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23rd November 2022 (10 Topics)

Surveillance architecture in India violating privacy of individuals

Context

The Digital Personal Data Protection Bill has been released for public comments recently, which has again faced criticism for breaching the privacy laws of Individuals.

About

  • The journey toward demands for data protection legislation began in 2011 when the Department of Personnel and Training initiated discussions on the Right to Privacy Bill, 2011.
  • Since then civil society organizations, lawyers, and politicians have consistently demanded surveillance reform and drafted suggestions in the field.
  • The re-introduction of the Data Protection Bill, 2022 has also drawn the same comments and blamed to breach the privacy norms of individuals.
  • So, let us assess how laws for data protection breach the Privacy of individuals in India.

Right to Privacy Bill, 2011

  • It creates a statutory Right to Privacy by means of a broad definition and then creates specific protections for it.
  • The government interception and telephone tapping mechanism are changed moderately from the existing system.
  • A regulatory mechanism is created through the Data Protection Authority of India.
  • Further, in the system suggested, the Bill identifies specific officers/position holders in various entities (that may be involved in various breaches of the right) who shall be held responsible, in case of any wrongful act or any default.
  • Disputes under the Bill will be referred to the Cyber Appellate Tribunal which has been set up under the Information Technology Act.

The issue with the new Bill:

  • Clause 18(2); of the Data Protection Bill 2022 allows the Union government to provide blanket exemptions for selected government agencies.
    • However, this Bill also permits exemption to private sector entities that may include individual companies or a class of them, by assessing the volume and nature of personal data under Clause 18(3).
  • The proposed legislation permit security agencies of the European Union and the U.S. to claim exemptions on a case-by-case basis, depending on why they are collecting personal data.
    • They do not contain blanket exemption powers to an entire government entity.
  • Under the new Bill, exempted state agencies and private entities will not be within the purview of the Data Protection Board, the body responsible for imposing penalties in case fiduciaries infringe privacy.

Other Laws for Data Protection in India violating Privacy norms:

The Criminal Procedure (Identification) Act, 2022:

  • The law allows for the overzealous collection and storage of biometric data for 75 years, which is in direct contrast with the principles of data minimization and prevention of unauthorized collection of personal data.

The Indian Telegraph Act, 1885;

  • Under Section 5(2) of this law, the government can intercept calls only in certain situations:
    • Interests in the sovereignty and integrity of India,
    • Security of the state,
    • Friendly relations with foreign states or public order,
    • Preventing incitement to the commission of an offense.
  • In Public Union for Civil Liberties v Union of India (1996), the Supreme Court pointed out the lack of procedural safeguards in the provisions of the Telegraph Act and laid down the following observations:
    • Tapping is a serious invasion of an individual’s privacy.
    • It is no doubt correct that every Government exercises some degree of surveillance operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected.

The Information Technology Act, 2000:

  • Section 69 of the Information Technology Act and the Information Technology (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were enacted to further the legal framework for electronic surveillance.
  • However, the scope of Section 69 of the IT Act is much broader and vague than the Telegraph Act as the only condition precedent for engaging in electronic surveillance is for the “investigation of an offense”.
  • These provisions are problematic and offer the government total opacity in respect of its interception and monitoring activities.

Threats to Privacy:

  • Affects Fundamental Rights: The very existence of a surveillance system impacts the right to privacy (held by the SC in the K.S. Puttaswamy v. Union of India case, 2017) and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution.
  • Authoritarian Regime: Surveillance promotes the spread of authoritarianism in the government functioning since it allows the executive to exercise a disproportionate amount of power over the citizen and impacts their personal lives.
  • Threat to Freedom of Press: Current revelations over the use of Pegasus highlights that surveillance was also conducted on many journalists. This affects the freedom of the press.

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