties to show respect for the choice of the neutral and not to become involved in their conflict.

 

Significance of Neutrality Doctrine in case of Constitutional offices

Upholding constitutional trust:

  • A constitution vests the trust in the office of Speaker, Governor, EC etc. which needs to ensure their neutrality in their actions.
    • Ensuring political fairness: The exercise of the wide constitutional powers by the constitutional office such as Governor’s, speaker’s, CAG’s and Election Commission’s is supposed to be in line with the “sacred” conventions of political neutrality and fairness. o However, we see erosion of such conventions in case of Uttarakhand and Arunachal Pradesh, the Speakers in both assemblies had helped ruling parties keep their flocks together by using their powers to disqualify MLAs under the Tenth Schedule.
    • Upholding federalism: In India, the balance of power is tilted towards the Union. The importance of the constitutional posts such as Governor’s arises from, he being the crucial link within this federal structure in maintaining effective communication between the Centre and a State.
    • For continuity in governance and keeping a check on the executives: Constitutional posts such of Speakers and Governors, acting independently of each other or in concert, can navigate the destiny of State governments. As a figurehead who ensures the continuance of governance in the State, even in times of constitutional crises, Governor’s role is often that of a neutral arbiter in disputes settled informally within the various strata of government, and as the conscience keeper of the community.

For a fair system of election and thus strengthening democracy:

  • Elections are pivotal to the quality of a country’s governance and can either greatly advance or set back a country’s long-term democratic development. Therefore here EC’s neutrality is of utmost significance and value.

To maintain the health of the economy:

  • The independence, powers and responsibilities of the constitutional offices like CAG’s place high ethical demands on the auditor and the staff he employs or engages for auditing and accounting work. The general standards for the CAG include independence from the legislature and from the executive so that any economic misconduct by the government or siphoning of the public exchequer can be pointed out.

Conclusion

The principle of political neutrality, which requires the state to remain neutral on disputed questions is an extension of traditional liberal principles of toleration and independence of opinion. Thus, political neutrality casts duties not only on constitutional offices but also on government of the day. The political leaders must protect independent constitutional offices from political interference and must not involve them in political activities or debates.

REFORMS IN CRIMINAL LAWS

REFORMS IN CRIMINAL LAWS

Why in news?

Recently, the Union Ministry asked all state governments to send their suggestions for Reforms in Criminal Laws as a major overhaul and recasting of the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), thus paving way for reforming criminal justice system of India.

REFORMS IN CRIMINAL LAWS

REFORMS IN CRIMINAL LAWS

More about news

  • Bureau of Police Research and Development (BPRD) will undertake review of the laws such as IPC, CrPC, Indian Evidence Act and Narcotic Drugs and Psychotropic Substances Act.
    • BPRD under Ministry of Home Affairs was set up in 1970 in furtherance of the objective of the Government for the modernisation of police forces.

Need for reforms in Criminal laws (IPC and CrPC)

  • To make the laws more moral and ethical:
  • Some penal code offences need to be dropped
  • to make the code consistent with the new
  • ideals of constitutional morality, viz. the narrowest possible definitions of crimes, presumption of innocence etc.
  • To give a fair share to individual: In a criminal justice system, since an accused as an individual is pitted against the might of the state, criminal law must ensure that the state does not take undue advantage of its position as prosecutor.
    • To get rid of obsolete and archaic provisions: Criminal and penal codes need substantial changes to fit into the liberty model and its obsolete provisions must go. IPC was intended to be regularly revised by legislative amendment. This did not happen, as a result the courts had to undertake this task upon themselves. The result was not very satisfactory as most amendments have been ad hoc and merely reactive.
    • To remove ambiguity and vagueness: For instance, the distinction between ‘culpable homicide’ and ‘murder’ is criticised as the ‘weakest part of the code’ as definitions are obscure. ‘Culpable homicide’ is defined, but ‘homicide’ is not defined at all.

Way Ahead for Reforms in Criminal Laws

Any revision of the IPC, therefore, needs to be done while keeping several principles in mind. Such as:

  • Reforms must be introduced to uphold democratic values, and human rights must be given a high priority. Victimological underpinnings ought to be given a major thrust in reforming laws to identify the rights of crime victims.
  • Construction of new offences and reworking of the existing classification of offences must be informed by the principles of criminal jurisprudence which have substantially altered in the past four decades.
  • New types of punishments like community service orders, restitution orders, and other aspects of restorative and reformative justice could also be brought in this fold.
  • Classification of offences must be done in a manner conducive to management of crimes in the future.
  • Unprincipled criminalisation must be avoided to save the state from dealing with too many entrants into the criminal justice system.
  • On the procedural side, sentencing reforms are highly imperative. Principled sentencing is needed as judges at present have the discretion to decide the quantum and nature of sentence to be imposed.

Criminal justice is in a state of policy ambiguity therefore there is a need to draft a clear policy that should inform the changes to be envisaged in the IPC or CrPC.

About IPC and CrPC

  • IPC determines the definition of crime, while the CRPC informs about the criminal investigations process
  • Indian Penal Code: It is the official criminal code of India. It is a comprehensive code which covers all substantive aspects of criminal law. The then British Legislature drafted the Code in 1860 on the recommendations of first law commission of India established under Lord Macaulay. Legislature has amended the Code has several times and is now supplemented by other criminal provisions.
    • Ex: Section 377(Unnatural offences), Repealed Section 309(Suicide), Section 497(Adultery), now repealed
  • CrPC: It is the main legislation on procedure for administration of substantive criminal law in India. Legislature enacted it in 1973, though initially created in 1882. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty.

RESERVATIONS IN PROMOTIONS

RESERVATIONS IN PROMOTIONS

Why in News?

The Central Government has demanded for a review of 2018 Supreme Court Verdict in Jarnail Singh vs Lachhmi Gupta Case, related to reservations in promotions for SC/ST about creamy layer in Promotions.

RESERVATIONS IN PROMOTIONS

Waiting for the verdict | Reservations in promotions for SC/ST

Background

Nagaraj vs Union of India Case (2006)

The Supreme Court upheld the constitutional validity of reservations for SCs and STs to include promotions with three conditions:

  1. Quantifiable data on the backwardness of Scheduled Castes (SC) and Scheduled Tribes (ST)
  2. The facts about their inadequate representation
  3. The overall administrative efficiency

What is Creamy Layer

  • The concept has its genesis in the Indira Sawhney Case (1992). Supreme Court asked the Government to define the criteria by fixation of income, property or status.
  • Currently creamy layer criteria is applicable to Other backward classes (OBCs) in reservation.
  • At present, Group A and Group B officers of both Central and State Government, Employees of Armed Forces and PSUs along with people earning more than 8 lakh per annum come under the purview of Creamy layer.

Center’s Contention about reservations in promotions for SC/ST:

The Center approached supreme Court that the verdict in the M Nagraj case put unnecessary conditions in granting quota benefits, as it affects the reservations in promotions for SC/ST.  Thus, In Jarnail Singh vs Lachhmi Gupta Case (2018) Supreme Court allowed for grant of quota for promotions in the government jobs to SCs and STs without the need to “collect quantifiable data”. The court also asked the government to examine the possibility of introducing creamy layer for Scheduled Castes (SCs) and Scheduled Tribes (STs) by saying that if some sections bag all the coveted jobs, it will leave the rest of the class as backward as they always were.

  • It declined the demand to refer the case to a 7 judge bench to reconsider its 2006 Nagaraj judgement.
  • Now, the union government has urged the court to reconsider the ruling and refer the issue to a seven-judge Bench.

Arguments for applying the Creamy Layer concept to SCs/STs

  • Improved income and status: The creamy layer within the SCs and STs has improved socio-economic mobility and by that virtue does not face discrimination of similar intensity.
  • Article 335: It states that Affirmative action should be subject to the overall efficiency of Public Administration. Reservation in promotions may affect the merit-based culture of the organization.
  • Prioritizing most marginalized: Supreme Court in Jarnail Singh Case Judgement noted that the benefits, by and large are snatched away by the top creamy layer of the backward caste or class, keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.

Arguments for not applying the Creamy Layer concept to SCs/STs

  • Discrimination within service: It is argued that there is widespread discrimination within services. For example, there are about 12,000 cases lying with the SC/ST Commission, complaining about discrimination in service.
  • Not Anti-poverty programme: Reservation for Dalits is not to undo economic backwardness but as a remedy for societal discrimination based on untouchability. Thus, it may not possess a direct correlation with economic status.
  • Difference between OBCs and SCs: OBCs don’t face the kind and extent of discrimination faced by SCs. Generally, if OBCs manage to cross a certain economic threshold, the extent of social discrimination reduces substantially.

Way Forward

  • Consultative Approach: Reservation is a very sensitive topic, thus any decision on it should be in consultation with all the stakeholders.
  • Strengthening Other tools: like encouraging Dalit Entrepreneurship, providing loans (E.g. Stand-up India Scheme), Increasing awareness etc. can also indirectly improve the Socio-Economic mobility of Dalits.

 

Gujarat Control of Terrorism and Organised Crime (GCTOC) Act, 2019

Gujarat Control of Terrorism and Organised Crime (GCTOC) Act, 2019

On November 5, 2019 President Ram Nath Kovind given his assent. It was on 25th September, the NDA government cleared the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, 2015 and sent it to President Pranab Mukherjee for his assent.

Contents

  • Background
  • Salient Features
  • Why this bill needs President’s assent?
  • Gujarat Government’s View
  • Is this law different from existing anti terror laws?
  • Why there is controversy?
  • Are states competent to make laws on National Security?

Background

The bill was initially introduced in 2003 in the Gujarat Assembly when Narendra Modi was chief minister of Gujarat. It was returned back earlier twice in 2004 and 2008 by then Presidents A.P.J. Abdul Kalam and Pratibha Patil.

The Then President Dr.A.P.J. Abdul Kalam didn’t Give His Assent Because Of Few Controversial Points Which Are Listed Below.

  1. Delete Clause 16 – Clause 16 relates to the confession made before a police officer being admissible in court
  2. Substitute the word “may” for “shall” after the words Special Court occurring in clause 20(2) and bring the proviso in line with the proviso to Section 43 D (2) of the Unlawful Activities (Prevention) Act(Amendment), 2008, – Clause 20 (2) deals with the extension of the detention period
  3. Amend Clause 20(4) to bring it in conformity with Section 43 D (5) of the UAP (Amendment) Act – Clause 20 (4) deals with the powers of the court to grant bail.

Salient Features

  • Section 3 of this bill talks about various punishments for organized crime and terrorist activities. The punishment for any terrorist activity which may result into death of any person is death or life imprisonment; and a fine of Rs. 10 Lakh. The act provides varying amounts of punishments for persons related to any organized crime syndicate.
  • The bill makes provisions for attachment and forfeiture of property of a member of organized crime syndicate under Section 4.
  • It establishes special courts for trial of the terrorists under Section 5.
  • Section 14 of this bill says that evidence collected through the interception of wire, electronic or oral communication under the provisions of any other law shall be admissible as evidence against the accused in the Court.
  • Section 15 says that if the accused has any unaccounted property, it will be deemed to be or derived by his illegal activities. Further, if the accused has abducted any person, it will be deemed to be for ransom.
  • Section 16 of this bill is most controversial. This section makes confessions before police officers admissible in court as evidence against the accused.
  • Section 18 says that any movable and immovable property related to organized crime or terrorism is subject to forfeiture.
  • The bill provides immunity to the Police officers from legal action done in “good faith”. This provision appears to be draconian.
  • There is no bail and it extends the probe period from 90 days to 180 days.

Why this bill needed President’s assent?

  • Governor can reserve any bill (other than money bill) passed by assembly of a state for presidential assent on his discretion. Since this legislation has provisions overlapping with existent national laws such as Indian Evidence Act; the state needs president’s assent for such bill to become an act.

Gujarat Government’s View

  • This bill is drafted on the lines of Maharashtra Control of Organised Crime Act (MCOCA), 1999. The state government brought the bill over concerns regarding the organized criminal syndicates operating in the states whose activities may perpetuate in macro-terrorism.

Is this law different from existing anti-terror laws?

  • Not substantially. We have Maharashtra Control of Organized Crime Act (MCOCA) in place which had faced similar protests. Further, central acts UAPA (Unlawful Activities (Prevention) Act) 1967 and POTA (Prevention of Terrorism Act)  2002 in place to counter terrorism and organized crime in the country. Under GCTOC, the evidence collected through interception is admissible in court whether of wire, electronic or oral communication. The state government can seek permission for interception 10 days before trial. The MCOCA act has similar provisions though, the permission process is little difficult. In UAPA, the interception provisions and process are same as GCTOC.

Why there is controversy?

  • Any such stringent law faces opposition on account of human rights and fundamental rights. Those who oppose this bill say that it has draconian provisions which can be used suppress dissent. Since there is no bail and person can be detained for 180 days on the basis of phone records, this bill is susceptible to misuse by the government. If investigation recovers arm or explosives from accused or even his fingerprints from the site of incident court may draw adverse inference, unless proven otherwise.

Are states competent to make laws on National Security?

  • It has been argued that the Gujarat state assembly is not competent enough to make such a law on national security, which comes under purview of the union government. The Gujarat assembly has passed the bill backing it with the argument that “Public law and order” is a state subject. We note here that Article 245 and 246 of the Constitution along with seventh schedule demarcate the law making power of union and states. In the seventh schedule, it doesn’t expressly mention “terrorism” , however, Parliament has powers to make laws related to defense of the country. Also, the Union parliament has residual powers to make laws on matters not listed anywhere in seventh schedule. On the other hand, the state legislatures have exclusive powers to make laws on “public order”. Further, “criminal law” and “criminal procedure.” are concurrent subjects on which both union and states have power to make laws.

The arguments of those who oppose this act is that the state governments have power to make laws on public order so long it does not relate to national security; while the parliament should deal with the national security issues so long as it does not impinge on public order issues that have nothing to do with national security. We note here that the MCOCA act deals with the organized crime and not terrorism exclusively; and on this ground, Supreme Court held it constitutionally valid when challenged.

Conversely, the GCTOC defines terrorism as an “act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the State …..”

Thus, this particular clause may come in future under Supreme Court scrutiny and may be strike it down as unconstitutional.