The Shape of Things to Come..The New Data Protection Act of India-10 (Exemptions-Privacy)

(Continued from the previous article)

P.S: This series of articles is an attempt to place some issues before the Government of India which promises to bring a new Data Protection Law that is futuristic, comprehensive and Perfect. 


In discussing Privacy Regulations, it is important for us to appreciate that problems related to Privacy arise from two important concerns namely the “Surveillance” by the authority and “Advertising” by companies.

Surveillance concerns arise because of the distrust in the Government of the jurisdiction and is inseparable from the politics. It is not easy to raise above politics and look at the needs of “Governance” and “Law Enforcement” beyond the fact that today there is a a particular regime in place. In constructing a new dispensation of the law, it is important that we raise above politics and look at issues only and not which party in power when we discuss how much of leverage should be there for the law enforcement agencies in terms of exemptions and derogations.

“National Security”, “Public Public Safety” and “Law Enforcement” are “Duties” of a Government enforced through the Constitution. No Government can abdicate its duty to maintain Sovereignty Integrity of the Country and hence cannot create a Privacy Law in which its powers to enforce law  is limited by design. It is therefore ultra vires the constitution to expect that there will be restrictions placed on the requirements of National Security as well as Public Safety and Law Enforcement.

Every Citizen also has a duty to ensure that “Sovereignty and Integrity” of the nation as well as public safety is maintained and hence should cooperate with the enforcement of the law for this purpose. Not providing such cooperation could therefore be considered as a punishable offence.

Indian Constitution recognizes and the Privacy Judgement of the Supreme Court (Puttaswamy Judgement) endorses that the “Right to Privacy” of an Indian Citizen is subject to the following “Reasonable Restrictions” under article 19(2)  which states as under.

Article 19(2) in The Constitution Of India 1949

Nothing in sub clause (a) of clause ( 1 ) shall 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 conferred by the said sub clause 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

The above sub  section refers to Article 19(1) which states as follows:

Article 19(1) in The Constitution Of India 1949

(1) All citizens shall have the right

(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business

“Right to Privacy” is derived from Article 21 of the constitution which states as follows.

Article 21 in The Constitution Of India 1949

21. Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Though Article 21 itself does not by itself mention the reasonable exceptions, it is considered as applicable to all fundamental rights and the Supreme Court has further ratified this stand.

In the PDPB 2019, the Government was more conservative than what the Constitution provided by providing exemptions under Section 35 restricted only to

“the interest of 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 any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order,”

It is interesting to note that the Constitutional provisions support exemption in respect of “Decency and Morality” or in relation to “Contempt of Court”, “Defamation” and “Incitement of an offence ( in general and not necessarily considered cognizable)” but Section 35 omitted the exemptions under the considerations of  Decency and Morality” or in relation to “Contempt of Court” and  “Defamation”.

It  also reduced the scope of “Preventing incitement to an offence” to only “Cognizable offence” and further only in respect of the sovereignty and integrity of India, security of state, friendly relations with foreign states or public order, again omitting the “Decency and Morality” as well as “Contempt of Court” and “Defamation”.

Section 35 of PDPB 2019 was therefore  more conservative than what was required under the constitution  and also well within the limits of the Indian Constitution .

However, there was a strong opposition to this section and probably such opposition could be ascribed to the judiciary which was perhaps unhappy that “Contempt of Court” was removed from the exemption.  I do not think that removal of  “Decency and Morality” or “Defamation” from the exemption was much  of a concern. However, public were not able to understand the motivation in opposing the provisions of Section 35.

It is a separate debate whether the Government could have avoided the controversy by simply not making any change in the “Reasonable Exception”. But in that case the clauses such as “Decency” and “Morality” as well as “Any offence even if it is not cognizable and only related to sovereignty and integrity of India,  security of state, friendly relations with foreign states or public order” and “Defamation” could have been considerations under which exemptions could be claimed by the Government. This would have provided more sweeping powers to the Government which could be misused later by another regime.

We therefore not only should support the version of the PDPB 2019 as regards the exemptions, but also re-iterate in the proposed New Data Protection Act of India by a specific section in the “Preliminary Chapter” on Applicability.

Remember that PDPB 2019 did not define Privacy or Information Privacy directly and left it to the interpretation under the Supreme Court judgement. We considered this as inappropriate and suggested that it is the responsibility of the Government to come up with a definition and not leave it to the interpretation of the complying organizations.  Expecting a complying organization to define what they are expected to “Protect” when the nine member Supreme Court bench or the Government abdicates their responsibility to provide clarity is considered unfair.

We therefore recommended the definition of Privacy to be included in the Act  as follows:

Privacy

“Privacy is a fundamental right under the Constitution of India as an independent right under the Right to life and liberty that guarantees an individual that shall not be infringed except under due process of law as defined in this Act and  includes the following.

(a) “Physical Privacy” means the choice of an individual to determine to what extent the individual may chose to share his physical space with others.

(b) “Mental Privacy” means the choice of an individual to determine to what extent the individual may chose to share his mind space with others

(c) “Neuro Privacy” means the choice of an individual to determine to what extent the individual may share his neuro space with others

(d) “Information Privacy” means the choice of an individual to determine to what extent the individual may share data about the individual with others.

Explanation:

1.“Sharing” in the context above means “making the information available to another human being in such form that it can be experienced by the receiver through any of the senses of seeing, hearing, touching, smelling or tasting of a human in such a manner that the identity  of the individual to whom the data belongs may become recognizable to the receiver with ordinary efforts”.

Now we propose that we can add a second explanation to this section as follows.

2. The Right to Privacy referred to in this section is subject to the reasonable restrictions in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order; and  for preventing incitement to the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order,


P.S: These discussions are presently for a debate and is a work in progress awaiting more inputs for further refinement. It is understood that the Government may already have a draft and may completely ignore all these recommendations. However, it is considered that these suggestions will assist in the development of “Jurisprudence” in the field of Data Governance in India and hence these discussions will continue until the Government releases its own version for further debate. Other professionals who are interested in participating in this exercise and particularly the Research and Academic organizations are invited to participate. Since this exercise is too complex to institutionalize, it is being presented at this stage as only the thoughts of Naavi.  Views expressed here may be considered as personal views of Naavi and not that of FDPPI or any other organization that Naavi may be associated with.

Naavi
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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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