India II Unit 3A Legislative History II

Question 1

What are the constitutional protections for privacy in India?

Answer 1

Constitution of India does not contain any express provisions on the right to privacy, only implicit in 2 fundamental rights:

1. Right to freedom of speech and expression (Article 19(1)(a)) - “All citizens shall have the right to freedom of speech and expression”.
2. Right to life and personal liberty (Article 21)
3. Right to Information Act 2005
   - Mandates timely response to citizens’ requests for government information.
4. Protection of Human Rights Act 1993
   - Reference to India’s obligations under its Constitution and internal commitments. Broad enough to include ICCPR Article 17 concerning privacy.
   - Establishes the National Human Rights Commission (NHRC) responsible for the protection and promotion of human rights, the definition of which includes rights relating to life and liberty guaranteed by the Constitution or embodied in the International Covenants.

Question 2

What are sectoral laws with some data protection provisions?

Answer 2

Sectoral laws deal with confidentiality of information, including laws relating to healthcare, telecommunications, banking and securities.

1. Public Financial Institutions Act 1993 — confidentiality of banking information
2. Professional Code of Ethics of Doctors — confidentiality of patients’ information
3. Telecommunications laws — restriction of customer information to be transferred or accessed remotely overseas
4. Banking laws — outsourcing limitations for offshore provider and customer data

Question 3

What are surveillance concerns in India? List the laws which deal with surveillance and Identification.

Answer 3

Concerns:

1. India’s Centralised Monitoring System (“CMS”) - Gives the authorities sweeping access to citizens’ phone calls and internet communications in the name of national security. Intelligence agencies can monitor phone calls, emails, and the social networking patterns of telephone and Internet users.
   - No law exists which mandates or regulates the CMS. This mass surveillance system is merely regulated under Section 5(2) of the Indian Telegraph Act, which empowers the Indian Government to intercept communications on the occurrence of any “public emergency” or in the interest of “public safety”.
2. The Unique Identification Authority of India (UIDAI) is now an independent statutory authority under the Aadhaar Act 2016.
   - Create to issue biometric-based Unique Identification Numbers (UID) (“Aadhaar”) to all residents. Aadhaar number is compulsory in some states to obtain essential services (LPG gas allocation), which is contentious because of privacy concerns.
   - A UIDAI Bill was challenged on the basis that it is unconstitutional, but final rulings by the Supreme Court of India in 2018 and 2021 confirmed the constitutionality of the scheme.
   - Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act passed in early 2016 to remedy the constitutional uncertainty at that time. This too was challenged, but the Supreme Court of India affirmed the Act as constitutional on 11 January 2021.

Two major laws deal with telephonic and digital surveillance.

1. Indian Telegraph Act, 1885 (“Telegraph Act”) — empowers the Central Government and State Governments of India to order the interception of messages in two circumstances: (1) in the occurrence of any “public emergency” and (2) if it is considered necessary.
2. The Information Technology Act, 2000 (“IT Act”) — widely regulates intercepting, monitoring, decrypting and collecting information of digital communications. Section 69 empowers the Central Government and the State Governments to issue directions for monitoring, intercepting or decrypting any information transmitted, received or stored through a computer resource.

Question 4

Which is the other Indian Legislation with a data protection code? What are the principles?

Answer 4

The Credit Information Companies (Regulation) Act (CICRA 2005).

Passed to:
- Regulate credit information companies and permissible uses of credit information
- Facilitate efficient distribution of credit ratings of individuals
- Provide for the functioning of credit information companies, a registration procedure, settlement of disputes, privacy princples and furnishing of credit information

No specific provision for consumers to make complaints.

Privacy principles:
1. Care in collection of credit information
2. Data security and secrecy
3. Access and modification
4. Data collection limitation
5. Data use limitation
6. Data accuracy
7. Archiving / length of preservation

Question 5

Why is Article 21 of the Indian Constitution 1949 important? What is the the case which resulted in fundamental constitutional right to privacy in India?

Answer 5

Under constitutional law, the right to privacy is implicit in the fundamental right to life and personal liberty guaranteed by Article 21.

Puttaswamy v Union of India (2017).