Saving privacy for public good
September 14, 2017, 11:05 PM IST Economic Times in ET Commentary | India | ET
By Akriti Gaur & Namrata Mukherjee
The Supreme Court’s judgement last month of Justice K S Puttaswamy vs Union of India (goo.gl/wdAqsu) has been widely acclaimed as a significant milestone in the jurisprudence on fundamental rights in India. The court unanimously declared that court unanimously any is a fundamental right and recognised informational privacy as one of its facets.
The right to informational privacy requires that an individual is able to affirmatively control her life and personality by controlling her personal information. This means that the law must guarantee an individual the ability to exercise control over the collection, use and disclosure of her personal information. This right is of particular significance in the digital age in which people are giving up huge volumes of personal information to access digitised services.
Further, in an age where State and non-State actors alike have access to acitizen’s personal data and activities — such as biometric information, internet-use patterns, geometric information, financial information — acomprehensive law on data protection to safeguard an individual’s right to privacy is imperative. As the Supreme Court noted, this must be achieved by enacting an effective data protection law for India.
The ‘fair information practice principles’ (Fipps), developed in the 1980s as a response to increased automated use of data, form the bedrock of dataprotection laws across most jurisdictions. The intention of Fipps is to ensure that even when personal data about an individual is collected, such collection is lawful, and the individual continues to be able to exercise control over it.
Fipps prescribe the following minimum standards of data protection: personal data must be collected with the consent of the individual, its use must be limited to the purpose of collection, the individual must continue to have access to her personal data and be able to rectify it, the data must ensure data-security measures to protect personal data.
While India does not have a dataprotection statute, the Information Technology (Reasonable Security Practices and Sensitive Personal Data or Information) Rules, 2011, issued under the IT Act, seeks to introduce Fipps in India. While the rules are a first attempt towards framing alegal framework for data protection, they fall considerably short of internationally accepted data-protection standards.
First, they apply to a restricted category of data that are deemed ‘sensitive’ in nature. This includes data such as those pertaining to physical, physiological and mental health conditions, sexual orientation, medical records, biometric information, etc.
Second, they apply only to the private sector, thus, giving the government a free reign to collect and use people’s personal information as per their discretion. Further, it allows for unlimited sharing of data with the GoI on broad grounds such as prevention, detection, investigation including of cyber incidents, prosecution and punishment of offences, etc, coupled with a limited obligation on the government to not disclose such data.
Finally, the absence of an independent and effective enforcement mechanism means that these rules are nothing but a paper tiger.
Other than the IT rules, scattered instruments across sectors such as circulars issued by the Reserve Bank of India requiring the formulation of privacy policies, the Credit Information Companies (Regulation) Act, 2005, and allied rules, and provisions of licensing agreements for telecom service providers recognise limited Fipps. However, they too fall short.
Given India’s transition into a digital economy, an effective regime for the protection of personal data is the need of the hour. The creation of such aregime will be a complex exercise that involves balancing the rights of an individual vis-à-vis the benefits of big data and legitimate State interests such as national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.
Attempts have been made in this regard in the past with both private bodies and GoI coming up with multiple drafts of a Privacy Bill that recognises data protection as an intrinsic aspect of privacy in the digital age. Unfortunately, none of these Bills has seen the light of day.
With the Supreme Court judgement on privacy, and international trends such as the European Union revamping its data-protection framework, India can no longer take cover behind the ambiguity on the legal position pertaining to the privacy, or afford to lag behind the international narrative.
(The writers are research fellows, Vidhi Centre for Legal Policy, New Delhi)
DISCLAIMER : Views expressed above are the author's own.
Why this Blog ? News articles in the Wide World of Web, quite often disappear with time, when they are relocated as archives with a different url. Archives in this blog serve as a library for those who are interested in doing Research on Aadhaar Related Topics. Articles are published with details of original publication date and the url.
In 2009, I became extremely concerned with the concept of Unique Identity for various reasons. Connected with many like minded highly educated people who were all concerned.
On 18th May 2010, I started this Blog to capture anything and everything I came across on the topic. This blog with its million hits is a testament to my concerns about loss of privacy and fear of the ID being misused and possible Criminal activities it could lead to.
In 2017 the Supreme Court of India gave its verdict after one of the longest hearings on any issue. I did my bit and appealed to the Supreme Court Judges too through an On Line Petition.
In 2019 the Aadhaar Legislation has been revised and passed by the two houses of the Parliament of India making it Legal. I am no Legal Eagle so my Opinion carries no weight except with people opposed to the very concept.
In 2019, this Blog now just captures on a Daily Basis list of Articles Published on anything to do with Aadhaar as obtained from Daily Google Searches and nothing more. Cannot burn the midnight candle any longer.
"In Matters of Conscience, the Law of Majority has no place"- Mahatma Gandhi
Ram Krishnaswamy
Sydney, Australia.
Aadhaar
The UIDAI has taken two successive governments in India and the entire world for a ride. It identifies nothing. It is not unique. The entire UID data has never been verified and audited. The UID cannot be used for governance, financial databases or anything. It’s use is the biggest threat to national security since independence. – Anupam Saraph 2018
When I opposed Aadhaar in 2010 , I was called a BJP stooge. In 2016 I am still opposing Aadhaar for the same reasons and I am told I am a Congress die hard. No one wants to see why I oppose Aadhaar as it is too difficult. Plus Aadhaar is FREE so why not get one ? Ram Krishnaswamy
First they ignore you, then they laugh at you, then they fight you, then you win.-Mahatma Gandhi
In matters of conscience, the law of the majority has no place.Mahatma Gandhi
“The invasion of privacy is of no consequence because privacy is not a fundamental right and has no meaning under Article 21. The right to privacy is not a guaranteed under the constitution, because privacy is not a fundamental right.” Article 21 of the Indian constitution refers to the right to life and liberty -Attorney General Mukul Rohatgi
“There is merit in the complaints. You are unwittingly allowing snooping, harassment and commercial exploitation. The information about an individual obtained by the UIDAI while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a court for the purpose of criminal investigation.”-A three judge bench headed by Justice J Chelameswar said in an interim order.
Legal scholar Usha Ramanathan describes UID as an inverse of sunshine laws like the Right to Information. While the RTI makes the state transparent to the citizen, the UID does the inverse: it makes the citizen transparent to the state, she says.
Good idea gone bad
I have written earlier that UID/Aadhaar was a poorly designed, unreliable and expensive solution to the really good idea of providing national identification for over a billion Indians. My petition contends that UID in its current form violates the right to privacy of a citizen, guaranteed under Article 21 of the Constitution. This is because sensitive biometric and demographic information of citizens are with enrolment agencies, registrars and sub-registrars who have no legal liability for any misuse of this data. This petition has opened up the larger discussion on privacy rights for Indians. The current Article 21 interpretation by the Supreme Court was done decades ago, before the advent of internet and today’s technology and all the new privacy challenges that have arisen as a consequence.
Rajeev Chandrasekhar, MP Rajya Sabha
“What is Aadhaar? There is enormous confusion. That Aadhaar will identify people who are entitled for subsidy. No. Aadhaar doesn’t determine who is eligible and who isn’t,” Jairam Ramesh
But Aadhaar has been mythologised during the previous government by its creators into some technology super force that will transform governance in a miraculous manner. I even read an article recently that compared Aadhaar to some revolution and quoted a 1930s historian, Will Durant.Rajeev Chandrasekhar, Rajya Sabha MP
“I know you will say that it is not mandatory. But, it is compulsorily mandatorily voluntary,” Jairam Ramesh, Rajya Saba April 2017.
August 24, 2017: The nine-judge Constitution Bench rules that right to privacy is “intrinsic to life and liberty”and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution
"Never doubt that a small group of thoughtful, committed citizens can change the World; indeed it's the only thing that ever has"
“Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.” -Edward Snowden
In the Supreme Court, Meenakshi Arora, one of the senior counsel in the case, compared it to living under a general, perpetual, nation-wide criminal warrant.
Had never thought of it that way, but living in the Aadhaar universe is like living in a prison. All of us are treated like criminals with barely any rights or recourse and gatekeepers have absolute power on you and your life.
Announcing the launch of the # BreakAadhaarChainscampaign, culminating with events in multiple cities on 12th Jan. This is the last opportunity to make your voice heard before the Supreme Court hearings start on 17th Jan 2018. In collaboration with @no2uidand@rozi_roti.
UIDAI's security seems to be founded on four time tested pillars of security idiocy
1) Denial
2) Issue fiats and point finger
3) Shoot messenger
4) Bury head in sand.
God Save India
