Centre for Internet and Society

Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation

bhairav — 2015-08-23T10:09:06Z

For more details visit https://cis-india.org/internet-governance/blog/free-speech-policy-in-india.pdf

Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation

bhairav — 2015-08-23T10:12:16Z

This note summarises my panel contribution to the conference on Freedom of Expression in a Digital Age at New Delhi on 21 April 2015, which was organised by the Observer Research Foundation (ORF) and the Centre for Internet and Society (CIS) in collaboration with the Internet Policy Observatory of the Center for Global Communication Studies (CGCS) at the Annenberg School for Communication, University of Pennsylvania

Download the Note here (PDF, 103 Kb)

Preliminary

There has been legitimate happiness among many in India at the Supreme Court’s recent decision in the Shreya Singhal case to strike down section 66A of the Information Technology Act, 2000 ("IT Act") for unconstitutionally fettering the right to free speech on the Internet. The judgment is indeed welcome, and reaffirms the Supreme Court’s proud record of defending the freedom of speech, although it declined to interfere with the government’s stringent powers of website blocking. As the dust settles there are reports the government is re-grouping to introduce fresh law, allegedly stronger to secure easier convictions, to compensate the government’s defeat.

Case Law and Government Policy

India’s constitutional courts have a varied history of negotiating the freedom of speech that justifiably demands study. But, in my opinion, inadequate attention is directed to the government’s history of free speech policy. It is possible to discern from the government’s actions over the last two centuries a relatively consistent narrative of governance that seeks to bend the individual’s right to speech to its will. The defining characteristics of this narrative – the government’s free speech policy – emerge from a study of executive and legislative decisions chiefly in relation to the press, that continue to shape policy regarding the freedom of expression on the Internet.

India’s corpus of free speech case law is not uniform nor can it be since, for instance, the foundational issues that attend hate speech are quite different from those that inform contempt of court. So too, Indian free speech policy has been varied, captive to political compulsions and disparate views regarding the interests of the community, governance and nation-building. There has been consistent tension between the individual and the community, as well as the role of the government in enforcing the expectations of the community when thwarted by law.

Dichotomy between Modern and Native Law

To understand free speech policy, it is useful to go back to the early colonial period in India, when Governor-General Warren Hastings established a system of courts in Bengal’s hinterland to begin the long process of displacing traditional law to create a modern legal system. By most accounts, pre-modern Indian law was not prescriptive, Austinian, and uniform. Instead, there were several legal systems and a variety of competing and complementary legal sources that supported different interpretations of law within most legal systems. J. Duncan M. Derrett notes that the colonial expropriation of Indian law was marked by a significant tension caused by the repeatedly-stated objective of preserving some fields of native law to create a dichotomous legal structure. These efforts were assisted by orientalist jurists such as Henry Thomas Colebrook whose interpretation of the dharmasastras heralded a new stage in the evolution of Hindu law.

In this background, it is not surprising that Elijah Impey, a close associate of Hastings, simultaneously served as the first Chief Justice of the Supreme Court at Fort William while overseeing the Sadr Diwani Adalat, a civil court applying Anglo-Hindu law for Hindus, and the Sadr Faujdari Adalat, a criminal court applying Anglo-Islamic law to all natives. By the mid-nineteenth century, this dual system came under strain in the face of increasing colonial pressure to rationalise the legal system to ensure more effective governance, and native protest at the perceived insensitivity of the colonial government to local customs.

Criminal Law and Free Speech in the Colony

In 1837, Thomas Macaulay wrote the first draft of a new comprehensive criminal law to replace indigenous law and custom with statutory modern law. When it was enacted as the Indian Penal Code in 1860 ("IPC"), it represented the apogee of the new colonial effort to recreate the common law in India. The IPC’s enactment coincided with the growth and spread of both the press and popular protest in India. The statute contained the entire gamut of public-order and community-interest crimes to punish unlawful assembly, rioting, affray, wanton provocation, public nuisance, obscenity, defiling a place of worship, disturbing a religious assembly, wounding religious feelings, and so on. It also criminalised private offences such as causing insult, annoyance, and intimidation. These crimes continue to be invoked in India today to silence individual opinion and free speech, including on the Internet. Section 66A of the IT Act utilised a very similar vocabulary of censorship.

Interestingly, Macaulay’s IPC did not feature the common law offences of sedition and blasphemy or the peculiar Indian crime of promoting inter-community enmity; these were added later. Sedition was criminalised by section 124A at the insistence of Barnes Peacock and applied successfully against Indian nationalist leaders including Bal Gangadhar Tilak in 1897 and 1909, and Mohandas Gandhi in 1922. In 1898, the IPC was amended again to incorporate section 153A to criminalise the promotion of enmity between different communities by words or deeds. And, in 1927, a more controversial amendment inserted section 295A into the IPC to criminalise blasphemy. All three offences have been recently used in India against writers, bloggers, professors, and ordinary citizens.

Loss of the Right to Offend

The two amendments of 1898 and 1927, which together proscribed the promotion of inter-community enmity and blasphemy, represent the dismantling of the right to offend in India. But, oddly, they were defended by the colonial government in the interests of native sensibilities. The proceedings of the Imperial Legislative Council reveal several members, including Indians, were enthusiastic about the amendments. For some, the amendments were a necessary corrective action to protect community honour from subversive speech. The 1920s were a period of foment in India as the freedom movement intensified and communal tension mounted. In this environment, it was easy to fuse the colonial interest in strong administration with a nationalist narrative that demanded the retrieval of Indian custom to protect native sensibilities from being offended by individual free speech, a right derived from modern European law. No authoritative jurist could be summoned to prove or refute the claim that native custom privileged community honour.

Sadly the specific incident which galvanised the amendment of 1927, which established the crime of blasphemy in India, would not appear unfamiliar to a contemporary observer. Mahashay Rajpal, an Arya Samaj activist, published an offensive pamphlet of the Prophet Muhammad titled Rangeela Rasool, for which he was arrested and tried but acquitted in the absence of specific blasphemy provisions. With his speech being found legal, Rajpal was released and given police protection but Ilam Din, a Muslim youth, stabbed him to death. Instead of supporting its criminal law and strengthening its police forces to implement the decisions of its courts, the colonial administration surrendered to the threat of public disorder and enacted section 295A of the IPC.

Protest and Community Honour

The amendment of 1927 marks an important point of rupture in the history of Indian free speech. It demonstrated the government’s policy intention of overturning the courts to restrict the individual’s right to speech when faced with public protest. In this way, the combination of public disorder and the newly-created crimes of promoting inter-community enmity and blasphemy opened the way for the criminal justice system to be used as a tool by natives to settle their socio-cultural disputes. Both these crimes address group offence; they do not redress individual grievances. In so far as they are designed to endorse group honour, these crimes signify the community’s attempt to suborn modern law and individual rights.

Almost a century later, the Rangeela Rasool affair has become the depressing template for illegal censorship in India: fringe groups take offence at permissible speech, crowds are marshalled to articulate an imagined grievance, and the government capitulates to the threat of violence. This formula has become so entrenched that governance has grown reflexively suppressive, quick to silence speech even before the perpetrators of lumpen violence can receive affront. This is especially true of online speech, where censorship is driven by the additional anxiety brought by the difficulty of Internet regulation. In this race to be offended the government plays the parochial referee, acting to protect indigenous sensibilities from subversive but legal speech.

The Censorious Post-colony

Independence marked an opportunity to remake Indian governance in a freer image. The Constituent Assembly had resolved not to curb the freedom of speech in Article 19(1)(a) of the Constitution on account of public order. In two cases from opposite ends of the country where right-wing and left-wing speech were punished by local governments on public order grounds, the Supreme Court acted on the Constituent Assembly’s vision and struck down the laws in question. Free speech, it appeared, would survive administrative concerns, thanks to the guarantee of a new constitution and an independent judiciary. Instead Prime Minister Jawaharlal Nehru and his cabinet responded with the First Amendment in 1951, merely a year after the Constitution was enacted, to create three new grounds of censorship, including public order. In 1963, a year before he demitted office, the Sixteenth Amendment added an additional restriction.

Nehru did not stop at amending the Constitution, he followed shortly after with a concerted attempt to stage-manage the press by de-legitimising certain kinds of permissible speech.

Under Justice G. S. Rajadhyaksha, the government constituted the First Press Commission which attacked yellow journalism, seemingly a sincere concern, but included permissible albeit condemnable speech that was directed at communities, indecent or vulgar, and biased. Significantly, the Commission expected the press to only publish speech that conformed to the developmental and social objectives of the government. In other words, Nehru wanted the press to support his vision of India and used the imperative of nation-building to achieve this goal. So, the individual right to offend communities was taken away by law and policy, and speech that dissented from the government’s socio-economic and political agenda was discouraged by policy. Coupled with the new constitutional ground of censorship on account of public order, the career of free speech in independent India began uncertainly.

How to regulate permissible speech?

Despite the many restrictions imposed by law on free speech, Indian free speech policy has long been engaged with the question of how to regulate the permissible speech that survives constitutional scrutiny. This was significantly easier in colonial India. In 1799, Governor-General Richard Wellesley, the brother of the famous Duke of Wellington who defeated Napoleon at Waterloo, instituted a pre-censorship system to create what Rajeev Dhavan calls a “press by permission” marked by licensed publications, prior restraint, subsequent censorship, and harsh penalties. A new colonial regime for strict control over the publication of free speech was enacted in the form of the Press and Registration of Books Act, 1867, the preamble of which recognises that “the literature of a country is…an index of…the condition of [its] people”. The 1867 Act was diluted after independence but still remains alive in the form of the Registrar of Newspapers.

After surviving Indira Gandhi’s demand for a committed press and the depredations of her regime during the Emergency, India’s press underwent the examination of the Second Press Commission. This was appointed in 1978 under the chairmanship of Justice P. K. Goswami, a year after the Janata government released the famous White Paper on Misuse of Mass Media. When Gandhi returned to power, Justice Goswami resigned and the Commission was reconstituted under Justice K. K. Mathew. In 1982, the Commission’s report endorsed the earlier First Press Commission’s call for conformist speech, but went further by proposing the appointment of a press regulator invested with inspection powers; criminalising attacks on the government; re-interpreting defamation law to encompass democratic criticism of public servants; retaining stringent official secrecy law; and more. It was quickly acted upon by Rajiv Gandhi through his infamous Defamation Bill.

The contours of future Internet regulation

The juggernaut of Indian free speech policy has received temporary setbacks, mostly inflicted by the Supreme Court. Past experience shows us that governments with strong majorities – whether Jawaharlal Nehru’s following independence or Indira Gandhi’s in the 1970s – act on their administrative impulses to impede free speech by government policy. The Internet is a recent and uncontrollable medium of speech that attracts disproportionately heavy regulatory attention. Section 66A of the IT Act may be dead but several other provisions remain to harass and punish online free speech. Far from relaxing its grip on divergent opinions, the government appears poised for more incisive invasions of personal freedoms.

I do not believe the contours of future speech regulation on the Internet need to be guessed at, they can be derived from the last two centuries of India’s free speech policy. When section 66A is replaced – and it will be, whether overtly by fresh statutory provisions or stealthily by policy and non-justiciable committees and commissions – it will be through a regime that obeys the mandate of the First Press Commission to discourage dissenting and divergent speech while adopting the regulatory structures of the Second Press Commission to permit a limited inspector raj and forbid attacks on personalities. The interests of the community, howsoever improperly articulated, will seek precedence over individual freedoms and the accompanying threat of violence will give new meaning to Bhimrao Ambedkar’s warning of the “grammar of anarchy”.

For more details visit https://cis-india.org/internet-governance/blog/policy-in-india-community-custom-censorship-and-future-of-internet-regulation

Criminal Defamation and the Supreme Court’s Loss of Reputation

bhairav — 2016-06-03T03:05:14Z

The Supreme Court’s refusal, in Subramanian Swamy v. Union of India, to strike down the anachronistic colonial offence of criminal defamation is wrong. Criminalising defamation serves no legitimate public purpose; the vehicle of criminalisation – sections 499 and 500 of the Indian Penal Code, 1860 (IPC) – is unconstitutional; and the court’s reasoning is woolly at best.

The article was published in the Wire on May 14, 2016.

Politics and censorship

Two kinds of defamation actions have emerged to capture popular attention. First, political interests have adopted defamation law to settle scores and engage in performative posturing for their constituents. And, second, powerful entities such as large corporations have exploited weaknesses in defamation law to threaten, harass, and intimidate journalists and critics.

The former phenomenon is not new. Colonial India saw an explosion of litigation as traditional legal structures were swept away and native disputes successfully migrated to the colonial courts. These included politically-motivated defamation actions that had little to do with protecting reputations. In fact, defamation litigation has long become an extension of politics, in many cases a new front for political manoeuvring.

The latter type of defamation action is far more sinister. Powerful elites, both individuals and corporations, have cynically misused the law of defamation to silence criticism and chill the free press. By filing excessive and often unfounded complaints that are dispersed across the country, which threaten journalists with imprisonment, powerful elites frighten journalists into submission and vindictively hound those who refuse to back down. Such actions are called Strategic Lawsuits against Public Participation (SLAPPs) which Rajeev Dhavan warns have created a new system of censorship.

Petitions and politicians

Defamation originates from the concept of scandalum magnatum – the slander of great men – which protected the reputations of aristocrats. The crime was linked to sedition, so insulting a lord was akin to treason. In today’s neo-feudal India, political leaders are contemporary aristocrats. Investigating them can invite devastating consequences, even death. Most of the time, they retaliate through defamation law. Since the criminal justice system is most compromised at its base, where the police and magistrates directly interact with people, the misuse of criminal defamation law hurts ordinary citizens.

This is different from politicians prosecuting each other since they rarely, if ever, suffer punishment. Of all the petitions before the Supreme Court concerning the decriminalisation of defamation, the three that received the most news coverage were those of Subramanian Swamy, Rahul Gandhi, and Arvind Kejriwal. They are all politicians, their petitions were made in response to defamation complaints filed by rival politicians. On the other hand, there are numerous cases which politicians have filed against private members of civil society to silence them. When presented with these concerns, the Supreme Court simply failed to seriously engage with them.

The architecture of defamation

Defamation has many species, a convoluted history, and complex defences. Defamation can be committed by the spoken word, which is slander, or the written word, which is libel. The historical distinction between these two modes of defamation is based on the permanence of written words. Before the invention of the printing press, the law was chiefly concerned with slander. But as written ideas proliferated through mass publication technologies, libel came to be viewed as more malevolent and the law visited serious punishments on writers and publishers.

Such a distinction presumes a literate readership. In largely illiterate societies, the spoken word was more potent. This is why films and radio have long attracted censorship and state control in India. Before mass publishing forked defamation into libel and slander, there existed only the historical crime of libel. Historical libel had four species: seditious libel, blasphemous libel, obscene libel, and defamatory libel.

Seditious libel, which has been repealed in Britain, prospers in India as the offence of sedition which is criminalised by section 124A of the IPC. Blasphemous libel, repealed in Britain, fares well in India as the offence of blasphemy under section 295A of the IPC. Obscene libel, as the offence of obscenity, is criminalised by section 294 of the IPC. And defamatory libel, repealed in Britain, which is the offence of criminal defamation that the Subramanian Swamy case upheld, continues to exist under section 499 of the IPC.

Confusing harms

Of the many errors that litter the Supreme Court’s May 13, 2016 judgment in the Subramanian Swamy case, perhaps the most egregious is the failure to recognise the harm that criminal defamation poses to a healthy civil society in a free democracy. At the crux of this mistake is the Supreme Court’s failure to distinguish between private injury and social harm. Two people may, in their private capacities, litigate a civil suit to recover damages if one feels the other has injured her reputation. This private action of defamation was not in issue before the court.

On the other hand, by criminalising defamation, why should the state protect the reputations of individuals while expending public resources to do so? This goes to the concept of crime. When an action is serious enough to harm society it is criminalised. Rape strikes at the root of public safety, human dignity, equality, and peace, so it is a crime. A breach of contract only injures the party who was expecting the performance of contractual duties; it does not harm society, so it is not a crime. Similarly, a loss of reputation, which is by itself difficult to quantify, does no harm to society and so it should not be a crime.

Truth and the public good

It may be argued, and the Supreme Court hints, that at its fundament, society is premised on the need for truth; so lies should be penalised. This is where defamation law wanders into moral policing. In Indian and European philosophies, truth is consecrated as a moral good. The Supreme Court quotes from the Bhagavad Gita on the virtue of truth. But while quotes like these are undoubtedly meaningful, they have no utility in a constitutional challenge. In reality, society is composed of truth, lies, untruths, half-truths, rumour, satire, and a lot more. In fact, the more shades of opinion there are, the livelier that society is. So lies should not invite criminal liability.

If we concede the moral debate and arrive at a consensus that the law must privilege truth over lies, then truth alone should be a complete defence to defamation. If the law criminalises untruth, then it must sanctify truth. That means when tried for the crime of defamation, a journalist must be acquitted if her writing is true. But the law and the Supreme Court require more. In addition to proving the truth, the journalist must prove that her writing serves the public good. So speaking truth is illegal if it does not serve the public good.

In fact, truth has only recently been recognised as a defence to defamation, albeit not a complete defence. This belies the social foundations of criminal defamation law. The purpose of the offence is not to uphold truth, it is to protect the reputations of the powerful. But what is reputation? The Supreme Court spends 25 pages trying to answer this question with no success. Instead, the court declares that reputation is protected by the right to life guaranteed by Article 21 of the Indian Constitution but it offers no sound reasoning to support this claim. The court also fails to explain why the private civil action of defamation is insufficient to protect reputation.

The constitution and constitutionalism

There are two core constitutional questions posed by the Subramanian Swamy case. They are:

Does the crime of defamation fall within one of the nine grounds listed in Article 19(2) of the constitution; and
Are sections 499 and 500 of the IPC which criminalise and punish defamation reasonable restrictions on the right to free speech?

Article 19(2) contains nine grounds in the interests of which a law may reasonably restrict the right to free speech. Defamation is one of the nine grounds, but the provision is silent as to which type of defamation, civil or criminal, it considers. However, B.R. Ambedkar’s comments in the Constituent Assembly arguably indicate that criminal defamation was intended to be a ground to restrict free speech.

The answer to the second question lies in measuring the reasonableness of the restriction criminal defamation places on free speech. If the restriction is proportionate to the social harm caused by defamation, then it is reasonable. However, restating an earlier point, criminalising defamation serves no legitimate public purpose because society is unconcerned with the reputations of a few individuals. Even if society is concerned with private reputations, the private civil action of defamation is more than sufficient to protect private interests. Further, the danger that current criminal defamation law poses to India’s free speech environment is considerable. Dhavan says: “Defamation cases [are] a weapon by which the rich and powerful silence their critics and censor a democracy.”

The Subramanian Swamy case highlights several worrying trends in India’s constitutional jurisprudence. The judgment is delivered by one judge speaking for a bench of two. Such critically significant constitutional challenges cannot be left to the whims of two unelected and unaccountable men. Moreover, from its position as the guarantor of individual freedoms, the Supreme Court appears to be in retreat. This will have far-reaching and negative consequences for India’s citizenry. If the court fails to enhance individual freedoms, what is its constitutional role? The judiciary would do well to stay away from policy mundanities and focus on promoting India’s democratic project, lest it injure its own reputation.

For more details visit https://cis-india.org/internet-governance/blog/criminal-defamation-and-the-supreme-court2019s-loss-of-reputation

Concerns Regarding DNA Law

bhairav — 2013-10-29T10:09:26Z

Recently, a long government process to draft a law to permit the collection, processing, profiling, use and storage of human DNA is nearing conclusion. There are several concerns with this government effort. Below, we present broad-level issues to be kept in mind while dealing with DNA law.

Background

The Department of Biotechnology released, in 29 April 2012, a working draft of a proposed Human DNA Profiling Bill, 2012 ("DBT Bill") for public comments. The draft reveals an effort to (i) permit the collection of human blood, tissue and other samples for the purpose of creating DNA profiles, (ii) license private laboratories that create and store the profiles, (iii) store the DNA samples and profiles in various large databanks in a number of indices, and (iv) permit the use of the completed DNA profiles in scientific research and law enforcement. The regulation of human DNA profiling is of significant importance to the efficacy of law enforcement and the criminal justice system and correspondingly has a deep impact on the freedoms of ordinary citizens from profiling and monitoring. Below, we highlight five important concerns to bear in mind before drafting and implementing DNA legislation.

Primary Issues

Purpose of DNA Profiling

DNA profiling serves two broad purposes – (i) forensic – to establish unique identity of a person in the criminal justice system; and, (ii) research – to understand human genetics and its contribution to anthropology, biology and other sciences. These two purposes have very different approaches to DNA profiling and the issues and concerns attendant on them vary accordingly. Forensic DNA profiling is undertaken to afford either party in a criminal trial a better possibility of adducing corroborative evidence to prosecute, or to defend, an alleged offence. DNA, like fingerprints, is a biometric estimation of the individuality of a person. By itself, in the same manner that fingerprint evidence is only proof of the presence of a person at a particular place and not proof of the commission of a crime, DNA is merely corroborative evidence and cannot, on its own strength, result in a conviction or acquittal of an offence. Therefore, DNA and fingerprints, and the process by which they are collected and used as evidence, should be broadly similar.

Procedural Integrity

Forensic DNA profiling results from biological source material that is usually collected from crime scenes or forcibly from offenders and convicts. Biological source material found at a crime scene is very rarely non-contaminated and the procedure by which it is collected and its integrity ensured is of primary legislative importance. To avoid the danger of contaminated crime scene evidence being introduced in the criminal justice system to pervert the course of justice, it is crucial to ensure that DNA is collected only from intact human cells and not from compromised genetic material. Therefore, if the biological source material found at a crime scene does not contain at least one intact human cell, the whole of the biological source material should be destroyed to prevent the possibility of compromised genetic material being collected to yield inconclusive results. Adherence to this basic principle will obviate the possibility of partial matches of DNA profiles and the resulting controversy and confusion that ensues.

Conditions of Collection

In India, the taking of fingerprints is chiefly governed by the Identification of Prisoners Act, 1920 ("Prisoners Act") and section 73 of the Indian Evidence Act, 1872 ("Evidence Act"). The Prisoners Act permits the forcible taking of fingerprints from convicts and suspects in certain conditions. The Evidence Act, in addition, permits courts to require the taking of fingerprints for the forensic purpose of establishing unique identity in a criminal trial. No
provisions exist for consensual taking of fingerprints, presumably because of the danger of self-incrimination and general privacy concerns. Since, as discussed earlier, fingerprints and DNA are biometric measurements that should be treated equally to the extent possible, the conditions for the collection of DNA should be similar to those for the taking of fingerprints.Accordingly, there should be no legal provisions that enable other kinds of collection, including from volunteers and innocent people.

Retention of DNA

As a general rule applicable in India, the retention of biometric measurements must be supported by a clear purpose that is legitimate, judicially sanctioned and transparent. The Prisoners Act, which permits the forcible taking of fingerprints from convicts, also mandates the destruction of these fingerprints when the person is acquitted or discharged. The indefinite collection of biometric measurements of people is dangerous, susceptible to abuse and invasive of civil rights. Therefore, once lawfully collected from crime scenes and offenders, their DNA profiles must be retained in strictly controlled databases with highly restricted access for the forensic purpose of law enforcement only. DNA should not be held in databases that allow non-forensic use. Further, the indices within these databases should be watertight and exclusive of each other.

DNA Laboratories

The process by which DNA profiles are created from biological source material is of critical importance. Because of the evidentiary value of DNA profiles, the laboratories in which these profiles are created must be properly licensed, professionally managed and manned by competent and impartial personnel. Therefore, the process by which DNA laboratories are licensed and permitted to operate is significant.

For more details visit https://cis-india.org/internet-governance/blog/concerns-regarding-dna-law

Comments on the Proposed Rule 138A of the Central Motor Vehicle Rules, 1989 Concerning Radio Frequency Identification Tags

bhairav — 2012-12-04T15:32:55Z

The Centre for Internet & Society gave its comments on the proposed Rule 138A of the Central Motor Vehicle Rules, 1989. The comments were made in response to Notification GSR 738(E) published in the Gazette of India on October 3, 2012.

I Preliminary

1.1 These initial comments are made with regard to Notification GSR 738(E), published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), on 3 October 2012
(“Impugned Notification”).

1.2 The Impugned Notification proposes to insert a new rule 138A in the Central Motor Vehicle Rules, 1989 (“CMV Rules”) to make mandatory the installation of radio frequency identification (“RFID”) tags on all light and heavy motor vehicles to enable their instant identification and monitoring by electronic toll collection booths, the police and any other authority or person that is able to query and read RFID tags.

II Validity of the Impugned Notification

(a) The Scope and Limits of the Executive Power of the Union

2.1 The competence of the Central Government to govern by executive action (such as the Impugned Notification) is restricted to the extent of the executive power of the Union.[1] Following the Ram Jawaya Kapur case,[2] it is settled that the extent of the Union’s executive power is coterminous with the legislative power of Parliament even in the absence of controlling legislation in that field.[3] This is in addition to the Union’s subordinate executive power to give effect to legislation through statutory delegation[4] and its directory executive power to give directions to the States.[5] Thus, there are three kinds of executive power exercisable by the Union:

(a) the regular power, exercisable in the absence of controlling legislation, if the subject of executive action is a matter upon which Parliament is competent to legislate;
(b) the subordinate power, exercisable under the terms of a controlling statute, if that statute specifically delegates such a power to the Union; and
(c) the directory power, exercisable within judicial limits, to secure the compliance of the States with the laws of the Union.

2.2 The regular executive power of the Union cannot be exercised over a matter that is controlled by parliamentary legislation.[6] This principle is akin to, but does not correspond exactly with, the doctrine of occupied field which is primarily concerned with the legislative entries contained in Schedule VII of the Constitution of India. Nevertheless, it is settled that since the power of the executive to act is subject to the control of the legislature, a statutory regime, where it exists, cannot be circumvented by the free exercise of executive power.[7] In the case of the Impugned Notification, the Motor Vehicles Act, 1988 constitutes a statutory regime that occupies the field to preclude regular executive action by the Central Government with regard to RFID tags in motor vehicles. The Impugned Notification should next be examined only in light of the scope and limits of the Union’s subordinate executive power since, as the Impugned Notification is not a direction to the States, the Union’s directory executive power is not in issue.

(b) Extent of the Central Government’s Rule-Making Power

2.3 The subordinate executive power of the Union emanates from section 110 of the Motor Vehicles Act, 1988 (“MV Act”) that confers the Central Government with the power to make rules to implement the statute. At this point it is important to note that the legislative competence of the MV Act is traceable to Entry 35 of List III, Schedule VII of the Constitution of India. Entry 35 concerns:

Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.

Entry 35 being a concurrent subject, it is open to both the Union and the States to act to regulate motor vehicles.[8] Accordingly, the MV Act also vests the States with subordinate executive power through sections 28, 38, 65, 95, 96, 107, 111, 138 and 176 which confer State Governments with the power to make rules to implement the statute in, and amend its application to, their particular states. As for the Union, so for the States is the regular executive power precluded by the existence of a statutory regime.[9]

2.4 Section 110 of the MV Act states:

110. Power of the Central Government to make rules. – (1) The Central Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all or any of the following matters, namely:-

(a) the width, height, length and overhand of vehicles and of the loads carried;
(b) the size, nature, maximum retail price and condition of tyres, including embossing thereon of date and year of manufacture, and the maximum load carrying capacity;
(c) brakes and steering gear;
(d) the use of safety glasses including prohibition of the use of tinted safety glasses;
(e) signalling appliances, lamps and reflectors;
(f) speed governors;
(g) the emission of smoke, visible vapour, sparks, ashes, grit or oil;
(h) the reduction of noise emitted by or caused by vehicles;
(i) the embossment of chassis number and engine number and the date of manufacture;
(j) safety belts, handle bars of motor cycles, auto-dippers and other equipments essential for safety of drivers, passengers and other road-user;
(k) standards of the components used in the vehicle as inbuilt safety devices;
(l) provision for transportation of goods of dangerous or hazardous nature to human life;
(m) standards for emission of air pollutants;
(n) installation of catalytic convertors in the class of vehicles to be prescribed;
(o) the placement of audio-visual or radio or tape recorder type of devices in public vehicles;
(p) warranty after sale of vehicle and norms therefor:

Provided that any rules relating to the matters dealing with the protection of environment, so far as may be, shall be made after consultation with the Ministry of the Government of India dealing with environment.

(2) Rules may be made under sub-section (1) governing the matters mentioned therein, including the manner of ensuring the compliance with such matters and the maintenance of motor vehicles in respect of such matters, either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or in particular circumstances.

(3) Notwithstanding anything contained in this section,-

(a) the Central Government may exempt any class of motor vehicles from the provisions of this Chapter;
(b) a State Government may exempt any motor vehicle or any class or description of motor vehicles from the rules made under sub-section (1) subject to such conditions as may be prescribed by the Central Government.

2.5 The subordinate executive power of the Union, i.e. the rule-making power, is restricted to the exact extent of the delegation.[10] This is a well settled and undisputed principle of administrative law. Therefore, the Central Government cannot, in exercise of the rule-making power granted under section 110 of the MV Act, frame rules for matters for which it has not been specifically empowered under that section. Section 110 of the MV Act does not grant the Central Government the power to make rules for mandating RFID tags on vehicles. Clauses (a) to (p) of section 110(1) descriptively list the matters relating to the construction, equipment and maintenance of motor vehicles that the Central Government is competent to regulate by exercising its executive power. This list is exactingly drafted; the absence of general words or a miscellaneous empowerment obviates the need for examining any particular word or words in clauses (a) to (p) in light of the principle of ejusdem generis.

2.6 In the absence of a specific empowerment, or even a general empowerment that may be positively construed ejusdem generis, only two clauses of section 110(1) require further examination. These are:

(e) signalling appliances, lamps and reflectors; and,
(o) the placement of audio-visual or radio or tape recorder type of devices in public vehicles;

Clause (e), which deals with signalling appliances, cannot be read to include RFID tags since, in accordance with the principle of noscitur a sociis, the meaning of the words “signalling appliances” is derived from its association with the words “lamps and reflectors.”[11] Therefore, RFID tags, which are totally unrelated to lamps, reflectors and related signalling appliances, are not the subject of clause (e). On the other hand, while clause (o) contains an executive empowerment in respect of radio devices, the empowerment only concerns “public vehicles”; and, hence, the installation of RFID tags in non-public vehicles including light vehicles, such as cars, and heavy vehicles, such trucks and lorries, cannot be carried out under this clause. In any event, the word “radio” must be interpreted noscitur a sociis in light of its association with the words “audio-visual” and “tape recorder” to yield an executive empowerment in respect of in-vehicle entertainment devices only.

2.7 Therefore, in the absence of an empowerment under section 110 of the MV Act in respect of RFID tags, the Impugned Notification of the Central Government is ultra vires the MV Act. Rules that are ultra vires the parent statute for exceeding the limits of subordinate executive power are void.[12] The Impugned Notification is both ultra vires its parent statute and void. In this regard, it is instructive to note that it is settled that void rules neither acquire validity by a subsequent conferment of statutory power nor by their publication in the Official Gazette.[13]

III Constitutional Implications regarding Privacy

3.1 Across the world, RFID technology has been challenged on the basis of its intrusion into personal privacy. RFID tags operate on a pre-determined radio frequency; and, unless the tags are programmed to rapidly, constantly and randomly switch frequencies or are able to jam unauthorised queries – an extremely expensive proposition, RFID signals can be easily intercepted. The interception a vehicle’s RFID signals, whether by public authorities or by private persons, can yield detailed locational information of the driver of the vehicle. This is an unwarranted intrusion into the locational privacy of individuals.

3.2 Locational privacy is an intrinsic part of the right to privacy. An intrusion into this right, such as in the form of mandatory RFID tags on vehicles, will reveal information as to inter alia a person’s whereabouts and daily routine as well as addresses of friends’ houses, visits to the hospital, visits to a place of worship, restaurant preferences, addresses of children’s schools and so on. This will affect ordinary citizens, politicians and civil servants equally. All this information will be at the hands of the police. To place the power of tracking and monitoring ordinary individuals with the police, when such technology is not even available with intelligence agencies, would be an act of recklessness. This is compounded by the total lack of safeguards accompanying the attempted imposition of RFID technology.

3.3 Following the Kharak Singh[14] and Gobind[15] cases, the locational privacy of individuals, specifically in relation to their privacy from the police, is constitutionally protected.[16] It is now accepted that privacy is an essential ingredient of personal liberty forming a part of the right recognised under Article 21 of the Constitution. It is further settled that the personal liberty of an individual cannot be taken away except by a law that establishes a procedure that is fair, just and reasonable that withstands the tests of Article 14 and Article 19 of the Constitution.[17]The Impugned Notification, while constituting a “law” under Article 13 of the Constitution, does not create a fair, just and reasonable procedure to deprive individuals of their personal liberty and therefore fails the tests imposed by Maneka Gandhi. Therefore, the Impugned Notification, even if it were not void for want of competence, would be ultra vires the Constitution for violating Article 21.[18]

IV Summary

4.1 In sum:

(a) Section 110 of the MV Act does not bestow on the Central Government a specific empowerment to make rules in respect of RFID tags;
(b) The Impugned Notification exceeds the delegated limits of the Central Government’s subordinate executive power;
(c) The Impugned Notification is ultra vires the MV Act, its parent statute;
(d) Rules that are ultra vires the parent statute for exceeding the limits of subordinate executive power are void;
(e) The Impugned Notification is void;
(f)   The imposition of mandatory RFID tags on vehicles will yield locational information to seriously invade the right to privacy;
(g) The right to privacy is an essential ingredient of personal liberty and is constitutionally protected;
(h) The Impugned Notification violates the right to privacy without creating a fair, just and reasonable procedure to deprive persons of their personal liberty;
(i)   The Impugned Notification is ultra vires the Constitution for violating Article 21;
(j)   Any rule that mandates RFID tags on vehicles to violate the right to privacy is void ab initio.

[1]. Article 73 of the Constitution of India.
[2]. Ram Jawaya Kapur AIR 1955 SC 549.
[3]. Ibid at prs. 12-14.
[4]. See generally, In re Delhi Laws Act AIR 1951 SC 332, Harishankar Bagla AIR 1954 SC 465, Rajnarain Singh AIR 1954 SC 569 and Edward Mills AIR 1955 SC 25.
[5]. See Articles 256 and 257 of the Constitution and State of Rajasthan (1977) 3 SCC 592.
[6]. Bishamber Dayal (1982) 1 SCC 39 at pr. 20.
[7]. Bharat Coking Coal (1990) 4 SCC 557 at prs. 15-17.
[8].Article 253 of the Constitution.
[9]. Article 162 of the Constitution.
[10]. See In re Delhi Laws Act AIR 1951 SC 332, State of Bihar (2000) 4 SCC 640, Shri Sitaram Sugar (1990) 3 SCC 223 [all Constitution Benches], Ramakrishnan Kulwant Rai 1989 Supp (1) SCC 541, K. M. Charia Abdullah (1965) 1 SCR 601, Charanjit Gill (2000) 5 SCC 742, ADM (Rev.) Delhi Administration (2000) 5 SCC 451 and State of Karnataka (1983) 2 SCC 402.
[11]. For foundational Indian case law on the principle of noscitur a sociis, see generally, M. K. Ranganathan AIR 1955 SC 604, Hospital Mazdoor Sabha AIR 1960 SC 110 and Corporation of the City of Nagpur AIR 1960 SC 675.
[12]. See Supreme Court Welfare Association (1989) 4 SCC 187 and State of Karnataka (1983) 2 SCC 402.
[35]. General Officer Commanding-in-Chief (1988) 2 SCC 351 at prs. 12-14.
[14]. Kharak Singh AIR 1963 SC 1295. The majority, speaking through Ayyangar, J., found that ‘domiciliary visits’ conducted by the police in exercise of powers granted under police regulations violated Article 21 of the Constitution; and, the minority speaking through Subba Rao, J., found that both secret police picketing (as to the location of individuals) and domiciliary visits violated both Article 21 and Article 19(1)(d) of the Constitution.
[15]. Gobind (1975) 2 SCC 148.
[16]. For a jurisprudential development of the right to privacy in India, see generally Kharak Singh AIR 1963 SC 1295, R. M. Malkani (1973) 1 SCC 471, Gobind (1975) 2 SCC 148, R. Rajagopal (1994) 6 SCC 632, People’s Union for Civil Liberties (1997) 1 SCC 301, Mr ‘X’ (1998) 8 SCC 296, Canara Bank (2005) 1 SCC 496, Bharat Shah (2008) 13 SCC 5, Naz Foundation (2009) 160 DLT 277, Selvi (2010) 7 SCC 263 and Ram Jethmalani (2011) 8 SCC 1.
[17]. Maneka Gandhi (1978) 1 SCC 248 at prs. 4-14 (per Bhagwati, Untwalia and Fazal Ali, JJ.), 48-49 (per Chandrachud, J.), 62-78 and 79-91 (per Krishna Iyer, J.) and 192-199, 201, 203 and 211-215 (per Beg, CJI.)
[18]. In this regard, see also Supreme Court Welfare Association (1989) 4 SCC 187 and N. Bakshi 1962 Supp (1) SCR 505 for the proposition that rules violating the Constitution are void ab initio.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-motor-vehicle-rules

Comments on the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

bhairav — 2013-07-12T12:13:53Z

Bhairav Acharya on behalf of the Centre for Internet and Society prepared the following comments on the Sensitive Personal Data Rules. These were submitted to the Committee on Subordinate Legislation of the 15th Lok Sabha.

This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.

I Preliminary

1.1 The Centre for Internet and Society (“CIS”) is pleased to present this submission on the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 that were notified by the Central Government in the Gazette of India vide Notification GSR 313(E) on 11 April 2011 (“Sensitive Personal Data Rules” or “Rules”) to the Committee on Subordinate Legislation of the Fifteenth Lok Sabha.

1.2 The protection of personal information lies at the heart of the right to privacy; and, for this reason, it is an imperative legislative and policy concern in liberal democracies around the world. In India, although remedies for invasions of privacy exist in tort law and despite the Supreme Court of India according limited constitutional recognition to the right to privacy[1], there have never been codified provisions protecting the privacy of individuals and their personal information.

The Sensitive Personal Data Rules represent India’s first legislative attempt to recognise that all persons have a right to protect the privacy of their personal information. However, the Rules suffer from numerous conceptual, substantive and procedural weaknesses, including drafting defects, which demand scrutiny and rectification. The interpretation and applicability of the Rules was further confused when, on 24 August 2011, the Department of Information Technology of the Ministry of Communications attempted to reinterpret the Rules through a press release oblivious to the universally accepted basic proposition that law cannot be made or reinterpreted via press releases.[2] Therefore, the attention of the Committee on Subordinate Legislation of the Fifteenth Lok Sabha is called to the following submissions:

II Principles to Facilitate Appraisal
2.1 The Sensitive Personal Data Rules are an important step towards building a legal regime that protects the privacy of individuals whilst enabling the secure collection, use and storage of personal information by state and private entities. The Rules are to be welcomed in principle. However, at present, the Rules construct an incomplete regime that does not adequately protect privacy and, for this reason, falls short of internationally accepted data protection standards.[3]

This not only harms the personal liberties of Indian citizens, it also affects the ability of Indian companies to conduct commerce in foreign countries. More importantly, the Rules offer no protection against the state.

2.2 To enact a comprehensive personal information protection regime, CIS believes that the Rules should proceed on the basis of the following broad principles:

(a) Principle of Notice / Prior Knowledge

All persons from whom personal information is collected have a right to know, before the personal information is collected and, where applicable, at any point thereafter: (i) of an impending collection of personal information; (ii) the content and nature of the personal information being collected; (iii) the purpose for which the personal information is being collected; (iv) the broad identities of all natural and juristic persons who will have access to the collected personal information; (v) the manner in which the collected personal information will be used; (vi) the duration for which the collected personal information will be stored; (vii) whether the collected personal information will be disclosed to third parties including the police and other law enforcement agencies; (viii) of the manner in which they may access, check, modify or withdraw their collected personal information; (ix) the security practices and safeguards that will govern the sanctity of the collected personal information; (x) of all privacy policies and other policies in relation to the collected personal information; (xi) of any breaches in the security, safety, privacy and sanctity of the collected personal information; and, (xii) the procedure for recourse, including identities and contact details of ombudsmen and grievance redress officers, in relation to any misuse of the collected personal information.

(b) Principle of Consent

Personal information must only be collected once the person to whom it pertains has consented to its collection. Such consent must be informed, explicit and freely given. Informed consent is conditional upon the fulfilment of the principle of notice/prior knowledge set out in the preceding paragraph. Consent must be expressly given: the person to whom the personal information to be collected pertains must grant explicit and affirmative permission to collect personal information; and, he must know, or be made aware, of any action of his that will constitute such consent. Consent that is obtained using threats or coercion, such as a threat of refusal to provide services, does not constitute valid consent. Any person whose personal information has been consensually collected may, at any time, withdraw such consent for any or no reason and, consequently, his personal information, including his identity, must be destroyed. When consent is withdrawn in this manner, the person who withdrew consent may be denied any service that requires the use of the personal information for which consent was withdrawn.

Personal information must only be collected when, where and to the extent necessary. Necessity cannot be established in general; there must be a specific nexus connecting the content of the personal information to the purpose of its collection. Only the minimal amount of personal information necessary to achieve the purpose should be collected. If a purpose exists that warrants a temporally specific, or an event-dependent, collection of personal information, such a collection must only take place when that specific time is reached or that event occurs. If the purpose of personal information is dependent upon, or specific to, a geographical area or location, that personal information must only be collected from that geographical area or location.

(d) Right to be Forgotten / Principle of Purpose Limitation

Once collected, personal information must be processed, used, stored or otherwise only for the purpose for which it was collected. If the purpose for which personal information was collected is achieved, the collected personal information must be destroyed and the person to whom that personal information pertained must be ‘forgotten.’ Similarly, collected personal information must be destroyed and the person to whom it pertained ‘forgotten’ if the purpose for which it was collected expires or ceases to exist. Personal information collected for a certain purpose cannot be used or stored for another purpose nor even used or stored for a similar purpose to arise in the future without the express and informed consent of the person from whom it was collected in accordance with the principles of notice/prior knowledge and consent.

(e) Right of Access

All persons from whom personal information is collected have a right to access that personal information at any point following its collection to check its accuracy, make corrections or modifications and have destroyed that which is inaccurate. Where personal information of more than one person is held in an aggregated form such that affording one person access to it may endanger the right to privacy of another person, the entity holding the aggregated personal information must, to the best of its ability, identify the portion of the personal information that pertains to the person seeking access and make it available to him. All persons from whom personal information is collected must be given copies of their personal information upon request.

(f) Principle regarding Disclosure

Personal information, once collected, must never be disclosed. However, if the person to whom certain personal information pertains consents to its disclosure in accordance with the principle of consent after he has been made aware of the proposed disclosee and other details related to the personal information in accordance with the principle of notice/prior knowledge, the personal information may be disclosed. Consent to a disclosure of this nature may be obtained even during collection of the personal information if the person to whom it pertains expressly consents to its future disclosure. Notwithstanding the rule against disclosure and the consent exception to the rule, personal information may be disclosed to the police or other law enforcement agencies on certain absolute conditions. Since the protection of personal information is a policy imperative, the conditions permitting its disclosure must be founded on a clear and serious law enforcement need that overrides the right to privacy; and, in addition, the disclosure conditions must be strict, construed narrowly and, in the event of ambiguity, interpreted to favour the individual right to privacy. Therefore, (i) there must be a demonstrable need to access personal information in connection with a criminal offence; (ii) only that amount of personal information that is sufficient to satisfy the need must be disclosed; and, (iii), since such a disclosure is non-consensual, it must follow a minimal due process regime that at least immediately notifies the person concerned and affords him the right to protest the disclosure.

(g) Principle of Security

All personal information must be protected to absolutely maintain its sanctity, confidentiality and privacy by implementing safeguards against loss, unauthorised access, destruction, use, processing, storage, modification, de-anonymisation, unauthorised disclosure and other risks. Such a level of protection must include physical, administrative and technical safeguards that are constantly and consistently audited. Protection measures must be revised to incorporate stronger measures and mechanisms as and when they arise.

(h) Principle of Transparency / ‘Open-ness’

All practices, procedures and policies governing personal information must be made available to the person to whom that personal information pertains in a simple and easy-to-understand manner. This includes policies relating to the privacy, security and disclosure of that personal information. If an entity that seeks to collect personal information does not have these policies, it must immediately draft, publish and display such policies in addition to making them available to the person from whom it seeks to collect personal information before the collection can begin.

(i) Principle of Accountability

Liability attaches to the possession of personal information of another person. Since rights and duties, such as those in relation to privacy of personal information, are predicated on accountability, this principle binds all entities that seek to possess personal information of another person. As a result, an entity seeking to collect, use, process, store or disclose personal information of another person is accountable to that person for complying with all these principles as well as the provisions of any law. The misuse of personal information causes harm to the person to whom it pertains to attract and civil and criminal penalties.

2.3 These principles are reflective of internationally accepted best practices to form the basis upon which Indian legislation to protect personal information should be drafted. The Sensitive Personal Data Rules, in their current form, fall far short of the achieving the substantive intent of these principles. CIS submits that either (i) the Sensitive Personal Data Rules should be replaced with new and comprehensive legislation that speaks to the objectives and purpose of these principles, or (ii) the Sensitive Personal Data Rules are radically modified by amendment to bring Indian law to par with world standards. Nevertheless, without prejudice to the preceding submission, CIS offers the following clause-by-clause comments on the Sensitive Personal Data Rules:

III Clause-by-Clause Analysis and Comments

Rule 2 - Definitions

3.1.1 Rule 2(1)(b) of the Sensitive Personal Data Rules defines “biometrics” as follows:

"Biometrics" means the technologies that measure and analyse human body characteristics, such as 'fingerprints', 'eye retinas and irises', 'voice patterns', "facial patterns', 'hand measurements' and 'DNA' for authentication purposes.

3.1.2 Firstly, the Sensitive Personal Data Rules do not use the term “biometrics.” Instead, rule 3(vi), which defines sensitive personal data, uses the term “biometric information.” It is unclear why rule 2(1)(b) provides a definition of the technologies by which information is obtained instead of clearly identify the information that constitutes sensitive personal data. This is one of several examples of poor drafting of the Sensitive Personal Data Rules. Secondly, biometric information is not used only for authentication; there are many other reasons for collecting and using biometric information. For instance, DNA is widely collected and used for medical research. Restricting the application of the definition to only that biometric information that is used for authentication is illogical to deprive the Rules of meaning.

3.1.3 Therefore, it is proposed that rule 2(1)(b) be re-drafted to read as follows:

““Biometric information” means any information relating to the physical, physiological or behavioural characteristics of an individual which enable their unique identification including, but not limited to, fingerprints, retinas, irises, voice patterns, facial patterns, Deoxyribonucleic acid (DNA) and genetic information.”

3.2.1 Rule 2(1)(c) of the Sensitive Personal Data Rules defines “body corporate” in accordance with the definition provided in clause (i) of the Explanation to section 43A of the Information Technology Act, 2000 (“IT Act”) as follows:

“body corporate” means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities.

3.2.2 Firstly, this definition of a body corporate is poorly drafted to extend beyond incorporated entities to bring within its ambit even unincorporated professional organisations such as societies and associations which, by their very nature, are not bodies corporate.[4]

This is an arbitrary reinterpretation of the fundamental principles of company law. As it presently stands, this peculiar definition will extend to public and private limited companies, including incorporated public sector undertakings, ordinary and limited liability partnerships, firms, sole proprietorships, societies and associations; but, will exclude public and private trusts[5] and unincorporated public authorities. Hence, whereas non-governmental organisations that are organised as societies will fall within the definition of “body corporate,” those that are organised as trusts will not. Similarly, incorporated public authorities such as Delhi Transport Corporation and even municipal corporations such as the Municipal Corporation of Delhi will fall within the definition of “body corporate” but unincorporated public authorities such as the New Delhi Municipal Council and the Delhi Development Authority will not. This is a prima facie violation of the fundamental right of all persons to be treated equally under the law guaranteed by Article 14 of the Constitution of India.

3.2.3 Secondly, whereas state entities and public authorities often collect and use sensitive personal data, with the exception of state corporations the Sensitive Personal Data Rules do not apply to the state. This means that the procedural safeguards offered by the Rules do not bind the police and other law enforcement agencies allowing them a virtually unfettered right to collect and use, even misuse, sensitive personal data without consequence. Further, state entities such as the Unique Identification Authority of India or the various State Housing Boards which collect, handle, process, use and store sensitive personal data are not covered by the Rules and remain unregulated. It is not possible to include these unincorporated entities within the definition of a body corporate; but, in pursuance of the principles set out in paragraph 2.2 of this submission, the Rules should be expanded to all state entities, whether incorporated or not.

3.2.4 Therefore, it is proposed that rule 2(1)(c) be re-drafted to read as follows:

““body corporate” means the body corporate defined in sub-section (7) of section 2 read with section 3 of the Companies Act, 1956 (1 of 1956) and includes those entities which the Central Government may, by notification in the Official Gazette, specify in this behalf but shall not include societies registered under the Societies Registration Act, 1860 (21 of 1860), trusts created under the Indian Trusts Act, 1882 (2 of 1882) or any other association of individuals that is not a legal entity apart from the members constituting it and which does not enjoy perpetual succession.”

Further, it is proposed that the Sensitive Personal Data Rules be re-drafted to apply to societies registered under the Societies Registration Act, 1860 and trusts created under the Indian Trusts Act, 1882 in a manner reflective of their distinctiveness from bodies corporate.

Furthermore, it is proposed that the Sensitive Personal Data Rules be re-drafted to apply to public authorities and the state as defined in Article 12 of the Constitution of India.

3.3.1 Rule 2(1)(d) of the Sensitive Personal Data Rules defines “cyber incidents” as follows:

"Cyber incidents" means any real or suspected adverse event in relation to cyber security that violates an explicitly or implicitly applicable security policy resulting in unauthorised access, denial of service or disruption, unauthorised use of a computer resource for processing or storage of information or changes to data, information without authorisation.

3.3.2 Before examining the provisions of this clause, CIS questions the need for this definition. The term “cyber incidents” is used only once in these rules: the proviso to rule 6(1) which specifies the conditions upon which personal information or sensitive personal data may be disclosed to the police or other law enforcement authorities without the prior consent of the person to whom the information pertains. An analysis of rule 6(1) is contained at paragraphs 3.11.1 – 3.11.4 of this submission. Firstly, personal information and sensitive personal data should only be disclosed in connection with the prevention, investigation and prosecution of an existing offence. Offences cannot be created in the definitions clause of sub-statutory rules, they can only be created by a parent statute or another statute. Secondly, the scope and content of “cyber incidents” are already covered by section 43 of the IT Act. When read with section 66 of IT Act, an offence is created that is larger than the scope of the term “cyber incidents” to render this definition redundant.

3.3.3 Therefore, it is proposed that the definition of “cyber incidents” in rule 2(1)(d) be deleted and the remaining clauses in sub-rule (1) of rule 2 be accordingly renumbered.

3.4.1 Rule 2(1)(g) of the Sensitive Personal Data Rules defines “intermediary” in accordance with the definition provided in section 2(1)(w) of the IT Act. However, the term “intermediary” is not used anywhere in the Sensitive Personal Data Rules and so its definition is redundant. This is another instance of careless drafting of the Sensitive Personal Data Rules.

3.4.2 Therefore, it is proposed that the definition of “intermediary” in rule 2(1)(g) be deleted and the remaining clauses in sub-rule (1) of rule 2 be accordingly renumbered.

Rule 3 - Sensitive Personal Data

3.5.1 Rule 3 of the Sensitive Personal Data Rules provides an aggregated definition of sensitive personal data as follows:

Sensitive personal data or information of a person means such personal information which consists of information relating to –

(i) password;

(ii) financial information such as Bank account or credit card or debit card or other payment instrument details ;

(iii) physical, physiological and mental health condition;

(iv) sexual orientation;

(v) medical records and history;

(vi) Biometric information;

(vii) any detail relating to the above clauses as provided to body corporate for providing service; and

(viii) any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise:

provided that, any information that is freely available or accessible in public domain or furnished under the Right to Information Act, 2005 or any other law for the time being in force shall not be regarded as sensitive personal data or information for the purposes of these rules.

3.5.2 In accordance with the principle that certain kinds of personal information are particularly sensitive, due to the intimate nature of their content in relation to the right to privacy, to invite privileged protective measures regarding the collection, handling, processing, use and storage of such sensitive personal data, it is surprising that rule 3 does not protect electronic communication records of individuals. Emails and chat logs as well as records of internet activity such as online search histories are particularly vulnerable to abuse and misuse and should be accorded privileged protection.

3.5.3 Therefore, it is proposed that rule 3 be re-drafted to read as follows:

“Sensitive personal data or information of a person means personal information as to that person’s –

(i) passwords and encryption keys;

(ii) financial information including, but not limited to, information relating to his bank accounts, credit cards, debit cards, negotiable instruments, debt and other payment details;

(iii) physical, physiological and mental condition;

(iv) sexual activity and sexual orientation;

(v) medical records and history;

(vi) biometric information; and

(vii) electronic communication records including, but not limited to, emails, chat logs and other communications made using a computer;

and shall include any data or information related to the sensitive personal data or information set out in this rule that is provided to, or received by, a body corporate.

Provided that, any information that is freely available or accessible in the public domain or furnished under the Right to Information Act, 2005 or any other law for the time being in force shall not be regarded as sensitive personal data or information for the purposes of these rules.”

Rule 4 - Privacy and Disclosure Policy

3.6.1 Rule 4 of the Sensitive Personal Data Rules, which obligates certain bodies corporate to publish privacy and disclosure policies for personal information, states:

Body corporate to provide policy for privacy and disclosure of information. – (1) The body corporate or any person who on behalf of body corporate collects, receives, possess, stores, deals or handle information of provider of information, shall provide a privacy policy for handling of or dealing in personal information including sensitive personal data or information and ensure that the same are available for view by such providers of information who has provided such information under lawful contract. Such policy shall be published on website of body corporate or any person on its behalf and shall provide for –

(i) Clear and easily accessible statements of its practices and policies;

(ii) type of personal or sensitive personal data or information collected under rule 3;

(iii) purpose of collection and usage of such information;

(iv) disclosure of information including sensitive personal data or information as provided in rule 6;

(v) reasonable security practices and procedures as provided under rule 8.

3.6.2 This rule is very badly drafted, contains several discrepancies and is legally imprecise. Firstly, this rule is overbroad to bind all bodies corporate that receive and use information, as opposed to “personal information” or “sensitive personal data.” All bodies corporate receive and use information, even a vegetable seller uses information relating to vegetables and prices; but, not all bodies corporate receive and use personal information and even fewer bodies corporate receive and use sensitive personal data. The application of this provision should turn on the reception and use of personal information, which includes sensitive personal data, and not simply information. Secondly, although this rule only applies when a provider of information provides information, the term “provider of information” is undefined. It may mean any single individual who gives his personal information to a body corporate, or it may even mean another entity that outsources or subcontracts work that involves the handling of personal information. This lack of clarity compromises the enforceability of this rule. The government’s press release of 24 August 2011 acknowledged this error but since it is impossible, not to mention unconstitutional, for a statutory instrument like these Rules to be amended, modified, interpreted or clarified by a press release, CIS is inclined to ignore the press release altogether. It is illogical that privacy policies not be required when personal information is directly given by a single individual. This rule should bind all bodies corporate that receive and use personal information irrespective of the source of the personal information. Thirdly, it is unclear whether separate privacy policies are required for personal information and for sensitive personal data. There is a distinction between personal information and sensitive personal data and since these Sensitive Personal Data Rules deal with the protection of sensitive personal data, this rule 4 should unambiguously mandate the publishing of privacy policies in relation to sensitive personal data. Any additional requirement for personal information must be set out to clearly mark its difference from sensitive personal data. Fourthly, because of sloppy drafting, the publishing duties of the body corporate in respect of any sensitive personal data are unclear. For example, the phrase “personal or sensitive personal data or information” used in clause (ii) is meaningless since “personal information” and “sensitive personal data or information” are defined terms.

3.6.3 Therefore, it is proposed that rule 3 be re-drafted to read as follows:

“Duty to publish certain policies. – (1) Any body corporate that collects, receives, possesses, stores, deals with or handles personal information or sensitive personal data from any source whatsoever shall, prior to collecting, receiving, possessing, storing, dealing with or handling such personal information or sensitive personal data, publish and prominently display the policies listed in sub-rule (2) in relation to such personal information and sensitive personal data.

(2) In accordance with sub-rule (1) of this rule, all bodies corporate shall publish separate policies for personal information and sensitive personal data that clearly state –

(i) the meanings of personal information and sensitive personal data in accordance with these rules;

(ii) the practices and policies of that body corporate in relation to personal information and sensitive personal data;

(iii) descriptive details of the nature and type of personal information and sensitive personal data collected, received, possessed, stored or handled by that body corporate;

(iv) the purpose for which such personal information and sensitive personal data is collected, received, possessed, stored or handled by that body corporate;

(v) the manner and conditions upon which such personal information and sensitive personal data may be disclosed in accordance with rule 6 of these rules; and

(vi) the reasonable security practices and procedures governing such personal information and sensitive personal data in accordance with rule 8 of these rules.”

Rule 5 - Collection of Information

3.7.1 Rule 5(1) of the Sensitive Personal Data Rules lays down the requirement of consent before personal information can be collected as follows:

Body corporate or any person on its behalf shall obtain consent in writing through letter or Fax or email from the provider of the sensitive personal data or information regarding purpose of usage before collection of such information.

3.7.2 Firstly, the principle and requirement of consent is of overriding importance when collecting personal information, which includes sensitive personal data. Pursuant to the principles laid down in paragraph 2.2 of this submission, consent must be informed, explicit and freely given. Since sub-rule (3) of rule 5 attempts to secure the informed consent of persons giving personal information, this sub-rule must establish that all personal information can only be collected upon explicit consent that is freely given, irrespective of the medium and manner in which it is given. Secondly, it may be noted that sub-rule (1) only applies to sensitive personal data and not to other personal information that is not sensitive personal data. This is ill advised. Thirdly, this sub-rule relating to actual collection of personal information should follow a provision establishing the principle of necessity before collection can begin. The principle of necessity is currently laid down in sub-rule (2) of rule 5 which should be re-numbered to precede this sub-rule relating to collection.

3.7.3 Therefore, it is proposed that rule 5(1) be re-numbered to sub-rule (2) of rule 5 and re-drafted to read as follows:

“A body corporate seeking to collect personal information or sensitive personal data of a person shall, prior to collecting that personal information or sensitive personal data, obtain the express and informed consent of that person in any manner, and through any medium, that may be convenient but shall not obtain such consent through threat, duress or coercion.”

3.8.1 Rule 5(2) of the Sensitive Personal Data Rules sets out the principle of necessity governing the collection of personal information as follows:

Body corporate or any person on its behalf shall not collect sensitive personal data or information unless —

(a) the information is collected for a lawful purpose connected with a function or activity of the body corporate or any person on its behalf; and

(b) the collection of the sensitive personal data or information is considered necessary for that purpose.

3.8.2 Firstly, before allowing a body corporate to collect personal information, which includes sensitive personal data, the law should strictly ensure that the collection of such personal information is necessary. Necessity cannot be established in general, there must be a nexus connecting the personal information to the purpose for which the personal information is sought to be collected. This important sub-rule sets out the principles upon which personal information can be collected; and, should therefore be the first sub-rule of rule 5. Secondly, this sub-rule only applies to sensitive personal data instead of all personal information. It is in the public interest that the principle of necessity applies to all personal information, including sensitive personal data.

3.8.3 Therefore, it is proposed that rule 5(2) be re-numbered to sub-rule (1) of rule 5 and re-drafted to read as follows:

“No body corporate shall collect any personal information or sensitive personal data of a person unless it clearly establishes that –

(a) the personal information or sensitive personal data is collected for a lawful purpose that is directly connected to a function or activity of the body corporate; and

(b) the collection of the personal information or sensitive personal data is necessary to achieve that lawful purpose.”

3.9.1 Rule 5(3) of the Sensitive Personal Data Rules attempts to create an informed consent regime for the collection of personal information as follows:

While collecting information directly from the person concerned, the body corporate or any person on its behalf snail take such steps as are, in the circumstances, reasonable to ensure that the person concerned is having the knowledge of —

(a) the fact that the information is being collected;

(b) the purpose for which the information is being collected;

(c) the intended recipients of the information; and

(d) the name and address of —

(i) the agency that is collecting the information; and

(ii) the agency that will retain the information.

3.9.2 Firstly, this sub-rule (3) betrays the carelessness of its drafters by bringing within its application any and all information collected by a body corporate from a person instead of only personal information or sensitive personal data. Secondly, this provision is crucial to establishing a regime of informed consent before personal information is given by a person to a body corporate. For consent to be informed, the person giving consent must be made aware of not only the collection of that personal information or sensitive personal data, but also the purpose for which it is being collected, the manner in which it will be used, the intended recipients to whom it will be sent or made accessible, the duration for which it will be stored, the conditions upon which it may be disclosed, the conditions upon which it may be destroyed as well as the identities of all persons who will collect, receive, possess, store, deal with or handle that personal information or sensitive personal data. Thirdly, the use of the phrase “take such steps as are, in the circumstances, reasonable” dilutes the purpose of this provision and compromises the establishment of an informed consent regime. Instead, the use of the term “reasonable efforts”, which has an understood meaning in law, will suffice to protect individuals while giving bodies corporate sufficient latitude to conduct their business.

3.9.3 Therefore, it is proposed that rule 5(3) be re-drafted to read as follows:

“A body corporate seeking to collect personal information or sensitive personal data of a person shall, prior to such collection, make reasonable efforts to inform that person of the following details in respect of his personal information or sensitive personal data –

(a) the fact that it is being collected;

(b) the purpose for which it is being collected;

(d) the intended recipients to whom it will be sent or made available;

(e) the duration for which it will be stored;

(f) the conditions upon which it may be disclosed;

(g) the conditions upon which it may be destroyed; and

(h) the identities of all persons and bodies corporate who will collect, receive, possess, store, deal with or handle it.”

3.10.1 Rule 5(4) of the Sensitive Personal Data Rules lays down temporal restrictions to the retention of personal information:

Body corporate or any person on its behalf holding sensitive personal data or information shall not retain that information for longer than is required for the purposes for which the information may lawfully be used or is otherwise required under any other law for the time being in force.

3.10.2 Since this sub-rule (4) only applies to sensitive personal data instead of all personal information, bodies corporate are permitted to hold personal information of persons that is not sensitive personal data for as long as they like even after the necessity that informed the collection of that personal information expires and the purpose for which it was collected ends. This is a dangerous provision that deprives the owners of personal information of the ability to control its possession to jeopardise their right to privacy. The Sensitive Personal Data Rules should prescribe a temporal limit to the storage of all personal information by bodies corporate.

3.10.3 Therefore, it is proposed that rule 5(4) be re-drafted to read as follows:

“No body corporate shall store, retain or hold personal information or sensitive personal data for a period longer than is required to achieve the purpose for which that personal information or sensitive personal data was collected.”

Rule 6 - Disclosure of Information

3.11.1 Rule 6(1) of the Sensitive Personal Data Rules, which deals with the crucial issue of disclosure of personal information, states:

Disclosure of sensitive personal data or information by body corporate to any third party shall require prior permission from the provider of such information, who has provided such information under lawful contract or otherwise, unless such disclosure has been agreed to in the contract between the body corporate and provider of information, or where the disclosure is necessary for compliance of a legal obligation:

Provided that the information shall be shared, without obtaining prior consent from provider of information, with Government agencies mandated under the law to obtain information including sensitive personal data or information for the purpose of verification of identity, or for prevention, detection, investigation including cyber incidents, prosecution, and punishment of offences. The Government agency shall send a request in writing to the body corporate possessing the sensitive personal data or information stating clearly the purpose of seeking such information. The Government agency shall also state that the information so obtained shall not be published or shared with any other person.

3.11.2 In addition to errors and discrepancies in drafting, this sub-rule contains wide and vague conditions of disclosure of sensitive personal data to gravely impair the privacy rights and personal liberties of persons to whom such sensitive personal data pertains. A summary of drafting errors and discrepancies follows: Firstly, this sub-rule only applies to sensitive personal data instead of all personal information. The protection of personal information that is not sensitive personal data is an essential element of the right to privacy; hence, prohibiting bodies corporate from disclosing personal information at will is an important public interest prerogative. Secondly, the use of the phrase “any third party” lends vagueness to this provision since the term “third party” has not been defined. Thirdly, the repeated use of the undefined phrase “provider of information” throughout these Rules and in this sub-rule is confusing since, as pointed out in paragraph 3.6.2 of this submission, it could mean either or both of the single individual who consents to the collection of his personal information or another entity that transfers personal information to the body corporate.

3.11.3 Further, the conditions upon which bodies corporate may disclose personal information and sensitive personal data without the consent of the person to whom it pertains are dangerously wide. Firstly, the disclosure of personal information and sensitive personal data when it is “necessary for compliance of a legal obligation” is an extremely low protection standard. The law must intelligently specify the exact conditions upon which disclosure sans consent is possible; since the protection of personal information is a public interest priority, the conditions upon which it may be disclosed must outweigh this priority to be significant and serious enough to imperil the nation or endanger public interest. The disclosure of personal information and sensitive personal data for mere compliance of a legal obligation, such as failure to pay an electricity bill, is farcical. Secondly, the proviso sets out the conditions upon which the state, through its law enforcement agencies, may access personal information and sensitive personal data without the consent of the person to whom it pertains. Empowering the police with access to personal information can serve a public good if, and only if, it results in the prevention or resolution of crime; if not, this provision will give the police carte blanche to misuse and abuse this privilege. Hence, personal information should only be disclosed for the prevention, investigation and prosecution of an existing criminal offence. Thirdly, the definition and use of the term “cyber incidents” is unnecessary because section 43 of the IT Act already lists all such incidents. In addition, when read with section 66 of the IT Act, there emerges a clear list of offences to empower the police to seek non-consensual disclosure of personal information to obviate the need for any further new terminology. In sum, with regard to the non-consensual disclosure of personal information for the purposes of law enforcement: a demonstrable need to access personal information to prevent, investigate or prosecute crime must exist; only that amount of personal information sufficient to satisfy the need must be disclosed; and, finally, no disclosure may be permitted without clearly laid down procedural safeguards that fulfil the requirements of a minimal due process regime.

3.11.4 Therefore, it is proposed that rule 6(1) be re-drafted to read as follows:

“No body corporate shall disclose any personal information or sensitive personal data to anyone whosoever without the prior express consent of the person to whom the personal information or sensitive personal data to be disclosed pertains.

Provided that if the personal information or sensitive personal data was collected pursuant to an agreement that expressly authorises the body corporate to disclose such personal information or sensitive personal data, and if the person to whom the personal information or sensitive personal data pertains was aware of this authorisation prior to such collection, the body corporate may disclose the personal information or sensitive personal data without obtaining the consent of the person to whom it pertains in the form and manner specified in such agreement.

Provided further that if a reasonable threat to national security, defence or public order exists, or if the disclosure of personal information or sensitive personal data is necessary to prevent, investigate or prosecute a criminal offence, the body corporate shall, upon receiving a written request from the police or other law enforcement authority containing the particulars and details of the personal information or sensitive personal data to be disclosed, disclose such personal information or sensitive personal data to such police or other law enforcement authority without the prior consent of the person to whom it pertains.”

3.12.1 Rule 6(2) of the Sensitive Personal Data Rules creates an additional disclosure mechanism:

Notwithstanding anything contain in sub-rule (1), any sensitive personal data on Information shall be disclosed to any third party by an order under the law for the time being in force.

3.12.2 This sub-rule is overbroad to enable anyone’s sensitive personal data to be disclosed to any other person without the application of any standards of necessity, proportionality or due process and without the person to whom the sensitive personal data pertains having any recourse or remedy. Such provisions are the hallmarks of authoritarian and police states and have no place in a liberal democracy. For instance, the invocation of this sub-rule will enable a police constable in Delhi to exercise unfettered power to access the biometric information or credit card details of a politician in Kerala since an order of a policeman constitutes “an order under the law”. Pursuant to our submission in paragraph 3.11.4, adequate measures exist to secure the disclosure of personal information or sensitive public data in the public interest. The balance of convenience between privacy and public order has already been struck. This sub-rule should be removed.

3.12.3 Therefore, it is proposed that rule 6(2) be deleted and the remaining sub-rules in rule 6 be accordingly renumbered.

3.13.1 Rule 6(4) of the Sensitive Personal Data Rules states:

The third party receiving the sensitive personal data or information from body corporate or any person on its behalf under sub-rule (1) shall not disclose it further.

3.13.2 Firstly, as mentioned elsewhere in this submission, the phrase “third party” has not been defined. This is a drafting discrepancy that must be rectified. Secondly, this sub-rule only encompasses sensitive personal data and not other personal information that is not sensitive personal data. Thirdly, it may be necessary, in the interests of business or otherwise, for personal information or sensitive personal data that has been lawfully disclosed to a third person to be disclosed further if the person to whom that personal information consents to it.

3.13.3 Therefore, it is proposed that rule 6(4) be re-drafted to read as follows:

“Personal information and sensitive personal data that has been lawfully disclosed by a body corporate to a person who is not the person to whom such personal information or sensitive personal data pertains in accordance with the provisions of these rules may be disclosed further upon obtaining the prior and express consent of the person to whom it pertains.”

Rule 7 - Transfer of Information

3.14.1 Rule 7 of the Sensitive Personal Data Rules sets out the conditions upon which bodies corporate may transfer personal information or sensitive personal data to other bodies corporate in pursuance of a business arrangement:

A body corporate or any person on its behalf may transfer sensitive personal data or information including any information, to any other body corporate or a person in India, or located in any other country, that ensures the same level of data protection that is adhered to by the body corporate as provided for under these Rules. The transfer may be allowed only if it is necessary for the performance of the lawful contract between the body corporate or any person on its behalf and provider of information or where such person has consented to data transfer.

3.14.2 This provision allows personal information and sensitive personal data to be transferred across international borders to other bodies corporate in pursuance of a business agreement. The transfer of such information is a common feature of international commerce in which Indian information technology companies participate with significant success. Within India too, personal information and sensitive personal data is routinely transferred between companies in furtherance of an outsourced business model. Besides affecting ease of business, the sub-rule also affects the ability of persons to control their personal information and sensitive personal data. However, the sub-rule has been poorly drafted: firstly, the simultaneous use of the phrases “provider of information” and “such person” is imprecise and misleading; secondly, the person to whom any personal information or sensitive personal data pertains must pre-consent to the transfer of such information.

3.14.3 Therefore, it is proposed that rule 7 be re-drafted to read as follows:

“A body corporate may transfer any personal information or sensitive personal data in its possession to another body corporate, whether located in India or otherwise, if the transfer is pursuant to an agreement that binds the other body corporate to same, similar or stronger measures of privacy, protection, storage, use and disclosure of personal information and sensitive personal data as are contained in these rules, and if the express and informed consent of the person to whom the personal information or sensitive personal data pertains is obtained prior to the transfer.”

Rule 8 - Reasonable Security Practices

3.15.1 Following rule 8(1) of the Sensitive Personal Data Rules that prescribes reasonable security practices and procedures necessary for protecting personal information and sensitive personal data, rule 8(2) asserts that the international standard ISO/IEC 27001 fulfils the protection standards required by rule 8(1):

The international Standard IS/ISO/IEC 27001 on "Information Technology - Security Techniques - Information Security Management System - Requirements" is one such standard referred to in sub-rule (1).

3.15.2 ISO/IEC 27001 is an information security management system standard that is prescribed by the International Organisation for Standardisation and the International Electrotechnical Commission. CIS raises no objection to the content or quality of the ISO/IEC 27001 standard. However, to achieve ISO/IEC 27001 compliance and certification, one must first purchase a copy of the standard. A copy of the ISO/IEC 27001 standard costs approximately Rs. _____/-. The cost of putting in place the protective measures required by the ISO/IEC 27001 standard are higher: these include the cost of literature and training, the cost of external assistance, the cost of technology, the cost of employees’ time and the cost of certification.

3.15.3 Therefore, to bring these standards within the reach of small and medium-sized Indian bodies corporate, an appropriate Indian authority, such as the Bureau of Indian Standards, should re-issue affordable standards that are equivalent to ISO/IEC 27001.

IV The Press Release of 24 August 2011

4.1 The shoddy drafting of the Sensitive Personal Data Rules resulted in national and international confusion about its interpretation. However, instead of promptly correcting the embarrassingly numerous errors in the Rules, the Department of Information Technology of the Ministry of Communications and Information Technology chose to issue a press release on 24 August 2011 that was published on the website of the Press Information Bureau. The content of that press release is brought to the attention of the Committee of Subordinate Legislation as follows:

Clarification on Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 Under Section 43A of the Information Technology ACT, 2000.

Press Note

The Department of Information Technology had notified Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 43A of the Information Technology Act, 2000 on 11.4.2011 vide notification no. G.S.R. 313(E).

These rules are regarding sensitive personal data or information and are applicable to the body corporate or any person located within India. Any such body corporate providing services relating to collection, storage, dealing or handling of sensitive personal data or information under contractual obligation with any legal entity located within or outside India is not subject to the requirement of Rules 5 & 6. Body corporate, providing services to the provider of information under a contractual obligation directly with them, as the case may be, however, is subject to Rules 5 & 6. Providers of information, as referred to in these Rules, are those natural persons who provide sensitive personal data or information to a body corporate. It is also clarified that privacy policy, as prescribed in Rule 4, relates to the body corporate and is not with respect to any particular obligation under any contract. Further, in Rule 5(1) consent includes consent given by any mode of electronic communication.

Ministry of Communications & Information Technology (Dept. of Information Technology)

Press Information Bureau, Government of India, Bhadra 2, 1933, August 24, 2011

SP/ska
(Release ID :74990)

4.2 It is apparent from a plain reading of the text that this press release seeks to re-interpret the application of rules 5 and 6 of the Sensitive Personal Data Rules insofar as they apply to Indian bodies corporate receiving personal information collected by another company outside India. Also, it seeks to define the term “providers of information” to address the confusion created by the repeated use this term in the Rules. Further, it re-interprets the scope and application of rule 4 relating to duty of bodies corporate to publish certain policies. Furthermore, it seeks to amend the provisions of rule 5(1) relating to manner and medium of obtaining consent prior to collecting personal information.

4.3 At the outset, it must be understood that a press release is not valid law. According to Article 13(3) of the Constitution of India,

...law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law.

Law includes orders made in exercise of a statutory power as also orders and notifications made in exercise of a power conferred by statutory rules.

[See, Edward Mills AIR 1955 SC 25 at pr. 12, Babaji Kondaji Garad 1984 (1) SCR 767 at pp. 779-780 and Indramani Pyarelal Gupta 1963 (1) SCR 721 at pp. 73-744]

Sub-delegated orders, made in exercise of a power conferred by statutory rules, cannot modify the rules.

[See, Raj Narain Singh AIR 1954 SC 569 and Re Delhi Laws Act AIR 1951 SC 332]

Therefore, press releases, which are not made or issued in exercise of a delegated or sub-delegated power are not “law” and cannot modify statutory rules.

V Summary

5.1 CIS submits that the following provisions of the Sensitive Personal Data Rules be amended or annulled

Rule 2(1)(b);
Rule 2(1)(c);
Rule 2(1)(d);
Rule 2(1)(g);
Rule 3;
Rule 4(1);
Rule 5(1);
Rule 5(2);
Rule 5(3);
Rule 5(4);
Rule 6(1);
Rule 6(1) Proviso;
Rule 6(2);
Rule 6(4);
Rule 7; and
Rule 8.

5.2 CIS submits that the Committee on Subordinate Legislation should take a serious view of the press release issued by the Department of Information Technology of the Ministry of Communications and Information Technology on 24 August 2011.

5.3 CIS submits that in exercise of the powers granted to the Committee on Subordinate Legislation under Rules 317 and 320 of the Lok Sabha Rules of Procedure, the provisions of the Sensitive Personal Data Rules listed in the preceding paragraph 5.1 should be annulled; and, the Committee may be pleased to consider and recommend as an alternative the amendments proposed by CIS in this submission.

5.4 CIS thanks the Committee on Subordinate Legislation for the opportunity to present this submission and reiterates its commitment to supporting the Committee with any clarification, question or other requirement it may have.

[1]. See generally, Kharak Singh AIR 1963 SC 1295, Gobind (1975) 2 SCC 148, R. Rajagopal (1994) 6 SCC 632, People’s Union for Civil Liberties (1997) 1 SCC 301 and Canara Bank (2005) 1 SCC 496.

[2]. See infra pr. 4.3.

[3]. See, for comparison, Directive 95/46/EC of 24 October 1995 of the European Parliament and Council, the Data Protection Act, 1998 of the United Kingdom and the Proposed EU Regulation on on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).

[4].See generally, Board of Trustees of Ayurvedic College AIR 1962 SC 458 and S. P. Mittal AIR 1983 SC 1.

[5]. See generally, W. O. Holdsworth AIR 1957 SC 887 and Duli Chand AIR 1984 Del 145.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-it-reasonable-security-practices-and-procedures-and-sensitive-personal-data-or-information-rules-2011

Comments on the Information Technology (Guidelines for Cyber Cafe) Rules, 2011

bhairav — 2013-07-12T12:15:30Z

Bhairav Acharya on behalf of the Centre for Internet and Society submitted the following comments on the Information Technology (Guidelines for Cyber Cafe Rules), 2011.

This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.

I Preliminary

1.1 This submission presents preliminary clause-by-clause comments from the Centre for Internet and Society (“CIS”) on the Information Technology (Guidelines for Cyber Café) Rules, 2011 that were notified by the Central Government in the Gazette of India vide Notification GSR 315(E) on 11 April 2011 (“Cyber Café Rules”).

1.2 This submission is for the consideration of the Committee on Subordinate Legislation of the Fifteenth Lok Sabha. In its 21^st Report, the Committee on Subordinate Legislation presciently noted that:

“…statutory rules ought to be framed and notified not only in time but utmost care and caution should also be exercised in their formulation and finalization so as to get rid of any avoidable discrepancies. As far as possible, the aim should be to prevent needless litigation arising subsequently from badly framed rules.” [See the 21^st Report of the Lok Sabha Committee on Subordinate Legislation presented on 16 December 2011 at pr. 2.1]

Unfortunately, the Cyber Café Rules have been poorly drafted, contain several discrepancies and, more seriously, may impinge upon constitutionally guaranteed freedoms of Indian citizens. The attention of the Committee on Subordinate Legislation is accordingly called to the following provisions of the Cyber Cafe Rules:

II Validity of the Cyber Cafe Rules

2.1 The Cyber Cafe Rules are made in exercise of powers granted under section 87(2)(zg) read with section 79(2) of the Information Technology Act, 2000 (“IT Act”). Read together, these delegated powers invest the executive with the power to frame rules for exempting cyber cafes from liability for any third party information, data or communication link if they comply with Central Government guidelines. The empowerment made by section 87(2)(zg) of the IT Act pertains to:

“the guidelines to be observed by the intermediaries under sub-section (2) of section 79”

Sections 79 (1) and (2) state:

“79. Exemption from liability of intermediary in certain cases. – (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if—

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or

(b) the intermediary does not—

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.”

2.2 Hence, section 79(2) permits the Central Government to prescribe guidelines for cyber cafes to comply with in order to claim the general exemption from liability granted by section 79(1) of the IT Act. The Cyber Cafe Rules constitute those guidelines. However, the liability from which cyber cafes may be exempted extends only to “any third party information, data, or communication link made available or hosted” by users of cyber cafes. In other words, the liability of cyber cafes (the exemption from which is supposed to be controlled by the Cyber Cafe Rules) is only in respect of the information, data or communication links of their users. No liability is assigned to cyber cafes for failing to collect identity information of their users. Therefore, the Cyber Cafe Rules made under the power granted by section 79(2)(c) of the IT Act cannot make cyber cafes liable for user identification information. In accordance with sections 79(2)(c) and 79(1) read with section 87(2)(zg) of the IT Act, the Cyber Cafe Rules may legitimately deal with the duties of cyber cafes in respect of any information, data or communication links of their users, but not in respect of user identification. However, the thrust of the Cyber Cafe Rules, and the pith of their provisions, is concerned solely with registering and identifying cyber cafe users including collecting their personal information, photographing them, storing their personal information and reporting these non-content related details to the police. There is even a foray into interior design to dictate the height limits of furniture inside cyber cafes. All of this may be a legitimate governance concern, but it cannot be undertaken by the Cyber Cafe Rules. To the extent that the Cyber Cafe Rules deal with issues beyond those related to any information, data or communication links of cyber cafe users, the Rules exceed the permissible limit of delegated powers under section 79(2) and 87(2)(zg) of the IT Act and, consequently, are ultra vires the IT Act.

III Clause-by-Clause Analysis and Comments

Rule 2 - Definitions

3.1 Rule 2(1)(c) of the Cyber Cafe Rules defines a cyber cafe in accordance with the definition provided in section 2(1)(na) of the IT Act as follows:

““cyber cafe” means any facility from where access to the internet is offered by any person in the ordinary course of business to the members of the public”

This definition of a cyber cafe is overbroad to bring within its ambit any establishment that offers internet access in the course of its business such as airports, restaurants and libraries. In addition, some State Road Transport Corporations offer wi-fi internet access on their buses; and, Indian Railways, as well as Bangalore Metro Rail Corporation Limited, plans to offer wi-fi internet access on some of its trains. These will all fall within the definition of “cyber cafe” as it is presently enacted. The definition of “cyber cafe” should be read down to only relate to commercial establishments that primarily offer internet access to the general public for a fee.

Therefore, it is proposed that rule 2(1)(c) be amended to read as follows:

“notwithstanding anything contained in clause (na) of sub-section (1) of section 2 of the Act, and for the purposes of these rules only, “cyber cafe” means, any commercial establishment which primarily offers access to the internet to members of the general public for consideration for any purpose but does not include any educational or academic institution, office or place where access to the internet is restricted to authorised persons only.”

3.2 Rule 2(1)(e) of the Cyber Cafe Rules defines “data” in accordance with the definition provided in section 2(1)(o) of the IT Act. However, the term “data” is not used anywhere in the Cyber Cafe Rules and so its definition is redundant. This is one of several instances of careless drafting of the Cyber Cafe Rules.

Therefore, it is proposed that the definition of “data” in rule 2(1)(e) be deleted and the clauses in sub-rule (1) of rule 2 be accordingly renumbered.

3.3 Rule 2(1)(g) of the Cyber Cafe Rules defines “intermediary” in accordance with the definition provided in section 2(1)(w) of the IT Act. While all cyber cafes are intermediaries, not all intermediaries are cyber cafes: there are different categories of intermediaries that are regulated by other rules under the IT Act. The Cyber Cafe Rules make no mention of any other category of intermediaries other than cyber cafes; indeed, the term “intermediary” is not used anywhere in the Cyber Cafe Rules. Its definition is therefore redundant.

Therefore, it is proposed that the definition of “intermediary” in rule 2(1)(g) be deleted and the clauses in sub-rule (1) of rule 2 be accordingly renumbered.

Rule 3 - Agency for Registration of Cyber Cafes

4.1 Rule 3 of the Cyber Cafe Rules, which attempts to set out a registration regime for cyber cafes, as follows:

“3. Agency for registration of cyber cafe. – (1) All cyber cafes shall be registered with a unique registration number with an agency called as registration agency as notified by the Appropriate Government in this regard. The broad terms of registration shall include:

(i) name of establishment;

(ii) address with contact details including email address;

(iii) whether individual or partnership or sole properitership or society or company;

(iv) date of incorporation;

(v) name of owner/partner/proprietor/director;

(vi) whether registered or not (if yes, copy of registration with Registrar of Firms or Registrar of Companies or Societies); and

(vii) type of service to be provided from cyber cafe

Registration of cyber cafe may be followed up with a physical visit by an officer from the registration agency.

(2) The details of registration of cyber cafe shall be published on the website of the registration agency.

(3) The Appropriate Government shall make an endeavour to set up on-line registration facility to enable cyber cafe to register on-line.

(4) The detailed process of registration to be mandatorily followed by each Registration Agency notified by the Appropriate Government shall be separately notified under these rules by the central Government.”

CIS raises two unrelated and substantial objections to this provision: firstly, all cyber cafes across India are already registered under applicable local and municipal laws such as the relevant State Shops and Establishments Acts and the relevant Police Acts that provide detailed information to enable the relevant government to regulate cyber cafes; and, secondly, the provisions of rule 3 create an incomplete and clumsy registration regime that does not clearly establish a procedure for registration within a definite timeframe and does not address the consequences of a denial of registration.

4.2 At the outset, it is important to understand the distinction between registration and licensing. The state may identify certain areas or fields of business, or certain industries, to be regulated by the conditions of a licence in the public interest. These may include shops selling alcohol or guns; or, industries such as telecommunications, mining or nuclear power. Licences for various activities are issued by the state for a limited term on the basis of need and public interest and licensees are permitted to operate only within the term and conditions of the licence. Failure to observe licence conditions can result in the cancellation of the licence and other penalties, sometimes even criminal proceedings.

Registration, on the other hand, is an information-gathering activity that gives no power of intervention to the state unless there is a general violation of law. The primary statutory vehicle for achieving this registration are the various Shops and Establishments Acts of each State and Union Territory and other municipal registration regulations. For example, under section 5 of the Delhi Shops and Establishments Act, 1954, an establishment, which includes shops, commercial establishments and places of public amusement and entertainment, must fulfil the following registration requirements:

“5. Registration of establishment. – (1) Within the period specified in sub-section (5), the occupier of every establishment shall send to the Chief Inspector a statement in a prescribed form, together with such fees as may be prescribed, containing

(a) the name of the employer and the manager, if any;

(b) the postal address of the establishment;

(c) the name, if any, of the establishment,

(d) the category of the establishment, i.e. whether it is a shop, commercial establishment, residential hotel, restaurant eating house, theatre or other place of public amusement or entertainment;

(e) the number of employees working about the business of the establishment; and

(f) such other particulars as may be prescribed.

(2) On receipt of the statement and the fees, the Chief Inspector shall, on being satisfied about the correctness of the statement, register the establishment in the Register of Establishments in such manner as may be prescribed and shall issue, in a prescribed form, a registration certificate to the occupier.

(3) The registration certificate shall be prominently displayed at the establishment and shall be renewed at such intervals as may be prescribed in this respect.

(4) In the event of any doubt or difference of opinion between an occupier and the Chief Inspector as to the category to which shall after such enquiry, as it may think proper, decide the category of each establishment and the decision thereto shall be final for the purpose of this Act.

(5) Within ninety days from the date mentioned in column 2 below in respect of the establishment mentioned in column 1, the statement together with fees shall be sent to the Chief Inspector under sub-section (1).”

Besides the registration regime, the Shops and Establishments Acts also enact inspection regimes to verify the accuracy of all registered information, the maintenance of labour standards and other public safety requirements. These are not addressed by the Cyber Cafe Rules.

4.3 In addition to the various Shops and Establishments Acts which prescribe registration procedures, all premises within which cyber cafes operate are subject to a further licensing regime under the various State Police Acts as places of public amusement and entertainment. For example, a cyber cafe is deemed to be a “place of public amusement” under section 2(9) of the Bombay Police Act, 1951 and therefore subject to the licensing, registration and regulatory provisions of the Rules for Licensing and Controlling Places of Public (Other than Cinemas) and Performances for Public Amusement including Cabaret Performances, Discotheque, Games, Poll Game, Parlours, Amusements Parlours providing Computer Games, Virtual Reality Games, Cyber Cafes with Net Connectivity, Bowling Alleys, Cards Rooms, Social Clubs, Sports Clubs, Meals and Tamasha Rules, 1960. Similar provisions exist in Delhi.

In view of these two-fold registration requirements under the Shops and Establishments Acts and relevant Police Acts, creating yet another layer of registration is unwarranted. The Cyber Cafe Rules do not prescribe any new registration requirement that has not already been covered by the Shops and Establishments Acts and Police Acts. Multiple overlapping legislations will create confusion within the various departments of the relevant government and, more importantly, will result in non-compliance.

4.4 Without prejudice to the preceding comments relating to already existing registration requirements under the Shops and Establishments Acts and Police Acts, rule 3 of the Cyber Cafe Rules are very poorly drafted and do not fulfil the requirements of a valid registration regime. Most State governments have not notified a registration agency for cyber cafes as required by the Cyber Cafe Rules, probably because appropriate provisions under the Shops and Establishments Acts already exist. No time-limit has been specified for the registration process. This means that the (as yet non-existent) registration agency may delay, whether out of inefficiency or malice, a registration application without consequences for the delay. This not only discourages small and medium enterprises to hinder economic growth, it also encourages corruption as cyber cafe operators will be forced to pay a bribe to receive their registration.

4.5 Furthermore, rule 3(4) of the Cyber Cafe Rules, which calls on the Central Government to notify rules made by State governments, reads as follows:

“(4) The detailed process of registration to be mandatorily followed by each Registration Agency notified by the Appropriate Government shall be separately notified under these rules by the central Government.”

This nonsensical provision, which gives the Central Government the power to notify rules made by State governments, prima facie violates the constitutional scheme of division of legislative powers between the Union and States. Rules that have been made by State governments, the subject matter of which is within the legislative competence of the State legislatures, are notified by those State governments for application within their States and no separate notification of these rules can be done by the Central Government.

Therefore, it is proposed that rule 3 be deleted in entirety and the remaining rules be accordingly renumbered.

Rule 4 - Identification of User

5.1 Rule 4 of the Cyber Cafe Rules attempts to establish the identity of cyber cafe users. This is a legitimate and valid exercise to prevent unlawful use of cyber cafes. Sub-rule (1) of rule 4 reads as follows:

“(1) The Cyber Cafe shall not allow any user to use its computer resource without the identity of the user being established. The intending user may establish his identify by producing a document which shall identify the users to the satisfaction of the Cyber Cafe. Such document may include any of the following:

(i) Identity card issued by any School or College; or

(ii) Photo Credit Card or debit card issued by a Bank or Post Office; or

(iii) Passport; or

(iv) Voter Identity Card; or

(v) Permanent Account Number (PAN) card issued by Income-Tax Authority; or

(vi) Photo Identity Card issued by the employer or any Government Agency; or

(vi) Driving License issued by the Appropriate Government; or

(vii) Unique Identification (UID) Number issued by the Unique Identification Authority of India (UIDAI).”

The use of credits cards or debit cards to verify identity is specifically discouraged by the Reserve Bank of India because it directly results in identity theft, fraud and other financial crimes. Online credit card fraud results in large losses to individual card-holders and to banks. The other identity documents specified in rule 4 will suffice to accurately establish the identity of users.

Therefore, it is proposed that the use of credit or debit cards as a means of establishing identity in rule 4(1)(ii) be deleted and the remaining clauses in sub-rule (1) of rule 4 be accordingly renumbered.

5.2 Rule 4(2) of the Cyber Café Rules compels the storage of photographs and other personal information of users by cyber cafés:

“The Cyber Cafe shall keep a record of the user identification document by either storing a photocopy or a scanned copy of the document duly authenticated by the user and authorised representative of cyber cafe. Such record shall be securely maintained for a period of at least one year.”

While this submission does not question the requirement of storing user information for the purposes of law enforcement, this rule 4(2) does not prescribe the standards of security, confidentiality and privacy that should govern the storage of photographs and other personal information by cyber cafes. Without such a prescription, cyber cafes will simply store photographs of users, including minors and women, and important personal information that can be misused, such as passport copies, in a file with no security. This is unacceptable. Besides endangering vulnerable user information, it makes identity theft and other offences easier to perpetrate. If cyber cafes are to collect, store and disclose personal information of users, they must be bound to strict standards that explicitly recognise their duties and obligations in relation to that personal information. In this regard, the attention of the Committee on Subordinate Legislation is called to CIS’ submission regarding the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

Therefore, it is proposed that rule 4(2) be amended to read as follows:

“Any information of any user collected by a cyber cafe under this rule shall be collected, handled, stored and disclosed in accordance with the provisions of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, for a period not exceeding six months from the date of collection of that information.”

5.3 Sub-rule (3) of rule 4 allows cyber cafe users to be photographed:

“(3) In addition to the identity established by an user under sub-rule (1), he may be photographed by the Cyber Cafe using a web camera installed on one of the computers in the Cyber Cafe for establishing the identity of the user. Such web camera photographs, duly authenticated by the user and authorised representative of cyber cafe, shall be part of the log register which may be maintained in physical or electronic form.”

Since the identity documents listed in rule 4(1) all contain a photograph of their owner, the need for further photography is unnecessary. This provision needlessly burdens cyber cafe owners, who will be required to store two sets of photographs of users – their photographic identity documents in addition to individual photographs, and invades the individual privacy rights of users who will be exposed to unnecessary photography by private cyber cafe operators. Granting a non-state entity the right to take photographs of other individuals to no apparent gain or purpose is avoidable, especially when no measures are prescribed to regulate the safe and lawful storage of such photographs. Without strict safety measures governing the taking and storing of photographs of users, including minor girls and women, the Cyber Cafe Rules leave open the possibility of gross misuse of these photographs.

Therefore, it is proposed that sub-rule (3) of rule 4 be deleted and the remaining sub-rules of rule 4 be accordingly renumbered.

5.4 Sub-rue (4) of rule 4 reads as follows:

“(4) A minor without photo Identity card shall be accompanied by an adult with any of the documents as required under sub-rule (1).”

Regulating a minor’s access and use of the internet may serve a public good but it cannot be achieved by law. Information deemed unsuitable for minors that is available via other media, such as video, television or magazines, is not legally proscribed for minors. The law cannot and does not regulate their availability to minors. The protection of minors is an overriding public and jurisprudential concern, but law alone cannot achieve this end. Most minors do not possess photographic identity documents and rule 4(4) will, if implemented, result in internet access being taken away from minors. Restricting a minor’s ability to access useful, educational and other harmless content available on the internet is harmful to the public interest as it discourages education and awareness.

Therefore, it is proposed that rule 4(4) be amended to read as follows:

“A minor who does not possess any of the identity documents listed under sub-rule (1) of this rule may provide the name and address of his parent or guardian prior to using the cyber cafe.”

5.5 Rule 4(5) of the Cyber Cafe Rules states that a user “shall be allowed to enter the cyber cafe after he has established his identity.” However, since rule 4(1) already addresses identity verification by specifically preventing a cyber cafe from “allow[ing] any user to use its computer resource without the identity of the user of the user being established,” this rule 4(5) is redundant.

Therefore, it is proposed that rule 4(4) be deleted and the remaining sub-rules of rule 4 be accordingly renumbered.

5.6 Rule 4(6) of the Cyber Cafe Rules states:

“(6) The Cyber cafe shall immediately report to the concerned police, if they have reasonable doubt or suspicion regarding any user.”

This provision is legally imprecise, poorly drafted and impossible to enforce. The nature of doubt or suspicion that is necessary before contacting the police is unclear. A cyber cafe may doubt whether a customer is able to pay the bill for his internet usage, or be suspicious because of the length of a person’s beard. Requiring the police to be called because someone is doubtful is ridiculous. Furthermore, reasonableness in law is a well-established concept of rationality; it is not open to interpretation. “Reasonable doubt” is a criminal law threshold that must be reached in order to secure a conviction. Reporting requirements must be clear and unambiguous.

Therefore, it is proposed that rule 4(6) be deleted.

Rule 5 - Log Register

6.1 Rule 5(3) of the Cyber Cafe Rules states:

“(3) Cyber Cafe shall prepare a monthly report of the log register showing date- wise details on the usage of the computer resource and submit a hard and soft copy of the same to the person or agency as directed by the registration agency by the 5th day of next month.”

This provision is akin to telephone tapping. If phone companies are not required to report the call histories of each of their users and cable television providers not required to report individual viewing preferences, there is no reason for cyber cafes to report the internet usage of users. There may be instances where public interest may be served by monitoring the internet history of specific individuals, just as it is possible to tap an individual’s telephone if it is judicially determined that such a need exists. However, in the absence of such protective provisions to safeguard individual liberties, this sub-rule (3) is grossly violative of the individual right to privacy and should be removed.

Therefore, it is proposed that rule 5(3) be deleted and the remaining sub-rules of rule 5 be accordingly renumbered.

Rule 7 - Inspection of Cyber Cafe

7.1 Rule 7 of the Cyber Cafe Rules provides for an inspection regime:

“An officer autnorised by the registration agency, is authorised to check or inspect cyber cafe and the computer resource of network established therein, at any time for the compliance of these rules. The cyber cafe owner shall provide every related document, registers and any necessary information to the inspecting officer on demand.”

The corollary of a registration regime is an inspection regime. This is necessary to determine that the information provided during registration is accurate and remains updated. However, as stated in paragraphs 3.2 – 3.4 of this submission, a comprehensive and more easily enforceable registration and inspection regime already exists in the form of the various Shops and Establishments Acts in force across the country. Those provisions also provide for the consequences of an inspection, which the Cyber Cafe Rules do not.

Therefore, it is proposed that rule 7 be deleted.

IV Summary

8.1 In sum:

(a) Under the delegated powers contained in section 87(2)(zg) read with section 79(2) of the IT Act, the Central Government does not have the competence to make rules for identifying cyber cafe users including collecting, storing and disclosing personal information of cyber cafe users nor for prescribing the interior design of cyber cafes and, to the extent that the Rules do so, they are ultra vires the parent statute;

(b) The attention of the Committee on Subordinate Legislation is invited to the following provisions of the Cyber Cafe Rules which require amendment or annulment:

Rule 2(1)(c);
Rule 2(1)(e);
Rule 2(1)(g);
Rule 3(1);
Rule 3(4);
Rule 4(1);
Rule 4(2);
Rule 4(3);
Rule 4(4);
Rule 4(5);
Rule 4(6);
Rule 5(3); and
Rule 7.

(c) The Cyber Cafe Rules are extremely poorly framed, rife with discrepancies and will give rise to litigation. They should be selectively annulled and, to prevent a repeat of the same mistakes, new rules may be framed in concert with experts, professional organisations and civil society in a democratic manner.

8.2 CIS would like to conclude by taking this opportunity to present its compliments to the Committee on Subordinate Legislation and to offer the Committee any assistance or support it may require.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-it-guidelines-for-cyber-cafe-rules-2011

Comments on the Information Technology (Electronic Service Delivery) Rules, 2011

bhairav — 2013-07-12T12:12:16Z

Bhairav Acharya on behalf of the Centre for Internet and Society prepared the following comments on the Information Technology (Electronic Services Delivery) Rules, 2011. These were submitted to the Committee on Subordinate Legislation of the 15th Lok Sabha. These were submitted to the Committee on Subordinate Legislation of the 15th Lok Sabha.

This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.

I Preliminary

1.1 This submission presents comments from the Centre for Internet and Society (“CIS”) on the Information Technology (Electronic Service Delivery) Rules, 2011 that were notified by the Central Government in the Gazette of India vide Notification GSR 316(E) on 11 April 2011 (“ESD Rules” or “Rules”).

1.2 The ESD Rules were notified only eight months before the Electronic Delivery of Services Bill, 2011 was tabled in the Lok Sabha on 27 December 2011 (Bill 137 of 2011) (“EDS Bill” or “Bill”). Both the ESD Rules and the EDS Bill are concerned with enabling computer-based electronic delivery of government services to Indian citizens (“electronic service delivery”). Both the Rules and the Bill originate from the same government department: the Department of Electronics and Information Technology of the Ministry of Communications and Information Technology. Since the EDS Bill seeks to enact a comprehensive legislative framework for mandating and enforcing electronic service delivery, the purpose of the ESD Rules are called into question.

II Basic Issues Regarding Electronic Service Delivery

2.1 CIS believes that there are significant conceptual issues regarding electronic service delivery that demand attention. The Department-related Parliamentary Standing Committee on Information Technology of the Fifteenth Lok Sabha (“Standing Committee”) raised a few concerns when it submitted its 37th Report on the EDS Bill on 29 August 2012. There is a clear need for a national debate on the manner of effecting exclusive electronic service delivery to the exclusion of manual service delivery. Some of these issues are briefly summarised as follows:

(a) Mandatory exclusive electronic service delivery pre-supposes the ability of all Indian citizens to easily access such mechanisms. While there are no authoritative national statistics on familiarity with computer-related technologies, it is apparent that a large majority of Indians, most of whom are likely to be already marginalised and vulnerable, are totally unfamiliar with such technologies to endanger their ability to receive basic government services;

(b) Consequent upon mandatory exclusive electronic service delivery for basic government services, a large group of ‘middlemen’ will arise to facilitate access for that majority of Indians who cannot otherwise access these services. This group will control the interface between citizens and their government. As a result, citizens’ access to governance will deteriorate. This problem may be mitigated to a certain extent by creating a new class of public servants to solely facilitate access to electronic service delivery mechanisms;

(c) The issue of governmental incapacity at the citizen-government interface might be addressed by contracting private service providers to operate mandatory exclusive electronic service delivery mechanisms. However, it is difficult to see how commercialising access to essential government services serves the public interest, especially when public funds will be expended to meet the costs of private service providers. Permitting private service providers to charge a fee from the general public to allow access to essential government services is also ill advised;

(d) All electronic service delivery, whether mandatory to the exclusion of other service delivery mechanisms or offered simultaneously with manual service delivery, must be accompanied by strong data protection measures to ensure the sanctity of sensitive personal information shared online with the state. At present, there are no specific laws that bind the state, or its agents, to the stringent requirements of privacy necessary to protect personal liberties. In the same vein, strong data security measures are necessary to prevent sensitive personal information from being compromised or lost;

(e) All electronic service delivery, whether mandatory to the exclusion of other service delivery mechanisms or offered simultaneously with manual service delivery, must ensure ease and equality of accessibility. For this reason, electronic service delivery mechanisms should conform to the National Policy on Open Standards, 2010 (or the proposed National Electronic Access Policy which is currently awaiting adoption), the Interoperability Framework for E-Governance in India and the Website Guidelines of the National Informatics Centre;

(f) Electronic service delivery requires infrastructure which India does not currently have but can develop. Only 1.44 per cent of India’s population has access to a broadband internet connection[1] and current daily energy demand far exceeds supply. On the other hand, the number of broadband subscribers is increasing,[2] the annual installed capacity for electricity generation is growing[3] and the literacy rate is increasing.[4]

2.2 The ESD Rules do not address any of the issues raised in the preceding paragraph. As a result, they cannot be seen to represent the result of a national consensus on the crucial question of mandating exclusive electronic service delivery and the means of enforcing such a scheme. Further, very few of the provisions of the Rules are binding; instead, the Rules appear to be drafted to serve as a minimal model for electronic service delivery. In this background, CIS believes that the Rules should be treated as an incomplete arrangement that prescribe the minimal standards necessary to bind private service providers before comprehensive and statutory electronic service delivery legislation is enacted, perhaps in the form of the EDS Bill or otherwise. Therefore, without prejudice to the issues raised in the preceding paragraph, CIS offers the following comments on the provisions of the Rules while reserving the opportunity to make substantive submissions on electronic service delivery in general to an appropriate forum at a later date.

III Improper Exercise of Subordinate Legislative Power

3.1 Rule 317 of the Rules of Procedure and Conduct of Business in the Lok Sabha (Fourteenth Edition, July 2010) (“Rules of Procedure”), which empowers the Committee on Subordinate Legislation to scrutinise exercises of statutory delegation of legislative powers for impropriety, states:

There shall be a Committee on Subordinate Legislation to scrutinize and report to the House whether the powers to make regulations, rules, subrules, bye-laws etc., conferred by the Constitution or delegated by Parliament are being properly exercised within such delegation.

Further, the Committee on Subordinate Legislation is specifically empowered by rule 320(vii) of the Rules of Procedure to examine any provision of the ESD Rules to consider “whether it appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made.”

3.2 Accordingly, the attention of the Committee on Subordinate Legislation is called to an improper exercise of delegated power under rule 3(1) of the ESD Rules, which states:

The appropriate Government may on its own or through an agency authorised by it, deliver public services through electronically- enabled kiosks or any other electronic service delivery mechanism.

This sub-rule (1) empowers both the Central Government and State Governments to provide electronic service delivery on their own.

3.3 The ESD Rules are made in exercise of delegated powers conferred under section 87(2)(ca) read with section 6-A(2) of the Information Technology Act, 2000 (“IT Act”). Section 87(2)(ca) of the IT Act empowers the Central Government to make rules to provide for:

the manner in which the authorised service provider may collect, retain and appropriate service charges under sub-section (2) of section 6-A.

Section 6-A(2) of the IT Act states:

The appropriate Government may also authorise any service provider authorised under sub-section (1) to collect, retain and appropriate such service charges, as may be prescribed by the appropriate Government for the purpose of providing such services, from the person availing such service.

Prima facie, the delegated powers under section 87(2)(ca) read with section 6-A(2) of the IT Act, in exercise of which the ESD Rules are made, only permit delegated legislation to regulate private service providers, they do not permit the executive to exercise these powers to empower itself to conduct electronic service delivery on its own. Therefore, to the extent that the ESD Rules authorise the Central Government and State Governments to provide electronic service delivery on their own, such authorisation constitutes an improper exercise of delegated power and is ultra vires the IT Act. This may be resolved by deriving the delegated legislative competence of the ESD Rules from section 87(1) of the IT Act, instead of section 87(2)(ca) read with section 6-A(2).

IV Clause-by-Clause Comments

Rule 2 - Definitions

4.1.1 Rule 2(c) of the ESD Rules states:

"authorised agent" means an agent of the appropriate Government or service provider and includes an operator of an electronically enabled kiosk who is permitted under these rules to deliver public services to the users with the help of a computer resource or any communication device, by following the procedure specified in the rules

In accordance with the argument regarding improper exercise of delegated power contained in paragraphs 3.1 – 3.3 of this submission, the appropriate Government cannot undertake electronic service delivery under these Rules. Consequently, the appropriate Government cannot appoint an agent to provide electronic service delivery on behalf, and under the control, of the appropriate Government since, as the principal, the appropriate Government would be responsible for the acts of its agents. Instead, private service providers may provide electronic service delivery as contractees of the appropriate Government who might enter into such contracts as a sovereign contractor. Therefore, only a private service provider may appoint an authorised agent under these Rules.

4.1.2 Therefore, it is proposed that rule 2(c) is amended to read as follows:

““authorised agent” means an agent of a service provider, and includes an operator of an electronically enabled kiosk, who is permitted under these rules to deliver public services with the help of a computer resource or any communication device, by following the procedure specified in these rules”

Rule 3 - System of Electronic Service Delivery

4.2.1 Rule 3(3) of the ESD Rules states:

The appropriate Government may determine the manner of encrypting sensitive electronic records requiring confidentiality, white they are electronically signed.

This sub-rule is supposed to prescribe stringent standards to maintain the security, confidentiality and privacy of all personal information used during electronic service delivery transactions. In the absence of transactional security, electronic service delivery will invite fraud, theft and other misuse to impugn its viability as a means of delivering public services. However, the use of the term “may” leaves the prescription of security standards up to the discretion of the appropriate Government. Further, the language of the sub-rule is unclear and imprecise.

4.2.2 Therefore, it is proposed that rule 3(3) is amended to read as follows:

“The appropriate Government shall, prior to any electronic service delivery, determine the manner of encrypting electronic records and shall prescribe standards for maintaining the safety, security, confidentiality and privacy of all information collected or used in the course of electronic service delivery.”

4.3.1 Rule 3(5) of the ESD Rules states:

The appropriate Government may allow receipt of payments made by adopting the Electronic Service Delivery System to be a deemed receipt of payment effected in compliance with the financial code and treasury code of such Government.

Firstly, if these Rules enable payments to be made electronically, they must also validate the receipt of these payments. Inviting citizens to make electronic payments for government services without recognising the receipt of those payments is farcical to attract abusive and corrupt practices. Therefore, it is imperative that these Rules compulsorily recognise receipt of payments, either by deeming their receipt to be valid receipts under existing law or by specially recognising their receipt by other means including the law of evidence. Either way, electronic receipts of electronic payments must be accorded the validity in law that manual/paper receipts have; and, copies of such electronic receipts must be capable of being adduced in evidence. Secondly, the use of the phrase “financial code and treasury code” is avoidable since these terms are undefined.

4.3.2 Therefore, it is proposed that rule 3(5) be amended to read as follows:

“Any receipt of payment made by electronic service delivery shall be deemed to be a valid receipt of such payment under applicable law and shall be capable of being adduced as evidence of such payment.”

4.4.1 Rule 3(6) of the ESD Rules states:

The appropriate Government may authorise service providers or their authorised agents to collect, retain and appropriate such service charges as may be specified by the appropriate Government for the purpose of providing such services from the person availing such services:

Provided that the apportioned service charges shall be clearly indicated on the receipt to be given to the person availing the services.

This sub-rule is an almost verbatim reproduction of the provisions of section 6-A(2) of the IT Act which reads as follows:

Since the IT Act specifically delegates to the appropriate Governments the power to authorise service providers to levy charges, rule 3(6) of the ESD Rules that merely copies the provisions of the parent statute is meaningless. The purpose of delegated legislation is to give effect to the provisions of a statute by specifying the manner in which statutory provisions shall be implemented. Copying and pasting statutory provisions is a absurd misuse of delegated legislative powers.

4.4.2 Therefore, it is proposed that sub-rule (6) is deleted and the remaining sub-rules of rule 3 are renumbered.

4.5.1 Rule 3(7) of the ESD Rules states:

The appropriate Government shall by notification specify the scale of service charges which may be charged and collected by the service providers and their authorised agents for various kinds of services.

This is an almost verbatim reproduction of the provisions of section 6-A(4) of the IT Act which reads as follows:

The appropriate Government shall, by notification in the Official Gazette, specify the scale of service charges which may be charged and collected by the service providers under this section.

As noted in paragraph 4.3.1 of this submission, the purpose of delegated legislation is not to copy the provisions of the parent statute, but to amplify the scope of the delegated power and the manner of effecting its implementation.

4.5.2 Therefore, it is proposed that sub-rule (7) is deleted and the remaining sub-rules of rule 3 are renumbered.

4.6.1 Rule 3(8) of the ESD Rules states:

The appropriate Government may also determine the norms on service levels to be complied with by the Service Provider and the authorised agents.

There is no quarrel with the power of the government to determine norms for, or directly prescribe, service levels to regulate service providers. However, without a scheme of statutory or sub-statutory penalties for contravention of the prescribed service levels, a sub-delegated service level cannot enforce any penalties. Simply put, the state cannot enforce penalties unless authorised by law. Unfortunately, rule 3(8) contains no such authorisation. Service levels for service providers without a regime of penalties for non-compliance is meaningless, especially since service providers will be engaged in providing access to essential government services.

4.6.2 Therefore, it is proposed that rule 3(8) be amended to read as follows:

“The appropriate Government shall prescribe service levels to be complied with by all service providers and their authorised agents which shall include penalties for failure to comply with such service levels.”

[1]. Thirty-Seventh Report of the Standing Committee on Information Technology (2011-12) on the Electronic Delivery of Services Bill, 2011 (New Delhi: Lok Sabha Secretariat, 29 August 2012) at pp. 13, 17 and 34. See also, Telecom Sector in India: A Decadal Profile (New Delhi: Telecom Regulatory Authority of India, 8 June 2012).

[2]. Annual Report (2011-12) of the Department of Telecommunications, Ministry of Communications and Information Technology, Government of India (New Delhi: Department of Telecommunications, 2012) at pp. 5 and 1-3.

[3]. Report of the Working Group on Power of the Twelfth Plan (New Delhi: Planning Commission, Government of India, January 2012).

[4]. Provisional Report of the Census of India 2011 (New Delhi: Registrar General and Census Commissioner, 2011) from p. 124.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-it-electronic-service-delivery-rules-2011

Anvar v. Basheer and the New (Old) Law of Electronic Evidence

bhairav — 2014-12-04T15:53:01Z

The Supreme Court of India revised the law on electronic evidence. The judgment will have an impact on the manner in which wiretap tapes are brought before a court.

Read the original published by Law and Policy in India on September 25, 2014.

The case

On 18 September 2014, the Supreme Court of India delivered its judgment in the case of Anvar v. P. K. Basheer (Civil Appeal 4226 of 2012) to declare new law in respect of the evidentiary admissibility of the contents of electronic records. In doing so, Justice Kurian Joseph, speaking for a bench that included Chief Justice Rajendra M. Lodha and Justice Rohinton F. Nariman, overruled an earlier Supreme Court judgment in the 1995 case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru(2005) 11 SCC 600, popularly known as the Parliament Attacks case, and re-interpreted the application of sections 63, 65, and 65B of the Indian Evidence Act, 1872 (“Evidence Act”). To appreciate the implications of this judgment, a little background may be required.

The hearsay rule

The Evidence Act was drafted to codify principles of evidence in the common law. Traditionally, a fundamental rule of evidence is that oral evidence may be adduced to prove all facts, except documents, provided always that the oral evidence is direct. Oral evidence that is not direct is challenged by the hearsay rule and, unless it is saved by one of the exceptions to the hearsay rule, is inadmissible. In India, this principle is stated in sections 59 and 60 of the Evidence Act.

The hearsay rule is both fundamental and complex; a proper examination would require a lengthy excursus, but a simple explanation should suffice. In the landmark House of Lords decision in R v. Sharp [1988] 1 All ER 65, Lord Havers – the controversial prosecutor who went on to become the Lord Chancellor – described hearsay as “Any assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted.” This definition was applied by courts across the common law world. Section 114 of the United Kingdom’s (UK) Criminal Justice Act, 2003, which modernised British criminal procedure, uses simpler language: “a statement not made in oral evidence in the proceedings.”

Hearsay evidence is anything said outside a court by a person absent from a trial, but which is offered by a third person during the trial as evidence. The law excludes hearsay evidence because it is difficult or impossible to determine its truth and accuracy, which is usually achieved through cross examination. Since the person who made the statement and the person to whom it was said cannot be cross examined, a third person’s account of it is excluded. There are a few exceptions to this rule which need no explanation here; they may be left to another post.

Hearsay in documents

The hearsay rule is straightforward in relation to oral evidence but a little less so in relation to documents. As mentioned earlier, oral evidence cannot prove the contents of documents. This is because it would disturb the hearsay rule (since the document is absent, the truth or accuracy of the oral evidence cannot be compared to the document). In order to prove the contents of a document, either primary or secondary evidence must be offered.

Primary evidence of the contents of a document is the document itself [section 62 of the Evidence Act]. The process of compelling the production of a document in court is called ‘discovery’. Upon discovery, a document speaks for itself. Secondary evidence of the contents of a document is, amongst other things, certified copies of that document, copies made by mechanical processes that insure accuracy, and oral accounts of the contents by someone who has seen that document. Section 63 of the Evidence Act lists the secondary evidence that may prove the contents of a document.

Secondary evidence of documentary content is an attempt at reconciling the hearsay rule with the difficulties of securing the discovery of documents. There are many situations where the original document simply cannot be produced for a variety of reasons. Section 65 of the Evidence Act lists the situations in which the original document need not be produced; instead, the secondary evidence listed in section 63 can be used to prove its content. These situations arise when the original document (i) is in hostile possession; (ii) has been stipulated to by the prejudiced party; (iii) is lost or destroyed; (iv) cannot be easily moved, i.e. physically brought to the court; (v) is a public document of the state; (vi) can be proved by certified copies when the law narrowly permits; and (vii) is a collection of several documents.

Electronic documents

As documents came to be digitised, the hearsay rule faced several new challenges. While the law had mostly anticipated primary evidence (i.e. the original document itself) and had created special conditions for secondary evidence, increasing digitisation meant that more and more documents were electronically stored. As a result, the adduction of secondary evidence of documents increased. In the Anvar case, the Supreme Court noted that “there is a revolution in the way that evidence is produced before the court”.

In India before 2000, electronically stored information was treated as a document and secondary evidence of these electronic ‘documents’ was adduced through printed reproductions or transcripts, the authenticity of which was certified by a competent signatory. The signatory would identify her signature in court and be open to cross examination. This simple procedure met the conditions of both sections 63 and 65 of the Evidence Act. In this manner, Indian courts simply adapted a law drafted over one century earlier in Victorian England. However, as the pace and proliferation of technology expanded, and as the creation and storage of electronic information grew more complex, the law had to change more substantially.

New provisions for electronic records

To bridge the widening gap between law and technology, Parliament enacted the Information Technology Act, 2000 (“IT Act”) [official pdf here] that, amongst other things, created new definitions of “data”, “electronic record”, and “computer”. According to section 2(1)(t) of the IT Act, an electronic record is “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche” (sic).

The IT Act amended section 59 of the Evidence Act to exclude electronic records from the probative force of oral evidence in the same manner as it excluded documents. This is the re-application of the documentary hearsay rule to electronic records. But, instead of submitting electronic records to the test of secondary evidence – which, for documents, is contained in sections 63 and 65, it inserted two new evidentiary rules for electronic records in the Evidence Act: section 65A and section 65B.

Section 65A of the Evidence Act creates special law for electronic evidence:

65A. Special provisions as to evidence relating to electronic record. – The contents of electronic records may be proved in accordance with the provisions of section 65B.

Section 65A of the Evidence Act performs the same function for electronic records that section 61 does for documentary evidence: it creates a separate procedure, distinct from the simple procedure for oral evidence, to ensure that the adduction of electronic records obeys the hearsay rule. It also secures other interests, such as the authenticity of the technology and the sanctity of the information retrieval procedure. But section 65A is further distinguished because it is a special law that stands apart from the documentary evidence procedure in sections 63 and 65.

Section 65B of the Evidence Act details this special procedure for adducing electronic records in evidence. Sub-section (2) lists the technological conditions upon which a duplicate copy (including a print-out) of an original electronic record may be used: (i) at the time of the creation of the electronic record, the computer that produced it must have been in regular use; (ii) the kind of information contained in the electronic record must have been regularly and ordinarily fed in to the computer; (iii) the computer was operating properly; and, (iv) the duplicate copy must be a reproduction of the original electronic record.

Sub-section (4) of section 65B of the Evidence Act lists additional non-technical qualifying conditions to establish the authenticity of electronic evidence. This provision requires the production of a certificate by a senior person who was responsible for the computer on which the electronic record was created, or is stored. The certificate must uniquely identify the original electronic record, describe the manner of its creation, describe the device that created it, and certify compliance with the technological conditions of sub-section (2) of section 65B.

Non-use of the special provisions

However, the special law and procedure created by sections 65A and 65B of the Evidence Act for electronic evidence were not used. Disappointingly, the cause of this non-use does not involve the law at all. India’s lower judiciary – the third tier of courts, where trials are undertaken – is vastly inept and technologically unsound. With exceptions, trial judges simply do not know the technology the IT Act comprehends. It is easier to carry on treating electronically stored information as documentary evidence. The reasons for this are systemic in India and, I suspect, endemic to poor developing countries. India’s justice system is decrepit and poorly funded. As long as the judicial system is not modernised, India’s trial judges will remain clueless about electronic evidence and the means of ensuring its authenticity.

By bypassing the special law on electronic records, Indian courts have continued to apply the provisions of sections 63 and 65 of the Evidence Act, which pertain to documents, to electronically stored information. Simply put, the courts have basically ignored sections 65A and 65B of the Evidence Act. Curiously, this state of affairs was blessed by the Supreme Court in Navjot Sandhu (the Parliament Attacks case), which was a particularly high-profile appeal from an emotive terrorism trial. On the question of the defence’s challenge to the authenticity and accuracy of certain call data records (CDRs) that the prosecution relied on, which were purported to be reproductions of the original electronically stored records, a Division Bench of Justice P. Venkatarama Reddi and Justice P. P. Naolekar held:

According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge.

Flawed justice and political expediency in wiretap cases

The Supreme Court’s finding in Navjot Sandhu (quoted above) raised uncomfortable questions about the integrity of prosecution evidence, especially in trials related to national security or in high-profile cases of political importance. The state’s investigation of the Parliament Attacks was shoddy with respect to the interception of telephone calls. The Supreme Court’s judgment notes in prs. 148, 153, and 154 that the law and procedure of wiretaps was violated in several ways.

The Evidence Act mandates a special procedure for electronic records precisely because printed copies of such information are vulnerable to manipulation and abuse. This is what the veteran defence counsel, Mr. Shanti Bhushan, pointed out in Navjot Sandhu [see pr. 148] where there were discrepancies in the CDRs led in evidence by the prosecution. Despite these infirmities, which should have disqualified the evidence until the state demonstrated the absence of mala fide conduct, the Supreme Court stepped in to certify the secondary evidence itself, even though it is not competent to do so. The court did not compare the printed CDRs to the original electronic record. Essentially, the court allowed hearsay evidence. This is exactly the sort of situation that section 65B of the Evidence Act intended to avoid by requiring an impartial certificate under sub-section (4) that also speaks to compliance with the technical requirements of sub-section (2).

When the lack of a proper certificate regarding the authenticity and integrity of the evidence was pointed out, this is what the Supreme Court said in pr. 150:

Irrespective of the compliance of the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.

In the years that followed, printed versions of CDRs were admitted in evidence if they were certified by an officer of the telephone company under sections 63 and 65 of the Evidence Act. The special procedure of section 65B was ignored. This has led to confusion and counter-claims. For instance, the 2011 case of Amar Singh v. Union of India (2011) 7 SCC 69 saw all the parties, including the state and the telephone company, dispute the authenticity of the printed transcripts of the CDRs, as well as the authorisation itself. Currently, in the case of Ratan Tata v. Union of India Writ Petition (Civil) 398 of 2010, a compact disc (CD) containing intercepted telephone calls was introduced in the Supreme Court without following any of the procedure contained in the Evidence Act.

Returning sanity to electronic record evidence, but at a price

In 2007, the United States District Court for Maryland handed down a landmark decision in Lorraine v. Markel American Insurance Company241 FRD 534 (D. Md. 2007) that clarified the rules regarding the discovery of electronically stored information. In American federal courts, the law of evidence is set out in the Federal Rules of Evidence. Lorraine held when electronically stored information is offered as evidence, the following tests need to be affirmed for it to be admissible: (i) is the information relevant; (ii) is it authentic; (iii) is it hearsay; (iv) is it original or, if it is a duplicate, is there admissible secondary evidence to support it; and (v) does its probative value survive the test of unfair prejudice?

In a small way, Anvar does for India what Lorraine did for US federal courts. In Anvar, the Supreme Court unequivocally returned Indian electronic evidence law to the special procedure created under section 65B of the Evidence Act. It did this by applying the maxim generalia specialibus non derogant (“the general does not detract from the specific”), which is a restatement of the principle lex specialis derogat legi generali (“special law repeals general law”). The Supreme Court held that the provisions of sections 65A and 65B of the Evidence Act created special law that overrides the general law of documentary evidence [see pr. 19]:

Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65Aof the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B ofthe Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

By doing so, it disqualified oral evidence offered to attest secondary documentary evidence [see pr. 17]:

The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.

The scope for oral evidence is offered later. Once electronic evidence is properly adduced according to section 65B of the Evidence Act, along with the certificate of sub-section (4), the other party may challenge the genuineness of the original electronic record. If the original electronic record is challenged, section 22A of the Evidence Act permits oral evidence as to its genuineness only. Note that section 22A disqualifies oral evidence as to the contents of the electronic record, only the genuineness of the record may be discussed. In this regard, relevant oral evidence as to the genuineness of the record can be offered by the Examiner of Electronic Evidence, an expert witness under section 45A of the Evidence Act who is appointed under section 79A of the IT Act.

While Anvar is welcome for straightening out the messy evidentiary practice regarding electronically stored information that Navjot Sandhuhad endorsed, it will extract a price from transparency and open government. The portion of Navjot Sandhu that was overruled dealt with wiretaps. In India, the wiretap empowerment is contained in section 5(2)of the Indian Telegraph Act, 1885 (“Telegraph Act”). The Telegraph Act is an inherited colonial law. Section 5(2) of the Telegraph Act was almost exactly duplicated thirteen years later by section 26 of the Indian Post Office Act, 1898. When the latter was referred to a Select Committee, P. Ananda Charlu – a prominent lawyer, Indian nationalist leader, and one of the original founders of the Indian National Congress in 1885 – criticised its lack of transparency, saying: “a strong and just government must not shrink from daylight”.

Wiretap leaks have become an important means of discovering governmental abuse of power, corruption, and illegality. For instance, the massive fraud enacted by under-selling 2G spectrum by A. Raja, the former telecom minister, supposedly India’s most expensive corruption scandal, caught the public’s imagination only after taped wiretapped conversations were leaked. Some of these conversations were recorded on to a CD and brought to the Supreme Court’s attention. There is no way that a whistle blower, or a person in possession of electronic evidence, can obtain the certification required by section 65B(4) of the Evidence Act without the state coming to know about it and, presumably, attempting to stop its publication.

Anvar neatly ties up electronic evidence, but it will probably discourage public interest disclosure of inquity.

Video

For more details visit https://cis-india.org/internet-governance/blog/anvar-v-basheer-new-old-law-of-electronic-evidence

An Analysis of the Cases Filed under Section 46 of the Information Technology Act, 2000 for Adjudication in the State of Maharashtra

bhairav — 2013-10-01T15:29:46Z

This is a brief review of some of the cases related to privacy filed under section 46 of the Information Technology Act, 2000 ("the Act") seeking adjudication for alleged contraventions of the Act in the State of Maharashtra.

Background

Section 46 of the Act grants the Central Government the power to appoint an adjudicating officer to hold an enquiry to adjudge, upon complaints being filed before that adjudicating officer, contraventions of the Act. The adjudicating officer may be of the Central Government or of the State Government [see section 46(1) of the Act], must have field experience with information technology and law [see section 46(3) of the Act] and exercises jurisdiction over claims for damages up to `5,00,00,000 [see section 46(1A) of the Act]. For the purpose of adjudication, the officer is vested with certain powers of a civil court [see section 46(5) of the Act] and must follow basic principles of natural justice while conducting adjudications [see section 46(2) of the Act]. Hence, the adjudicating officer appointed under section 46 is a quasi-judicial authority.

In addition, the quasi-judicial adjudicating officer may impose penalties, thereby vesting him with some of the powers of a criminal court [see section 46(2) of the Act], and award compensation, the quantum of which is to be determined after taking into account factors including unfair advantage, loss and repeat offences [see section 47 of the Act]. The adjudicating officer may impose penalties for any of the offences described in section 43, section 44 and section 45 of the Act; and, further, may award compensation for losses suffered as a result of contraventions of section 43 and section 43A. The text of these sections is reproduced in the Schedule below. Further law as to the appointment of the adjudicating officer and the procedure attendant on all adjudications was made by Information Technology (Qualification and Experience of Adjudicating Officers and the Manner of Holding Enquiry) Rules, 2003.[1]

It is clear that the adjudicating officer is vested with significant judicial powers, including the power to enforce certain criminal penalties, and is an important quasi-judicial authority.

Excursus

At the outset, it is important to understand the distinction between compensation and damages. Compensation is a sum of money awarded by a civil court, before or along with the primary decree, to indemnify a person for injury or loss. It is usually awarded to a person who has a suffered a monetary loss as a result of the acts or omissions of another party. Its quantification is usually guided by principles of equity. [See Shantilal Mangaldas AIR 1969 SC 634 and Ranbir Kumar Arora AIR 1983 P&H 431]. On the hand, damages are punitive and, in addition to restoring an indemnitee to wholeness, may be imposed to deter an offender, punish exemplary offences, and recover consequential losses, amongst other objectives. Damages that are punitive, while not judicially popular in India, are usually imposed by a criminal court in common law jurisdictions. They are distinct from civil and equitable actions. [See the seminal case of The Owners of the Steamship Mediana [1900] AC 113 (HL)].

Unfortunately, section 46 of the Act uses the terms “damage”, “injury” and “compensation” interchangeably without regard for the long and rich jurisprudence that finds them to be different concepts.

The Cases related to Privacy

In the State of Maharashtra, there have been a total of 47 cases filed under section 46 of the Act. Of these, 33 cases have been disposed of by the Adjudicating Officer and 14 are currently pending disposal. [2] At least three of these cases before the Adjudicating Officer deal with issues related to privacy of communications and personal data. They are:

Case Title	Forum	Date
Vinod Kaushik v. Madhvika Joshi	Shri Rajesh Aggarwal Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra	10.10.2011
Amit D. Patwardhan v. Rud India Chains	Shri Rajesh Aggarwal Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra	15.04.2013
Nirmalkumar Bagherwal v. Minal Bagherwal	Shri Rajesh Aggarwal Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra	26.08.2013

In all three cases the Adjudicating Officer was called upon to determine and penalise unauthorised access to personal data of the complainants. In the Vinod Kaushik case, the complainants’ emails and chat sessions were accessed, copied and made available to the police for legal proceedings without the permission of the complainants. In the Amit Patwardhan and Nirmalkumar Bagherwal cases, the complainants’ financial information in the form of bank account statements were obtained from their respective banks without their consent and used against them in legal proceedings.

The Vinod Kaushik complaint was filed in 2010 for privacy violations committed between 2008 and 2009. The complaint was made against the complainant’s daughter-in-law – the respondent, who was estranged from her husband, the complainant’s son. The respondent had, independent of the proceedings before the Adjudicating Officer, instituted criminal proceedings alleging cruelty and dowry-related harassment against her estranged husband and the complainant. To support some of the claims made in the criminal proceedings, the respondent accessed the email accounts of her estranged husband and the complainant and printed copies of certain communications, both emails and chat transcripts. The complaint to the Adjudicating Officer was made in relation to these emails and chat transcripts that were obtained without the consent and knowledge of the complainant and his son. On 09.08.2010, the then Adjudicating Officer dismissed the complaint after finding that, owing to the marriage between the respondent and the complainant’s son, there was a relation of mutual trust between them that resulted in the complainant and his son consensually sharing their email account passwords with the respondent. This ruling was appealed to the Cyber Appellate Tribunal ("CyAT") which, in a decision of 29.06.2011, found irregularities in the complainant’s son’s privity to the proceedings and remanded the complaint to the Adjudicating Officer for re-adjudication. The re-adjudication, which was conducted by Shri Rajesh Aggarwal as Adjudicating Officer, resulted in a final order of 10.10.2011 ("the final order") that is the subject of this analysis. The final order found that the respondent had violated the privacy of the complainant and his son by her unauthorised access of their email accounts and sharing of their private communications. However, the Adjudicating Officer found that the intent of the unauthorised access – to obtain evidence to support a criminal proceeding – was mitigatory and hence ordered the respondent to pay only a small token amount in compensation, not to the complainants but instead to the State Treasury. The Delhi High Court, which was moved in appeal because the CyAT was non-functional, upheld the final order in its decision of 27.01.2012.

The Amit Patwardhan complaint was filed against the complainant’s ex-employer – the respondent, for illegally obtaining copies of the complainant’s bank account statement. The complainant had left the employ of the respondent to work with a competing business company but not before colluding with the competing business company and diverting the respondent’s customers to them. For redress, the respondent filed suit for a decree of compensation and lead the complainant’s bank statements in evidence to prove unlawful gratification. Since the bank statements were obtained electronically by the respondent without the complainant’s consent, the jurisdiction of the Adjudicating Officer was invoked. In his order of 15.04.2013, Shri Rajesh Aggarwal, the Adjudicating Officer, found that the respondent had, by unlawfully obtaining the complainant’s bank account statements which constitute sensitive personal data, violated the complainant’s privacy. The Adjudicating Officer astutely applied the equitable doctrine of clean hands to deny compensation to the complainant; however, because the complainant’s bank was not a party to the complaint, the Adjudicating Officer was unable to make a ruling on the lack of action by the bank to protect the sensitive personal data of its depositors.

The Nirmalkumar Bagherwal complaint bears a few similarities to the preceding two cases. Like the Vinod Kaushik matter, the issue concerned the manner in which a wife, estranged but still legally married, accessed electronic records of personal data of the complainants; and, like the Amit Patwardhan matter, the object of the privacy violation was the bank account statements of the complainants that constitute sensitive personal data. The respondent was the estranged wife of one of the complainants who, along with his complainant father, managed the third complainant company. To support her claim for maintenance from the complainant and his family in an independent legal proceeding, the respondent obtained certain bank account statements of the complainants without their consent and, possibly, with the collusion of the respondent bank. After reviewing relevant law from the European Union and the United States, and observant of relevant sectoral regulations applicable in India including the relevant Master Circular of the Reserve Bank of India, and further noting preceding consumer case law on the subject, the Adjudicating Officer issued an order on 26.08.2013. The order found that the complainant’s right to privacy was violated by both the respondents but, while determining the quantum of compensation, distinguished between the respondents in respect of the degree of liability; the respondent wife was ordered to pay a token compensation amount while the respondent bank was ordered to pay higher compensation to each of the three complainants individually.

The high quality of each of the three orders bears specific mention. Despite the superb quality of the judgments of the Indian higher judiciary in the decades after independence, the overall quality of judgment-writing appears to have declined. [3] In the last decade, several Indian judges have called for higher standards of judgment writing from their fellow judges. [4] In this background, it is notable that Shri Rajesh Aggarwal, despite not being a member of the judiciary, has delivered well-reasoned, articulate and clear orders that are cognisant of legal issues and also easily understandable to a non-legal reader.

In each of these cases, the Adjudicating Officer has successfully navigated around the fact that none of the primary parties were interacting and transacting at arm’s length. In the Vinod Kaushik and Nirmalkumar Bagherwal matters, the primary parties were estranged but still legally married partners and in the Amit Patwardhan matter the parties were in an employer-employee relationship. The first Adjudicating Officer in the Vinod Kaushik matter failed, in his order of 09.08.2010, to appreciate that the individual communications of individual persons were privileged by an expectation of privacy, regardless of their relationship. Hence, despite acknowledging that the marital partners in that matter were in conflict with each other, and despite being told by one party that the other party’s access to those private communications was made without consent, the Adjudicating Officer allowed his non-judicial opinion of marriage to influence his order. This mistake was corrected when the matter was remanded for re-adjudication. In the re-adjudication, the new Adjudicating Officer correctly noted that the respondent wife could have chosen to approach the police or a court to follow the proper investigative procedure for accessing emails and other private communications of another person and that her unauthorised use of the complainant’s passwords amounted to a violation of their privacy.

Popular conceptions of different types of relationships may affect the (quasi) judicial imagination of privacy. In comparison to the Vinod Kaushik matter, the Nirmalkumar Bagherwal and Amit Patwardhan matters both dealt with unauthorised access to bank account statements, by a wife and by an ex-employer respectively. In any event, the same Adjudicating Officer presided over all three matters and correctly found that the facts in all three matters admitted to contraventions of the privacy of the complainants. The conjecture as to whether the first Adjudicating Officer in the Vinod Kaushik matter would have applied the same standard of family unity to unauthorised access of bank account statements by an estranged wife who was seeking maintenance remains untested. However, the reliance placed on the decision of the Delhi State Consumer Protection Commission in the matter of Rupa Mahajan Pahwa, [5] where the Commission found that unauthorised access to a bank pass book by an estranged husband violated the privacy of the wife, would suggest that judges clothe financial information with a standard of privacy higher than that given to emails.

Emails are a form of electronic communication. The PUCL case (Supreme Court of India, 1996)[6] while it did not explicitly deal with the standard of protection accorded to emails, held that personal communications were protected by an individual right to privacy that emanated from the protection of personal liberty guaranteed under Article 21 of the Constitution of India. Following the Maneka Gandhi case (Supreme Court of India, 1978)[7]

it is settled that persons may be deprived of their personal liberty only by a just, fair and reasonable procedure established by law. As a result, interceptions of private communications that are protected by Article 21 may only be conducted in pursuance of such a procedure. This procedure exists in the form of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 that came into effect on 27 October 2009 ("the Interception Rules"). The Interception Rules set out a regime for accessing private emails in certain conditions. The powers and procedure of Section 91 of the Code of Criminal Procedure ("CrPC") may also apply to obtain data at rest, such as emails stored in an inbox or sent-mail folder.

Finally, the orders of the Adjudicating Officer reveal a well-reasoned and progressive understanding of the law and principles relating to the quantification of compensation. By choosing to impose larger amounts of compensation on the bank that violated the privacy of the complainant in the Nirmalkumar Bagherwal matter, the Adjudicating Officer has indicated that the institutions that hold sensitive personal data, such as financial information, are subject to a higher duty of care in relation of it. But, most importantly, the act of imposing monetary compensation of privacy violations is a step forward because, for the first time in India, it recognises that privacy violations are civil wrongs or injuries that demand compensation.

[1]. These Rules were issued vide GSR 220(E), dated 17 March 2003 and published in the Gazette of India, Extraordinary, Part II, Section 3(i). These Rules can be accessed here – http://it.maharashtra.gov.in/PDF/Qual_ExpAdjudicatingOfficer_Manner_of_Holding_Enquiry_Rules.PDF (visited on 30 September 2013).

[2]. These cases and statistics may be viewed here – http://it.maharashtra.gov.in/1089/IT-Act-Judgements (visited on 30 September 2013).

[3]. See generally, Upendra Baxi “"The Fair Name of Justice": The Memorable Voyage of Chief Justice Chandrachud” in A Chandrachud Reader (Justice V. S. Deshpande ed., Delhi: Documentation Centre etc., 1985) and, Rajeev Dhavan, "Judging the Judges" in Judges and the Judicial Power: Essays in Honour of Justice V. R. Krishna Iyer (Rajeev Dhavan and Salman Khurshid eds., London: Sweet & Maxwell, 1985).

[4]. See generally, Justice B.G .Harindranath, Art of Writing Judgments (Bangalore: Karnataka Judicial Academy, 2004); Justice T .S. Sivagnanam, The Salient Features of the Art of Writing Orders and Judgments (Chennai: Tamil Nadu State Judicial Academy, 2010); and, Justice Sunil Ambwani, “Writing Judgments: Comparative Models” Presentation at the National Judicial Academy, Bhopal (2006) available here – http://districtcourtallahabad.up.nic.in/articles/writing%20judgment.pdf (visited on 29 Sep 2013).

[5]. Appeal No. FA-2008/659 of the Delhi State Consumer Protection Commission, decided on 16 October 2008.

[6]. (1997) 1 SCC 301.

[7]. (1978) 1 SCC 248.

For more details visit https://cis-india.org/internet-governance/blog/analysis-of-cases-filed-under-sec-48-it-act-for-adjudication-maharashtra

A Public Discussion on Criminal Defamation in India

bhairav — 2015-07-27T14:44:15Z

The Centre for Internet and Society (CIS); the Network of Women in Media, India; and Media Watch, Bengaluru, are hosting a public discussion on criminal defamation in India. The discussion will start at 5.30 pm on Wednesday, 29 July 2015, at the CIS office in Domlur, Bengaluru.


Pictured above: A poster of the event.

Decriminalising Defamation in India: A Brief Statement of Issues

Subramanian Swamy’s petition to decriminalise defamation has been joined in the Supreme Court by concurring petitions from Rahul Gandhi and Arvind Kejriwal. Defamation is criminalised by sections 499 and 500 of the Indian Penal Code, 1860 (IPC). Swamy and his unlikely cohorts want the Supreme Court to declare that these criminal defamation provisions interfere with the right to free speech and strike them down.

Although news coverage of the case has focused on the motivations and arguments of the three politicians, defamation should not be the sole province of celebrities and the powerful. Unfortunately, criminal defamation has emerged as a new system of censorship to silence journalists, writers, and activists. SLAPP suits (Strategic Lawsuits against Public Participation) are being increasingly used by large corporations to frighten and overwhelm critics and opponents. SLAPP suits are not designed to succeed – although they often do, they are intended to intimidate, harass, and outspend journalists and activists into submission.

The law of defamation rests on uncertain foundations. In medieval Europe defamation was dually prosecuted by the Church as a sin equal to sexual immorality, and by secular courts for the threat of violence that accompanied defamatory speech. These distinct concerns yielded a peculiar defence which fused two elements: truth, which shielded the speaker from the sin of lying; and, the public good, which protected the speaker from the charge of disrupting the public peace. This dual formulation – truth and the public good – remains the primary defence to defamation today.

India does not have a strong ‘fair comment’ defence to protect speech that is neither true nor intrinsically socially useful. This bolsters the law’s reflexive censorship of speech that falls outside the bounds of social utility and morality such as parody, caricature, outrageous opinion, sensationalism, and rumour. This failure affects cartoonists and tabloid sensationalism alike.

Defamation law is also open to procedural misuse to maximise its harrassive effect. Since speech that is published on the Internet or mass-printed and distributed can be read almost anywhere, the venue of criminal defamation proceedings can be chosen to inconvenience and exhaust a speaker into surrender. This motivation explains the peculiarly remote location of several defamation proceedings in India against journalists and magazine editors.

The offence of defamation commoditises reputation. While defamation remains a crime, the state must prosecute it as it does other crimes such as murder and rape. This merits the question: should the state expend public resources to defend the individual reputations of its citizens? Such a system notionally guarantees parity because if the state were to retreat from this role leaving private persons to fight for their own reputations, the market would favour the reputations of the rich and powerful at the expense of others.

These and other issues demand an informed and rigorous public discussion about the continued criminalisation of defamation in India.

Download the concept note prepared by Bhairav Acharya

For more details visit https://cis-india.org/internet-governance/events/a-public-discussion-on-criminal-defamation-in-india