Context: In Manipur, "Zero First Information Reports" have been made about alleged rape, murder, kidnapping, and sexual harassment.
Zero FIR (ZFR)
When a police station receives a complaint regarding an alleged offence that has been committed in the jurisdiction of another police station, it registers an FIR and then transfers it to the relevant police station for further investigation. This is called a Zero FIR.
No regular FIR number is given.
After receiving the Zero FIR, the revenant police station registers a fresh FIR and starts the investigation.
This puts a legal obligation on the police to begin investigation and take quick action without the excuse of absence of jurisdiction.
History of ZFR
The provision of Zero FIR came up after the recommendation in the report of the Justice Verma Committee.
The committee was constituted to suggest amendments to the Criminal Law in a bid to provide for faster trial and enhanced punishment for criminals accused of committing sexual assault against women.
Objective of ZFR
The objective of a Zero FIR is to ensure the victims that are unable to get a police complaint registered in one area can do it in another.
The provision is meant to provide speedy redressal to the victim so that timely action can be taken after the filing of the FIR.
First Information Report (FIR)
The term first information report (FIR) is not defined in the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), 1973, or in any other law, but in police regulations or rules, information recorded under Section 154 of CrPC is known as First Information Report (FIR).
Section 154 (“Information in cognizable cases”) says:
“every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe”.
Three important elements of an FIR:
The information must relate to the commission of a cognizable offence.
It should be given in writing or orally to the head of the police station.
It must be written down and signed by the informant, and its key points should be recorded in a daily diary.
Filing of a FIR
FIR can be filed by any person.
He need not necessarily be the victim or the injured or an eye-witness.
FIR may be merely hearsay and need not necessarily be given by the person who has firsthand knowledge of the facts.
Cases related to FIR
Lalita Kumari v. Government of U.P.Supreme court observed that it is mandatory to register a FIR under Section 154 if the complaint is related to a cognizable offence.
Context:Rajasthan government tabled Minimum Guaranteed Income Bill, 2023 to cover the entire adult population of the state with guaranteed wages or pension.
Major Provisions of the Bill:
Minimum guaranteed income: It will ensure that each adult person in the state receives a minimum income for 125 days annually. State government announced an enhancement to the existing urban employment scheme (Indira Gandhi Shahri Rozgar yojana), increasing the employment guarantee from 100 to 125 days per family. Additionally, the state will complement MGNREGA's 100 days by offering employment opportunities for an extra 25 days in rural regions.
Guaranteed employment: The state will appoint a designated program officer, who will hold the position of at least a Block Development Officer in rural areas and an Executive Officer of the local body in urban areas to implement the act. If government fails to provide employment within 15 days, then there is a provision of unemployment allowance.
Guaranteed Social Security Pension: It ensures that individuals falling into categories such as old age, differently abled, widow, and single woman with prescribed eligibility will receive a pension. The pension amount will also see an incremental increase of 15% per annum.
Analysis of the Bill:
Benefits:
State has taken the rights-based approach of providing employment towards building social security net.
It will provide financial stability to the individuals who are often forced to do menial jobs for sustenance.
It will help in reducing poverty by ensuring minimum guarantee income to every adult individual in the State.
Empowerment of marginalized sections of society such as aged, widows, differently abled, with the provision of pension.
#Best Practice: Netherlands – Minimum Income Scheme(resulted into improvements in health and education indicators of targeted sections).
Issues associated with Minimum Guarantee Income:
In urban areas, the demand for work is relatively stable throughout the year, unlike in rural areas where demand is often seasonal and addressed through schemes like MGNREGA. This stability can present challenges while designing a Minimum Guarantee Income.
The availability and suitability of public works projects in urban settings, as well as the capacity limitations of urban local bodies, raise important questions about the implementation of this legislation in urban regions.
It will increase fiscal burden on State government, as Rajasthan announced freebies worth 8.6% of its own tax revenue in 2022-23 (RBI estimates).
Such schemes/legislations reflect the inability of the economy to create productive forms of employment at the scale required to alleviate social pressures.
Roadmap for future
Consensus among stakeholders: Building consensus among policymakers, academics, economists, and other stakeholders is essential for successful implementation. Constructive dialogue and informed debate can help address concerns and refine the Minimum guaranteed income proposal.
Mechanism for funding: Determining sustainable funding mechanisms is crucial. Options could include redirecting existing welfare program budgets or exploring alternative sources of revenue generation.
Job creation: The focus should be on creating employment opportunities for people with lower skill levels.
Context: A case of reservation in promotion for Persons with a disability is pending in the Supreme Court of India for many years which is equated with denial of justice.
Persons With Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, or the PwD Act and Reservation
The Persons With Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, or the PwD Act, first recognised the right of the disabled person to be employed and promoted in government jobs on an equal basis with others.
To ensure this, it introduced a 3% reservation for the disabled in employment.
The reservation of seats for the disabled existed in Groups C and D before the introduction of the PwD Act.
Now, the Act extended reservation for the disabled in Groups A and B — a progressive step towards ensuring the dignity of and equality for the disabled at all levels including career advancement in government jobs.
In addition to this, it also fixed the percentage of reservation of seats at 3%, which opened the gates of recruitment to disabled people in different sectors of the government.
An integral part of the reservation
Reservation for the disabled in promotion in all groups was first interpreted as an integral part of reservation by the Department of Personnel and Training, order of 1998.
It happened after Parliament enacted the provision of reservation of promotion for Scheduled Castes (SC) and Scheduled Tribes (ST), reversing the Supreme Court of India verdict in Indra Sawhney Etc. vs Union Of India And Others, Etc., where reservation in promotion for SCs and STs was withdrawn.
The Department of Personnel and Training interpreted the Parliament enactment to apply to persons with disabilities also as they are from the marginalised sections of society as well, and hence enjoy similar protection from the state of law.
Withdrawal of reservation promotion
Unfortunately, another Department of Personnel and Training order of 2005 withdrew the reservation of the disabled in promotion in Groups A and B.
The department’s reversal of its order was not only shocking but also reflected the apathetic and hostile attitudes of the administration and government towards the needs and aspirations of the disabled.
The department’s order of 1998 opened the doors of opportunity for the disabled to progress in their organisations in keeping with the spirit of the PwD Act.
But the department’s order of 2005 may be understood by the ruling dispensation as an expression of denial of equal space and place to the disabled at the higher level in organisations.
In reaction to this order, a case was filed in the Supreme Court in 2008, by Rajeev Gupta against the Union of India.
Court’s observation on a reservation in promotion
After deliberations and hearings for around eight years, it was adjudicated to grant reservation in promotion for the disabled in Groups A and B, which, regrettably, had been taken back by the Department of Personnel and Training order of 2005.
The final judgment was made in 2016, granting reservation in promotion in Groups A and B.
But the Government of India did not make any effort or give any direction to implement the judgment.
Mr Gupta then filed a case of contempt in the Supreme Court in 2017; the hearing continues.
The government counsel filed an affidavit arguing for the stopping of the proceedings in the contempt petition by Mr. Gupta citing the presence of another case, i.e., Siddaraju vs State of Karnataka & Ors. in the Supreme Court, in 2017.
This affidavit by the Government of India is an attempt to cause hindrance to the result of the contempt petition.
As a result, the contempt petition is still in the process of hearing. The Civil Appeal in Siddaraju vs State of Karnataka & Ors., in its several hearings, also upheld the reservation in promotion for the disabled and made null and void the Department of Personnel and Training order of 2005.
It is important to note that in both cases, the Court challenged the decision in the Indra Sawhney judgment by noting that Article 16(4) does not disable the Indian state from providing preferential treatment such as reservation to the backward classes of citizens under Article 16(1).
However, such differential/preferential treatment should not be on the grounds of caste, or religion among other things.
The Court also noted that the basis of providing reservation to the disabled is a physical disability which is not forbidden under Article 16(1) which guarantees equality of opportunity in state employment or office.
Therefore, the right of getting a reservation in promotion for persons with disabilities could be ensured under Article 16(1) of the Constitution.
Government’s response
A miscellaneous application, Siddaraju vs State of Karnataka & Ors., was filed by the government, in this case for clarification on the ways and means to implement reservation in promotion for the disabled. But the miscellaneous application was an attempt to delay the process of implementation of reservation in promotion for the disabled.
The application was subsequently dismissed in 2021.
The government came up with another order through the Department of Personnel and Training on May 17, 2022.
Though the order made important clarifications on the reservation of seats for the disabled in recruitment, it failed to make any mention of reservation for the disabled in promotion since 1996, which should be the case as in the PwD Act, 1995 and the department’s order of 1998 which quite clearly provided for reservation for the disabled in promotion in Groups A and B since then.
This denial by the government was another attempt to delay the process of justice for the disabled, ultimately leading to the denial of justice.
The judiciary has played a significant role in granting justice and equality to the disabled, especially after the enactment of the PwD Act, of 1995.
Context: Jharkhand has seen tensions escalate between the Governor and the State government over the TAC on the question of Governor’s power of constituting and making rules for the Tribal Advisory Council (TAC) under the Fifth Schedule being discretionary.
Constitutional Provision
Art 244(1) of Part X: The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram.
Part B of Fifth Schedule deals with “Administration and Control of the Scheduled Areas and Scheduled Tribes” provides for the following:
“There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State. Provided that if the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.”
Tribal Advisory Council (TAC)
Each state which has scheduled areas should constitute a TAC.
States which have schedule tribe but not the schedule areas can also constitute TCA after President's direction.
TCA can have at most 20 people of which 3/4th members (at most 15) should be the representatives of schedule tribe in state legislative assembly.
If the number of representatives in legislative assembly is less than required, then the remaining seats should be filled by the other member of the tribal community.
Part C of Fifth Schedule deals with “Schedule Area” provide that
“The President is empowered to declare an area to be a scheduled area. He can also increase or decrease its area, alter its boundary lines, rescind such designation or make fresh orders for such redesignation on an area in consultation with the governor of the state concerned.”
Part B of Fifth schedule also says that,
The Governor may make rules prescribing or regulating, as the case may be,
The number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof.
The conduct of its meetings and its procedure in general.
All other incidental matters.
Role of Governor with respect to TAC
Fifth Schedule grants extensive powers to the Governor who, by public notification, may direct that a law enacted by the Parliament or the State Legislative Assembly shall not apply to a Scheduled Area, or may apply subject to certain amendments or restrictions as he/she specifies.
The Governor may only make such regulations on consultation with the concerned Tribes Advisory Council and subject to the final assent of the President.
Under this Jharkhand government has notified the Jharkhand Tribes Advisory Councils Rule, 2021 which contains the provision of Composition of the TAC
TAC will be an 18-member body.
Chief Minister of the state Jharkhand is the ex-officio chairman and member of the council.
The Minister of Scheduled Tribes Welfare, shall be Ex-officio Vice Chairman and member of the council.
Contemporary Challenges faced by TAC
Despite mandate of the Constitution there was a delay in establishing the TACs, which led to potential encroachment in their area of governance by other bodies.
As both the cabinet and the TAC are headed by the same person, it becomes very difficult for the TAC to overturn a decision taken by the cabinet, even if it was not in the best interest of tribal communities in scheduled areas.
There is a near complete usurpation of TACs by the political parties in power, as observed by Xaxa Committee.
Due to the presence of high forest coverage and rich mineral sources, Schedule areas have a very high business potential which make them vulnerable to the pressure politics of corporate lobby which decrease TAC’s influence in policy making.
Governments of eight states, where most of the Fifth Schedule areas are located, are unwilling to touch the subject which hurts big business interests.
The Bhuria Commission Report (2002-04) mentioned that the State Government do not put any important matters to the Council for advice.
In all these years of its functioning, the TACs have rarely made any significant policy proposals or recommendations on tribal and developmental issues.
Even when issues are taken up by the TAC, it has been noted that there is rarely any sustained and consistent engagement with the matter in the form of follow-ups and field visits.
As per the minutes TAC’s meetings, none of the TACs discussed the issue of land alienation among tribals effectively.
The concerned departments do not always submit Action Taken Reports to the TAC and therefore, the earlier decisions and recommendations of the TACs, even when implemented, are not revisited in subsequent meetings.
Constitutional Provision regarding office of Governor
Art 154(1): The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution
Art 163(1): There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.
Court Cases
B.K. Manish & Others v/s State of Chhattisgarh & Others
In this case, Chhattisgarh High Court held that the Governor could not exercise his discretion as a matter of discretion for constituting and making rules for the TAC under the Fifth Schedule. Which was later upheld by the Supreme Court.
Way Forward
Political interference in the functioning of the TACs should be minimise and they should be provided with the adequate resources to sustain the grass-root governance.
The economic development in the region should be balanced with the tribal interest for which TAC can be used to promote sustainable development in the schedule areas.
Context: In a recent development, the Supreme Court has asked Sanjay Kumar Mishra, the Director of the Enforcement Directorate (ED), to resign four months before his third extension, which was originally scheduled to end in November.
Alongside this decision, the court upheld certain statutory amendments that allow for the prolongation of the tenures of Directors of the Central Bureau of Investigation (CBI) and the ED in a gradual manner.
Previously, the CBI and ED chiefs held fixed tenures of two years, but the amendments introduced in 2021 to the Central Vigilance Commission Act, the Delhi Special Police Establishment Act, and the Fundamental Rules now permit them to receive three annual extensions.
Directorate of Enforcement:
The Directorate of Enforcement or the ED is a multi-disciplinary organization mandated with investigation of economic crimes and violations of foreign exchange laws.
The origin of this Directorate goes back to 1956, when an ‘Enforcement Unit’ was formed in the Department of Economic Affairs for handling Exchange Control Laws violations under Foreign Exchange Regulation Act, 1947.
It was headed by a Legal Service Officer, as Director of Enforcement, assisted by an Officer drawn on deputation from Reserve Bank of India (RBI).
In 1960, the administrative control of the Directorate was transferred from the Department of Economic Affairs to the Department of Revenue.
With the passage of time, FERA, in 1947 was repealed and replaced by FERA, in 1973. Presently, the Directorate is under the administrative control of the Department of Revenue, Ministry of Finance, Government of India.
With the onset of the process of economic liberalization, FERA, 1973, which was a regulatory law, was repealed and in its place, a new law viz. the Foreign Exchange Management Act, 1999 (FEMA) was enacted in 2000.
Further, in tune with the International Anti Money Laundering regime, the Prevention of Money Laundering Act, 2002 (PMLA) was enacted and ED was entrusted with its enforcement in 2005.
Recently, with the increase in number of cases relating to economic offenders taking shelter in foreign countries, the Government has passed the Fugitive Economic Offenders Act, 2018 (FEOA) and ED is entrusted with its enforcement in 2018.
Statutory Functions:
Its functions include enforcing acts such as the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the Foreign Exchange Management Act, 1999 (FEMA), the Prevention of Money Laundering Act, 2002 (PMLA), and the Fugitive Economic Offenders Act, 2018 (FEOA).
The Prevention of Money Laundering Act, 2002 (PMLA): It is a criminal law enacted to prevent money laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. Under the PMLA, the ED carries out searches and seizures of properties, money, and documents deemed to be involved in money laundering offenses. It has the power to arrest individuals if necessary. The ED can also directly carry out search and seizure operations without prior summons under Section 50 of the PMLA. The agency has jurisdiction over individuals, legal entities, and public servants involved in offenses related to money laundering. However, the ED cannot initiate action on its own and requires a complaint from another agency or the police to begin an investigation
The Foreign Exchange Management Act, 1999 (FEMA): It is a civil law enacted to consolidate and amend the laws relating to facilitating external trade and payments and to promote the orderly development and maintenance of foreign exchange market in India. ED has been given the responsibility to conduct investigation into suspected contraventions of foreign exchange laws and regulations, to adjudicate and impose penalties on those adjudged to have contravened the law.
The Fugitive Economic Offenders Act, 2018 (FEOA): This law was enacted to deter economic offenders from evading the process of Indian law by remaining outside the jurisdiction of Indian courts. It is a law whereby Directorate is mandated to attach the properties of the fugitive economic offenders who have escaped from the India warranting arrest and provide for the confiscation of their properties to the Central Government.
Sponsoring agency under COFEPOSA: Under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the Directorate is empowered to sponsor cases of preventive detention with regard to contraventions of FEMA.
Recent criticism of the ED
Allegations of misuse of the PMLA by the government and the agency itself.
Concerns have been raised about the inclusion of "ordinary" crimes under the PMLA and the attachment of assets belonging to innocent individuals.
Transparency and clarity regarding the selection of cases to investigate have also been questioned.
The Enforcement Case Information Report (ECIR) - an equivalent of the FIR - is considered an “internal document” and not given to the accused.
The initiation of an investigation by the ED has consequences that have the potential of curtailing the liberty of an individual.
Additionally, the efficiency and low conviction rates of the ED under the PMLA have been a subject of controversy.
Amendments in DSPE act: Provided that the period for which the Director of CBI holds the office on his initial appointment may, in public interest, on the recommendation of the Committee (the committee led by the Prime Minister and leader of Opposition and CJI as members) and for the reasons to be recorded in writing, be extended up to one year at a time. It also provided that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.
Amendments in CVC act: Provided that the period for which the Director of Enforcement holds the office on his initial appointment may, in public interest, on the recommendation of the Committee (comprising of CVC chief, Revenue and Home Secretaries among others) and for the reasons to be recorded in writing, be extended up to one year at a time. It provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.
Criticisms of the amendments:
The government could exploit the possibility of service extensions as a means to manipulate the CBI and ED Directors into aligning with its interests.
It was argued that this dynamic would exert pressure on the Directors, leading them to comply with the government's wishes in order to secure further extensions.
The amendments contradicted the fundamental objective of safeguarding the Central investigative agencies from government influence.
Way forward:
Consensus between the adjudicating authority and the ED officers should be reached to ensure compliance with the constitutional provisions of the PMLA, making investigations more transparent.
The ED's expanded powers should be accompanied by a commitment to resolve cases expeditiously, allowing for speedy trials and convictions.
Regular scrutiny of the agency's operations and ongoing evaluation can lead to improvements in the conviction rate.
Any gaps or deficiencies can be addressed through suitable legislation, executive action, or revised orders from the apex court.
Context:The Digital Personal Data Protection Bill, 2022, a draft of which was floated in November, is expected to be tabled in Parliament’s Monsoon Session that begins on July 20. The Union Cabinet approved the draft Bill on Wednesday.
Data Protection
Data protection is the process of securing digital information while keeping data usable for business purposes without trading customer or end-user privacy.
Data protection is becoming more intricate as the number of devices to monitor and protect expands. Today, it includes IoT devices and sensors, industrial machines, robotics, wearables and more.
Data protection helps reduce risk and enables a business or agency to respond quickly to threats.
Need for data protection
Data protection is important because the total number of computing devices increases each year, and computing is now more complex which connects large number of individuals breach of their data will have disastrous consequences.
The implications of a data breach or data loss incident can bring organizations to their knees. Failure to protect data can cause financial losses, loss of reputation and customer trust, and legal liability, considering most organizations today are subject to some data privacy standard or regulation.
Personal data reveals a lot about an individual, his thoughts, and his life. This data can easily be exploited to harm him, and that’s especially dangerous for vulnerable individuals and communities, such as journalists, activists, human rights defenders, and members of oppressed and marginalized groups. That is why data must be strictly protected.
Status of Data Protection in India
Information Technology Act of 2000 was passed to uplift e-governance, provide legal backing for online transactions, and fight cybercrime.
The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (“SPDI Rules”) which governs the “collecting, receiving, possessing, storing, dealing, handling, retaining, using, transferring, disclosing sensitive personal data or information, security practices and procedures for handling personal information”.
The rules define sensitive personal data under Rule 3.
Under Rule 6, a body corporate is not permitted to publish or disclose such data or information to any third party without the information provider’s prior consent.
Hon’ble Supreme Court of India established the right to privacy as a fundamental right under Article 21 of the Constitution of India as part of the right to life and personal liberty in the case of Justice K.S. Puttaswamy v. Union of India (2017), also called the “privacy judgement.”
Section 8(1)(j) of the Right to information act, 2005 deals with the non-disclosure of personal information.
Need for data protection laws in India
In India, the confluence of multiple regulations for different areas produces ambiguity, which is one of the key reasons for data breaches.
In India, there is no single codified law that addresses all areas of data privacy and keeps track of the penalties that should be applied.
When dealing with situations involving data breaches and cybersecurity, the enforcement mechanism typically confronts a number of implementation challenges in the absence of a codified law.
Since India is a nation-state, the data of the citizens is considered a national asset.
Depending on India’s security and geopolitical objectives, this national asset may need to be protected and stored within national borders. That would include not only the corporates, but also Non- Governmental Organisations and governmental bodies. For the regulation of which India need a law.
Article 38, Which is a Directive Principles of State Policy, is concerned with the general well-being of citizens. Privacy and data protection are fundamentally linked to the welfare state.
Article 51 also specifies that the State shall seek to encourage conformity to treaty obligations and international law in order to foster international peace and security. India being a member to several international organisations that focus on data protection mechanisms like the United Nations Commission on International Trade should make a comprehensive law on data protection.
Draft Digital Personal and Data Protection (DPDP) Bill 2022
The purpose of the bill is to provide for the processing of digital personal data in a manner that recognizes both the right of individuals to protect their personal data and the need to process personal data for lawful purposes, and for matters connected therewith or incidental thereto.
The data protection legislation specifies norms on management of personal data of Indian residents and requires explicit consent from people whose data is collected and used.
Key Provisions of DPDP Bill
Bill requires entities that collect personal data — called data fiduciaries — to maintain the accuracy of data, keep data secure, and delete data once their purpose has been met.
Bill defines “Data Principal” as an individual to whom the personal data relates and where such individual is a child includes the parents or lawful guardian of such a child.
In Bill“Data Processor”means any person who processes personal data on behalf of a Data Fiduciary.
Data Protection Board of India
It consists of technical experts constituted by the government
if board has reason to believe that their personal data has been used without their consent - for example, cell phone numbers or Aadhaar details. The Board will institute an investigation into the breach.
Bill has provision regarding “Data Protection Officer”who will represent the Significant Data Fiduciary under the provisions of this Act and be based in India
The Data Protection Officer will be an individual responsible to the Board of Directors or similar governing body of the Significant Data Fiduciary and will be the point of contact for the grievance redressal mechanism under the provisions of the bill.
DPDP Bill also outlines practices for entities that collect personal data, how that data should be stored and processed to ensure there is no breach, as well as rights of the persons whose data is being used.
Bill has aclause for offering voluntary undertaking in case an entity wants to admit that a breach has occurred and pay penalty as mitigation measure to avoid court litigation.
The fines would be levied by the Data Protection Board of India, which would be set up under the Act.
Benefits of the DPDP Bill
Once passed, theBill will be critical in India's trade negotiations with other countries, particularly with the European Union, whose General Data Protection Regulations (GDPR) are among the most comprehensive privacy rules in the world.
The Digital Personal Data Protection Bill, 2022, is a crucial pillar of the overarching framework of technology regulations the Centre is building, which also includes the Digital India Bill — the proposed successor to the Information Technology Act, 2000, the draft Indian Telecommunication Bill, 2022, and a policy for non-personal data governance.
Issues with the DPDP Bill
The bill empowers the executive to draft rules and notifications on a vast range of issues, which increases executive discretion and decreases accountability.
For example, the central government can exempt any government or even private sector entity from the application of provisions of the law by merely issuing a notification.
The Centre was also empowered to appoint members to the data protection board, raising concerns over the control it could potentially exert on the institution in cases where it was an interested party.
Exemptions from data processing by the state for reasons such as national security may result in data collection, processing, and retention that exceeds what is necessary. This may violate the fundamental right to privacy.
Any data collected by government agencies is exempted even if the datais later processed by a different agency and regardless of the legality of the purpose.
The Bill differentiates between private and government companies performing the same commercial activity, such as providing banking or telecommunications services, in terms of consent and storage limitation. This may violate the right to equality of the private sector providers.
Which is contrary to the idea of data justice present in the original draft of the Personal Data Protection Bill created by the B N Srikrishna Committee in 2018.
The composition, manner, and tenure of appointments to the Data Protection Board of India will be determined by the Central government. This raises a question about the independent functioning of the Board.
The Bill does not grant the right to data portability and the right to be forgotten to the data principal.
Before processing a child's personal data, all data fiduciaries must get verified consent from the child's legal guardian, according to the Bill. To comply with this regulation, any data fiduciary must verify the age of anyone who signs up for its services. This may have negative consequences for online anonymity.
The bill proposes amendments to Section 8(1)(j) of the RTI act to expand its purview and exempt all personal information from disclosure. This threatens transparency and accountability regime in the country as the personal data of government officials will be protected under it and cannot be disclosed to an RTI applicant.
The bill does not have stringent norms like GDPR including provisions that put limitation on the mass collection of the public data, which gives monopolistic power to first mover corporations and can cause harm to socio-economic rights.
The bill put publicly available data outside of its regulation, but such data has the potential to reveal, via machine learning, sensitive intelligence that individuals did not consent to reveal when they posted some harmless data on the internet.
Private entities are exempted even if they collect the personal data of the employee if it is for performance evaluation purposes. Which can lead to invasive data collection in office spaces, Invasive biometrics on blue-collar workers, enabling more sophisticated exploitation and universalising a culture of surveillance.
Under the bill private entities in possession of someone’s data can also assume consent and share that data with other private entities, for an unspecified duration, without informing the person.
Need for asymmetric power to state
Government needs certain exemptions because it deals with issues including terrorism, law and order, and public health emergencies. These exemptions are needed for the government to work efficiently.
The Digital Personal Data Protection Bill is only one of the pieces that form part of its larger policy vision for the entire digital economy and must be seen in that light.
Model of Data Protection
EU model:
The GDPR focuses on a comprehensive data protection law for processing of personal data.
The GDPR levy harsh fines against those who violate its privacy and security standards, with penalties reaching into the tens of millions of euros.
It has been criticised for being excessively stringent, and imposing many obligations on organisations processing data, but it is still the template for most of the legislation drafted around the world.
US model:
The United States follows a sectoral approach to data privacy protection.
There is no all-encompassing federal legislation that ensures the privacy and protection of personal data. Instead, legislation at the federal level primarily protects data within sector-specific contexts.
Privacy protection is largely defined as “liberty protection” focused on the protection of the individual’s personal space from the government.
It is viewed as being somewhat narrow in focus, because it enables collection of personal information as long as the individual is informed of such collection and use.
China model:
China’s two newest data security laws—the “Data Security Law” (DSL) and the “Personal Information Protection Law” (PIPL)—came into effect at the end of 2021.
The DSL sets a framework for companies to classify data based on its economic value and relevance to China's national security, while the PIPL recalls Europe's GDPR in setting a framework to ensure user privacy.
The DSL references two main categories of sensitive data—national core data and important data—with new guidelines for governing each.
The PIPL covers all data activities related to the personal information of Chinese citizens, whether it is originally collected within China or abroad.
On the one hand, Data Privacy is important because it safeguards personal integrity, promotes trust in digital interactions, and upholds the fundamental rights of individuals in an increasingly data-driven world on the other protecting data from internal or external corruption and illegal access protects a company from financial loss, reputational harm, consumer trust degradation, and brand erosion. In this regard DPDP Bill has a central importance in the economic, inclusive and secure development of India.
Context:The revised version of India's much-anticipated data protection law has received the Cabinet's approval and is now poised to be presented to Parliament.
More about the Bill
It is a crucial pillar of the overarching framework of technology regulations the Centre is building, which also includes the Digital India Bill, which will be the proposed successor to the Information Technology Act, 2000, the draft Indian Telecommunication Bill, 2022, and a policy for non-personal data governance.
Once it becomes law, it will play a crucial role in India’s trade negotiations with other nations, especially regions like the European Union, whose General Data Protection Rules (GDPR) are among the world’s most exhaustive privacy laws.
Significance of a privacy law
The proposed law will apply to the processing of digital personal data within India; and to data processing outside the country if it is done for offering goods or services, or for profiling individuals in India.
It requires entities that collect personal data, called data fiduciaries, to maintain the accuracy of data, keep data secure, and delete data once their purpose has been met.
Voluntary undertaking: The entities violating its provisions can bring it up with the data protection board, which can decide to bar proceedings against the entity by accepting settlement fees.
Penalty
The highest penalty to be levied for failing to prevent a data breach has been prescribed at Rs 250 crore per instance.
The definition of “per instance” is subjective and could mean either a single instance of a data breach, or an account for the number of people impacted and multiply it by Rs 250 crore.
However, it will be open to interpretation by the data protection board on a case-by-case basis.
Concerns related to the draft bill
The Bill has largely retained the contents of the original version that was proposed in November 2022. Some of the proposals flagged by privacy experts:
Use of open-ended language such as “as necessary” or “as may be prescribed”.
The Bill did not seem to work towards protecting people but ensured that the government retains all power without any checks or balances
The government has been given the power to exempt not only government agencies but any entity that is collecting user data, from having to comply with the provisions of this bill on account of national security, relations with foreign governments, and maintenance of public order among other things.
The central government will have control in appointing members of the data protection board which will be an adjudicatory body that will deal with privacy-related grievances and disputes between two parties.
The chief executive of the board will be appointed by the central government, which will determine the terms and conditions of their service.
The Executive in India has a track record of exploiting to expand its powers. There is no right to compensation to individuals in case of a data breach and have no right to data portability.
There is also concern that the law could dilute the Right to Information (RTI) Act, as the personal data of government functionaries is likely to be protected under it, making it difficult to be shared with an RTI applicant.
Changes in the new bill
A key change is made in the way it deals with cross-border data flows to international jurisdictions, moving from a ‘whitelisting’ approach to a ‘blacklisting’ mechanism.
The previous draft proposed a "whitelist" of jurisdictions where the personal data of Indian citizens could be transferred, based on notifications from the central government.
However, the revised draft bill allows global data flows to all jurisdictions except those listed in a specified "negative list," which acts as an official blacklist of countries where data transfers are prohibited.
The previous draft's provision on "deemed consent" could be modified to impose stricter requirements on private entities. However, government departments would still be allowed to assume consent when processing personal data for reasons of national security and public interest.
Comparison with other countries
An estimated 137 out of 194 countries have put in place legislation to secure the protection of data and privacy, according to the United Nations Conference on Trade and Development (UNCTAD), an intergovernmental organization within the United Nations Secretariat.
Africa and Asia show 61% (33 countries out of 54) and 57% (34 countries out of 60) adoption respectively.
Only 48% of Least Developed Countries (22 out of 46) have data protection and privacy laws.
Different Models of data protection framework
EU model: The GDPR focuses on a comprehensive data protection law for the processing of personal data. It has been criticized for being excessively stringent and imposing many obligations on organizations processing data, but it is still the template for most of the legislation drafted around the world.
US model: Privacy protection is largely defined as “liberty protection” focused on the protection of the individual’s personal space from the government. It is somewhat narrow because it enables the collection of personal information as long as the individual is informed of such collection and use.
China model: New Chinese laws on data privacy and security include the Personal Information Protection Law (PIPL), which came into effect in 2021. It gives Chinese data principals new rights as it seeks to prevent the misuse of personal data.
Enhancement of Data Protection Measures in India
In 2017, the Supreme Court of India, in the case of Justice K.S. Puttaswamy Vs Union of India, unanimously affirmed that Indian citizens have a fundamental right to privacy, protected by Article 21 of the Constitution, which guarantees life and liberty.
The Indian government in 2017 established the B.N. Srikrishna Committee, to address data protection issues. The committee submitted a report with recommendations, that included imposing restrictions on data processing and collection, establishing a Data Protection Authority, recognizing the right to be forgotten, and advocating for data localization.
Furthermore, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 require social media platforms to exercise increased diligence in monitoring the content on their platforms.
Context: On June 30, 2023, the Karnataka High Court dismissed Twitter’s challenge to the issuance of blocking orders by the Ministry of Electronics and Information Technology (MeitY) concerning the taking down of Twitter accounts and specific tweets. The High Court admonished Twitter for not complying with the orders and imposed an astounding cost of ₹50 lahks on the United States-based social media company.
Judgement of Karnataka High Court
On the issue of locus standi: It observed that users of Twitter were not “downtrodden” or did not “suffer from some handicap” that prevented them from accessing the appropriate remedies available to them. Additionally, the High Court held that claims of users whose tweets or accounts were blocked could not be espoused by Twitter and that none of the affected users had approached the High Court.
Observation on Shreya Singhal case: Karnataka High Court has held that observations in Shreya Singhal cannot be construed to mean providing notice to the users of the content, and that even if reasons are recorded in writing, they may not be conveyed to the user.
Observation on Art 19(2): High Court’s reproduction of certain portions of blocking orders in its judgment reveals that one of the reasons was that the content could lead to the spread of “fake news” and “misinformation”, which had the potential to disturb “public order” and threaten the “security of [the] State”.
Issues related to the case
Petitioner being a foreign company cannot avail any remedy of fundamental rights guaranteed under Article 19 (1) and Article 21 of the Constitution.
Twitter, being an intermediary, can it be made responsible for the speech of individuals on its platform?
Procedural Safeguards against online speech
Art 19: No person shall be denied freedom of speech of expression except the ground mentioned in 19(2)
Art 21: No person shall be deprived of his life or personal liberty except according to procedure established by law
Sec 79(1) of IT Act 2000: Provide for exemption from liability of intermediary in certain cases famously known as “Safe Harbour Clause”.
Regulation of the online content
Section 69 of the IT act, 2000 gives the Central and State government the power to issue directions for the interception, monitoring, or decryption of any information through any computer resource.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 issued under section 87(2) of the Information Technology Act, 2000 deals with due diligence by Intermediariesand GRIEVANCE REDRESSAL MECHANISM(under Part II) and with the blocking of information in case of emergency (Rule 16).
Other Cases Related to Freedom in the online sphere
Shreya Singhal case
Section 66 of the IT Act was abrogated in its entirety for infringing Article 19(1)(a) of the Indian Constitution and not protected under Article 19(2).
Anuradha Bhasian case
Court said that nowadays the internet has become an essential part of everyday life and thereby freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution.
Why HC dismissed the twitter's challenge?
The High Court rejected Twitter’s contention that Section 69A only permits the blocking of specific tweets not wholesale blocking.
The content posted could lead to the spread of “fake news” and “misinformation”, which had the potential to disturb “public order” and threaten the “security of [the] State”.
Suggestion:
“The Online Harms White Paper” of UK parliament
The Paper proposed a single regulatory framework to tackle a range of harms. At its core would be a duty of care for internet companies, including social media platforms. An independent regulator would oversee and enforce compliance with the duty.
Context: The Union Cabinet, chaired by the Prime Minister Shri Narendra Modi, approved the introduction of the National Research Foundation (NRF) Bill, 2023 in the Parliament. The approved Bill will pave the way to establish NRF that will seed, grow and promote Research and Development (R&D) and foster a culture of research and innovation throughout India’s universities, colleges, research institutions, and R&D laboratories.
Key Facts
The bill, after approval in the Parliament, will establish NRF as an apex body to provide high-level strategic direction of scientific research in the country as per recommendations of the National Education Policy (NEP), at a total estimated cost of Rs. 50,000 crore during five years (2023-28).
The Department of Science and Technology (DST) will be the administrative Department of NRF which will be governed by a Governing Board consisting of eminent researchers and professionals across disciplines.
The Prime Minister will be the ex-officio President of the Board and the Union Minister of Science & Technology & Union Minister of Education will be the ex-officio Vice-Presidents.
NRF’s functioning will be governed by an Executive Council chaired by the Principal Scientific Adviser to the Government of India.
The bill will repeal the Science and Engineering Research Board (SERB) established by an act of Parliament in 2008 and subsume it into NRF which has an expanded mandate and covers activities over and above the activities of SERB.
Functions
NRF will forge collaborations among the industry, academia, and government departments and research institutions, and create an interface mechanism for participation and contribution of industries and State governments in addition to the scientific and line ministries.
It will focus on creating a policy framework and putting in place regulatory processes that can encourage collaboration and increased spending by the industry on R&D.
How NRF holds significance
As per the NRF detailed project report, less than one per cent of the nearly 40,000 institutions of higher learning in the country are currently engaged in research. NRF aims to get colleges and universities involved in scientific research.
It will aim to remove artificial separation between research and higher education in the country. Presently universities and colleges are more focussed towards imparting education and very little research. One of the objectives of NRF would be to build research capacities in universities.
Serving or retired researchers with no age bar would be encouraged to take up NRF professorships at universities and colleges. It also plans to offer doctoral and post-doctoral fellowships to young researchers at these universities.
It will give opportunities to University professors and researchers to participate in long-term projects aimed specifically at solving societal problems, such as river cleaning, access to clean energy in villages, etc.
It aims to identify priority areas in which science and technology interventions can help larger national objectives.
Context: The National Organ and Tissue Transplant Organisation (NOTTO) has issued a warning against private websites and social media posts promoting and offering organs for trade.
Status of organ trade in India
There is not much data available regarding those whose organs are removed and the long-term effects on them.
As per a World Health Organisation (WHO) report, India is the largest exporter of human organs internationally, and there is no doubt that the majority of them fall under illegal organ trading.
The National Organ and Tissue Transplant Organisation (NOTTO)
National Organ and Tissue Transplant Organization (NOTTO) is a National level organization set up under Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India.
It has following two divisions:
"National Human Organ and Tissue Removal and Storage Network”
"National Biomaterial Centre”.
National Human Organ and Tissue Removal and Storage Network
This has been mandated as per the Transplantation of Human Organs (Amendment) Act 2011. The network will be established initially for Delhi and gradually expanded to include other States and Regions of the country.
Function/Activities
National Network division of NOTTO would function as apex centre for All India activities of coordination and networking for procurement and distribution of Organs and Tissues and registry of Organs and Tissues Donation and Transplantation in the country.
The following activities would be undertaken to facilitate Organ Transplantation in the safest way in shortest possible time and to collect data to develop and publish National registry:-
At National Level :
Lay down policy guidelines and protocols for various functions.
Network with similar regional and state level organizations.
All registry data from States and Regions would be compiled and published.
Creating awareness, promotion of organ donation and transplantation activities.
Co-ordination from procurement of organs and tissues to transplantation when organ is allocated outside the region.
Dissemination of information to all concerned organizations, hospitals and individuals.
Monitoring of transplantation activities in the Regions and States and maintaining data-bank in this regard.
To assist in data management for organ transplant surveillance & organ transplant and Organ Donor registry.
Consultancy support on the legal and non-legal aspects of donation and transplantation.
Coordinate and Organize trainings for various cadre of workers.
National Biomaterial Centre (National Tissue Bank)
The Transplantation of Human Organs (Amendment) Act 2011 has included the component of tissue donation and registration of tissue Banks.
The main thrust & objective of establishing the centre is to fill up the gap between ‘Demand’ and ‘Supply’ as well as ‘Quality Assurance’ in the availability of various tissues.
The centre will take care of the following Tissue allografts:-
Bone and bone products e.g. deep frozen bone allograft, freeze dried bone allograft, dowel allograft, AAA Bone, Duramater, facialata, fresh frozen human amniotic membrane, high temperature treated board cadaveric joints like knees, hips and shoulders, cadaveric cranium bone graft, loose bone fragment, different types of bovine allograft, used in orthodontics, Skin graft, Cornea, Heart valves and vessels (other tissues shall be gradually included).
Activities
Coordination for tissue procurement and distribution
Donor Tissue Screening
Removal of Tissues and Storage
Preservations of Tissue
Laboratory screening of Tissues
Tissue Tracking
Sterilization
Records maintenance, Data Protection and Confidentiality
Quality Management in tissues
Patient Information on tissues
Development of Guidelines, Protocols and Standard Operating Procedures
Trainings
Assisting as per requirement in registration of other Tissue Banks
Legal Framework in India for mitigation of Organ trade
Article 21 - In its wider interpretation Supreme court has upheld that the right to health and the right of a person over their body is an integral aspect of article 21.
Article 23 - The constitution of India guarantees the right against exploitation which also involves organ trafficking which is closely linked with human trafficking.
The Transplantation of Human Organs & Tissues Act (THOTA), 1994 provides for regulation of removal, storage and transplantation of human organs & tissues for therapeutic purposes and for prevention of commercial dealings in human organs & tissues. (Section 18-22 of this Act deals with the punishment for the offences in context of contraventions to the provision of the Act.)
Context: According to the notification ofthe Ministry of Home Affairs’, the Ministry of Electronics and Information Technology (MeitY) has allowed the office of Registrar General and Census Commissioner established under the Registration of Births and Deaths Act, 1969 to perform Aadhaar authentication for such registration. Authentication process however is not mandatory.
About Birth and Death Registration in India
History of Civil Registration System (CRS) in India dates to the middle of 19th century.
In 1886, a Central Births, Deaths and Marriages Registration Act was promulgated to provide for voluntary registration throughout British India.
Post-independence, Registration of Births and Death Act was enacted in 1969 to promote uniformity and comparability in registration of Births & Deaths across India and compilation of vital statistics.
Registration of birth, death & still birth is mandatory.
Registrar General, India at Union Government coordinates and unifies activities of registrations.
Implementation of RBD Act is vested with State Governments.
Registration of births and deaths is done by functionaries appointed by State Governments.
Directorate of Census Operations are sub-ordinate offices of Office of Registrar General, India and these offices are responsible of monitoring of the Act in their concerned State/UT.
Under Section 3(3) of the Registration of Births and Deaths Act, 1969, the Registrar-General may issue general directions regarding registration of births and deaths in the territories to which this Act extends, and shall take steps to co-ordinate and unify the activities of Chief Registrars in the matter of registration of births and deaths and submit to the Central Government an annual report on the working of this Act in the said territories.
Under Section 7(1) ofthe Registration of Births and Deaths Act, 1969, State Government may appoint a Registrar for each local area comprising the area within the jurisdiction of a municipality, panchayat or other local authority or any other area or a combination of any two or more of them. The State Government may also appoint in the case of a municipality, panchayat, or other local authority, any officer or other employee thereof as a Registrar.
What changes has been allowed to facilitate Aadhaar Authentication?
According to the gazette notification, the Registrar appointed under Section 7(1) of the Registration of Births and Deaths Act, 1969 shall be allowed to perform Yes or No Aadhaar authentication, on voluntary basis, for verification of Aadhaar number being collected along with other details as sought in the reporting forms of births or deaths.
The purpose of the authentication is to establish the identity of child, parent and the informant in case of births, and of the parent, spouse and the informant in case of deaths during registration of births or deaths.
The State government and Union territory administration shall adhere to the guidelines with respect to the use of Aadhaar authentication as laid down by MeitY.
Authentication process though not mandatory, aims to promote ease of living and better access to services based as per the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules 2020.
The Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules 2020
The Rules has been made by the Central Government, in consultation with Unique Identification Authority of India under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
As per the Rules, Central Government may allow Aadhaar authentication by requesting entities in the interest of good governance, preventing leakage of public funds, promoting ease of living of residents and enabling better access to services for them, for the following purposes, namely:–
usage of digital platforms to ensure good governance;
prevention of dissipation of social welfare benefits; and
enablement of innovation and the spread of knowledge.
The rules however provided that Aadhaar authentication shall be on a voluntary basis.
The Ministry or States desirous of utilising Aadhaar authentication shall prepare a proposal to justify such authentication and submit it to the Centre for making a reference to the Unique Identification Authority of India (UIDAI).
Changes Proposed in Aadhaar Authentication for Good Governance Rules in April 2023
Based on the amendment, any entity other than a Government Ministry or Department that desires to use Aadhaar authentication for the purpose of
promoting ease of living and enabling better access to services, or
usage of digital platforms to ensure good governance, or
preventing dissipation of social welfare benefits, or
enabling innovation and spread of knowledge,
it shall prepare a proposal giving justification as to how the authentication sought is for one of the said purposes and in the interest of State and submit the same to the concerned Ministry or Department of the Central Government in respect of Central subjects and of the State Government in respect of State subjects.
If the Ministry/Department is of the opinion that the proposal submitted fulfils such a purpose and is in the interest of the State, it will forward the proposal along with its recommendation to MeitY.
Context: Recently “The PM-Kisan scheme has become the first scheme of the government to do e-KYC through facial authentication mobile app. This app is very useful for the aged farmers and their mobile number is not linked with their Aadhaar.”
Issues with the existing system
Until now, e-KYC of the PM-Kisan beneficiaries used to be done through either biometrics at a designated centre or one-time passwords sent to mobile phone numbers linked with Aadhaar.
However, during the e-KYC exercise, officials found many instances when farmers’ mobile numbers were not linked to Aadhaar due to which the process could not be completed.
In the case of biometrics, several elderly farmers faced problems going to the nearby centre.
Many faced the issue of the non-matching of fingerprints.
Therefore, to ease the e-KYC process, the ministry introduced the face authentication feature in the PM-Kisan mobile app.
The face authentication feature uses the iris data of a person having an Aadhaar number.
Other Steps
In another move, the PM-Kisan scheme is also integrating with Bhashini to provide farmers with information in their native language.
Bhashini is the government’s National Public Digital Platform for languages to develop services and products for citizens by leveraging the power of artificial intelligence and other emerging technologies.
About PM-Kisan scheme
Launched in 2019, the Pradhan Mantri Kisan Samman Nidhi or PM-Kisan scheme gives beneficiaries financial assistance of Rs 6,000 per year in three equal instalments every four months.
The amount is transferred to the bank accounts of eligible farmers’ families across the country through Direct Benefit Transfer (DBT) mode.
According to the Agriculture Ministry, more than 11 crore farmers have availed of the scheme, and Rs 2.42 lakh crore has been transferred to their accounts.
