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Locating Constructs of Privacy within Classical Hindu Law

Ashna Ashesh and Bhairav Acharya — 2015-01-01T13:56:04Z

This white paper seeks to locate privacy in Classical Hindu Law, and by doing so, displace the notion that privacy is an inherently ‘Western’ concept that is the product of a modernist legal system.

Introduction: Conceptions of Privacy

Because of the variance exhibited by the various legal, social, and cultural aspects of privacy, it cannot be easily defined. As a legal concept, privacy may form a constitutional claim, a statutory entitlement, a tortious action or an equitable remedy. As a constitutional claim, privacy is either an explicitly recognised right that is capable of independent enforcement, read into a pre-existing right , or located within the penumbra of a larger right. Statutory recognition of privacy may be afforded by both criminal and civil statutes. The offence of criminal defamation for instance, is perceived as an act of violating an individual's privacy by tarnishing his or her reputation. Similarly the provision of in camera trials for divorce proceedings is an illustration of a civil statute implicitly recognising privacy. As a tortious claim the notion of privacy is commonly understood in terms of the right against trespass of property. Equity, co-terminus with a statutory mandate or in isolation, may also be a source of privacy.

Most legal conceptions of privacy in everyday use in India originated from the English common law. Other constitutional and statutory constructions of privacy, even when not found in the common law, arise within a broader modernist system of law and justice that originated in Europe. During the European colonisation of India, the British (and, in a different manner, the French ) attempted to recreate the common law in India through the establishment of a new legal and courts system, and the wholesale importation of the European idea of law. The very notion of privacy, as well as its legal conception, is a product of this legal modernity. In post-colonial societies, the argument against the right to privacy is usually premised on its perceived alien-ness - as a foreign idea brought by colonisers and imposed on a traditionalist society that favoured communitarian living over individual rights - in an effort to discredit it.

The fallacy of this argument lies in its ignorance of the cultural plurality of privacy. To begin with, the idea that is connoted by the modernist notion of privacy pre-dated the introduction of common law in India. By the time of the Enlightenment, Hindu law and Islamic law were established legal systems with rich histories of jurisprudence and diverse schools of law within them, each with their own juristic techniques and rules of interpretation. While neither Hindu law nor Islamic law use a term that readily translates to "privacy", thereby precluding a neat transposition of meanings between them, the notion of privacy existed and can be located in both the legal traditions. In this paper, the term 'privacy' is used to describe both the modernist notion that arises from the principle of personal autonomy as well as the diverse pre-modern concepts in Hindu and Islamic jurisprudence that resemble or relate to this notion. These pre-modern concepts are diverse, and do not permit an easy analysis. For instance, the Manusmriti, which is a source of classical Hindu law, prohibits bathing in tanks that belong to other men. Additionally it prohibits the use of wells, gardens, carriages, beds, seats and houses without the owner's permission. These prohibitions are not driven by the imperatives of privacy alone. The rationale is that in using others' belongings one appropriates a portion of their sins. Hence, these privacy protections are linked to an ideal of purity. Islamic law also restricts the use or misappropriation of another's property. However, this prohibition is designed to protect private property; it has no ideological link to purity.

This paper attempts to locate constructs of privacy in classical Hindu law. The purpose of this exercise is not to privilege one legal system over another. Therefore, we do not intend to normatively assess the existing modernist discourse on privacy. We simply seek to establish the existence of alternate notions of privacy that pre-date modernity and the common law.

The scope of the paper is confined to locating privacy in classical Hindu law. The materials within the realm of classical Hindu law, relevant to this exercise are- the sruti, smriti, and acara. Sruti comprises of the Vedas, Brahmanas, Aranyakas and the Upanishads. It is considered to symbolise the spirit of Hindu law and is not the source of any positivist command as such. Smriti involves various interpretations of the sruti, We have however restricted ourselves to the Dharmashastras in this realm. Acara refers to the body of customary practices.

The review of the material at hand however, is not exhaustive. The reasons for this are twofold- first, given the vast expanse of Hindu jurisprudence, the literature review has been limited; second, there is a limited availability of reliable English translations of ancient legal treatises.

This paper is divided into two parts. The first part of this paper deals with the interface of colonisation with Hindu law and elucidates the nature of Hindu law. With the advent of colonialism, classical Hindu law was gradually substituted by a modernist legal system. Exploring the characteristics of modernity, the factors that contributed to the displacement of classical Hindu law will be identified.

One of the factors that contributed to the displacement was the uncertainty that characterised classical Hindu law. Classical Hindu law was an amalgamation of three sources, as. In an attempt to rule out the uncertainty, and the lack of positive command, the modernisation of Hindu law was brought about. Accordingly this part shall also examine the nature of Hindu law. Furthermore it shall determine whether the application of codified modern Hindu law, is informed by the precepts of classical Hindu law.

Having explicated the nature of Hindu law, the next part will focus on identifying instances of privacy in classical Hindu law.

Before ascertaining specific instances, however, this part will lay down a general understanding of privacy as it existed then. It will be demonstrated that regardless of the absence of an equivalent term, an expectation of privacy existed.

The specific illustrations of privacy will then be mapped out.

Given the different aspects wherein an expectation of privacy exists, there is also a possibility of competing claims. In the event that such conflicts arise, this part will attempt to resolve the same.

Part 1: The Transmogrification of the Nature of Hindu Law

The evolution of Hindu jurisprudence can be charted through three phases- classical, colonial, and modern.

In the classical phase, it was embodied by the Dharmashastra which elaborated on customary practices, legal procedure, as well as punitive measures. The Dharamshastra was accompanied by the Vedas, and acara. Whether this body of jurisprudence could be called 'law' in the strict modernist sense of the term is debatable.

Modernity has multifarious aspects. However, we are concerned with modernity in the context of legal systems, for the purpose of this paper. The defining attribute of a modernist legal system is the need for positivist precepts that are codified by a legislature. The underlying rationale for formalised legislation is the need for certainty in law. Law is to be uniformly applied within the territory. The formalised legislation is to be enforced by hierarchized courts. Furthermore this codified law can be modified through provisions for amendment, if need be.

This modernist understanding is what informs the English common law. With the advent of colonialism, common law was imported to India. The modernist legal system was confronted by plural indigenous legal systems here that were starkly different in nature. In the given context, the relevant indigenous system is classical Hindu law. The classical precepts were interpreted by the British. These interpretations coupled with the sources of Classical Hindu law, constituted colonial Hindu law.

It is pertinent to note that these interpretations were undertaken through a modernist lens. The implication was the attempted modernisation of a traditional legal system.

The traditional system of Classical Hindu law did not exhibit any of the introduced features. To begin with not all of classical Hindu law was text based. The problem with the textual treatises was threefold. First, they were not codes enacted by a legislature, but written by various scholars. Second, they were not phrased as positivist precepts. Third, their multiplicity was accompanied with the lack of an established hierarchy between these texts.

Additionally classical Hindu law was the embodiment of dharma, which in itself was an amorphous concept. The constitutive elements ofdharma were law, religious rites, duties and obligations of members of a community, as well as morality. These elements do not however, exhaustively define dharma. There exist varying definitions of dharma, and in some cases even ancient texts dealing with dharma fail to articulate its definition. This is on account of the fact that the meaning of dharma, varied depending on the in which it is used Owing to the fact that classical Hindu jurisprudence was informed by dharma, the former was an amalgamation of law, religion and morality. Therefore it was categorised as jurisprudence that lacked the secularity exhibited by modern positivist law.

The co-existence of law and morality in classical Hindu law has led to various debates regarding its nature. Before explicating the nature of classical Hindu law, its sources must be elaborated on. As referred to, the sources are sruti, smriti, and acara.

Sruti is constituted by the Vedas, Brahmanas, Aranyakas, and Upanishads. Vedas are divine revelations that contain no positive precept per se. They are considered as the spirit of law, and believed to be the source of the rules of dharma. The Vedas are constituted by the Rigveda, Samveda, Yajurveda and Athravaveda. Based on the Vedic texts, treatises have been written elucidating religious practices. These texts are known as the Brahmanas. The Aranyakas and the Upanishads engage in philosophical enquiries of the revelation in the Vedas.

Interpretations of the Sruti by various scholars are embodied in the Smriti. The connotations of smriti are twofold. First, it implies knowledge transmitted through memory, as opposed to knowledge directly revealed by divinity. Additionally, it is the term used to collectively reference the Dharmasutras and Dharmashastra.

Dharmasutras were essentially interpretations of revelation in only prose form, or a mixture of prose and verse. They detailed the duties and rituals to be carried out by a person, through the four stages, of his or her life. The duties laid down also varied depending on the caste of a person. They also laid down guidelines for determining punishments.

Dharmasastras on the other hand were in the verse form. Though their subject matter coincided with the Dharmasutra in terms of domestic duties and rituals, they had a wider ambit. The Dharmasastras also dealt with subjects such as statecraft, legal procedure for adjudicating disputes. In a limited way, they marked the diversification from strictly religious precepts, from those that were legal in nature. For instance the Manusmriti was an amalgamation of law and ritual. The Yajnawalkya Samhita however, has separate parts that deal with customary practices, legal procedure, and punitive measures. The Narada Smriti, in turn deals only with legal procedure and rules of adjudication.

It is opined that in due course of time, the Aryan civilisation diversified. Their life and literature were no longer limited to sacrificial practices, but took on a more 'secular' form. The Arthashastra is evidence of such diversification. Unlike the Dharmashastra, it deals with strategies to be employed in governance, regulations with regard to urban planning, commercialisation of surrogacy, espionage, among other things.

The third source of classical Hindu law, acara refers to customary practices and their authoritativeness was determined by the people. Their prevalence over textual tradition is contentious. Some opine that acara prevails over textual traditions. However, the opposing school of thought believes that customary practices prevail only if the text is unclear or disputed.

Other sources of classical Hindu law include the itihas (epics such as the Mahabharata and Ramayana), and digests written by scholars.

Given the diversity of sources and its non-conformity to positivism, the nature of classical Hindu law is a heavily contested issue. For instance, with regard to the legal procedure in the Dharmashastra, Maynes opines that these rules qualified as law in the modernist sense. Ludo Rocher however, opines that textual treatises would not qualify as law. Classical Hindu law can admittedly not be identified as strictly legal or strictly moral. However, it does in a limited way recognise the distinction between legal procedure and morality. This is to say, it is not merely a source of rituals, but also lays down precepts that are jurisprudentially relevant.

On account of its non-conformity with characteristics of a modernist legal system, classical Hindu law was displaced by its colonial version. The British attempted to accomplish this though the process of codification. The colonial attempts to codify Hindu law were carried forward by the Indian government post-independence. The result was the Hindu Code Bill. The context in which this codification took place must be examined in order to better comprehend this transmogrification. Post-independence, the idea of a Uniform Civil Code had been debated. However it was at odds with the Nehruvian notion of secularity. The codification of Hindu personal law was an attempt at modernising it, without infringing on the religious freedom of Hindus. The idea was to confine the influence of religion to the private sphere. What emerged was the Hindu Code Bill, which served as the blueprint for the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and, the Hindu Adoption and Maintenance Act. Colonial Hindu law was thus displaced by modern Hindu law.

As Galanter observes however, modernisation through legislations may formalise or even modify classical precepts, but cannot erase them completely. For instance, Section 7 of the Hindu Marriage Act, which prescribes the ceremonial requirements for a Hindu marriage, replicates those prescribed in Classical Hindu law. Additionally a plethora of judicial decisions have relied on or taken into consideration, precepts of ancient Hindu jurisprudence.

It is evident thus that ancient precepts still inform modern Hindu law. Given their relevance, it would be erroneous to write off classical Hindu law as completely irrelevant in a modernist context.

Part II: Precepts of Privacy in Classical Hindu Law

As referred to, we have not come across a terminological equivalent of the term 'privacy' in the course of our research. The linguistic lacuna is admittedly a hurdle in articulating the pre-modern understanding of privacy as found in Hindu jurisprudence. It is not however, an argument against the very existence of privacy. The lack of pre-modern terminology necessitates the usage of modern terms in classifying the aspects of privacy detailed in Hindu jurisprudence.

Thus, broadly speaking, the aspects of privacy we have culled out from the material at hand are those of physical space/ property, thought, bodily integrity, information, communication, and identity. As will be demonstrated these aspects overlap on occasion and are by no means an exhaustive indication. In order to contextualise these aspects within the realm of Hindu jurisprudence, they are detailed below through specific illustrations.

A. Privacy of physical Space/ property

Akin to the modern legal system that first understood privacy in proprietary terms, Hindu jurisprudence too accorded importance to privacy in terms of physical space. This is further illustrated by the similarity between the common law notion of a man's house being his castle, and the institutional primacy accorded by the Naradsmriti to the household . The common denominator here is the recognition of a claim to privacy against the sovereign. This claim operated against society at large as well. For instance, an individual caught trespassing on someone else's property was liable to be fined.

These religious precepts were supplemented by those reflected in texts such as the Arthashastra. By way of illustration the house building regulations prescribed by it are largely informed by the recognition of a need for privacy. To begin with, a person's house should be built at a suitable distance from a neighbour's house, to prevent any inconvenience. In addition the house's doors and windows should ideally not face a neighbours doors and windows directly. The occupants of the house should ensure the doors and windows are suitably covered. Furthermore in the absence of a compelling justification, interference in a neighbour's affairs is penalised.Juxtaposed to religious texts that often perceived privacy as a concept driven by the imperative of purity, the Arthashastra is reflective of a secular connotation of privacy.

Though the household was privileged as the foundational institution in Hindu jurisprudence, claims of privacy extend beyond one's house to other physical objects as well, regardless of whether they were extensions of the household or not. For instance, both the Yajnawalkya Samhita and the Manusmriti condemn the usage of another person's property without his or her permission.

What is noteworthy in the context of personal property is that in an era infamous for the denigration of women, Hindu jurisprudence recognised a woman's claim over property. This property, also known as Stridhana, had varied definitions. In the Yajnawalkya Samhita for instance, it is conceptualised as, "What has been given to a woman by the father, the mother, the husband or a brother, or received by her at the nuptial fire, or given to her on her husband's marriage with another wife, is denominated Stridhana or a woman's property". In the Manusmriti, it is defined as "What was given before the nuptial fire, what was given on the bridal procession, what was given in token of love, and what was received from her brother, mother, or father, that is called the sixfold property of a woman".

Beyond mere cognizance of proprietary rights however, these precepts were also informed by the notion of exclusivity. Consequently, a woman's husband or his family were precluded from using her Stridhana, unless they were in dire straits. Additionally it was a sin for a woman's relatives to use her wealth even if the same was done unknowingly.

B. Privacy of Thought

In addition to the aspect of physical space, a claim to privacy vis-a-vis the intangible realm of thought was afforded by Hindu jurisprudence. In the modern context the link between solitude and privacy has been recognised as early as 1850 by Warren and Brandeis. The key distinction is that in the modern era this need for solitude was seen as a function of the increasing invasion of privacy. In the pre-modern era however, solitude was considered essential for self-actualisation, and not as a response to the increasing invasion of the private realm. Meditation in solitude was perceived as enabling existence in the highest state of being. In fact a life in solitude was identified as a pre-requisite for being liberated.

Though solitude itself is intangible, engaging in meditation would require a tangible solitary space. This is where the privacy of thought overlapped with the aspect of privacy of space. Accordingly, the Arthashastra prescribed that forest areas be set aside for meditation and introspection. It also recognised the need for ascetics to live within these spaces harmoniously, without disturbing each other.

It is evident, that as far as the aspects of privacy were concerned, there were no watertight compartments.

C. Privacy with respect to bodily integrity

A claim to privacy of thought can only be substantively realised when complemented by the notion of privacy with respect to bodily integrity, as corporeal existence serves as a precursor to mental well-being. The inference drawn from the relevant precepts concerning this aspect is that they were largely women-centric. Arguably they were governed by a misplaced patriarchal notion that women's modesty needed to be protected. At best they could be considered as implicit references to an expectation of privacy.

The Manusmriti states, "But she who…goes to public spectacles or assemblies, shall be fined six krishnalas". Restrictions operating during a woman's menstruation were twofold. Her family was prohibited from seeing her. Additionally cohabitation with such a woman was also forbidden. It should be pointed out that that these constructs had little to do with a woman's expectation of privacy. They were forbidden due to the attached implications of impurity that would vest in the defaulter. A woman's autonomy with regard to her body was not regarded as a factor meriting consideration.

However, there were constructs, albeit limited, which were more egalitarian in their approach and did recognise her autonomy. They established that women do have an expectation of privacy in terms of bodily integrity. Sexual assault was considered as an offence. Evidence of this is found in the Yajnawalkya Samhita which states, "If many persons know a woman against her will, each of them should be made to pay a fine of twenty four panas". In addition, the Arthashastra vested in commercial sex workers the right to not be held against their will. Further it expressly states that even a commercial sex worker cannot be forced to engage in sexual intercourse.

Women could make a claim to privacy not only against society at large, but also against their husbands. Ironically, while our contemporary legal system (i.e., the Indian legal system) fails to criminalise marital rape, the Manusmriti considered it an offence. Additionally, husbands were also prohibited from looking at their wives when the latter were in a state of relaxation.

D. Privacy of Information and Communication

While the three aspects explicated above were by and large restricted to the individual, the privacy of information and communication has been largely confined by Hindu jurisprudence to the realm of the sovereign. Both the Manusmriti and the Arthashastra acknowledge the importance of a secret council that aids the king in deliberations. These deliberations are to be carried on in a solitary place that was well-guarded. The decisions made in these deliberations are to be revealed on a need to know basis. That is to say, only persons concerned with the implementation of these decisions are to be informed. The Manusmriti also provides for private deliberation by the king on matters not involving governance. It provides, "At midday or midnight , when his mental and bodily fatigues are over, let him deliberate, either with himself alone or with his ministers on virtue, pleasure, and wealth".

Apart from governance, privacy of information also pertained to certain types of documents that were considered private in nature. These are documents that involve transactions such as partition, giving of a gift, purchase, pledge and debt. What is interesting about this precept is the resemblance it bears to the common law notion of privity. The common characteristic of the documents referred to, is that they concerned transactions undertaken between two or more persons. The rights or obligations arising from these transactions were confined to the signatories of these documents. It could be possible that the privatisation of these documents was aimed at guarding against disruption of transactions via third party intrusions.

The limited reference to private communications is found within the realm of governance, within the context of privacy of information. The only illustration of this that we have come across is the precept in the Arthashastra that requires intelligence to be communicated in code.

E. Privacy of Identity

The final aspect that warrants detailing is the privacy of identity. The notion of privacy of identity can be understood in two ways. The first deals with protection of personal information that could be traced back to someone, thus revealing his or her identity. The second recognises the component of reputation. It seeks to prevent the misappropriation or maligning of a person's identity and thus reputation. In ancient Hindu jurisprudence there is evidence of recognition of the latter. An illustration of the same is offered by the precept which states "For making known the real defects of a maiden, one should pay a fine of a hundred panas". Another precept prescribes that false accusations against anyone in general are punishable by a fine. Additionally, there is also a restriction operating against destroying or robbing a person of his or her virtue. In the modern context, the above would be understood under the rubric of defamation. These precepts are indicative of the fact that defamation was recognised as an offence way before the modern legal system afforded cognizance to the same.

Conclusion

The dominant narrative surrounding the privacy debate in India is that of the alien-ness of privacy. This paper has attempted to displace the notion that privacy is an inherently 'Western' concept that is the product of a modernist legal system. No doubt the common understanding of the legal conception of privacy is informed by modernity. In fact, the research conducted in support of this paper has been synthesised from privacy information through a modernist lens. The fact still remains however, that privacy is an amorphous context, and its conceptions vary across cultures.

To better appreciate the relevance of Classical Hindu law in a modernist context, the nature of Hindu law must be examined first. While Hindu jurisprudence might not qualify as law in the positivist sense of the term, its precepts continue to inform India's statues and judicial pronouncements.

Privacy is subjective and eludes a straitjacketed definition. On occasion this elusiveness is a function of its overlapping and varying aspects. At other times it stems from a terminological lacuna that complicates the explication of privacy. These impediments notwithstanding, it is abundantly clear that the essence of privacy is reflected in Hindu culture and jurisprudence. This may give pause to thought to those who seek to argue that 'collectivist' cultures do not value privacy or exhibit the need for it.

Daniel J. Solove, A Taxonomy of Privacy, University of Pennsylvania Law Review, Vol. 154(3), January 2006.

Id.

Upendra Baxi, Who Bothers About the Supreme Court: The Problem of Impact of Judicial Decisions, available at http://clpr.org.in/wp-content/uploads/2013/08/whobothersabouttheSupremeCourt.pdf (Last visited on December 23, 2014) (The enforceability of rights often sets their individual enjoyment apart from their jurisprudential value); In India, the reading of privacy into Article 21 has not resulted in a mechanism to enforce a standalone right to privacy, See R.H. Clark, Constitutional Sources of the Penumbral Right to Privacy, available at http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=2046&context=vlr (Last visited on December 23, 2014) (In the United States, the right to privacy was located in the penumbra of the right to personal autonomy).

See PUCL v. Union of India, AIR 1997 SC 568.

See Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. 558 (2003).

See The Indian Penal Code, 1850, Section 499.

See The Hindu Marriage Act, 1955 Section 22; The Special Marriage Act, 1954, Section 33.

Bhairav Acharya & Vidushi Marda, Identifying Aspects of Privacy in Islamic Law, available at http://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law (Last visited on December 23, 2014).

See Robert Lingat, The Classical Law of India (1973).

Donald R. Davis, Jr., The Spirit of Hindu Law (2010) (This importation must be viewed against the backdrop of the characteristics of the era of Enlightenment wherein primacy was accorded to secular reason and the positivist conception of law. Davis observes "One cannot deny the increasing global acceptance of a once parochial notion of law as rules backed by sanctions enforced by the state. This very modern, very European notion of law is not natural, not a given; it was produced at a specific moment in history and promulgated systematically and often forcibly through the institutions of what we now call the nation-state, especially those nations that were also colonial powers.)"; But see Alan Gledhill, The Influence of Common Law and Equity on Hindu Law Since 1800, available at http://www.jstor.org/stable/755588 (Last visited on December 23, 2014); Werner Menski, Sanskrit Law: Excavating Vedic Legal Pluralism, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1621384 (Last visited on December 23, 2014) (However, this replacement of traditional legal systems did not extend to personal laws. Personal laws in India continue to be community-based, sometimes un-codified, draw from a diverse set of simultaneously applicable sources and traditional schools of jurisprudence.).

Supra note 8, Acharya & Marda.

Privacy International, A New Dawn: Privacy in Asia, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013) ("It is only recently that the debate around privacy was stuck in this "collectivist" vs. "individualistic" cultural discourse…we discovered that privacy concerns and the need for safeguards were often embedded deeply in a nation, and not just as a response to a modern phenomenon.").

Privacy International, A New Dawn: Privacy in Asia, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013)

J. Duncan M. Derrett, The Administration of Hindu Law by the British, available at http://www.jstor.org/stable/177940 (Last visited on December 23, 2014).

Manusmriti, Chapter IV, 201.

Manusmriti, Chapter IV, 202.

Id.

Wael B. Hallaq, An Introduction to Islamic Law 31 (2009).

Donald R. Davis, Jr., The Spirit of Hindu Law (2010).

Marc Galanter, The Displacement of Traditional Law in Modern India, Journal of Social Issues, Vol. XXIV, No. 4, 1968.

Id.

Supra note 20, Galanter.

Supra note 10, Menski.

Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).

Id.

Ashcroft as cited in Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).

Supra note 20, Galanter.

Id.

Id .

Supra note 19, Davis.

Id.

Id .

J. Duncan M. Derrett, Introduction to Modern Hindu Law (1963); Supra note 19, Davis.

Supra note 9, Lingat.

Id.

John D. Mayne, Hindu Law (1875).

Id.

Supra note 49, Mayne.

Id.

Supra note 19, Davis.

Id.

Supra note 49, Mayne.

Ludo Rocher, Studies in Hindu Law and Dharamasastra (2012).

For instance the Yajnawalkya Samhita has clear delineations in its chapters, segregating customary practices, legal procedure and punitive measures.

Madhu Kishwar, Codified Hindu Law: Myth and Reality, available at http://www.jstor.org/stable/4401625 (Last visited on December 23, 2014).

Id .

Supra note 59.

Id.

Supra note 20, Galanter.

See The Hindu Marriage Act, 1955, Section 7.

Saroj Rani v. Sudarshan Kumar Chadda, AIR 1984 SC 1562 (reflected the importance accorded by classical Hindu law to marital stability); M Govindaraju v. K Munisami Goundu 1996 SCALE (6) 13(The Supreme Court looked to ancient Shudra custom to adjudicate on a matter of adoption); Rajkumar Patni v. Manorama Patni, II (2000) DMC 702 (The Madhya Pradesh High Court, relied on the definition of Stridhan by Manu.).

Supra note 8, Acharya & Marda.

Semayne v. Gresham, 77 Eng. Rep. 194, 195; 5 Co. Rep. 91, 195 (K.B. 1604).

As cited in Julius Jolly, The Minor Law Books 164 (1889), ("A householder's house and field are considered as the two fundamentals of his existence. Therefore let not the king upset either of them; for that is the root of the householders").

Manmath Nath Dutt, The Dharamshastra - Hindu Religious Codes, Volume 1, 103 (1978) (Yajnawalkya Samhita, Chapter II 235-236: "He…who opens the doors of a closed house [without the permission of the master]…should be punished with fifty panas. Such is the law.").

L.N. Rangarajan, Kautalya: The Arthashastra 371 (1992) ("O be built at a suitable distance from the neighbours property so as not to cause inconvenience to the neighbour").

Id ., ("…doors and windows shall be made so as not to cause annoyance by facing a neighbour's door or window directly").

Supra note 72, Rangarajan, ("when the house is occupied the doors and windows shall be suitably covered").

Id., 376.

See Manusmriti, Chapter IV, 201-202.

Supra note 71, Dutt, 27 (Yajnawalkya Samhita, Chapter I , 160: "One should avoid the bed, seat, garden-house and the conveyance belonging to another person.").

Supra note 71, Dutt, 89 (Yajnawalkya Samhita, Chapter II, 146).

Manusmriti, Chapter IX, 194.

Supra note 71, Dutt Volume 2, 276 (Angiras Samhita, Chapter I, 71).

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, Harvard Law Review, Vol. IV, December 15, 1890, No.5.

Id.

Manusmriti, Chapter IV, 258; Supra note 71, Dutt, 134 (Yajnawalkya Samhita Chapter III, 111: "Having withdrawn the mind, understanding, retentive faculty and the senses from all their objects, the soul, the lord…should be meditated upon.").

Manu Chapter VI, 44.

Supra note 71, Dutt, 186 (Harita Chapter VII, 6: "Situated in a solitary place with a concentrated mind, he should, till death mediate on the atman, that is situated both in the mind and the external world… ").

Supra note 72, Rangarajan, (Arthashastra, 2.2.2).

Supra note72, Rangarajan, (Arthashastra 3.16.33-36).

Manusmriti IX, 84

Supra note 71, Dutt, Volume 2, 350 (Samvarta Samhita,163).

Supra note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 291).

Supra note 71, Dutt, Volume 1, 113 (Yajnawalkya Samhita, Chapter II, 294).

Supra note 72, Ranjarajan (Arthashastra 2.27.14).

Supra note 72, Rangarajan (Arthashastra 4.13.38).

Manusmriti, X, 62

Manusmriti Part VII, Supra note 101, Rangarajan (Arthashastra 1.15.2-5, 1.15.13-17).

Supra note 72, Rangarajan (Arthashastra 1.15.2-5 : The scrutiny of governance related affairs was take place in a secluded and well-guarded spot, where it could not be overheard. No unauthorised person was allowed to approach these meetings.).

Supra note 72, Rangarajan (Arthashastra 1.15.13-17: "…Only those who have to implement it should know when the work is begun or when it has been completed.").

Supra note 72, Rangarajan.

Supra note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 292).

Supra note 71, Dutt, Volume 4, 919 (Vishnu Samhita, Chapter LII, 16).

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Living in a Fish Bowl

praskrishna — 2014-07-16T07:15:22Z

Though India needs a comprehensive law on the right to privacy, it may not be ready for something as avant garde as the “right to be forgotten” on the Internet, argues Shuma Raha

The article by Shuma Raha was published in the Telegraph on July 16, 2014. Sunil Abraham gave his inputs.

If you do a Google search for journalist and television personality Barkha Dutt, a raft of scurrilous information about her pops up. It isn’t tucked away somewhere on the 10th page either — it’s all up front, right there in “autosuggest”, almost prompting you to go and check it out. And thanks to Google’s search algorithm, the more people click on that link, it further strengthens the score for that “hit”.

Dutt says she has brought the matter to the attention of Google, but to no avail. “I have lost interest in the whole struggle,” she says. “But Google definitely needs to do something about the slanderous, inaccurate, fictional information out there that creates a narrative of its own.”

Well, in Europe at least, the tech giant has taken a step in that direction. Late last month, it started erasing search results that threw up information deemed to be “irrelevant”, “outdated” or “excessive”. The move came after the European Court of Justice ruled that Internet search engines would have to allow people the “right to be forgotten” in specific cases and accordingly, take down information about them.

The European Court ruling has triggered a huge debate since an individual’s right to be forgotten seems to be at complete loggerheads with people’s right to know. Nevertheless, it’s a landmark decision when it comes to right to privacy on the Internet. After all, the online space has perma-memory and inaccurate or irrelevant or outdated information about a person can be embedded there forever, damaging him or her in manifold ways.

So how far are we in India from securing the right to be forgotten on the Internet?

The short answer to that is, very far. That is because India does not have a well-defined privacy regime wherein one could envisage a court of law handing out a similar — and some would say a somewhat radical — order on a Google or a Bing. “The right to be forgotten is a bit too advanced for us,” says Sunil Abraham, director, Centre for Internet and Society, a non-profit organisation that works on policy issues relating to freedom of expression and privacy. “After all, we are yet to come up with a privacy and data protection regime that implements the best practices of European countries.”

Adds Apar Gupta, a Delhi-based lawyer, who has written extensively on privacy issues, “Sector specific privacy legislation do exist, but they do not provide substantive rights or efficient remedy in case of violations.”
No one disputes that India should get a right to privacy law, especially one that relates to the collection, processing and use of personal data. Right now the government’s surveillance mechanisms like the Central Monitoring System and the Lawful Interception and Monitoring Systems allow security agencies and income tax authorities to intercept communication, snoop on phone conversations, read emails and SMSes with little or no safeguards for privacy protection.

A right to privacy bill has, in fact, been in the works since as early as 2011. But the government has been dragging its feet over it. Early this year, a new version of the draft bill was “leaked” to the press. But few are happy with it. On the positive side, it raises the penalty for unlawful interception of communication (from Rs 1 lakh to Rs 2 crore) and increases penalties for other offences such as obtaining personal data under false pretexts. But crucially, it almost wholly exempts intelligence agencies from the purview of the law, thereby allowing them unbridled access to personal information. Of course, no one knows if this “leaked” draft is indeed the official one.

Experts say that the government should really formulate a right to privacy law based on the recommendations of a committee chaired by Justice A.P. Shah. The report, which was published in 2012, proposes that the right to privacy be statutorily extended to all Indians. It recommends, among other things, the appointment of privacy commissioners and the formulation of certain “national privacy principles” such as taking the consent of the individual prior to the collection of data, allowing him the choice to withdraw such consent, limiting the use of personal information to the stated purpose and so on. The privacy principles would apply to all data collectors in both private and public sectors.
There are, of course, a number of provisions in existing laws that relate to privacy. For example, Rule 419A of the Indian Telegraph Rules, 1951, sets down certain privacy safeguards such as maintaining details about the officer ordering an intercept of telecommunication.

Moreover, Section 66E of the Information Technology Act, 2000, prescribes “punishment for the violation of privacy” (in the context of capturing “private” images of a person without his or her consent); Section 43A lays down that a “body corporate” will be liable to pay compensation in case it fails to protect personal data gathered in the course of its operation; and Section 79 stipulates that “intermediaries” — entities such as Google, Facebook, Twitter — would have to take down any information stored or transmitted by them that is found to be grossly harassing, defamatory, blasphemous, obscene, pornographic and so on, within 36 hours of being notified.

Of course, this section of the IT Act has been roundly criticised as arbitrary and Draconian, but that is another story.
The point is that despite the fair number of privacy provisions, in the absence of a comprehensive law, the untrammelled and unauthorised use of personal data cannot be ruled out. “Every country in the world collects personal data. But once the data are collected for a particular purpose they should not be used for any other purpose. The law has to be in a position to catch the violators,” says Kamlesh Bajaj, CEO of Data Security Council of India, an organisation that works to promote data protection and privacy best practices.

As always, the key issue is that an individual’s right to privacy has to be balanced with public interest. And it is in that context that experts feel that even if India were to have a privacy law, it is probably not ready for something akin to the European Court ruling on the right to be forgotten. As Gupta says, “It raises a real danger of public personalities blocking legitimate journalism on grounds of privacy. This is specially true in a country like India which permits a high degree of illegality in the name of secrecy and confidentiality.”

Abraham agrees with that view. “I’m not sure if the right to be forgotten will enhance privacy or usher in a level of censorship,” he says.

As Europe grapples with that debate, India’s privacy warriors are asking for something far more fundamental — a comprehensive law that guarantees the right to privacy to all.

For more details visit https://cis-india.org/news/the-telegraph-july-16-2014-living-in-a-fish-bowl

Live Chat: Aadhaar: An identity crisis?

praskrishna — 2015-04-03T06:54:25Z

The Aadhaar card is not compulsory for citizens and "no person should be denied any benefits or ‘suffer’ for not having the Aadhaar cards issued by Unique Identification Authority of India," the Supreme Court ruled on Monday.

The live chat was published in the Hindu on March 17, 2015. Sunil Abraham took part in the discussions.

Four years after Aadhaar was launched – and touted as a panacea to access social services and subsidies – its users continue to be dogged by an array of problems ranging from technical glitches to procedural delays. And those who do not have an Aadhaar card find themselves quizzed by government authorities.

The Hindu’s Tamil Nadu edition today highlighted the challenges ordinary citizens - both those who have cards and those who do not – face, be it from non-availability of application forms or glitches in the biometrics process.

We will be hosting a live chat on Aadhaar at 5 pm today. You can pose questions and share your views with Sunil Abraham, Executive Director of Bangalore-based research organisation, Centre for Internet and Society; K. Gopinath, Professor at the Computer Science and Automation Department at the Indian Institute of Science (IISc) and The Hindu’s K. Venkatraman.

Comment From Anon

What could have happened such that the current government, who were once in the opposition, were members of the parliamentary committee that strongly opposed UIDAI, now suddenly wants to use it everywhere? What could have transpired such that the PM got so convinced that it would help its citizens more than it could potentially harm?

Sunil Abraham: Usually the party that is in power is pro-surveillance and anti-censorship and the opposition is pro-privacy and pro-free speech. After the elections - if the parties swap positions as a result of the mandate - then they usually also swap positions on surveillance and censorship. This phenomenon is not specific to India.

K. Gopinath: The leakage in the current models is very high. Hence, the attraction.

The issue earlier was whether there was some costs to the use of sw (esp. proprietary) from outside the country. Probably, these have been addressed.

Comment From Saurabh

Aadhaar was supposed to be a good 2 factor authentication mechanism, what happens to it now ?

Sunil Abraham: Aadhaar architecture was designed to allow for multiple authentication factors. Unfortunately biometrics is a poor authentication factor since it cannot be revoked. Any two-factor authentication scheme where one factor is biometrics is in reality only a one-factor scheme. Pin code as with credit cards and debit cards would have been much more secure for authentication.

K Venkataramanan: It will continue to be relevant, but is unlikely to be mandatory for quite some time.

K. Gopinath: Real-time 2-factor auth (biometrics, signatures) are not easy, esp over Internet, and would require a much longer rollout

Comment From Saurabh

I did not get Aadhar for myself or my family. Does this mean, I will not have to as yet.

Sunil Abraham: As per the UIDAI - Aadhaar is not mandatory. Also according to the latest remarks from the Supreme Court - Aadhaar should not be made mandatory without enabling law. But many state and central government agencies have ignored the comments made by the SC and have made Aadhaar mandatory for various programmes and schemes.

The Hindu: Is Aadhaar virtually redundant now following the SC order? Nothing more than an expensive experiment?

K. Gopinath: I think it will be used as an addl auth mechanism (just like elec./ph. receipts). May be once the technology is demo'ed properly (it has not been done seriously anywhere else), it will be taken up again.

Comment From Abubacker

I am an NRI and need to have Aadhaar Card? How to obtain Appointmet - I am from Tuticorin, Tamil Nadu

K Venkataramanan: Your family member or representative living in Tuticorin may apply for Aadhaar through the local body. It may be possible to get a date for recording biometrics. However, you have to come down here for recording biometric details.

Comment From Kishore J

Why is Govt. not able to legalize the Aadhar, I'm assuming the only reason Supreme court keeps blocking it is because its not a law passed by Parliament ?

K. Gopinath: SC goes by the constitution. If there is some concern someone is being "excluded", they will block it.

Sunil Abraham: The NIA bill was proposed in parliament and then referred to a Standing Committee. Our summary and detailed feedback to the Bill is available here: http://cis-india.org/intern... The Standing Committee harshly criticized the Bill. See: http://164.100.47.134/lsscommittee/Finance/42%20Report.pdf After which the Bill has not been reworked by the UIDAI or the Planning Commission /Niti Aayog for re-presentation to the Parliament.

Sunil Abraham: No - it is not just an expensive experiment. It is much more dangerous - it is what security experts call a Honey Pot. A centralized repository of biometrics harvested from residents of India. These biometrics can be used to authenticate transactions in the UIDAI database and other services. If there is a breach - then this huge collection of authentication factors will end us in the hands of criminal elements or some foreign state.

Comment From vaz

Aadhar is a joke, i have so many IDs and i cannot get any benefits out of it, it is simply wasting time, if Govt really want mandate make it easy for people, i pay taxes and Govt should treat me like one , i can not waste my time standing in queues to get that card, get me time slot and don't waste my time.

Sunil Abraham: This is because the process of registration has been outsourced to private agencies. These private agencies have futher outsourced to others and so on and so forth. Consequently, there is very poor management and quality control by these agencies. If indeed corruption was a priority - we should have tackled high-ticket corruption first. We could have had biometric registration just for only the politicians and bureaucrats. We could use biometric authentication with them to create a non-repudiable audit trail of subsidies flowing from the Centre to the Panchayat. Unfortunately, we tried to register everybody simultaneously and that has resulted in poor quality of biometrics and demographic data. We have visited some of the registration centre and have seen the reality on the ground.

Comment From Guest

I have been threatened by Gas Agency people if i don't link Aadhar to Bank Account, won't be given a refilling cylinder.Is this a right one?

K Venkataramanan: There is an option for getting DBT even without Aadhaar. The bank account and the gas agency consumer account can be linked without Aadhar. Please check www.mylpg.in for knowing how to apply for DBT registration without Aadhaar

The Hindu: Your views Prof Gopinath? Do you see it as a biometrics Honey Pot too?

K. Gopinath: From a security pov, it is certainly risky. It needs really robust technologies before one can think of rolling out. For example, we have "denial of service" attacks. ie, a service can be shut out by random bombardment of msgs. Most curr large scale systems are designed to handle it but some cannot handle it if large numbers collude. This only prevents access to service but other attacks can exfiltrate (take out) data, modify data, etc.

The Hindu: And Mr. Venkataramanan, your thoughts?

Comment From kuldeep singh chauhan

We need a strong law for data security. Aadhar is collecting data but there is no provision except some provisions of IT Act and IPC for data security.

K. Gopinath: Yes, the legislation is weak or unnecessarily vague (eg. the IT2000 act) or too broad in scope. I think what we need is a citizen's charter for data access, security and privacy. Also, what needs to be done when systems do not work!

Sunil Abraham: There are two interpretations of Sec. 43A of the IT Act. Acccording to most experts it only applies to Body Corporates in other words it does not apply to the Government when it plays the role of a data controller. According to an order issued by the IT Secy of Maharastra [the court of first instance for 43A of ITA] -this section will also apply to the Government. But beyond that order we have no clarity on this question.

Comment From Pavan

With no privacy laws, isn't it a bad idea to store citizen's data in a database? We all know how inept our government is in ensuring any security/privacy.

Sunil Abraham: With or without laws. Centralized approaches to identity/authentication management are much more fragile and vulnerable compared to decentralized options. The Internet is secured by digital signatures - there is no centralized repository of all these signatures. Therefore there is no centralized point of failure for the Internet. If the Aadhaar project was based on Smart Cards instead of Biometrics - then just like the Internet it would be robust without a central point of failure. http://cis-india.org/intern...

K. Gopinath: Storing all info in a single place is a big security risk. It needs very robust technologies (such as replication and "secret sharing protocols") that work inspite of failures. These have been done here and there but doing it on a large scale requires care.

Comment From Kunal Soni

SC Adhar card recommendations, ok Got it! But what about the banks for example SBI who ask for adhar cards stating its the bank's rule? Who's going to answer the question as they would never listen to common man and they never did.

Comment From Sandeep

Hi,May be it is a strong message, but what exactly is the need to make/introduce the Adhaar card, which is not recognizable worldwide? Why dont we make our passport smart enough and reduce it to a chip as in Europe. This will also enable everyone to get enrolled in our administrative system. Basically, we are only repeating the entire process with no international recognition.

Comment From Krishna Rao

Need to make it mandatory in the lines of SSN in US. Else it would be very difficult to manage and ensure the subsidies and benefits reach the really deserved section.

Comment From Ramesh

It is a great concept it all information like property purchases, tax returns, ration card, pf, esi, bank accounts , rail, air tickets are all linked. will reduce corrupt practice considerably. It should be the main identity of an Indian

Comment From arun

@Sunil what are the privacy safeguards that are in place currently regarding protection of information collected by the government and private agencies designated for this?

Sunil Abraham: Do you mean legal or technical?

K Venkataramanan: @The Hindu: Yes, there are serious privacy issues involved in a centralised database. However, their is a counter-view that this is no different from any other data base available in the hands of the government such as the one relating to PAN. The main concern of those worried about the privacy problem in Aadhaar is that data collection is done by private agencies, and details such as biometric data could be misused

The Hindu: Sunil, a question for you from arun

Comment From Pawan

Govt should give it legal recognition and give legal guarantee about the usage and storage of the data... After that there would be no concern related to identity security or enforcing it on the people.. People would trust it and come forward to register for it.

Sunil Abraham: Legal recognition and guarantees are not sufficient. You cannot use the law to fix poor technology design. The security of the Internet is not a function of good law. It is a function of good technological design.

Comment From Pappan

the so called Europe, US an other developed countries already have Social security numbers, why cant we just look at it like that?

Sunil Abraham: Social Security Number are an additional identifier. The database just contains a collection of identifiers. If that database is compromised the information cannot be used to authenticate transactions. This is very unlike the UIDAI centralized database which is a collection of authentication factors. Think of it as a database filled with the passwords of all Indian residents.

K Venkataramanan: @Kunal Soni - SBI can't insist on it as of now. The person who issued any circular to that effect may be hauled up in court

Comment From Guest

I have two questions. First, why is the honourable supreme court strking down aadhar, on what grounds? Second, how can the government come around those objections and allay the courts fears/objections? The informed panelists may please give their opinions too. Thank you

Sunil Abraham: There are 3 sets of petitioners who are being heard by the SC in the combined case. Some of them associated with the right are arguing that the UID is a threat to national security as it legitimizes illegal immigrants. Those associated with the left are arguing that it is a violation of the right to privacy. Still other who are ex-officers from the armed forces are arguing that the project is mired in corrupt practices.

K Venkataramanan: The Court has not struck down Aadhaar. It has only passed interim orders protecting the access to services of those who have not yet had them.

Comment From Aashish Gupta

Aadhaar was supposed to usher in portability of benefits. That is, you could migrate to a different state and still get the benefit you deserved.

Sunil Abraham: The Aadhaar database only contains information that identifies you and also allow you to authenticate against that database. It does not indicate eligibility for various schemes/subsidies. The migration across State level eligibility lists has to be done by the State. It is not a functionality provided by the UIDAI.

Comment From Ramesh

Supreme Court should have suggested a better option instead of coming down heavily on the Aadhar Card. The card will straight eliminate multiple rations cards and voter ids.

Sunil Abraham: The previous technology adopted by the NDA government - smart cards or SCOSTA [for the MNIC]. This technology option is free from many of the flaws of UIDAI's current design.

Comment From Mrigesh

Why is Aadhaar needed? I am for a middle class or for the elite class?

Comment From Geetha

Has the government (or concerned agencies/departments) formulated any policy on using the Aadhar information collected? For instance, what agency can use the information, under what conditions, with whose approval, for what limited purposes? Is this policy publicly available?

Sunil Abraham: No. Anyone who is approved by the UIDAI as a legitimate can use the KYC API. Absolutely anyone can use the Authentication API. There is no policy on what data collection/retention practices must be adhered to by the users of both these APIs.

Comment From Arun Jayapal

Has the government ever considered/analyzed a way to link the existing resources (such as ration card, DL, passport, voter id, etc.,) and not have come up with a completely new system (aadhaar). Is this not an absolute waste of time and resources?

Sunil Abraham: Yes, you are absolutely right. The government should have used biometrics as a means to dedup an existing high value database like the Electoral Rolls or more importantly the PAN Card database. That would have been better RoI for our anti-corruption Rupee.

K Venkataramanan: @Ramesh The Court has come down heavily on only officials who insist on Aadhar for delivery of services when there are clear orders that it should not be mandatory

Comment From George J

I'm an NRI. I presently work and live in a country where the first order of business on landing/Birth is to register one self and get a unique ID number and ID. This the case for expats as well as residents be they foreigners or Citizens. The registration process includes collection of Biometric data. This single No and Id is used for everything from Bank Accounts to School Admissions. It is good that India is doing something similar. It is high time people with multiple ration cards, Passports and the like are weeded out and provided a single verifiable identity. Data Security is of essence and necessary safeguards are available.

Sunil Abraham: Could you name the country? And can you use biometrics your country to authenticate transactions in a centralized database for all sorts of transactions? If yes, then the technology design in your country is as poor as in ours and it is only a question of time when the centralized database leaks.

Comment From Aashish Gupta

Apart from the Honey Pot, Aadhaar does not serve its primary purpose: tackling corruption. Most pilots of Aadhaar have crash landed, and as a result, state governments have created their own simpler systems to tackle corruption.

Sunil Abraham: See: http://www.thehindu.com/opi... If the authentication match is not working [1:1 match]. Then basically the dedup will not work [1:n] match. That is why they are doing demographic dedup before biometric dedup - because they know that the biometric dedup is fallible.

Comment From Balu

A citizenship card , backed with a strond database is a must for every citixen . Some serious thoughts should be done in this matter at the earliest , instead of wasting time and money on different schemes .

Sunil Abraham: We should use decentralized Internet scale technologies based on open standards that are already proven. If we had used smart cards based on SCOSTA or EMV standard we would be in a much better place.

Comment From PRASHANTH

Comment From vikash

supreme court should not have to push such legal hurdles given that the 750 million card has already been generated.A lot of money has been investad in the project

Comment From Saket

Aaadhar card is full of errors. At the place where I got registered person was issuing it in a hurry which creates lots of typing errors in DOB and Place.

Comment From Aashish Gupta

The supreme court has not struck down aadhaar, it has said that aadhaar cannot be mandatory. This is to make sure that people who do not have an aadhaar card do not miss out on their entitlements.

Comment From Ramesh

Aadhaar should be made mandatory with necessary safeguards. Unless there is an ultimatum and time frame to get the card it will never be implemented. Even now many do not know where to get it done.

Comment From Aadharam

Could you clarify whether this is an interim order or a final order on Aadhar? Is there scope for a retraction/shift on the Supreme Court's part?

Comment From Onkar Tiwari

Why supreme court doesnt understand Adhar is necessary? it can curb corruption. it wll reduce corruption specially in manrega where people enters fake details and grab the money.

K Venkataramanan: It is only an interim order. The Court will, hopefully, resolve the questions raised by the petitioners about privacy and data security issues

Comment From George J

I have taken Aadhar Card. The procedure asks the applicant themselves to verify the data entered for typing mistakes etc. before being uploaded, in fact where I registered they had asked for a sign off on the final data on a printout. So how errors can creep in is beyond me. However the photography equipment and skill of the data entry operator leave much to be desired as the mug shot is not very kind to me!

Comment From Guest

There should be a guide line which need to be followed as it is in the hands of private partners who are also ask for bribe from the poor people for the aadhar and they have no other option to pay for it as they thought that this only can help them to get the govt. facilities and subsidies.

K Venkataramanan: @Onkar Tiwari, It is up to the government to convince the court that Aadhaar will help curb corruption, and how. The Court is unlikely to stop the use of technology to improve delivery of services and curb corruption.

Comment From v subrahmanian

help line over phone and the email correspondence is total waste.. they themselves are helpless. Any query has never been replied to the caller's satisfaction. Getting them on line itself is a challenge. It's so complex. Of course, every eligible citizen of this complex country must have the identity card. Why not if it is done through employer in case of organized salaried employees?

Comment From Ramakrishna Rao

Hi !! I request the panelists to kindly sum up in few 4 or 5 points the reasons/grounds on which the parliamentary committee has rejected the aadhar

Comment From Guest

The agencies who are collecting data for Aadhar Card are not doing good. The aadhar card is full with many kind of errors including Name and DOB.. Even a person is able to register twice under this scheme.

The Hindu: Mr. Venkataramanan would you like to respond to Ramakrishna Rao?

Comment From Guest

@K Gopinath - how robust is the de-duplication UID claims to have. And in real time transactions, is it possible to authenticate n request without 'false positives' or 'negatives'?

K. Gopinath: Dedup claims assume “good” conditions. For example, a farmhand may have rough skin, etc that may make the fingerprints problematic. 1% errors have been reported in the past. Real time txns: I think the current Aadhar is not geared for it. The connectivity is not there. Also, with fingerprint technologies, the ability to check large number of fingerprints for a match is not good enough. It has never been scaled to the extent that is being planned.

Comment From Sandeep

Still not sure if Aadhaar then other ID cards not needed ? Or Still all along with Aadhaar ? then what is meaning of Aadhaar ? Only for LPG connection? Why not govt making Aadhaar is mandatory in all other fields as well , As Govt spent huge money for Aadhaar

Comment From Guest

@ Sunil - How plausible is the idea that govt can use UID data to profile public?

Comment From Sushubh

I for one is very happy that at least the Supreme Court is not falling for this privacy infringing scam. People defending this card here on this platform needs to read more about it.

Comment From Guest

Govt. created panic among public regarding adhaar. Public is highly annoyed with the way the government is handling this adhaar project. Only court reprimands,govt. backtracks as far as the adhaar is concerned. It is high time for govt. to have serious insight into this.

K Venkataramanan: The parliamentary committee on Finance had objected to the UID being extended to non-citizens on the ground that it may end up in illegal immigrants getting Aadhaar numbers.

It had also questioned the rollout ofthe scheme before legislation was passed. It had objected to its implementation without regard to its consequences.

Comment From Srinivasa

I believe Nandan Nilkeni had mentioned certain very good examples of the system flagging duplicates. So I assume the system is robust. We need to make it mandatory for all services delivery and have suitable policy and technology to protect data.

Sunil Abraham: I don't think we can go by the assurance of someone no longer associated with the project. It is not persons that keep us safe it is proper technology and law.

The Hindu: Welcome back Sunil! Lots of questions await you

K Venkataramanan: The committee had said UIDAI had no conceptual clarity, no proper assessment of the costs involved, and that it could end up in the hands of private agencies, that the technology was untested and the UID may not meet the objectives for which it was conceived

Sunil Abraham: Sorry I was logged out.

Comment From Guest

There was a recent news in The Hindu about linking of Adhar cards to election voter ID cards in Andhra Pradesh. Do you think that adopting such moves by every state result in mandating the procedure eventually?

Comment From Guest

First Passport then PAN , voter id and now adahar, in any country there is only passport and SSN, why india needs so many identity cards

K. Gopinath: The PAN database has been problematic just as the voter id. Hence, every technology cycle, a new system is usually attempted that attempts to be "better" than the before. However, this requires care which is not in good supply in the govt where the "lowest" bidder wins or outsourcing happens.

The Hindu: We have Prof Gopinatha back too. Sorry about that technical glitch.

Comment From Deepak Vasudevan

Why are different apex agencies managing Aadhar like UIDAI, Census and NPR? There should be one root (apex) body and others should report onto it.

Sunil Abraham: Yes. The division of work between UIDAI and NPR is not very clear and has added to the confusion.

K Venkataramanan: The parliamentary standing committee, too pointed out the overlap of functions involving UIDAI and NPR

The Hindu: There was this question for you earlier on the thread @K Gopinath - how robust is the de-duplication UID claims to have. And in real time transactions, is it possible to authenticate n request without 'false positives' or 'negatives'?

Comment From Guest

When Union Of India aimed to greater transparency... these are the road blocks they get... If Aadhar is not mandatory... then make Voter ID, PAN Card, Ration card also not mandatory in their respective Govt Businesses ... make self declaration as mandatory .. lets go to the stone age in this Information age. Instead SC should direct the center to come up with procedure to accommodate legitimate citizens of India into the scheme in a time bound manner and frame policies to avoid misuse of the personal data. are we looking the current world Information age thru the same old glasses... it is time to adopt the change...

Sunil Abraham: Indeed we need more transparency. But privacy protections must be inversely proportionate to power and as Julian Assange says transparency requirements should be directly proportionate to power See: http://openup2014.org/priva...

K Venkataramanan: Linking Aadhaar and voter ID cards is also being tried out in other states It is only one more means of eliminating fake voters or duplicates, but is unlikely tobe a ground to make Aadhaar mandatory

Comment From Ganesh

@Mr.Sunil, The current technology adopted for UIDAI is not good compared to last regime?

Sunil Abraham: Please see my our open letter on this question http://cis-india.org/intern...

Comment From Madhavan R

Just because UPA government bring this, its not good for NDA to object it.. STOP wasting our money.. Just try to make best out of it..

Sunil Abraham: Pouring more money into a failed project will not save it. It has serious technological flaw and without addressing it we are just making a bad situation worse.

Comment From George J

Currently all embassy's are collecting biometric data when you apply for a visa. Most of this collection is done by private parties on behalf of the respective governments. So if an Indian has travelled abroad the chances of his Biometric data being available to foreign govts is 99%. So what is the big scare about this? The need that it should be secure and should not be misused is sacrosanct. with the kind of revelations that have been made about mass eavesdropping I think people should get used to living in glass houses!

Comment From Pappan

@Sunil, please clarify about your comment on technology inadequecy

Comment From Yuvaraj

I strongly support Adhaar card implemenataion. intially they may face challeneges but for the long run its very effective mechanism to monitor every thing

Sunil Abraham: Monitoring everything means you monitor nothing. The bigger the haystack the harder it is to find the needle. Good surveillance practices means targetting survelliance not en masse data collection.

Comment From Guest

It is heard that privacy of citizens is at stake with adhaar card. can panelists respond to this?

Sunil Abraham: I have dealt with your question here: http://www.business-standar...

Comment From Srinivasa

That comparison of the two standards (SCOSTA and Aadhar) made interesting reading. Why not a system where you collect biometrics and iris and then issue a SCOSTA card? the biometrics and iris can be used to remove duplicates and maintain a clean registry by failing the duplicate SCOSTA cards. And all further transactions will only need a card based access.

Comment From Loganathan

This is one the worst move by any government in the center to remember. With no motive for the card, they introduced just to add to the loss in exchequer and there is no benefit out of it. Many have wrong data entered against their name and totally the waste one of all

Comment From Sabari Arasu

I am aware of someone who is not Indian citizen got Aadhar card for himself and his family. This scares me a lot as anyone(read Bangaladheshis, Sri Lankans, Pakintanis, etc..) can get Aadhar card. Is there a measure taken by Government to identify these issues?

Sunil Abraham: This is possible because the technology [biometrics] cannot verify citizenship. Even worse biometrics can be imported from foreign countries and can be used to create resident ghosts. This is because the technology cannot even verify if the person in India. We will need surveillance cameras at every point of registration to take care of this possible fraud.

Comment From Chandra Sekhar

Aadhaar card was a huge opportunity for the government to improve the efficiency of governance.It was a challenging task and required great amount accuracy.The way this project was executed is a question mark on efficiency of governance.

The Hindu: Sunil, Venkatramanan, Gopinath - would you agree that Aadhaar was an opportunity to improve governance? @chandra sekhar

Comment From Guest

Freebee lovers/netas will always oppose when you want to implement some thing which might deny them the benefit.

Sunil Abraham: Any evidence to backup this statement?

Comment From Guest

if the ASDHAAR is nt necessary as per SC then why everywhere it is being preferred identity such as Subsidy, Passport etc.

Sunil Abraham: Preference is not the same as a mandatory requirement.

For more details visit https://cis-india.org/internet-governance/news/the-hindu-march-17-2015-aadhaar-an-identity-crisis

LITD 17 Committee, Bureau of Indian Standards Meeting

praskrishna — 2016-10-07T01:38:00Z

Vanya Rakesh attended the LITD-17 committee meeting (committee on Information Systems Security and Biometrics) organised by the Bureau of Indian Standards on 23 September 2016 in Bengaluru.

The agenda for the meeting included presentation of the draft data privacy standard for India which was proposed before the BIS and its members. Elonnai Hickok and Vanya are a part of the drafting committee for the same. The draft standard was accepted by BIS and would now be circulated for further comments. Click here to read the Agenda.

For more details visit https://cis-india.org/internet-governance/news/litd-17-committee-bureau-of-indian-standards-meeting

List of Recommendations on the Aadhaar Bill, 2016 - Letter Submitted to the Members of Parliament

Amber Sinha, Sumandro Chattapadhyay, Sunil Abraham, and Vanya Rakesh — 2016-03-21T08:50:09Z

On Friday, March 11, the Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. The Bill was introduced as a money bill and there was no public consultation to evaluate the provisions therein even though there are very serious ramifications for the Right to Privacy and the Right to Association and Assembly. Based on these concerns, and numerous others, we submitted an initial list of recommendations to the Members of Parliaments to highlight the aspects of the Bill that require immediate attention.

Download the submission letter: PDF.

Text of the Submission

On Friday, March 11, the Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. The Bill was introduced as a money bill and there was no public consultation to evaluate the provisions therein even though there are very serious ramifications for the Right to Privacy and the Right to Association and Assembly. The Bill has made it compulsory for all Indian to enroll for Aadhaar in order to receive any subsidy, benefit, or service from the Government whose expenditure is incurred from the Consolidate Fund of India. Apart from the issue of centralisation of the national biometric database leading to a deep national vulnerability, the Bill also keeps unaddressed two serious concerns regarding the technological framework concerned:

Identification without Consent: Before the Aadhaar project it was not possible for the Indian government or any private entity to identify citizens (and all residents) without their consent. But biometrics allow for non-consensual and covert identification and authentication. The only way to fix this is to change the technology configuration and architecture of the project. The law cannot be used to correct the problems in the technological design of the project.
Fallible Technology: The Biometrics Standards Committee of UIDAI has acknowledged the lack of data on how a biometric authentication technology will scale up where the population is about 1.2 billion. The technology has been tested and found feasible only for a population of 200 million. Further, a report by 4G Identity Solutions estimates that while in any population, approximately 5% of the people have unreadable fingerprints, in India it could lead to a failure to enroll up to 15% of the population. For the current Indian population of 1.2 billion the expected proportion of duplicates is 1/121, a ratio which is far too high. [1]

Based on these concerns, and numerous others, we sincerely request you to ensure that the Bill is rigorously discussed in Rajya Sabha, in public, and, if needed, also by a Parliamentary Standing Committee, before considering its approval and implementation. Towards this, we humbly submit an initial list of recommendations to highlight the aspects of the Bill that require immediate attention:

Implement the Recommendations of the Shah and Sinha Committees: The report by the Group of Experts on Privacy chaired by the Former Chief Justice A P Shah [2] and the report by the Parliamentary Standing Committee on Finance (2011-2012) chaired by Shri Yashwant Sinha [3] have suggested a rigorous and extensive range of recommendations on the Aadhaar / UIDAI / NIAI project and the National Identification Authority of India Bill, 2010 from which the majority sections of the Aadhaar Bill, 2016, are drawn. We request that these recommendations are seriously considered and incorporated into the Aadhaar Bill, 2016.
Authentication using the Aadhaar number for receiving government subsidies, benefits, and services cannot be made mandatory: Section 7 of the Aadhaar Bill, 2016, states that authentication of the person using her/his Aadhaar number can be made mandatory for the purpose of disbursement of government subsidies, benefits, and services; and in case the person does not have an Aadhaar number, s/he will have to apply for Aadhaar enrolment. This sharply contradicts the claims made by UIDAI earlier that the Aadhaar number is “optional, and not mandatory”, and more importantly the directive given by the Supreme Court (via order dated August 11, 2015). The Bill must explicitly state that the Aadhaar number is only optional, and not mandatory, and a person without an Aadhaar number cannot be denied any democratic rights, and public subsidies, benefits, and services, and any private services.
Vulnerabilities in the Enrolment Process: The Bill does not address already documented issues in the enrolment process. In the absence of an exhaustive list of information to be collected, some Registrars are permitted to collect extra and unnecessary information. Also, storage of data for elongated periods with Enrollment agencies creates security risks. These vulnerabilities need to be prevented through specific provisions. It should also be mandated for all entities including the Enrolment Agencies, Registrars, CIDR and the requesting entities to shift to secure system like PKI based cryptography to ensure secure method of data transfer.
Precisely Define and Provide Legal Framework for Collection and Sharing of Biometric Data of Citizens: The Bill defines “biometric information” is defined to include within its scope “photograph, fingerprint, iris scan, or other such biological attributes of an individual.” This definition gives broad and sweeping discretionary power to the UIDAI / Central Government to increase the scope of the term. The definition should be exhaustive in its scope so that a legislative act is required to modify it in any way.
Prohibit Central Storage of Biometrics Data: The presence of central storage of sensitive personal information of all residents in one place creates a grave security risk. Even with the most enhanced security measures in place, the quantum of damage in case of a breach is extremely high. Therefore, storage of biometrics must be allowed only on the smart cards that are issued to the residents.
Chain of Trust Model and Audit Trail: As one of the objects of the legislation is to provide targeted services to beneficiaries and reduce corruption, there should be more accountability measures in place. A chain of trust model must be incorporated in the process of enrolment where individuals and organisations vouch for individuals so that when a ghost is introduced someone has can be held accountable blame is not placed simply on the technology. This is especially important in light of the questions already raised about the deduplication technology. Further, there should be a transparent audit trail made available that allows public access to use of Aadhaar for combating corruption in the supply chain.
Rights of Residents: There should be specific provisions dealing with cases where an individual is not issued an Aadhaar number or denied access to benefits due to any other factor. Additionally, the Bill should make provisions for residents to access and correct information collected from them, to be notified of data breaches and legal access to information by the Government or its agencies, as matter of right. Further, along with the obligations in Section 8, it should also be mandatory for all requesting entities to notify the individuals of any changes in privacy policy, and providing a mechanism to opt-out.
Establish Appropriate Oversight Mechanisms: Section 33 currently specifies a procedure for oversight by a committee, however, there are no substantive provisions laid down that shall act as the guiding principles for such oversight mechanisms. The provision should include data minimisation, and “necessity and proportionality” principles as guiding principles for any exceptions to Section 29.
Establish Grievance Redressal and Review Mechanisms: Currently, there are no grievance redressal mechanism created under the Bill. The power to set up such a mechanism is delegated to the UIDAI under Section 23 (2) (s) of the Bill. However, making the entity administering a project, also responsible for providing for the frameworks to address the grievances arising from the project, severely compromises the independence of the grievance redressal body. An independent national grievance redressal body with state and district level bodies under it, should be set up. Further, the NIAI Bill, 2010, provided for establishing an Identity Review Committee to monitor the usage pattern of Aadhaar numbers. This has been removed in the Aadhaar Bill 2016, and must be restored.

Endnotes

[1] See: http://cis-india.org/internet-governance/blog/Flaws_in_the_UIDAI_Process_0.pdf.

[2] See: http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf.

[3] See: http://164.100.47.134/lsscommittee/Finance/15_Finance_42.pdf.

For more details visit https://cis-india.org/internet-governance/blog/list-of-recommendations-on-the-aadhaar-bill-2016

Linking Aadhaar with social media or ending encryption is counterproductive

sunil — 2019-08-28T01:39:47Z

Should Aadhaar be used as KYC for social media accounts? We have recently seen a debate on this question with even the courts hearing arguments in favour and against such a move.

The article was published in Prime Time on August 26, 2019.

The case began in Madras High Court and later Facebook moved the SC seeking transfer of the petition to the Apex court. The original petition was filed in July, 2018 and sought linking of Aadhaar numbers with user accounts to further traceability of messages.

Before we try and answer this question, we need to first understand the differences between the different types of data on social media and messaging platforms. If a crime happens on an end to end cryptographically secure channel like WhatsApp the police may request the following from the provider to help solve the case:

Identity data: Phone numbers of the accused. Names and addresses of the accused.
Metadata: Sender, receiver(s), time, size of message, flag identifying a forwarded messages, delivery status, read status, etc.
Payload Data: Actual content of the text and multimedia messages.

Different countries have taken different approaches to solving different layers of the surveillance problem. Let us start with identity data. Some like India require KYC for sale of SIM cards while others like the UK allow anonymous purchases. Corporations also have policies when it comes to anonymous speech on their platforms – Facebook for instance enforces a soft real ID policy while Twitter does not crack down on anonymous speech. The trouble with KYC the old fashioned way is that it exposes citizens to further risk. Every possessor of your identity documents is a potential attack surface. Indian regulation should not result in Indian identity documents being available in the millions to foreign corporations. Technical innovations are possible, like tokenisation, Aadhaar paperless local e-KYC or Aadhaar offline QR code along with one time passwords. These privacy protective alternatives must be mandatory for all and the Aadhaar numbers must be deleted from previously seeded databases. Countries that don’t require KYC have an alternative approach to security and law enforcement. They know that if someone like me commits a crime, it would be easy to catch me because I have been using the same telecom provider for the last fifteen years. This is true of long term customers regardless if they are pre-paid or post-paid. The security risk lies in the new numbers without this history that confirms identity. These countries use targeted big data analytics to determine risk and direct surveillance operations to target new SIM cards. My current understanding is that when it comes to basic user data – all the internet giants in India comply with what they consider as legitimate law enforcement requests. Some proprietary and free and open source [FOSS] alternatives to services offered by the giants don’t provide such direct cooperation in India.

When it comes to payload data – it is almost impossible (meaning you will need supercomputers) to access the data unless the service/software provider breaks end-to-end cryptography. It is unwise, like some policy-makers are proposing, to prohibit end-to-end cryptography or mandate back doors because our national sovereignty and our capacity for technological self-determination depends on strong cryptography. A targeted ban or prohibition against proprietary providers might have a counterproductive consequence with users migrating to FOSS alternatives like Signal which won’t even give the police identity data. As a supporter of the free software movement, I would see this as a positive development but as a citizen I am aware that the fight against crime and terror will become harder. So government must pursue other strategies to getting payload data such as a comprehensive government hacking programme.

Meta-data is critical when it comes to separating the guilty from the innocent and apportioning blame during an investigation. For example, who was the originator of a message? Who got it and read it last? WhatsApp claims that it has implemented the Signal protocol faithfully meaning that they hold no meta-data when it comes to the messages and calls. Currently there is no regulation which mandates data retention for over the top providers but such requirements do exist for telecom providers. Just like access to meta-data provides some visibility into illegal activities it also provides visibility into legal activities. Therefore those using end-to-end cryptography on platforms with comprehensive meta-data retention policies will have their privacy compromised even though the payload data remains secure. Here is a parallel example to understand why this is important. Early last year, the Internet Engineering Task Force chose a version of TLS 1.3 that revealed less meta-data over one that provided greater visibility into the communications. This hardening of global open standards, through the elimination of availability of meta-data for middle-boxes, makes it harder for foreign governments to intercept Indian military and diplomatic communications via imported telecom infrastructure. Courts and policy makers across the world have to grapple with the following question: Are meta-data retention mandates for the entire population of users a “necessary and proportionate” legal measure to combat crime and terror. For me, it should not be illegal for a provider who voluntarily wishes to retain data, provided it is within legally sanctioned limits but it should not be requirement under law.

There are technical solutions that are yet to be properly discussed and developed as an alternative to blanket meta-data retention measures. For example, Dr. V Kamakoti has made a traceability proposal at the Madras High Court. This proposal has been critiqued by Anand Venkatanarayanan as being violative in spirit of the principles of end-to-end cryptography. Other technical solutions are required for those seeking justice and for those who wish to serve as informers for terror plots. I have proposed client side metadata retention. If a person who has been subjected to financial fraud wishes to provide all the evidence from their client, it should be possible for them to create a digital signed archive of messages for the police. This could be signed by the sender, the provider and also the receiver so that technical non-repudiation raises the evidentiary quality of the digital evidence. However, there may be other legal requirements such as the provision of notice to the sender so that they know that client side data retention has been turned on.

The need of the hour is sustained research and development of privacy protecting surveillance mechanisms. These solutions need to be debated thoroughly amongst mathematicians, cryptographers, scientists, technologists, lawyers, social scientists and designers so that solutions with the least negative impact can be rolled out either voluntarily by providers or as a result of regulation.

For more details visit https://cis-india.org/internet-governance/blog/prime-time-august-26-2019-sunil-abraham-linking-aadhaar-with-social-media-or-ending-encryption-is-counterproductive

Linking Aadhaar to Facebook, Twitter: Possible witch-hunt or key to curb crime & fake news?

Taran Deol and Revathi Krishanan — 2019-08-27T00:25:14Z

The Supreme Court has cautioned against linking users’ social media accounts with Aadhaar, saying it will impinge on citizens’ privacy.

The article by Taran Deol and Revathi Krishanan appeared in the Print on August 21, 2019. Gurshabad Grover was quoted.

Madras High Court is not adjudicating on a question of law, but acting as a forum for policy-making

The proceedings in the Aadhaar and social media linkage case in the Madras High Court are very worrying. It is another example of how the courts are continuously expanding the scope of what is permitted as public interest litigation. In this case, the Madras High Court is not adjudicating on a question of law, but acting as a forum for policy-making.

Having said that, cybercrime is a legitimate problem. If law enforcement agencies are unable to investigate crimes, we need to think of other more effective legal instruments.

Unfortunately, even the measures that are being deliberated in the court are not identifying the root cause of these problems — retrieving information from online platforms based outside India. And this could be a long and cumbersome process.

Instead of thinking about how India can sign bilateral agreements with other countries that can make the process for requesting legal information easier, an entirely unrelated solution is being given. It is in line with the worrying trend of the unchecked issues with the Aadhaar programme, which are now being used as a common excuse to refrain from looking at cases where criminal investigation is required. The solution misses the scope of solving the issue at hand entirely, and carries its own massive risks of infringing privacy and violating freedom of expression.

For more details visit https://cis-india.org/internet-governance/news/the-print-august-21-2019-taran-deol-and-revathi-krishnan-linking-aadhaar-to-facebook-twitter

Lining up the data on the Srikrishna Privacy Draft Bill

sunil — 2018-07-31T02:52:23Z

In the run-up to the Justice BN Srikrishna committee report, some stakeholders have advocated that consent be eliminated and replaced with stronger accountability obligations. This was rejected and the committee has released a draft bill that has consent as the bedrock just like the GDPR. And like the GDPR there exists legal basis for nonconsensual processing of data for the “functions of the state”. What does this mean for lawabiding persons?

The article was published in Economic Times on July 30, 2018

Non-consensual processing is permitted in the bill as long it is “necessary for any function of the” Parliament or any state legislature. These functions need not be authorised by law.

Or alternatively “necessary for any function of the state authorised by law” for the provision of a service or benefit, issuance of any certification, licence or permit.
Fortunately, however, the state remains bound by the eight obligations in chapter two i.e., fair and reasonable processing, purpose limitation, collection limitation, lawful processing, notice and data quality and data storage limitations and accountability. This ground in the GDPR has two sub-clauses: one, the task passes the public interest test and two, the loophole like the Indian bill that possibly includes all interactions the state has with all persons.

The “necessary” test appears both on the grounds for non-consensual processing, and in the “collection limitation” obligation in chapter two of the bill. For sensitive personal data, the test is raised to “strictly necessary”. But the difference is not clarified and the word “necessary” is used in multiple senses.

Under the “collection limitation” obligation the bill says “necessary for the purposes of processing” which indicates a connection to the “purpose limitation” obligation. The “purpose limitation” obligation, however, only requires the state to have a purpose that is “clear, specific and lawful” and processing limited to the “specific purpose” and “any other incidental purpose that the data principal would reasonably expect the personal data to be used for”. It is perhaps important at this point to note that the phrase “data minimisation” does not appear anywhere in the bill.

Therefore “necessary” could broadly understood to mean data Parliament or the state legislature requires to perform some function unauthorised by law, and data the citizen might reasonably expect a state authority to consider incidental to the provision of a service or benefit, issuance of a certificate, licence or permit.

Or alternatively more conservatively understood to mean data without which it would be impossible for Parliament and state legislature to carry out functions mandated by the law, and data without it would be impossible for the state to provide the specific service or benefit or issue certificates, licences and permits. It is completely unclear like with the GDPR why an additional test of “strictly necessary” is — if you will forgive the redundancy — necessary.

After 10 years of Aadhaar, the average citizen “reasonably expects” the state to ask for biometric data to provide subsidised grain. But it is not impossible to provide subsidised grain in a corruption-free manner without using surveillance technology that can be used to remotely, covertly and non-consensually identify persons. Smart cards, for example, implement privacy by design. Therefore a “reasonable expectation” test is not inappropriate since this is not a question about changing social mores.

When it comes to persons that are not law abiding the bill has two exceptions — “security of the state” and “prevention, detection, investigation and prosecution of contraventions of law”. Here the “necessary” test is combined with the “proportionate” test.

The proportionate test further constrains processing. For example, GPS data may be necessary for detecting someone has jumped a traffic signal but it might not be a proportionate response for a minor violation. Along with the requirement for “procedure established by law”, this is indeed a well carved out exception if the “necessary” test is interpreted conservatively. The only points of concern here is that the infringement of a fundamental right for minor offences and also the “prevention” of offences which implies processing of personal data of innocent persons.

Ideally consent should be introduced for law-abiding citizens even if it is merely tokenism because you cannot revoke consent if you have not granted it in the first place. Or alternatively, a less protective option would be to admit that all egovernance in India will be based on surveillance, therefore “necessary” should be conservatively defined and the “proportionate” test should be introduced as an additional safeguard.

For more details visit https://cis-india.org/internet-governance/blog/economic-times-july-30-2018-sunil-abraham-lining-up-data-on-srikrishna-privacy-draft-bill

Limits to Privacy

Prashant Iyengar — 2012-12-14T10:28:55Z

In his research article, Prashant Iyengar examines the limits to privacy for individuals in light of the provisions of the Constitution of India, public interest, security of state and maintenance of law and order. The article attempts to build a catalogue of all these justifications and arrive at a classification of all such frequently used terms invoked in statutes and upheld by courts to deprive persons of their privacy.

Introduction

In 1965, the Supreme Court of India heard and decided State of UP v. Kaushaliya[1], a case which involved the question of whether women who are engaged in prostitution can be forcibly removed from their residences and places of occupation, or whether they were entitled, along with other citizens of India, to the fundamental right to move freely throughout the territory of India, and to reside and settle in any part of the territory of India [under Article 19(1)(d) and (e) of the Constitution of India]. In other words, did these women possess an absolute right of privacy over their decisions in respect to their occupation and place of residence? In its decision, the Supreme Court denied them this right holding that "the activities of a prostitute in a particular area... are so subversive of public morals and so destructive of public health that it is necessary in public interest to deport her from that place." In view of their 'subversiveness', the statutory restrictions imposed by the Suppression of Immoral Traffic Act on prostitutes, were upheld by the court as constitutionally-permissible “reasonable restrictions” on their movements.

The legal alibis that the State employs to justify its infringement of our privacy are numerous, and range from ‘public interest’ to 'security of the state' to the 'maintenance of law and order'. In this chapter we attempt to build a catalogue of these various justifications, without attempting to be exhaustive, with the objective of arriving at a rough taxonomy of such frequently invoked terms. In addition we also examine some the more important justifications such as 'public interest' and 'security of the state' that have been invoked in statutes and upheld by courts to deprive persons of their privacy.

The statutory venues of deprivation of privacy by the state being many – strictly, any statute that imposes any restriction on movement, or authorizes the search or examination of any residence or book, or the interception of communication may be read as a violation of a privacy right — tracking each of these down would not only be an impossible exercise, but also contribute little to the analytical exercise we are attempting here. Instead, in this chapter we only list provisions from a few statutes that are the familiar instruments by which the state impinges on our privacy. This is done with the limited object of arriving at a rough inventory of the common technologies which the state employs to impinge on our privacy.

Even if intrusions into our privacy are statutorily authorised, these statutes must withstand constitutional scrutiny. We therefore, begin this chapter with a discussion of the constitutional framework within which these statutes operate, and against which the severity of their incursions must be measured.

Constitutional Jurisprudence on Privacy

The 'right to privacy' has been canvassed by litigants before the higher judiciary in India by including it within the fold of two fundamental rights: the right to freedom under Article 19 and the right to life and personal liberty under Article 21.

It would be instructive to provide a brief background to each of these Articles before delving deeper into the privacy jurisprudence expounded by the courts under them.

Part III of the Constitution of India (Articles 12 through 35) is titled ‘fundamental rights’ and lists out several rights which are regarded as fundamental to all citizens of India (some apply all persons in India whether citizens or not). Article 13 forbids the State from making “any law which takes away or abridges the rights conferred by this Part”.

Thus, Article 19(1) (a) stipulates that "all citizens shall have the right to freedom of speech and expression". However this is qualified by Article 19(2) which states that this will not "affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right … in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence".

Thus, the freedom of expression guaranteed by Article 19(1) (a) is not absolute, but a qualified right that is susceptible, under the Constitutional scheme, to being curtailed under specified conditions.

The other important fundamental right from the perspective of privacy jurisprudence is Article 21 which reads "No person shall be deprived of his life or personal liberty except according to procedure established by law."

Where Article 19 contains a detailed list of conditions under which freedom of expression may be curtailed, by contrast Article 21 is thinly-worded and only requires a "procedure established by law" as a pre-condition for the deprivation of life and liberty. However, the Supreme Court has held in a celebrated case Maneka Gandhi vs. Union of India [2] that any procedure "which deals with the modalities of regulating, restricting or even rejection of a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus, understood, 'procedure' must rule out anything arbitrary, freakish or bizarre."

Four decisions by the Supreme Court have established the right to privacy in India as flowing from Articles 19 and 21.

The first was a seven-judge bench judgment in Kharak Singh vs The State of U.P.[3] The question for consideration before this court was whether 'surveillance' under Chapter XX of the U.P. Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b) which permitted surveillance by 'domiciliary visits at night' was held to be violative of Article 21.The word ‘life’ and the expression ‘personal liberty’ in Article 21 were elaborately considered by this court in Kharak Singh`s case. Although the majority found that the Constitution contained no explicit guarantee of a ‘right to privacy’, it read the right to personal liberty expansively to include a right to dignity. It held that "an unauthorised intrusion into a person's home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man —an ultimate essential of ordered liberty, if not of the very concept of civilization."

In a minority judgment in this case, Justice Subba Rao held that "the right to personal liberty takes is not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his 'castle' it is his rampart against encroachment on his personal liberty." This case, especially Justice Subba Rao’s observations, paved the way for later elaborations on the right to privacy using Article 21.

In 1972, the Supreme Court decided a case — one of the first of its kind — on wiretapping. In R. M. Malkani vs State of Maharashtra [4] the petitioner’s voice had been recorded in the course of a telephonic conversation where he was attempting blackmail. He asserted in his defence that his right to privacy under Article 21 had been violated. The Supreme Court declined his plea holding that “the telephonic conversation of an innocent citizen will be protected by courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants.”

The third case, Govind vs. State of Madhya Pradesh [5] , by a three-judge bench of the Supreme Court is regarded as being a setback to the right to privacy jurisprudence. Here, the court was evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulation which provided for police surveillance of habitual offenders including domiciliary visits and picketing. The Supreme Court desisted from striking down these invasive provisions holding that "It cannot be said that surveillance by domiciliary visit, would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead criminal lives that are subjected to surveillance."

The court went on to make some observations on the right to privacy under the Constitution:

"Too broad a definition of privacy will raise serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. The right to privacy will, therefore, necessarily, have to go through a process of case by case development. Hence, assuming that the right to personal liberty, the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them it could not he absolute. It must be subject to restriction on the basis of compelling public interest. But the law infringing it must satisfy the compelling state interest test. It could not be that under these freedoms that the Constitution-makers intended to protect or protected mere personal sensitiveness."

The next case in the series was R. Rajagopal vs. State of Tamil Nadu [6] which involved a balancing of the right of privacy of citizens against the right of the press to criticize and comment on acts and conduct of public officials. The case related to the alleged autobiography of Auto Shankar who was convicted and sentenced to death for committing six murders. In the autobiography, he had commented on his contact and relations with various police officials. The right of privacy of citizens was dealt with by the Supreme Court in the following terms: -

The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent — whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.

Elsewhere in the same decision, the court took a cautionary stance and held that "the right to privacy...will necessarily have to go through a process of case-by-case development."

The final case that makes up the 'privacy quintet' in India was the case of PUCL v. Union of India [7] in which the court was called upon to consider whether wiretapping was an unconstitutional infringement of a citizen’s right to privacy. The court held:

The right privacy — by itself — has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as a ‘right to privacy’. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.

The court also read this right to privacy as simultaneously deriving from Article 19. "When a person is talking on telephone, he is exercising his right to freedom of speech and expression", the court observed, and therefore "telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1) (a) of the Constitution."

However, the court in this case made two observations which would have a lasting impact on privacy jurisprudence in India –firstly, it rejected the contention that 'prior judicial scrutiny' should be mandated before any wiretapping could take place and accepted the contention that administrative safeguards would be sufficient.

Thus, to conclude this section of this chapter, it may be observed that the right to privacy in India is, at its foundations a limited right rather than an absolute one. In the sections that follow, it will become apparent that this limited nature of the right provides a somewhat unstable assurance of privacy since it is frequently made to yield to all manners of competing interests which happen to have a more pronounced legal standing.

Vocabularies of Privacy Limitation

Article 12 of the Universal Declaration of Human Rights (1948) defines privacy in the following terms:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

Similarly, Article 17 of the International Covenant of Civil and Political Rights (to which India is a party) declares that:

"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation."

In this section, we look briefly at sections in some statutes that authorize the deprivation of privacy. These statutes have been classified under three headings, following the aforementioned international covenants, each dealing with a) our communications, b) our homes and c) bodily privacy.

Privacy of Communications

Communications laws

All laws dealing with mediums of inter-personal communication — post, telegraph and telephony and email – contain similarly worded provisions permitting interception under specified conditions.

Thus, section 26 of the India Post Office Act 1898 confers powers of interception of postal articles for the 'public good'. According to this section, this power may be invoked "On the occurrence of any public emergency, or in the interest of the public safety or tranquillity". The section further clarifies that “a certificate from the State or Central Government” would be conclusive proof as to the existence of a public emergency or interest of public safety or tranquillity.

Similarly, section 5(2) of the Telegraph Act authorizes the interception of any message

on the occurrence of any public emergency, or in the interest of the public safety; and
if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence,

Thus, the events that trigger an action of interception are the occurrence of any ‘public emergency’ or in the interests of ‘public safety’.

Most recently, section 69 of the Information Technology Act 2008 contains a more expanded power of interception which may be exercised "when they [the authorised officers] are satisfied that it is necessary or expedient" to do so in the interest of:

sovereignty or integrity of India,
defence of India,
security of the State,
friendly relations with foreign States or
public order or
preventing incitement to the commission of any cognizable offence relating to above or
for investigation of any offence,

[More details of the occasions and the mandatory procedural safeguards before these powers may be exercised are contained in our briefing notes on Privacy and Telecommunications and Privacy and the IT Act]

From a plain reading of these sections, there appears to be a gradual loosening of standards from the Post Office Act to the latest Information Technology Act. The Post Office Act requires the existence of a ‘state of public emergency’ or a ‘threat to public safety and tranquillity’ as a precursor to the exercise of the power of interception. This requirement is continued in the Telegraph Act with the addition of a few more conditions, such as expediency in the interests of sovereignty, etc. Under the most recent IT Act, the requirement of a public emergency or a threat to public safety is dispensed with entirely – here, the government may intercept merely if it feels it ‘necessary or expedient’.

How much of a difference does it make?

In Hukam Chand Shyam Lal v. Union of India and ors [8] , the Supreme Court was required to interpret the meaning of ‘public emergency’. Here, the court was required to consider whether disconnection of a telephone could be ordered due to an ‘economic emergency’. The Government of Delhi had ordered the disconnection of the petitioner’s telephones due to their alleged involvement, through the use of telephones, in (then forbidden) forward trading in agricultural commodities. According to the government, this constituted an ‘economic emergency’ due to the escalating prices of food. Declining this contention, the Supreme Court held that:

a 'public emergency' within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence.

Economic emergency is not one of those matters expressly mentioned in the statute. Mere 'economic emergency'— as the high court calls it—may not necessarily amount to a 'public emergency' and justify action under this section unless it raises problems relating to the matters indicated in the section.

In addition the other qualifying term, 'public safety' was interpreted in an early case by the Supreme Court to mean "security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety. The meaning of the expression must, however, vary according to the context."[9]

Thus, the words ‘public emergency’ and 'public safety' does provide some legal buffer before the government may impinge on our privacy in the case of post and telecommunications. In a sense, they operate both as limits on our privacy as well as limits on the government’s ability to impinge on our privacy — since the government must demonstrate their existence to the satisfaction of the court, failing which their actions would be illegal.

However, as mentioned, even these requirements have been dispensed with in the case of electronic communications falling under the purview of the Information Technology Act where sweeping powers of interception have been provided extending from matters affecting the sovereignty of the nation, to the more mundane 'investigation of any offence'.

Privileged Communications

In addition to laying down procedural safeguards which restrict the conditions under which our communication may be intercepted, the law also safeguards our privacy in certain contexts by taking away the evidentiary value of certain communications.

Thus, for instance, under the Evidence Act, communications between spouses and communications with legal advisors are accorded a special privilege.

Section 122 of the Evidence Act forbids married couples from disclosing any communications made between them during marriage without the consent of the person who made it. This however, does not apply in suits “between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”

This rule was applied in a case before the Kerala High Court, T.J. Ponnen vs M.C. Varghese [10] where a man sued his son-in-law for defamation based on statements about him written in a letter addressed to his daughter. The trial court held that the prosecution was invalid since it was based on privileged communications between the couple. This was upheld by the high court. The petitioner had attempted to argue that it was immaterial how he gained possession of the letter. The high court disagreed with this contention holding that this would defeat the purpose of section 122.

Similarly section 126 forbids “barristers, attorneys, pleaders or vakils” from disclosing, without their client’s express consent “any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil... or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment.”

As with section 122, this privilege also comes with exceptions. Thus, the following kinds of communications are exempted from the privilege:

any communication made in furtherance of any illegal purpose,
any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.

Section 127 extends the scope attorney-client privilege to include any interpreters, clerks and servants of the attorney or barrister. They are also not permitted to disclose the contents of any communication between the attorney and her client.

Section 129 enacts a reciprocal protection and provides that clients shall not be compelled to disclose to the court any "confidential communication which has taken place between him and his legal professional adviser."

Section 131 of the Evidence Act further cements the legal protection afforded to married couples, attorneys and their clients by providing that "No one shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession" unless that person consents to the production of such documents.

Note that these privileges do not limit the ability of the state to intercept communications – they merely negate the evidentiary value of any communications so intercepted.

Privacy of the Home: Search and Seizure Provisions

Under what circumstances may the State invade the privacy of our homes? What are the limits of these powers? Technically, any law that authorizes “search and seizure” can be said to authorize an invasion of our privacy. Many laws permit searches, for various grounds — ranging from the Income Tax Act which authorizes searches to recover undisclosed income, to the Narcotics Act which prescribes a procedure to search and sieze drugs, to the Excise Act and the Customs Act which do so in order to discover goods that are manufactured or imported in violation of those respective statutes. In this section we deal only with the general provisions for search and seizure under the Code of Criminal Procedure.

The Code of Criminal Procedure (CrPC) provides that a house or premises may be searched either under a search warrant issued by a court, or, in the absence of a court-issued-warrant, by a police officer in the course of investigation of offences.

Thus, a court may issue a search warrant where

it has reason to believe that a person to whom a summons has been, or might be, addressed, will not or would not produce the document or thing as required by such summons; or
where such document or thing is not known to the court to be in the possession of any person, or
where the court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection,

Similarly, section 165 of the Code of Criminal Procedure permits for searches to be conducted by “police officers in charge of police station or a police officer making an investigation” without first obtaining a warrant. Such a search may be conducted if he has “reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached”, and if, in his opinion, such thing cannot “be otherwise obtained without undue delay”.

Such officer must record in writing the grounds of his belief and specify “so far as possible” the thing for which search is to be made.

In both cases, the Code of Criminal Procedure requires the search to conform to procedures including the presence of "two or more independent and respectable inhabitants of the locality”. The preparation, in their presence, of “a list of all things seized in the course of such search, and of the places in which they are respectively found", the delivery of this list to the occupant of the place being searched.

However, in reality, these requirements are observed more in the breach. Courts have consistently held that not following these provisions would not make evidence obtained inadmissible — it would make the search irregular, not unlawful. Thus, in State of Maharashtra v. Natwarlal Damodardas Soni [11], where a search was conducted under the Customs Act to recover smuggled gold, the Supreme Court held that

Assuming that the search was illegal it would not affect either the validity of the seizure and further investigation by the customs authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.

In a different case, Radhakrishan v. State of U.P. [12] which involved an illegal search in contravention of the Code of Criminal Procedure , the Supreme Court held that:

"So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the Articles is not vitiated. It may be that where the provisions of ... Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues."

India inherits the common law notion that a man’s house is his castle. In the light of the cases discussed above, this claim certainly appears to be lofty. However, there is still hope. In a recent case, the Supreme Court struck down provisions of a legislation on grounds that it was too intrusive of citizens’ right to privacy. The case involved an evaluation of the Andhra Pradesh Stamp Act which authorized the collector to delegate “any person” to enter any premises in order to search for and impound any document that was found to be improperly stamped. Thus, for instance, banks could be compelled to cede all documents in their custody, including clients documents, for inspection on the mere chance that some of them may be improperly stamped. These banks were then compelled under law to pay the deficit stamp duty on the documents, even if they themselves were not party to the transactions recorded in the documents.

After an exhaustive analysis of privacy laws across the world, and in India, the Supreme Court held that in the absence of any safeguards as to probable or reasonable cause or reasonable basis, this provision was violative of the constitutionally guaranteed right to privacy, both of the house and of the person. [13]

The case marks a welcome redrawing of the boundaries of the right to privacy against state intrusion.

Privacy of the Body

To what extent do we have a right to privacy that protects what we may do with our own bodies and may be done to them? This section deals with this question in the context of four issues that have arisen before courts:

the ability of the state to order persons to undergo medical-examination,
to undergo a range of 'truth technologies' including narco analysis, brain mapping, etc.,
to submit to DNA testing and d) to abortion. In most cases, as we shall see, the right to privacy cedes ground to any available competing interest.

Court-ordered Medical Examinations

Can courts compel persons to undergo medical examinations against their will? In the case of Sharda v. Dharmpal[14], decided in 2003, the Supreme Court held that they could. Here a man filed for divorce on that grounds that his wife suffered from a mental illness. In order to establish his case, he requested the court to direct his wife to submit herself to a medical examination. The trial court and the high court both granted his application. On appeal to the Supreme Court, the woman contested the order on grounds firstly, that compelling a person to undergo a medical examination by an order of the court would be violative of her right to 'personal liberty' guaranteed under Article 21 of the Constitution of India. Secondly, in absence of a specific empowering provision, a court dealing with matrimonial cases cannot subject a party to undergo medical examination against his her volition. The court could merely draw an adverse inference.

The Supreme Court rejected these contentions holding that the right to privacy in India was not absolute. If the "respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory."

The court upheld the rights of matrimonial courts to order a person to undergo medical test. Such an order, the court held, would not be in violation of the right to personal liberty under Article 21 of the Constitution of India. However, this power could only be exercised if the applicant had a strong prima facie case, and there was sufficient material before the court. Crucially, the court held that if, despite the order of the court, the respondent refused to submit herself to medical examination, the court would be entitled to draw an adverse inference against him.

Thus, oddly, one limitation on the right to privacy appears to be the statutory rights of others. One is entitled to the privacy of one’s body, to the extent that another person is not, thereby, deprived of a statutory right – as in this case, to divorce.

Reproductive Rights

Ahmedabad: A 13-year-old girl, who conceived after being repeatedly raped, has moved the Gujarat High Court and sought permission to medically terminate her pregnancy after a sessions court rejected her plea.

Express India(April 2010) [15]

To what extent do pregnant women enjoy a right to privacy over their bodies and their reproductive decisions? Are there circumstances when the State can intervene and either order or forbid an abortion?

According to the Medical Termination of Pregnancy Act, 1971 a pregnancy may be terminated before the twentieth week if:

the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.
where any pregnancy is alleged by the pregnant woman to have been caused by rape,
where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children.

Consent for termination needs to be obtained from the guardian in cases of minors or women who are mentally ill. In all other cases, the woman herself must consent.

Beyond the period of 20 weeks, the pregnancy may only be terminated if there is immediate danger to the life of the woman.

In August 2009, the Supreme Court heard an expedited appeal that was filed on behalf of a destitute mentally retarded woman who had become pregnant consequent to having been raped at a government run shelter. The government had approached the high court seeking permission to terminate her pregnancy, which had been granted by that court despite the finding by an ‘expert body’ of medical practitioners that she was keen on continuing the pregnancy. On appeal the Supreme Court held, very curiously, that the woman was not ‘mentally ill’, but ‘mentally retarded’, and consequently her consent was imperative under the Act. [16] However, not content to stop there, the court made several puzzling and contradictory observations:

Firstly, the court took the opportunity to affirm, generally, women’s rights to make reproductive choices as a dimension of their `personal liberty' as guaranteed by Article 21 (Right to Life and Personal Liberty) of the Constitution of India. The court observed:

“It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. (emphasis mine) [17]

However, the court went on to affirm, in language that curiously imitates Roe v Wade,[18] that there was “a `compelling state interest' in protecting the life of the prospective child.[19]

Secondly, the Supreme Court upheld the woman’s consent as determinative and in doing so, categorically rejected the high court approach. The court held that since she suffered from `mild mental retardation' this did not render her "incapable of making decisions for herself". Simultaneously, however, the Supreme Court proceeded gratuitously to apply the common law doctrine of `parens patriae' to resume jurisdiction over the woman in her “best interests”. According to a court-appointed expert committee, her mental age was “close to that of a nine-year old child” and she was capable of “learning through rote memorisation and imitation” and of performing “basic bodily functions”.[20] In this light, the court deemed in her ‘best interests’, as defined by an expert committee, to defer to her wishes.

The findings recorded by the expert body indicate that her mental age is close to that of a nine-year old child and that she is capable of learning through rote-memorisation and imitation. Even the preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. In light of these findings, it is the `best interests' test alone which should govern the inquiry in the present case and not the `substituted judgment' test. [21]

If one disregards the liberalism of its outcome, there are various problems with this decision. Chiefly, the Supreme Court relied on the woman’s expressed consent to deny the legitimacy of the high court’s decision in favour of abortion. Inexplicably, however, in the same move, the Supreme Court reserved to itself the right to adjudicate the ‘best interests’ of the woman. Thus, in relation to abortion, mentally retarded women are more autonomous than minor girls (since their own consent is determinative, rather than their guardians) but they are still less autonomous than ‘normal’ women (since their decisions are subject to adjudication based on what the court thinks is in their best interests)!

DNA Tests in Civil Suits

Do we have a right to privacy over the interiors of our body – our blood, our tissue, our DNA? There is, by now, a strong line of cases decided by the Supreme Court in which our right to ‘bodily integrity’ has been held to not be absolute, and may be interfered with in order to settle many terrestrial issues. In most cases, this question has arisen in the context of the determination of paternity – either in divorce or maintenance proceedings. Central in the determination of these issues is section 112 of the Evidence Act which stipulates that birth of a child during the continuance of a valid marriage (or within 280 days of its dissolution) would be conclusive proof of legitimacy of that child, “unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

As is evident, this section creates a strong legal presumption of legitimacy that leaves no room for a scientific rebuttal. Various litigants have, nevertheless, sought the courts’ indulgence in accepting medical evidence to displace this formidable legal presumption. These efforts have yielded a measure of success, and a steady line of precedents since the early 1990s now affirms the right of courts to direct medical evidence in cases they consider fit. In these cases, the court has frequently invoked privacy rights as an important consideration to be weighed before ordering a person to submit to any test.

In one of the earliest and most frequently invoked cases, Goutam Kundu vs State of West Bengal and Anr (1993) [22] the Supreme Court laid down guidelines governing the power of courts to order blood tests. The court held:

courts in India cannot order blood test as matter of course;

wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.

The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

No one can be compelled to give sample of blood for analysis.

On the particular facts of this case, the Supreme Court refused to order the respondent to submit to the test, since in its view, there was no prima facie case made out that cast doubts on the legal presumption of legitimacy.

These guidelines have been frequently invoked in subsequent cases. In a complex set of facts, in Ms. X vs Mr. Z and Anr (2001), [23] the Delhi High Court was called to consider whether a foetus had a ‘right to privacy’ – or whether the mother of the foetus could assert a right to privacy on it’s behalf. A woman had given birth to a still-born child and tissues from the foetus had been stored at the All India Institute of Medical Sciences. Her husband approached to obtain an order permitting a DNA test to be carried out to determine if he was the father. In her defence, the woman claimed that this would offend her right to privacy. The high court reaffirmed the guidelines laid down in the Gautam Kundu case (supra), and also upheld the petitioner’s right to privacy over her own body. However, the court took the stance that she did not have a right of privacy over the foetus once it had been discharged from her body:

"The petitioner indeed has a right of privacy but is being not an absolute right, therefore, when a foetus has been preserved in All India Institute of Medical Science, the petitioner, who has already discharged the same cannot claim that it affects her right of privacy.

However, if the petitioner was being compelled to subject herself to blood test or otherwise, she indeed could raise a defense that she cannot be compelled to be a witness against herself in a criminal case or compelled to give evidence against her own even in a civil case but the position herein is different. The petitioner is not being compelled to do any such act. Something that she herself has discharged, probably with her consent, is claimed to be subjected to DNA test. In that view of the matter, in the peculiar facts, it cannot be termed that the petitioner has any right of privacy."

The decision has wide-ranging implications since it virtually divests control and ownership over any material that has been discarded from the body – from nails to hair to tissue samples. In an interesting case in the US, Moore v. Regents of the University of California [24], the Supreme Court of California was faced with a suit to determine whether a man retained ownership over cells that had been removed from his body through a surgical procedure. In this case, cells from a patient’s spleen were used to conduct research which resulted in the patenting of a cell-line by the defendant. The patient sued for a share in the profits, but this was rejected by the court which held that he had no property rights to his discarded cells or any profits made from them. The court specifically rejected the argument that his spleen should be protected as property as an aspect of his privacy and dignity. The court held these interests were already protected by informed consent.

In a sense the Ms. X vs Mr. Z case arrives at identical conclusions without as much deliberation on its implications. It would be interesting to see how subsequent courts interpret and apply this precedent.

One of the most critical factors, consistently weighed by courts alongside the privacy rights implicated, is the ‘best interests’ of the child. Thus, in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr.[25], the Supreme Court quashed a high court-mandated DNA test to determine the paternity of an unborn child in a woman’s womb. In doing so, the SC observed:

“In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether, for a just decision in the matter, DNA is eminently needed. (emphasis added)

A strong trend, evident in this case, is the bussing of the interests of the child (in not being declared illegitimate), along with the privacy rights of the mother. The two create a composite interest opposed to that of the putative father, which the courts have been reluctant to interfere with except for the most compelling reasons. But what happens when then the interests of the child conflict with the privacy rights of either parent?

In a high profile case in 2010, Shri Rohit Shekhar vs Shri Narayan Dutt Tiwari[26], the Delhi High was called upon to determine whether a man had a right to subject the person he named as his biological father to a DNA test. Contrary to the trend in the preceding cases, it was the biological father who pleaded his right to privacy in this case. The court relied on international covenants to affirm the “right of the child to know of her (or his) biological antecedents” irrespective of her (or his) legitimacy. The court ruled:

There is of course the vital interest of child to not be branded illegitimate; yet the conclusiveness of the presumption created by the law in this regard must not act detriment to the interests of the child. If the interests of the child are best sub-served by establishing paternity of someone who is not the husband of her (or his) mother, the court should not shut that consideration altogether.

The protective cocoon of legitimacy, in such case, should not entomb the child’s aspiration to learn the truth of her or his paternity.

The court went on to draw a distinction between legitimacy and paternity that may both "be accorded recognition under Indian law without prejudice to each other. While legitimacy may be established by a legal presumption [under section 112 of the Evidence Act], paternity has to be established by science and other reliable evidence"[27] The court, however, reaffirmed that the same considerations would apply as was laid down in previous cases – i.e., the plaintiff would have to establish a prima facie case and weigh the competing interests of privacy and justice before it could order a DNA test. In this case, the petitioner was able to produce DNA evidence that excluded the possibility that his legal father was his biological father. In addition, photographic and testimonial evidence suggested that the respondent could be his biological father. On these grounds the Delhi High Court ordered the respondent to undergo a DNA test. This was upheld in an appeal to the Supreme Court.

So from the foregoing cases, it appears that it is the ‘best interests of the child’ that undergrids the right to privacy of either parent. When the two are in conflict it is the former that will, the case law suggests, invariably prevail.

Bodily Effects — Fingerprints, handwriting samples, photographs, Irises, narco-analysis, brain maps and DNA

The human body easily betrays itself. We are incessantly dropping residues of our existence wherever we go – from shedding hair and fingernails, to fingerprints and footprints, handwriting – which, through use of modern technology, can implicate our bodies, and identify us against our will. Not even our thoughts are immune as new technologies like brain mapping pretend to be able to harvest psychic clues from our physiology.

In this section we explore occasions when the state may compel us to 'perform' our existence for instance, by submitting to photography, providing finger impressions or handwriting samples, submit to narco-analysis and truth tests, and more recently to provide iris scan data or our DNA.

Section 73 of the Evidence Act stipulates that the court "may direct any person present in the court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person."

This section was interpreted by the Supreme Court in State of U.P. v. Ram Babu Misra [28] where it was held that there must be “some proceeding before the court in which...it might be necessary... to compare such writings”. This specifically excludes, say, a situation where the case is still under investigation and there is no present proceeding before the court. “The language of section 73 does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the court.”

The pre-independence Identification of Prisoners Act, 1920 provides for the mandatory taking, by police officers, of 'measurements' and photograph of persons arrested or convicted for any offence punishable with rigorous imprisonment for a term of one year of upwards or ordered to give security for his good behaviour under section 118 of the Code of Criminal Procedure. [29] The Act also empowers a magistrate to order a person to be measured or photographed if he is satisfied that it is required for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898. [30]

The Act also provides for the destruction of all photographs and records of measurements on discharge or acquittal. [31]

In addition, the Code of Criminal Procedure was amended in 2005 to enable the collection of a host of medical details from accused persons upon their arrest. Section 53 of the Code of Criminal Procedure provides that upon arrest, an accused person may be subjected to a medical examination if there are “reasonable grounds for believing” that such examination will afford evidence as to the crime. The scope of this examination was expanded in 2005 to include “the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.”

In a case in 2004, the Orissa High Court affirmed the legality of ordering a DNA test in criminal cases to ascertain the involvement of persons accused. Refusal to co-operate would result in an adverse inference drawn against the accused.

After weighing the privacy concerns involved, the court laid down the following considerations as relevant before the DNA test could be ordered:

the extent to which the accused may have participated in the commission of the crime;
the gravity of the offence and the circumstances in which it is committed;
age, physical and mental health of the accused to the extent they are known;
whether there is less intrusive and practical way of collecting evidence tending to confirm or disprove the involvement of the accused in the crime;
the reasons, if any, for the accused for refusing consent [32]

Most recently the draft DNA Profiling Bill pending before the Parliament attempts to create an ambitious centralized DNA bank that would store DNA records of virtually anyone who comes within any proximity to the criminal justice system. Specifically, records are maintained of suspects, offenders, missing persons and “volunteers”. The schedule to the Bill contains an expansive list of both civil and criminal cases where DNA data will be collected including cases of abortion, paternity suits and organ transplant. Provisions exist in the bill that limit access to and use of information contained in the records, and provide for their deletion on acquittal. These are welcome minimal guarantors of privacy.

It is evident that the utility of this mass of information – fingerprints, handwriting samples and photographs, DNA data – in solving crimes is immense. Without saying a word, it is possible for a person to be convicted based on these various bodily affects – the human body constantly bears witness and self-incriminates itself. Both handwriting and finger impressions beg the question of whether these would offend the protection against self-incrimination contained in Article 20(3) of our Constitution which provides that “No person accused of any offence shall be compelled to be a witness against himself.” This argument was considered by the Supreme Court in the State of Bombay vs Kathi Kalu Oghad and Ors. [33] The petitioner contended that the obtaining of evidence through legislations such as the Identification of Prisoners Act amounted to compelling the person accused of an offence "to be a witness against himself" in contravention of Article 20(3) of the Constitution. The court held that “there was no infringement of Article 20(3) of the Constitution in compelling an accused person to give his specimen handwriting or signature, or impressions of his thumb, fingers, palm or foot to the investigating officer or under orders of a court for the purposes of comparison. ...Compulsion was not inherent in the receipt of information from an accused person in the custody of a police officer; it will be a question of fact in each case to be determined by the court on the evidence before it whether compulsion had been used in obtaining the information.” [34]

Over the past two decades, forensics has shifted from trying to track down a criminal by following the trail left by her bodily traces, to attempting to apply a host of invasive technologies upon suspects in an attempt to ‘exorcise’ truth and lies directly from their body. One statement by Dr M.S. Rao, Chief Forensic Scientist, Government of India captures this shift:

Forensic psychology plays a vital role in detecting terrorist cases. Narco-analysis and brainwave fingerprinting can reveal future plans of terrorists and can be deciphered to prevent terror activities⁄ Preventive forensics will play a key role in countering terror acts. Forensic potentials must be harnessed to detect and nullify their plans. Traditional methods have proved to be a failure to handle them. Forensic facilities should be brought to the doorstep of the common man⁄ Forensic activism is the solution for better crime management. [35]

Although there are several such 'technologies' which operate on principles ranging from changes in respiration, to mapping the electrical activity in different areas of the brain, what is common to them all, in Lawrence Liang’s words is that they “maintain that there is a connection between body and mind; that physiological changes are indicative of mental states and emotions; and that information about an individual’s subjectivity and identity can be derived from these physiological and physiological measures of deception” [36]

So, how legal are these technologies, in view of the constitutional protections against self-incrimination? In a case in 2004 the Bombay High Court upheld these technologies by applying the logic of the Kathi Kalu Oghad case discussed above. The court drew a distinction between ‘statements’ and ‘testimonies’ and held that what was prohibited under Article 20(3) were only ‘statements’ that were made under compulsion by an accused. In the court’s opinion, “the tests of Brain Mapping and Lie Detector in which the map of the brain is the result, or polygraph, then either cannot be said to be a statement”. At the most, the court held, “it can be called the information received or taken out from the witness.” [37]

This position was however overturned recently by the Supreme Court in Selvi v. State of Karnataka (2010)[38]. In contrast with the Bombay High Court, the Supreme Court expressly invoked the right of privacy to hold these technologies unconstitutional.

“Even though these are non- invasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as 'Brain Fingerprinting' and 'FMRI-based Lie-Detection' raise numerous concerns such as those of protecting mental privacy and the harms that may arise from inferences made about the subject's truthfulness or familiarity with the facts of a crime.”

Further down, the court held that such techniques invaded the accused’s mental privacy which was an integral aspect of their personal liberty.

“There are several ways in which the involuntary administration of either of the impugned tests could be viewed as a restraint on 'personal liberty' ... the drug-induced revelations or the substantive inferences drawn from the measurement of the subject's physiological responses can be described as an intrusion into the subject's mental privacy”

Following a thorough-going examination of the issue, the Supreme Court directed that “no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.” The court however, left open the option of voluntary submission to such techniques and endorsed the following guidelines framed by the National Human Rights Commission:

No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
The consent should be recorded before a judicial magistrate.
During the hearing before the magistrate, the person alleged to have agreed should be duly represented by a lawyer.
At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a `confessional' statement to the magistrate but will have the status of a statement made to the police.
The magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. 250
A full medical and factual narration of the manner of the information received must be taken on record.

Although the right against self-incrimination and the inherent fallaciousness of the technologies were the main ground on which decision ultimately rested, this case is valuable for the court’s articulation of a right of ‘mental privacy’ grounded on the fundamental right to life and personal liberty. It remains to be seen whether this articulation will find resonance in other determinations in domains such as, say, communications.

Privacy of Records

Since at least the mid-nineteenth century, we have been living in what Nicholas Dirks has termed an 'ethnographic state' — engaged relentlessly and fetishistically in the production and accumulation of facts about us. From records of birth and death, to our academic records, most of our important transactions, our income tax filings, our food entitlements and our citizenship, most of us have assuredly been documented and lead a shadow existence somewhere on the files. Not only does the government keep records about us, but a host of private service providers including banks, hospitals, insurance and telecommunications companies maintain volumes of records about us. In this last section of this paper, we look at the privacy expectation of records both maintained by the government and the private sector.

Various statutes require records to be maintained of activities conducted under their authority and entire bureaucracies exist solely in service of these documents. Thus, for instance, the Registration Act requires various registers to be kept which record documents which have been registered under the Act. [39]; Once registered under this Act, all documents become public documents and State Rules typically contain provisions enabling the public to obtain copies of all documents for a fee. Similarly, a number of legislation – typically dealing with land records at the state level contain enabling provisions that allow the public to access them upon payment of a fee.

Where no provisions are provided within the statute itself that enable the public to obtain records, two recourses are still available.

Firstly, the Evidence Act enables courts to access records maintained by any government body. Secondly, private citizens may access records kept in public offices through the Right to Information Act. Each of these avenues is described in some details below:

Section 74 of the Evidence Act defines 'public documents' as including the following

Documents forming the acts, or records of the acts

Of the sovereign authority,
Of Official bodies and the Tribunals, and
Of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country.

Public records kept in any state of private documents

It is clear from this definition that most records maintained by any government body are regarded as public documents. Section 76 mandates that every public officer "having custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof".

Since there is no legislative guidance within the Evidence Act to indicate who may be said to possess "a right to inspect", this has been interpreted to mean that where the right to inspect and take a copy is not expressly conferred by a statute (as in the Registration Act mentioned above), “the extent of such right depends on the interest which the applicant has in what he wants to copy, and what is reasonably necessary for the protection of such interest". So it isn’t any officious meddler who may access such records – only persons with genuine interests in the matter, either personal or pecuniary, may obtain copies through this route.

In addition to the Evidence Act, copies of documents may also be obtained under the Right to Information Act 2005 which confers on citizens the right to inspect and take copies of any information held by or under the control of any public authority. Information is defined widely to include "any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force".

Section 8 (j) of the Act exempts "disclosure of personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual” unless the relevant authority “is satisfied that the larger public interest justifies the disclosure of such information".

In an interesting case Mr. Ansari Masud A.K vs Ministry of External Affairs (2008)[40] , the Central Information Commission has held that “details of a passport are readily made available by any individual in a number of instances, example to travel agents, at airline counters, and whenever proof of residence for telephone connections etc. is required. For this reason, disclosure of details of a passport cannot be considered as causing unwarranted invasion of the privacy of an individual and, therefore, is not exempted from disclosure under Section 8(1)(j) of the RTI Act.” This is despite the fact that nothing in the Passport Act itself authorizes disclosure of any documents under any circumstances.

However, the Right to Information Act isn’t as convenient a vehicle for privacy abuse as this case may suggest. The RTI adjudicatory apparatus has on several occasions upheld the denial of information on grounds of privacy violation – most famously in a case where an applicant sought information from the Census Department on the ‘religion and faith’ of Sonia Gandhi – the President of the largest party currently in power in India. Both the Central Information Commission – the apex body adjudicating RTI appeals as well as the Punjab and Haryana High Court upheld the denial of information as it would otherwise lead to an unwarranted incursion into her privacy.[41]

A similar concept of 'public interest' would seem to apply when private companies disclose personal information without a person’s consent. Without delving into the issue in too much detail, it would suffice here to mention one of the most important cases to have come up on the issue. In Mr. X vs Hospital Z[42] , a person sued a hospital for having disclosed his HIV status to his fiancé without his knowledge resulting in their wedding being called off. The Supreme Court held that the hospital was not guilty of a violation of privacy since the disclosure was made to protect the public interest. While affirming the duty of confidentiality owed to patients, the court ruled that the right to privacy was not absolute and was "subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others."

Conclusion

Reflecting on the volume of case law that we have in India on privacy, one is struck at once, both by the elasticity of the concept of privacy — spanning, as it does, diverse fields from criminal law to paternity suits to wiretapping —as well as its fragility — the flag of privacy is constantly being raised only to be ultimately overridden on pretexts that range from security of state, to a competing private interest.

On the one hand, one marvels at the success of the concept, only a few decades old in Indian law, in insinuating itself into legal arguments across diverse contexts. On the other hand, one is dismayed by the fact that rarely does the concept seem to score a victory. There is an almost ritual quality to the way in which the “right to privacy” is invoked in these cases - always named as a relevant factor; it never seems to substantially influence the outcome of the case at hand.

The right to privacy in India was an Oops baby, born on the ventilator of a minority decision of the Supreme Court, and nourished in the decades that followed by sympathetic judges, who never failed to point out that this right was contingent — not absolute, not meant to be under the Constitution, but carved out anyway. Some five decades after its first invocation by the Supreme Court, one gets the feeling that the right to privacy, conceptually, hasn’t moved, and is still what it was then. We don’t, today, for the many times it has been invoked by courts, have a thicker, more robust concept of privacy than we started out with. So the question, that one is stuck with is, what work does this concept of privacy do?

One of the failings of the concept of privacy in India is that it doesn’t exist as a positive right, but is merely a resistive right against targeted intrusion. So for instance, the right to privacy would be useless as a concept to resist something like generalized street video surveillance – as long as a citizen is not singled out for a disadvantage, this right would be of no use. So this right to privacy is a negative right to not be interfered with. Under it one does not have the right to be as private as one wishes, but only no less than the next person. Still, even this limited concept could be useful, if it were applied more rigorously.

Unfortunately, as the case law indicates, the right to privacy cedes too quickly to competing interests. An incomplete rough catalog of these competing rights, drawn from the case law surveyed in this paper include:

public emergency and public safety (communications)
criminal investigation (search and seizure/communications)
competing private interests (divorce proceedings)
best interests of the child (paternity suits)
public interest (Right to Information)
competing fundamental rights (HIV status)

One may perhaps add judicial inactivity as one of the limiting factors on privacy. By holding that violations of procedure by investigating agencies would not vitiate trials, the judiciary has been complicit in perhaps some of the more damaging incursions into privacy. Once a person is implicated in any manner in the criminal justice system – either as a victim, a witness or an offender, investigating agencies are immediately invested with plenary powers. They can search his house without warrant. They can place him arrest. Subject him to ‘medical examinations’, take his fingerprints and DNA and hold it in a bank and there is nothing you can do. In this context, perhaps the strongest privacy safeguard can come from a reform in criminal procedure alone.

Notes

[1].The State of Uttar Pradesh V. Kaushaliya and Others AIR 1964 SC 416

[2].(1978) 2 SCR 621

[3]. 1 SCR 332

[4].AIR 1973 SC 157, 1973 SCR (2) 417

[5].(1975) 2 SCC 148

[6].(1994) 6 S.C.C. 632

[7].AIR 1997 SC 568

[8].AIR 1976 SC 789,1976 SCR (2)1060, (1976) 2 SCC 128

[9].Romesh Thappar vs The State Of Madras AIR 1950 SC 124 , 1950 SCR 594

[10].1966 AIR 1967 Ker 228, 1967 CriLJ 1511

[11].AIR 1980 SC 593 , 1980 SCR (2) 340

[12].[1963] Supp. 1 S.C.R. 408

[13].Distt. Registrar & Collector, Hyderabad v. Canara bank etc. AIR 2005 SC 186

[14].(2003) 4 SCC 493

[15].13-yr-old rape victim to HC: let me abort -, EXPRESS INDIA, April 21, 2010, http://tinyurl.com/13yrindian (last visited May 2, 2010).

[16].Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1. http://courtnic.nic.in/supremecourt/temp/dc%201798509p.txt (last visited May 2, 2010).

[17].Ibid

[18].410 U.S. 113 (1973)

[19].Article 21 does not limit the abridgement of the right to life by the state to only cases where the state has compelling state interest. The Article reads “No person shall be deprived of his life or personal librty except according to procedure established by law”

[20].Ibid

[21].Ibid

[22].AIR 1993 SC 2295, 1993 SCR (3) 917 <http://indiankanoon.org/doc/1259126/>

[23].AIR 2002 Delhi 217 <http://indiankanoon.org/doc/627683/>

[24].51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P.2d 479

[25].AIR 2010 SC 2851 <http://indiankanoon.org/doc/486945/>

[26].23 December, 2010 <http://indiankanoon.org/doc/504408/>

[27].Ibid

[28].AIR 1980 SC 791 , 1980 SCR (2)1067 , (1980) 2 SCC 343

[29].Sections 3 & 4 of the Identification of Prisoners Act, 1920

[30].Ibid, Section 5

[31].Section 7

[32].Thogorani Alias K. Damayanti vs State Of Orissa And Ors 2004 Cri L J 4003 (Ori) < http://indiankanoon.org/doc/860378/>

[33].AIR 1961 SC 1808 < http://indiankanoon.org/doc/1626264/>

[34].Ibid

[35].Keynote address given to the 93rd Indian Science Congress. See http://mindjustice.org/india2-06.htm, cited in Liang, L., 2007. And nothing but the truth, so help me science. In Sarai Reader 07 - Frontiers. Delhi: CSDS, Delhi, pp. 100-110. Available at: http://www.sarai.net/publications/readers/07-frontiers/100-110_lawrence.pdf [Accessed April 11, 2011].

[36].Ibid

[37].Ramchandra Ram Reddy v. State of Maharashtra [1 (2205) CCR 355 (DB)

[38].(2010) 7 SCC 263 http://indiankanoon.org/doc/338008/

[39].See Section 52 of the Registration Act 1908

[40].CIC/OK/A/2008/987/AD dated December 22, 2008 <http://indiankanoon.org/doc/1479476/>

[41].Anon, 2010. High Court dismisses appeal seeking information on Sonia Gandhi’s religion. NDTV Online. Available at: http://www.ndtv.com/article/india/high-court-dismisses-appeal-seeking-information-on-sonia-gandhi-s-religion-69356 [Accessed April 12, 2011].

[42].(2003) 1 SCC 500 40

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For more details visit https://cis-india.org/internet-governance/blog/privacy/limits-to-privacy

Limits to Privacy

praskrishna — 2012-12-14T10:28:59Z

In this chapter we attempt to build a catalogue of these various justifications, without attempting to be exhaustive, with the objective of arriving at a rough taxonomy of such frequently invoked terms. In addition we also examine some the more important justifications such as “public interest” and “security of the state” that have been invoked in statutes and upheld by courts to deprive persons of their privacy.

For more details visit https://cis-india.org/internet-governance/publications/limits-privacy.pdf

Legislating for Privacy - Part II

bhairav — 2014-05-28T09:59:56Z

Apart from the conflation of commercial data protection and privacy, the right to privacy bill has ill-informed and poorly drafted provisions to regulate surveillance.

The article was published in the Hoot on May 20, 2014.

In October 2010, the Department of Personnel and Training ("DOPT") of the Ministry of Personnel, Public Grievances and Pensions released an ‘Approach Paper’ towards drafting a privacy law for India. The Approach Paper claims to be prepared by a leading Indian corporate law firm that, to the best of my knowledge, has almost no experience of criminal procedure or constitutional law. The Approach Paper resulted in the drafting of a Right to Privacy Bill, 2011 ("DOPT Bill") which, although it has suffered several leaks, has neither been published for public feedback nor sent to the Cabinet for political clearance prior to introduction in Parliament.

Approach Paper and DOPT Bill

The first article in this two-part series broadly examined the many legal facets of privacy. Notions of privacy have long informed law in common law countries and have been statutorily codified to protect bodily privacy, territorial or spatial privacy, locational privacy, and so on. These fields continue to evolve and advance; for instance, the legal imperative to protect intimate body privacy from violation has now expanded to include biometric information, and the protection given to the content of personal communications that developed over the course of the twentieth century is now expanding to encompass metadata and other ‘information about information’.

The Approach Paper suffers from several serious flaws, the largest of which is its conflation of commercial data protection and privacy. It ignores the diversity of privacy law and jurisprudence in the common law, instead concerning itself wholly with commercial data protection. This creates a false equivalency, albeit not one that cannot be rectified by re-naming the endeavour to describe commercial data protection only.

However, there are other errors. The paper claims that no right of action exists for privacy breaches between citizens inter se. This is false, the civil wrongs of nuisance, interference with enjoyment, invasion of privacy, and other similar torts and actionable claims operate to redress privacy violations. In fact, in the case of Ratan Tata v. Union of India that is currently being heard by the Supreme Court of India, at least two parties are arguing that privacy is already adequately protected by civil law. Further, the criminal offences of nuisance and defamation, amongst others, and the recently introduced crimes of stalking and voyeurism, all create rights of action for privacy violations. These measures are incomplete, – this is not contested, the premise of these articles is the need for better privacy protection law – but denying their existence is not useful.

The shortcomings of the Approach Paper are reflected in the draft legislation it resulted in. A major concern with the DOPT Bill is its amateur treatment of surveillance and interception of communications. This is inevitable for the Approach Paper does not consider this area at all although there is sustained and critical global and national attention to the issues that attend surveillance and communications privacy. For an effort to propose privacy law, this lapse is quite astonishing. The Approach Paper does not even examine if Parliament is competent to regulate surveillance, although the DOPT Bill wades into this contested turf.

Constitutionality of Interceptions

In a federal country, laws are weighed by the competence of their legislatures and struck down for overstepping their bounds. In India, the powers to legislate arise from entries that are contained in three lists in Schedule VII of the Constitution. The power to legislate in respect of intercepting communications traditionally emanates from Entry 31 of the Union List, which vests the Union – that is, Parliament and the Central Government – with the power to regulate “Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication” to the exclusion of the States. Hence, the Indian Telegraph Act, 1885, and the Indian Post Office Act, 1898, both Union laws, contain interception provisions. However, after holding the field for more than a century, the Supreme Court overturned this scheme in Bharat Shah’s case in 2008.

The case challenged the telephone interception provisions of the Maharashtra Control of Organised Crime Act, 1999 ("MCOCA"), a State law that appeared to transgress into legislative territory reserved for the Union. The Supreme Court held that Maharashtra’s interception provisions were valid and arose from powers granted to the States – that is, State Assemblies and State Governments – by Entries 1 and 2 of the State List, which deal with “public order” and “police” respectively. This cleared the way for several States to frame their own communications interception regimes in addition to Parliament’s existing laws. The question of what happens when the two regimes clash has not been answered yet. India’s federal scheme anticipates competing inconsistencies between Union and State laws, but only when these laws derive from the Concurrent List which shares legislative power. In such an event, the ‘doctrine of repugnancy’ privileges the Union law and strikes down the State law to the extent of the inconsistency.

In competitions between Union and State laws that do not arise from the Concurrent List but instead from the mutually exclusive Union and State Lists, the ‘doctrine of pith and substance’ tests the core substance of the law and traces it to one the two Lists. Hence, in a conflict, a Union law the substance of which was traceable to an entry in the State List would be struck down, and vice versa.

However, the doctrine permits incidental interferences that are not substantive. For example, as in a landmark 1946 case, a State law validly regulating moneylenders may incidentally deal with promissory notes, a Union field, since the interference is not substantive. Since surveillance is a police activity, and since “police” is a State subject, care must be taken by a Union surveillance law to remain on the pale of constitutionality by only incidentally affecting police procedure. Conversely, State surveillance laws were required to stay clear of the Union’s exclusive interception power until Bharat Shah’s case dissolved this distinction without answering the many questions it threw up.

Since the creation of the Republic, India’s federal scheme was premised on the notion that the Union and State Lists were exclusive of each other. Conceptually, the Union and the States could not have competing laws on the same subject. But Bharat Shah did just that; it located the interception power in both the Lists and did not enunciate a new doctrine to resolve their (inevitable) future conflict. This both disturbs Indian constitutional law and goes to the heart of surveillance and privacy law.

Three Principles of Interception

Apart from the important questions regarding legislative competence and constitutionality, the DOPT Bill proposed weak, ill-informed, and poorly drafted provisions to regulate surveillance and interceptions. It serves no purpose to further scrutinise the 2011 DOPT Bill. Instead, at this point, it may be constructive to set out the broad contours of a good interceptions regulation regime. Some clarity on the concepts: intercepting communications means capturing the content and metadata of oral and written communications, including letters, couriers, telephone calls, facsimiles, SMSs, internet telephony, wireless broadcasts, emails, and so on. It does not include activities such visual capturing of images, location tracking or physical surveillance; these are separate aspects of surveillance, of which interception of communications is a part.

Firstly, all interceptions of communications must be properly sanctioned. In India, under Rule 419A of the Indian Telegraph Rules, 1951, the Home Secretary – an unelected career bureaucrat, or a junior officer deputised by the Home Secretary – with even lesser accountability, authorises interceptions. In certain circumstances, even senior police officers can authorise interceptions. Copies of the interception orders are supposed to be sent to a Review Committee, consisting of three more unelected bureaucrats, for bi-monthly review. No public information exists, despite exhaustive searching, regarding the authorisers and numbers of interception orders and the appropriateness of the interceptions.

The Indian system derives from outdated United Kingdom law that also enables executive authorities to order interceptions. But, the UK has constantly revisited and revised its interception regime; its present avatar is governed by the Regulation of Investigatory Powers Act, 2000 ("RIPA") which creates a significant oversight mechanism headed by an independent commissioner, who monitors interceptions and whose reports are tabled in Parliament, and quasi-judicially scrutinised by a tribunal comprised of judges and senior independent lawyers, which hears public complaints, cancels interceptions, and awards monetary compensation. Put together, even though the current UK interceptions system is executively sanctioned, it is balanced by independent and transparent quasi-judicial authorities.

In the United States, all interceptions are judicially sanctioned because American constitutional philosophy – the separation of powers doctrine – requires state action to be checked and balanced. Hence, ordinary interceptions of criminals’ communications as also extraordinary interceptions of perceived national security threats are authorised only by judges, who are ex hypothesi independent, although, as the PRISM affairs teaches us, independence can be subverted. In comparison, India’s interception regime is incompatible with its democracy and must be overhauled to establish independent and transparent authorities to properly sanction interceptions.

Secondly, no interceptions should be sanctioned but upon ‘probable cause’. Simply described, probable cause is the standard that convinces a reasonable person of the existence of criminality necessary to warrant interception. Probable case is an American doctrine that flows from the US Constitution’s Fourth Amendment that protects the rights of people to be secure in places in which they have a reasonable expectation of privacy. There is no equivalent standard in UK law, except perhaps the common law test of reasonability that attaches to all government action that abridges individual freedoms. If a coherent ‘reasonable suspicion’ test could be coalesced from the common law, I think it would fall short of the strictness that the probable cause doctrine imposes on the executive. Therefore, the probable cause requirement is stronger than ordinary constraint of reasonability but weaker than the standard of reasonable doubt beyond which courts may convict. In this spectrum of acceptable standards, India’s current law in section 5(2) of the Indian Telegraph Act, 1885 is the weakest for it permits interceptions merely “on the occurrence of any public emergency or in the interest of public safety”, which determination is left to the “satisfaction” of a bureaucrat. And, under Rule 419A(2) of the Telegraph Rules, the only imposition on the bureaucrat when exercising this satisfaction is that the order “contain reasons” for the interception.

Thirdly, all interceptions should be warranted. This point refers not to the necessity or otherwise of the interception, but to the framework within which it should be conducted. Warrants should clearly specify the name and clear identity of the person whose communications are sought to be intercepted. The target person’s identity should be linked to the specific means of communication upon which the suspected criminal conversations take place. Therefore, if the warrant lists one person’s name but another person’s telephone number – which, because of the general ineptness of many police forces, is not uncommon – the warrant should be rejected and the interception cancelled. And, by extension, the specific telephone number, or email account, should be specified. A warrant against a person called Rahul Kumar, for instance, cannot be executed against all Rahul Kumars in the vicinity, nor also against all the telephones that the one specific Rahul Kumar uses, but only against the one specific telephone number that is used by the one specific Rahul Kumar. Warrants should also specify the duration of the interception, the officer responsible for its conduct and thereby liable for its abuse, and other safeguards. Some of these concerns were addressed in 2007 when the Telegraph Rules were amended, but not all.

A law that fails to substantially meet the standards of these principles is liable, perhaps in the not too distant future, to be read down or struck down by India’s higher judiciary. But, besides the threat of judicial review, a democratic polity must protect the freedoms and diversity of its citizens by holding itself to the highest standards of the rule of law, where the law is just.

For more details visit https://cis-india.org/internet-governance/blog/the-hoot-may-20-2014-bhairav-acharya-legislating-for-privacy

Learning to Forget the ECJ's Decision on the Right to be Forgotten and its Implications

divij — 2014-08-19T05:24:00Z

“The internet never forgets” is a proposition which is equally threatening and promising.

The phrase reflects the dichotomy presented by the extension on the lease of public memory granted by the internet – as information is more accessible and more permanent, letting go of the past is becoming increasingly difficult. The question of how to govern information on the internet – a space which is growing increasingly important in society and also one that presents a unique social environment - is one that persistently challenges courts and policy makers. A recent decision by the European Court of Justice, the highest judicial authority of the European Union, perfectly encapsulates the way the evolution of the internet is constantly changing our conceptions of individual privacy and the realm of information. On the 13^th of May, 2014, the ECJ in its ruling in Google v Costeja,[1] effectively read a “right to be forgotten” into existing EU data protection law. The right, broadly, provides that an individual may be allowed to control the information available about them on the web by removing such information in certain situations - known as the right to erasure. In certain situations such a right is non-controversial, for example, the deletion of a social media profile by its user. However, the right to erasure has serious implications for the freedom of information on the internet when it extends to the removal of information not created by the person to whom it pertains.

Privacy and Perfect Memory

The internet has, in a short span, become the biggest and arguably the most important tool for communication on the planet. However, a peculiar and essential feature of the internet is that it acts as a repository and a reflection of public memory – usually, whatever is once made public and shared on the internet remains available for access across the world without an expiry date. From public information on social networks to comments on blog posts, home addresses, telephone numbers and candid photos, personal information is disseminated all across the internet, perpetually ready for access - and often without the possibility of correcting or deleting what was divulged. This aspect of the internet means that the internet is a now an ever-growing repository of personal data, indexed and permanently filed. This unlimited capacity for information has a profound impact on society and in shaping social relations.

The core of the internet lies in its openness and accessibility and the ability to share information with ease – most any information to any person is now a Google search away. The openness of information on the internet prevents history from being corrupted, facts from being manipulated and encourages unprecedented freedom of information. However, these virtues often become a peril when considering the vast amount of personal data that the internet now holds. This “perfect memory” of the internet means that people are perpetually under the risk of being constantly scrutinized and being tied to their pasts, specifically a generation of users that from their childhood have been active on the internet.[2] Consider the example of online criminal databases in the United States, which regularly and permanently upload criminal records of convicted offenders even after their release, which is accessible to all future employers;[3] or the example of the Canadian psychotherapist who was permanently banned from the United States after an internet search revealed that he had experimented with LSD in his past; [4] or the cases of “revenge porn” websites, which (in most cases legally) publically host deeply private photos or videos of persons, often with their personal information, for the specific purpose of causing them deep embarrassment. [5]

These examples show that, due to the radically unrestricted spread of personal data across the web, people are no longer able to control how and by whom and in what context their personal data is being viewed. This creates the vulnerability of the data collectively being “mined” for purposes of surveillance and also of individuals being unable to control the way personal data is revealed online and therefore lose autonomy over that information.

The Right to be Forgotten and the ECJ judgement in Costeja

The problems highlighted above were the considerations for the European Union data protection regulation, drafted in 2012, which specifically provides for a right to be forgotten, as well as the judgement of the European Court of Justice in Google Spain v Mario Costeja Gonzalves.

The petitioner in this case, sought for the removal of links related to attachment proceedings for his property, which showed up upon entering his name on Google’s search engine. After refusing to remove the links, he approached the Spanish Data Protection Agency (the AEPD) to order their removal. The AEPD accepted the complaints against Google Inc. and ordered the removal of the links. On appeal to the Spanish High Court, three questions were referred to the European Court of Justice. The first related to the applicability of the data protection directive (Directive 95/46/EC) to search engines, i.e. whether they could be said to be “processing personal data” under Article 2(a) and (b) of the directive,[6] and whether they can be considered data controllers as per Section 2(d) of the directive. The court found that, because the search engines retrieve, record and organize data, and make it available for viewing (as a list of results), they can be said to process data. Further, interpreting the definition of “data controller” broadly, the court found that ‘ It is the search engine operator which determines the purposes and means of that activity and thus of the processing of personal data that it itself carries out within the framework of that activity and which must, consequently, be regarded as the ‘controller’ ’[7] and that ‘ it is undisputed that that activity of search engines plays a decisive role in the overall dissemination of those data in that it renders the latter accessible to any internet user making a search on the basis of the data subject’s name, including to internet users who otherwise would not have found the web page on which those data are published.’[8] The latter reasoning highlights the particular role of search engines, as indexers of data, in increasing the accessibility and visibility of data from multiple sources, lending to the “database” effect, which could allow the structured profiling of an individual, and therefore justifies imposing the same (and even higher) obligations on search engines as on other data controllers, notwithstanding that the search engine operator has no knowledge of the personal data which it is processing.

The second question relates to the territorial scope of the directions, i.e. whether Google Inc., being the parent company based out of the US, came within the court’s jurisdiction – which only applies to member states of the EU. The court held that even though it did not carry on the specific activity of processing personal data, Google Spain, being a subsidiary of Google Inc. which promotes and sells advertisement for the parent company, was an “establishment” in the EU and Google Inc., and, because it processed data “in the context of the activities” of the establishment specifically directed towards the inhabitants of a member state (here Spain), came under the scope of the EU law. The court also reaffirmed a broad interpretation of the data protection law in the interests of the fundamental right to privacy and therefore imputed policy considerations in interpreting the directive. [9]

The third question was whether Google Spain was in breach of the data protection directive, specifically Articles 12(b) and 14(1)(a), which state that a data subject may object to the processing of data by a data controller, and may enforce such a right against the data controller, as long as the conditions for their removal are met. The reasoning for enforcing such a claim against search engines in particular can be found in paragraphs 80 and 84 of the judgement, where the court holds that “(a search engine) enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him.” and that “ Given the ease with which information published on a website can be replicated on other sites and the fact that the persons responsible for its publication are not always subject to European Union legislation, effective and complete protection of data users could not be achieved if the latter had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites.” In fact, the court seems to apply a higher threshold for search engines due to their peculiar nature as indexes and databases. [10]

Under the court’s conception of the right of erasure, search engines are mandated to remove content upon request by individuals, when the information is deemed to be personal data that is “ inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes,” [11] notwithstanding that the publication itself is lawful and causes no prejudice to the data subject. The court reasoned that when the data being projected qualified on any of the above grounds, it would violate Article 6 of the directive, on grounds of the data not being processed “ fairly and lawfully’, that they are ‘collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes’, that they are ‘adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed’, that they are ‘accurate and, where necessary, kept up to date’ and, finally, that they are ‘kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed’.” [12] Therefore, the court held that, due to the nature of the information, the data subject has a right to no longer have such information linked to his or her name on a list of results following a search made on their name. The grounds laid down by the court, i.e. relevancy, inadequacy, etc. are very broad, yet such a broad conception is necessary in order to effectively deal with the problems of the nature described above.

The judgement of the ECJ concludes by applying a balancing test between the rights of the data subject and both the economic rights of the data controller as well as the general right of the public to information. It states that generally, as long as the information meets the criteria laid down by the directive, the right of the data subject trumps both these rights. However, it adds an important caveat – such a right is inapplicable “ the in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.” This crucial point on the balancing of two rights directly hit by the judgement was only summarily dealt with by the ECJ, without effectively giving any clarity as to what standards to apply or laying down any specific guidelines for the application of the new rule. [13] Doing so, it effectively left the decision to determine what was in the public interest and how the rights are to be balanced to the search engines themselves. Delegating such a task to a private party takes away from the idea of the internet as a common resource which should be developed for the benefit of the larger internet community as a whole, by allowing it to be governed and controlled by private stakeholders, and therefore paves an uncertain path for this crucial aspect of internet governance.

Implications of the ECJ ruling

The decision has far reaching consequences on both privacy and on freedom of information on the internet. Google began implementing the decision through a form submission process, which requires the individual to specify which links to remove and why, and verifies that the request comes from the individual themselves via photo identification, and has also constituted an expert panel to oversee its implementation (similar to the process for removing links which infringe copyright law).[14] Google has since received more than 91,000 requests for removal, pertaining to 328,000 links of which it has approved more than half.[15] In light of such large volumes of data to process, the practical implementation of the ruling has been necessarily problematic. The implementation has been criticized both for implicating free speech on the internet as well as disregarding the spirit of the right to be forgotten. On the first count, Google has been criticized for taking down several links which are clearly are in public interest to be public, including several opinion pieces on politicians and corporate leaders, which amounts to censorship of a free press.[16] On the second count, EU privacy watchdogs have been critical of Google’s decision to notify sources of the removed content, which prompts further speculation on the issue, and secondly, privacy regulators have challenged Google’s claim that the decision is restricted to the localised versions of the websites, since the same content can be accessed through any other version of the search engine, for example, by switching over to “Google.com”.[17]

This second question also raises complicated questions about the standards for free speech and privacy which should apply on the internet. If the EU wishes for Google Inc. to remove all links from all versions of its search engine, it is, in essence, applying the balancing test of privacy and free speech which are peculiar to the EU (which evolved from a specific historical and social context, and from laws emerging out of the EU) across the entire world, and is radically different from the standard applicable in the USA or India, for example. In spirit, therefore, although the judgement seeks to protect individual privacy, the vagueness of the ruling and the lack of guidelines has had enormous negative implications for the freedom of information. In light of these problems, the uproar that has been caused in the two months since the decision is expected, especially amongst news media sites which are most affected by this ruling. However, the faulty application of the ruling does not necessarily mean that a right to be forgotten is a concept which should be buried. Proposed solutions such as archiving of data or limited restrictions, instead of erasure may be of some help in maintaining a balance between the two rights.[18] EU regulators hope to end the confusion through drafting comprehensive guidelines for the search engines, pursuant to meetings with various stakeholders, which should come out by the end of the year. [19] Until then, the confusion will most likely continue.

Is there a Right to be Forgotten in India?

Indian law is notorious for its lackadaisical approach towards both freedom of information and privacy on the internet. The law, mostly governed by the Information Technology Act, is vague and broad, and the essence of most laws is controlled by the rules enacted by non-legislative bodies pursuant to various sections of the Act. The “right to be forgotten” in India can probably be found within this framework, specifically under Rule 3(2) of the Intermediary Guideline Rules, 2011, under Section 79 of the IT Act. Under this rule, intermediaries are liable for content which is “invasive of another’s privacy”. Read with the broad definition of intermediaries under the same rules (which includes search engines specifically) and of “affected person”, the applicable law for takedown of online content is much more broad and vague than the standard laid down in Costeja. It remains to be seen whether the EU’s interpretation of privacy and the “right to be forgotten” would further the chilling effect caused by these rules.

[1] Google Spain v Mario Costeja Gonzalves, C‑131/12, Available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=264438.

[2] See Victor Mayer-Schonberger, Delete: The Virtue of Forgetting in the Digital Age, (Princeton, 2009).

[3] For example, See http://mugshots.com/; and http://www.peoplesearchpro.com/resources/background-check/criminal-records/

[4] LSD as Therapy? Write about It, Get Barred from US, (April, 2007) available at

http://thetyee.ca/News/2007/04/23/Feldmar/

[5] It’s nearly impossible to get revenge porn of the internet, (June, 2014), available t http://www.vox.com/2014/6/25/5841510/its-nearly-impossible-to-get-revenge-porn-off-the-internet

[6] Article 2(a) - “personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

Article 2(b) - “ processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;

[7] ¶36, judgment.

[8] The court also recognizes the implications on data profiling through the actions of search engines organizing results in ¶37.

[9] ¶74 judgment.

[10] In ¶83, the court notes that the processing by a search engine affect the data subject additionally to publication on a webpage; ¶87 - Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page.

[11] ¶92, judgment.

[12] ¶72, judgment.

[13] ¶81, judgment.

[14] The form is available at https://support.google.com/legal/contact/lr_eudpa?product=websearch

[15] Is Google intentionally overreacting on the right to be forgotten? (June, 2014), available at http://www.pcpro.co.uk/news/389602/is-google-intentionally-overreacting-on-right-to-be-forgotten.

[16] Will the right to be forgotten extend to Google.com?, (July, 2014), available at http://www.pcpro.co.uk/news/389983/will-right-to-be-forgotten-extend-to-google-com.

[17] The right to be forgotten is a nightmare to enforce, (July, 2014), available at http://www.forbes.com/sites/kashmirhill/2014/07/24/the-right-to-be-forgotten-is-a-nightmare-to-enforce.

[18] Michael Hoven, Balancing privacy and speech in the right to be forgotten, available ati http://jolt.law.harvard.edu/digest/privacy/balancing-privacy-and-speech-in-the-right-to-be-forgotten#_edn15

[19] EU poses 26 questions on the right to be forgotten, (July, 2014), available at http://www.cio-today.com/article/index.php?story_id=1310024135B0

For more details visit https://cis-india.org/internet-governance/blog/learning-to-forget-ecj-decision-on-the-right-to-be-forgotten-and-its-implications

Leaked Privacy Bill: 2014 vs. 2011

elonnai — 2014-04-01T10:52:41Z

The Centre for Internet and Society has recently received a leaked version of the draft Privacy Bill 2014 that the Department of Personnel and Training, Government of India has drafted.

Note: After obtaining a copy of the leaked Privacy Bill 2014, we have replaced the blog "An Analysis of the New Draft Privacy Bill" which was based off of a report from the Economic Times, with this blog post.

This represents the third leak of potential privacy legislation for India that we know of, with publicly available versions having leaked in April 2011 and September 2011.

When compared to the September 2011 Privacy Bill, the text of the 2014 Bill includes a number of changes, additions, and deletions. Below is an outline of significant changes from the September 2011 Privacy Bill to the 2014 Privacy Bill:

Scope: The 2014 Bill extends the right to Privacy to all residents of India. This is in contrast to the 2011 Bill, which extended the Right to Privacy to citizens of India. The 2014 Bill furthermore recognizes the Right to Privacy as a part of Article 21 of the Indian Constitution and extends to the whole of India, whereas the 2011 Bill did not explicitly recognize the Right to Privacy as being a part of Article 21, and excluded Jammu and Kashmir from its purview.
Definitions: The 2014 Bill includes a number of new definitions, redefines existing terms, and deletes others.

Terms that have been added in the 2014 Bill and the definitions

Personal identifier: Any unique alphanumeric sequence of members, letters, and symbols that specifically identifies an individual with a database or a data set.
Legitimate purpose: A purpose covered under this Act or any other law for the time being in force, which is certain, unambiguous, and limited in scope for collection of any personal data from a data subject.
Competent authority : The authority which is authorized to sanction interception or surveillance, as the case may be, under this Act or rules made there under or any other law for the time being in force.
Notification: Notification issued under this Act and published in the Official Gazette
Control : And all other cognate forms of expressions thereof, means, in relation to personal data, the collection or processing of personal data and shall include the ability to determine the purposes for and the manner in which any personal data is to be collected or processed.
Telecommunications system: Any system used for transmission or reception of any communication by wire, radio, visual or other electromagnetic means but shall not include broadcasting services.
Privacy standards: The privacy standards or protocols or codes of practice. developed by industry associations.

Terms that have been re-defined in the 2014 Bill from the 2011 Bill and the 2014 Bill definitions

Communication data:The data held or obtained by a telecommunications service provider in relation to a data subject including the data usage of the telecommunications
Data subject : Any living individual, whose personal data is controlled by any person
Interception: In relation to any communication in the course of its transmission through a telecommunication system, any action that results in some or all of the contents of that communication being made available, while being transmitted, to a person other than the sender or the intended recipient of the communication.
Person: Any natural or legal person and shall include a body corporate, partnership, society, trust, association of persons, Government company, government department, urban local body, or any other officer, agency or instrumentality of the state.
Sensitive personal data: Personal data relating to: (a) physical and mental health including medical history, (b) biometric, bodily or genetic information, (c) criminal convictions (d) password, (e) banking credit and financial data (f) narco analysis or polygraph test data, (g) sexual orientation. Provided that any information that is freely available or accessible in public domain or to be furnished under the Right to Information Act 2005 or any other law for time being in force shall not be regarded as sensitive personal data for the purposes of this Act.
Individual: a resident of Indian
Covert surveillance: covert Surveillance" means obtaining private information about an individual and his private affairs without his knowledge and includes: (i) directed surveillance which is undertaken for the purposes of specific investigation or specific operation in such a manner as is likely to result in the obtaining of private information about a person whether or not that person was specifically identified in relation to the investigation or operation; (ii) intrusive surveillance which is carried out by an individual or a surveillance device in relation to anything taking place on a residential premise or in any private vehicle. It also covers use of any device outside the premises or a vehicle wherein it can give information of the same quality and detail as if the device were in the premises or vehicle; (iii) covert human intelligence service which is information obtained by a person who establishes or maintains a personal or other relationship with an individual for the covert purpose of using such a relationship to obtain or to provide access to any personal information about that individual
Re-identify: means the recovery of data from an anonymised data, capable of identifying a data subject whose personal data has been anonymised;
Process: “process" and all other cognate forms of expressions thereof, means any operation or set of operations, whether carried out through automatic means or not by any person or organization, that relates to:(a) collation, storage, disclosure, transfer, updating, modification, alteration or use of personal data; or (b) the merging, linking, blocking, degradation or anonymisation of personal data;
Direct marketing: Direct Marketing means sending of a commercial communication to any individual
Data controller: any person who controls, at any point in time, the personal data of a data subject but shall not include any person who merely provides infrastructure for the transfer or storage of personal data to it data controller;
Government: the Central Government or as the case may be, the State Government and includes the Union territory Administration, local authority or any agency and instrumentality of the Government;

Terms that have been removed from the 2014 Bill that were in the 2011 Bill and the 2011 definition:

Consent: Includes implied consent
Maintain: Includes maintain, collect, use, or disseminate.
Data processor: In relation to personal data means any person (other than the employee of the data controller), who processes the data on behalf of the data controller.
Local authority: A municipal committee, district board, body of port commissioners, council, board or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.
Prescribed: Prescribed by rules made under this Act.
Surveillance: Surveillance undertaken through installation and use of CCTVs and other system which capture images to identify or monitor individuals (this was removed from the larger definition of surveillance.)
DNA: Cell in the body of an individual, whether collected from a cheek, cell, blood cell, skin cell or other tissue, which allows for identification of such individual when compared with other individual.

Terms that have remained broadly (with some modification) the same between the 2014 Bill and 2011 Bill (as per the 2014 Bill definition):

Authority: The Data Protection Authority of India
Appellate tribunal: the Cyber Appellate Tribunal established under Sub-Section (1) of section n48 of the Information Technology Act, 2000.
Personal data: Any data which relates to a data subject, if that data subject can be identified from that data, either directly or indirectly, in conjunction with other data that the data controller has or is likely to have and includes any expression of opinion about such data subject.
Member: Member of the Authority
Disclose: and all other cognate forms of expression thereof, means disclosure, dissemination, broadcast, communication, distribution, transmission, or make available in any manner whatsoever, of personal data.
Anonymised: The deletion of all data that identifies the data subject or can be used to identify the data subject by linking such data to any other data of the data subject, by the data controller.

Exceptions to the Right to Privacy: According to the 2011 Bill, the exceptions to the Right to Privacy included:

Sovereignty, integrity and security of India, strategic, scientific or economic interest of the state
Preventing incitement to the commission of any offence
Prevention of public disorder or the detection of crime
Protection of rights and freedoms of others
In the interest of friendly relations with foreign state
Any other purpose specifically mentioned in the Act.

The 2014 Bill reflects almost all of the exceptions defined in the 2011 Bill, but removes ‘detection of crime’ from the list of exceptions. The 2014 Bill also qualifies that the application of each exception must be adequate, relevant, and not excessive to the objective it aims to achieve and must be imposed on the manner prescribed – whereas the 2011 Bill stated only that the application of exceptions to the Right to Privacy cannot be disproportionate to the purpose sought to be achieved.

Acts not to be considered deprivations of privacy: The 2011 Bill lists five instances that will not be considered a deprivation of privacy - namely

For journalistic purposes unless it is proven that there is a reasonable expectation of privacy,
Processing data for personal or household purposes,
Installation of surveillance equipment for the security of private premises,
Disclosure of information via the Right to Information Act 2005,
And any other activity exempted under the Act.

The 2014 limits these instances to:

The processing of data purely for personal or household purposes,
Disclosure of information under the Right to Information Act 2005,
And any other action specifically exempted under the Act.

Privacy Principles: Unlike the 2011 Bill, the 2014 Bill defines nine specific privacy principles: notice, choice and consent, collection limitation, purposes limitation, access and correction, disclosure of information, security, openness, and accountability. The Privacy Principles will apply to all existing and evolving practices.

Provisions for Personal Data: Both the 2011 Bill and the 2014 Bill have provisions that apply to the processing of personal and sensitive personal data. The 2011 Bill includes provisions addressing the:

Collection of personal data,
Processing of personal data,
Data quality,
Provisions relating to sensitive personal data,
Retention of personal data,
Sharing (disclosure) of personal data,
Security of personal data,
Notification of breach of security,
Access to personal data by data subject,
Updation of personal data by data subject
Mandatory processing of data,
Trans border flows of personal data.

Of these, the 2014 Bill broadly (though not verbatim) reflects the 2011 Bill provisions relating to the:

Collection of personal data,
Processing of personal data,
Access to personal data,
Updating personal data
Retention of personal data
Data quality,

The 2014 Bill has further includes provisions addressing:

Openness and accountability,
Choice,
Consent,
Exceptions for personal identifiers.

The 2014 Bill has made changes to the provisions addressing:

Provisions relating to sensitive personal data,
Sharing (disclosure of personal data),
Notification of breach of security,
Mandatory processing of data
Security of personal data
Trans border flows of personal data.

The changes that have been made have been mapped out below:

Provisions Relating to Sensitive Personal Data: The 2011Bill and 2014 Bill both require authorization by the Authority for the collection and processing of sensitive personal data. At the same time, both Bills include a list of circumstances under which authorization for the collection and processing of sensitive personal data is not required. On the whole, this list is the same between the 2011 Bill and 2014 Bill, but the 2014 Bill adds the following circumstances on which authorization is not needed for the collection and processing of sensitive personal data:

For purposes related to the insurance policy of the individual if the data relates to the physical or mental health or medical history of the individual and is collected and processed by an insurance company.
Collected or processed by the Government Intelligence agencies in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India.

The 2014 Bill also allows the Authority to specify additional regulations for sensitive personal data, and requires that any additional transaction sought to be performed with the sensitive personal information requires fresh consent to first be obtained. The 2014 Bill carves out another exception for Government agencies, allowing disclosure of sensitive personal data without consent to Government agencies mandated under law for the purposes of verification of identity, or for prevention, detection, investigation including cyber incidents, prosecution, and punishment of offences.

Notification of Breach of Security: The provisions relating to the notification of breach of security in the 2014 Bill differ from the 2011 Bill. Specifically, the 2014 Bill removes the requirement that data controllers must publish information about a data breach in two national news papers. Thus, in the 2014 Bill, data controllers must only inform the data protection authority and affected individuals of the breach.

Notice: The 2014 Bill changes the structure of the notice mechanism – where in the 2011 Bill, prior to the processing of data, data controllers had to take all reasonable steps to ensure that the data subject was aware of the following:

The documented purposes for which such personal data is being collected
Whether providing of personal data by the data subject is voluntary or mandatory under law or in order to avail of any product or service
The consequences of the failure to provide the personal data
The recipient or category of recipients of the personal data
The name and address of the data controller and all persons who are or will be processing information on behalf of the data controller
If such personal data is intended to be transferred out of the country, details of such transfer.

In contrast the 2014 Bill provides that before personal data is collected, the data controller must give notice of:

What data is being collected and
The legitimate purpose for the collection.

If the purpose for which the data was collected has changed the data controller will then be obligated to provide the data subject with notice of:

The use to which the personal data will be put
Whether or not the personal data will be disclosed to a third party and if so the identity of such person
If the personal data being collected is intended to be transferred outside India and the reasons for doing so, how the transfer helps in achieving the legitimate purpose and whether the country to which such data is transferred has suitable legislation to provide for adequate protection and privacy of the data.
The security and safeguards established by the data controller in relation to the personal data
The processes available to a data subject to access and correct his personal data
The recourse open to a data subject, if he has any complaints in respect of collection or processing of the personal data and the procedure relating thereto
The name, address, and contact particulars of the data controller and all persons who will be processing the personal data on behalf of the data controller.

Disclosure of personal data: Though titled as ‘sharing of personal data’ both the 2011 Bill and 2014 Bill require consent for the disclosure of personal information, but list exceptional circumstances on which consent is not needed. In the 2011 bill, the relevant provision permits disclosure of personal data without consent only if (i) the sharing was a part of the documented purpose, (ii) the sharing is for any purpose relating to the exceptions to the right to privacy or (iii) the Data Protection Authority has authorized the sharing. In contrast, the 2014 Bill permits disclosure of personal data without consent if (i) such disclosure is part of the legitimate purpose (ii) such disclosure is for achieving any of the objectives of section 5 (iii) the Authority has by order authorized such disclosure (iv) the disclosure is required under any law for the time being in force (v) the disclosure is made to the Government Intelligence agencies in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India. As a safeguard, the 2014 Bill requires that any person to whom personal information is disclosed, whether a resident or not, must adhere to all provisions of the Act. Furthermore, the disclosure of personal data must be limited to the extent which is necessary to achieve the purpose for which the disclosure is sought and no person can make public any personal data that is in its control.

Transborder flow of information: Though both the 2011 Bill and the 2014 Bill require any country that data is transferred to must have equivalent or stronger data protection standards in place, the 2014 Bill carves out an exception for law enforcement and intelligence agencies and the transfer of any personal data outside the territory of India, in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India.

Mandatory Processing of Data: Both the 2011 Bill and 2014 Bill have provisions that address the mandatory processing of data. These provisions are similar, but the 2014 Bill includes a requirement that data controllers must anonymize personal data that is collected without prior consent from the data subject within a reasonable time frame after collection.

Security of Personal Data: The provision relating to the security of personal information in the 2014 Bill has been changed from the 2011 Bill by expanding the list and type of breaches that must be prevented, but removing requirements that data controllers must ensure all contractual arrangements with data processors specifically ensure that the data is maintained with the same level of security.

Conditions on which provisions do not apply: Both the 2011Bill and 2014 Bill define conditions on which the provisions of updating personal data, access, notification of breach of security, retention of personal data, data quality, consent, choice, notice, and right to privacy will not apply to personal data. Though the 2011 Bill and 2014 Bill reflect the same conditions, the 2014 Bill carves out an exception for Government Intelligence Agencies - stating that the provisions of updating personal data, access to data by the data subject, notification about breach of security, retention of personal data, data quality, processing of personal data, consent, choice, notice, collection from an individual will not apply to data collected or processed in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India.
Privacy Officers: Unlike the 2011 Bill, the 2014 Bill defines the role of the privacy officer that must be established by every data controller for the purpose of overseeing the security of personal data and implementation of the provisions of the Act.
Power of Authority to Exempt: Both the 2011 Bill and 2014 Bill contain provisions that enable the Authority to waive the applicability of specific provisions of the Act. The circumstances on which this can be done are based on the exceptions to the Right to Privacy in both the 2011 and 2014 Bill. To this extent, the 2014 Bill differs slightly from the 2011 Bill, by removing the power of the Authority to exempt for the ‘detection of crime’ and ‘any other legitimate purpose mentioned in this Act’ .

The Data Protection Authority: The 2011 Bill and 2014 Bill both establish Data Protection Authorities, but the 2014 Bill further clarifies certain aspects of the functioning of the Authority and expands the functions and the powers of the Authority. For example, new functions of the Authority include:

Auditing any or all personal data controlled by the data controller to assess whether it is being maintained in accordance with the Act,
Suggesting international instruments relevant to the administration of the Act,
Encouraging industry associations to evolve privacy standards for self regulations, adjudicating on disputes arising between data controllers or between individuals and data controllers.

The 2014 Bill also expands the powers of the Data Protection Authority – importantly giving him the power to receive, investigate complaints about alleged violations of privacy and issue appropriate orders or directions.

At the same time, the 2014 Bill carves out an exception for Government Intelligence Agencies and Law Enforcement agencies – preventing the Authority from conducting investigations, issuing appropriate orders or directions, and adjudicating complaints in respect to actions taken by the Government Intelligences Agencies and Law Enforcement, if for the objectives of (a) sovereignty, integrity or security of India; or(b) strategic, scientific or economic interest of India; or(c) preventing incitement to the commission of any offence, or (d) prevention of public disorder, or(e) the investigation of any crime; or (f) protection of rights and freedoms of others; or (g) friendly relations with foreign states; or (h) any other legitimate purpose mentioned in this Act.

This power is instead vested with a court of competent jurisdiction.

The National Data Controller Registry: The 2014 Bill removes the National Data Controller Registry and requirements for data controllers to register themselves and oversight of the Registry by the Data Protection Authority.
Direct Marketing: Both the 2011 and 2014 Bills contain provisions regulating the use of personal information for direct marketing purposes. Though the provisions are broadly the same, the 2011 Bill envisions that no person will undertake direct marketing unless he/she is registered in the ‘National Data Registry’ and one of the stated purposes is direct marketing. As the 2014 Bill removes the National Data Registry, the 2014 Bill now requires that any person undertaking direct marketing must have on record where he/she has obtained personal data from.
Interception of Communications: Though maintaining some of the safeguards defined in the 2011 Bill for interception, 2014 Bill changes the interception regime envisioned in the 2011 Bill by carving out a wide exception for organizations monitoring the electronic mail of employees, removing provisions requiring the interception take place only for the minimum period of time required for achieving the purposes, and removing provisions excluding the use of intercepted communications as evidence in a court of law. Similar to the 2011 Bill, the 2014 Bill specifies that the principles of notice, choice and consent, access and correction, and openness will not apply to the interception of communications.
Video Recording Equipment in public places: Unlike the 2011 Bill, which addressed only the use of CCTV’s, the 2014 Bill addresses the installation and use of video recording equipment in public places. Though both the 2011 Bill and 2014 Bill both prevent the use of recording equipment and CCTVs for the purpose of identifying an individual, monitoring his personal particulars, or revealing personal, or otherwise adversely affecting his right to privacy - the 2014 Bill requires that the use of recording equipment must be in accordance with procedures, for a legitimate purpose, and proportionate to the objective for which the equipment was installed.

The 2014 Bill makes a broad exception to these safeguards for law enforcement agencies and government intelligence agencies in the interest of the sovereignty, integrity, security or the strategic, scientific, or economic interest of India.

Privacy Standards and Self Regulation: The 2014 Bill establishes a specific mechanism of self regulation where industry associations will develop privacy standards and adhere to them. For this purpose, an industry ombudsman should be appointed. The standards must be in conformity with the National Privacy Principles and the provisions of the Privacy Bill. The developed standards will be submitted to the Authority and the Authority may frame regulations based on the standards. If an industry association has not developed privacy standards, the Authority may frame regulations for a specific sector.
Settlement of Disputes and Appellate Tribunal: The 2014 Bill makes significant change to the process for settling disputes from the 2011 Bill. In the 2014 Bill an Alternative Dispute Mechanism is established where disputes between individuals and data controllers are first addressed by the Privacy Officer of each Data Controller or the industry level Ombudsman. If individuals are not satisfied with the decision of the Ombudsman they may take the complaint to the Authority. Individuals can also take the complaint directly to the Authority if they wish. If an individual is aggrieved with the decision of the Authority, by a privacy officer or ombudsman through the Alternative Dispute Resolution mechanism, or by the adjudicating officer of the Authority, they may approach the Appellate Tribunal. Any order from the Appellate Tribunal can be appealed at a high court.

In the 2011 Bill disputes between the data controller and an individual can be taken directly to the Appellate Tribunal and orders from the Authority can be appealed at the Tribunal. There is not further path for appeal to an order of the tribunal.

Offences and Penalties: The 2014 Bill changes the structure of the offences and penalties section by breaking the two into separate sections - one addressing offences and one addressing penalties while the 2011 Bill addressed offences and penalties in the same section.

Offences: The 2014 Bill penalizes every offence with imprisonment and a fine and empowers a police officer not below the rank of Deputy Superintendent of Police to investigate any offence, limits the courts ability to take cognizance of an offence to only those brought by the Authority, requires that the Court be no lower than a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, and permits courts to compound offences. The 2014 Bill further specifies that any offence that is punishable with three years in prison and above is cognizable, and offences punishable with three years in prison are bailable. . Under the 2014 Bill offences are defined as:

Unauthorized interception of communications
Disclosure of intercepted communications
Undertaking unauthorized Covert Surveillance
Unauthorized use of disclosure of communication data

The offences defined under the Act are reflected in the 2011 Bill, but the time in prison and fine is higher in the 2014 Bill.

Penalties: The 2014 Bill provides a list of penalties including:

Penalty for obtaining personal data on false pretext
Penalty for violation of conditions of license pertaining to maintenance of secrecy and confidentiality by telecommunications service providers
Penalty for disclosure of other personal information
Penalties for contravention of directions of the Authority
Penalties for data theft
Penalties for unauthorised collection, processing, and disclosure of personal data
Penalties for unauthorized use of personal data for direction marketing. These penalties reflect the penalties in the 2011 bill, but prescribe higher fines

Adjudicating Officer: Unlike the 2011 Bill that did not have in place an adjudicating officer, the 2014 Bill specifies that the Chairperson of the Authority will appoint a Member of the Authority not below the Rank of Director of the Government of India to be an adjudicating officer. The adjudicating officer will have the power to impose a penalty and will have the same powers as vested in a civil court under the Code of Civil Procedure. Every proceeding before the adjudicating officer will be considered a judicial processing. When adjudicating the officer must take into consideration the amount of disproportionate gain or unfair advantage, the amount of loss caused, the respective nature of the default

Civil Remedies and compensation: Both the 2011 and 2014 Bill contain provisions that permit an individual to pursue a civil remedy, but the 2014 Bill limits these instances to - if loss or damage has been suffered or an adverse determination is made about an individual due to negligence on complying with the Act, and provides for the possibility that the contravening parties will have to provide a public notice of the offense.

The 2014 Bill removes provisions specifying that individuals that have suffered loss due to a contravention by the data controller of the Act are entitled to compensation.

Exceptions for intelligence agencies: Unlike the 2011 Bill, the 2014 Bill includes an exception for Government Intelligence Agencies and Law Enforcement Agencies – stating that the Authority will not have the power to conduct investigations, issue appropriate orders and directions or otherwise adjudicate complaints in respect of action taken by the Government intelligence agencies and Law Enforcement agencies for achieving any of the objectives that reflect the defined exceptions to privacy.

The Centre for Internet and Society welcomes many of the changes that are reflected in the Privacy Bill 2014, but are cautious about the wide exceptions that have been carved out for law enforcement and intelligence agencies in the Bill.

In 2012, the Report of Group of Expert s on Privacy was developed for the purpose of informing a privacy framework for India. As such the Centre for Internet and Society will be analyzing in upcoming posts the draft Privacy Bill 2014 and the recommendations in the Report of the Group of Experts on Privacy.

For more details visit https://cis-india.org/internet-governance/blog/leaked-privacy-bill-2014-v-2011

Law yet to catch up with tech-enabled peeping toms

praskrishna — 2012-11-08T08:06:07Z

Devices that give sharp images are the order of the day. But this clarity is lacking when it comes to regulating use of cameras and camera phones in public places, say policy makers.

The article by Sandhya Soman & Pratiksha Ramkumar was published in the Times of India on November 7, 2012.

If there is one thing that sends more clients harried by blackmailers to detectives like A M Malathy of Malathy Detective Agency, it is the pervasive presence of the camera, most often inside modest cell phones. "One girl had to leave a town as her ex-boyfriend uploaded her photo on the internet and referred to her as a call girl. We got the web page removed," says Malathy.

But tracing culprits is difficult if they are strangers on the road. Absence of a privacy law makes it difficult for police to book culprits. "If someone photographs a woman on a bus, we can ask the person to delete it. But we can't book the person s there is no law," says Jegabar Sali, assistant commissioner, cyber crime cell.

The Information Technology (IT) Act, 2000 talks of punishment only in cases where a person's private areas have been photographed. However, things are looking up with the government trying to draw up the Right to Privacy Bill.

"The problems posed by digital technology are complex and we need to define what these new crimes are," says Rajeev Chandrasekhar, independent Member of Parliament, who introduced the Right to Privacy Bill,2010 in Parliament. "I did it because I got representations from parents and women about how MMS clips were being used to blackmail them," says Chandrasekhar.

There have been attempts at legislation earlier. The Mobile Camera Phone Users (Code of Conduct) Bill, 2006 attempted to regulate the use of camera phones in public places. It proposed that manufactures build camera phones that flash a light or emit a 'click' sound, and that users should get consent of the person being photographed.

"The sound and light are for informing people that they are being filmed," says Sunil Abraham, executive director, Centre for Internet and Society, a Bangalore-based organisation that was part of the committee. These provisions are part of South Korea's privacy law, which sought to bring down cases of technology-enabled 'upskirt' photography, where photos of women were taken without their permission, he says.

For more details visit https://cis-india.org/news/times-of-india-sandhya-soman-and-pratiksha-ramkumar-nov-7-2012-law-yet-to-catch-up-with-tech-enabled-peeping-toms

Lack of clarity about cashless and online transactions makes digital payments more worrisome

praskrishna — 2016-12-02T16:20:39Z

Even as demonetisation pushes for more and more cashless and online transactions through, e-wallets, banks and other such apps, there is a serious lack of clarity on how these companies handle customer data, and how it is shared with other entities. "Data is the new oil," is an oft repeated phrase in nearly every technology related conversation that comes up anywhere in India today.

The article by Neha Alawadhi was published in the Economic Times on December 1, 2016. Sunil Abraham was quoted.

However, the handling of this data, most of which carries some of our most personal information, has little protection if it is misused by a private or government entity.

Sample this: at an industry event, a Bengaluru-based startup claimed to solve the problem of credit worthiness of individuals for small loans by using some unusual means. To determine credit worthiness, the company maps everything in your phone — right from how many SMSes you receive for non-payment of dues, to how you fill out your loan application form. The company also claims that it can map, using your phone data, the area of your residence and office.

There are several other companies, especially those in the financial technology (fintech) space, doing similar mapping. The Wall Street Journal on Monday reported that more than three dozen local governments across China are compiling digital records of social and financial behaviour to rate credit worthiness. A person gets a score deduction for violations such as fare cheating, jaywalking and violating family-planning rules.

India may be some distance away from such a credit scoring system, but the increased use of online transactions — financial or otherwise — is sure to lead to similar business models.

"You have no clue what data you are sharing with fintech companies. They are collecting data from other sources and combining it to assess your credit score," said Sunil Abraham, executive director of the Centre for Internet Society.

For example, there is no clarity on what an e-wallet company does with your details and transaction history even after you delete the app. "If there is large level of customer migration of users from an app company, they will just become a data analytics company. The bigger danger in future is the growth of large data intermediaries which are similar to Visa and Mastercard networks, which purchase big databases and further sell this data and build their services or product on top of that. There are large privacy concerns there," said Apar Gupta, advocate and Internet policy expert. While lack of a privacy law or controller has been a long standing concern, the existing law for data protection — Section 43(A) of the Information Technology Act— also offers only very basic protection and is "grossly inadequate", according to Abraham.

To make matters worse, they also lack a strict enforcement mechanism. "We don’t know what are the data practices (adopted by apps). There is no privacy controller or some other body, so it is very difficult for a user to know what are the actual ways their data is being implemented," said Gupta.

There have also been cases of government entities making sensitive and personal information public. Earlier this year, DataMeet, a community of data science enthusiasts, found that Bengaluru Police released 13,000 call data records (CDR) of potential on-going investigations during a hackathon with focus on solving problems of cities.

"There has been very little talk about data ethics and data practices in India. But cases of misuse of data are frequent," noted DataMeet member Srinivas Kodali in a blogpost.

For more details visit https://cis-india.org/internet-governance/news/economic-times-december-1-2016-neha-alawadhi-lack-of-clarity-about-cashless-and-online-transactions-makes-digital-payments-more-worrisome