Important
Landmarks Judgments during the Year 2019
RIGHT TO ACCESS THE INTERNET
The Kerala High Court upheld
the right to have access to the internet as a part of the fundamental
right to education along with the right to
privacy under Article
21 of the Indian
Constitution.
Observations by the Court
The Court observed that the internet acts as
a learning tool and nobody can impose restrictions on it, citing discipline.
The petitioner argued that the restriction on
the use of internet amounted to a violation of the fundamental right to freedom
of speech and expression under Article 19(1)(a) of the Constitution. The Kerala
HC in response cited the Supreme Court judgment in the S. Rengarajan
and others v/s P. Jagjivan Ram case (1989) that the fundamental
freedom under Article 19(1)(a) can be reasonably restricted only for the
purposes mentioned in the Article 19(2). The restrictions under it must be
justified on the anvil of necessity and not the quicksand of convenience or
expediency.
It is noteworthy that the Human Rights Council of the United Nations also regards the
Right of access to the Internet as a fundamental freedom and a tool to ensure
the right to education.
Article 19(1)(a): Freedom of speech and
expression, provides every citizen with the right to express one’s views,
opinions, beliefs, and convictions freely by word of mouth, writing, printing,
picturing or in any other manner.
Article 19(2) confers the right on the
State to impose reasonable restrictions on the exercise of the freedom of
speech and expression on the grounds of-
·
Sovereignty and integrity of India,
·
Security of the state,
·
Friendly relations with foreign states,
·
Public order, decency or morality,
·
Contempt of court, defamation, and incitement
to an offence.
Article 21 declares that no person
shall be deprived of his life or personal liberty except according to procedure
established by law. This right is available to both citizens and non-citizens.
Article 21-A states that the State shall
provide free and compulsory education to all children of the age of six to
fourteen years in such manner as the State by law may determine.
PRIVACY JUDGEMENT AND THE AFTERMATH “Privacy no longer supreme”
·
Two years ago,
in August 2017,a nine-judge bench of the Supreme Court in Justice
K. S. Puttaswamy (Retd) Vs Union of India unanimously held
that Indians have a constitutionally protected fundamental right to privacy that
is an
intrinsic part of life and liberty under Article 21.
·
It held that privacy
is a natural right that inheres in all natural persons,
and that the right may be restricted only by state action that passes each of
the three tests:
i.
First, such state action must
have a legislative mandate;
ii.
Second, it must be pursuing a
legitimate state purpose; and
iii.
Third, it must be proportionate
i.e., such state action — both in its nature and extent, must be necessary in a
democratic society and the action ought to be the least intrusive of the
available alternatives to accomplish the ends.
·
This landmark judgment
fundamentally changed the way in which the government viewed its citizens’
privacy, both in practice and prescription.
·
It requires governments to
undertake structural reforms and bring transparency and openness in the process
of commissioning and executing its surveillance projects, and build a mechanism
of judicial oversight over surveillance requests.
·
It demands from the authorities
to demonstrate great care and sensitivity in dealing with personal information
of its citizens.
·
It requires to legislate a
transformative, rights-oriented data protection law that holds all powerful
entities that deal with citizens’ personal data (data controllers), including
the state, accountable.
·
Government appointed a
committee of experts for Data protection under the chairmanship of Justice B N Srikrishna that
submitted its report in July 2018 along with a draft Data Protection Bill.
The Report has a wide range of recommendations to strengthen
privacy law in India. Its proposals included restrictions on processing and
collection of data, Data Protection Authority, right to be forgotten, data
localisation, explicit consent requirements for sensitive personal data, etc.
· Information Technology Act, 2000: The IT Act provides for safeguard against certain breaches in relation to data from computer systems. It contains provisions to prevent the unauthorized use of computers, computer systems and data stored therein.
The judgment in K.S.
Puttaswamy effected little change in
the government’s thinking or practice as it related to privacy and the personal
data of its citizens.
§
National Security Vs
Privacy: Government continued to
commission and execute mass surveillance programmes with little regard for
necessity or proportionality, with justifications always voiced in terms of
broad national security talking points.
o
The Ministry of Home Affairs,
in December 2018, authorised 10 Central agencies to “intercept, monitor and
decrypt any information generated, transmitted, received or stored in any
computer in the country”. This notification is presently under challenge before
the Supreme Court.
o
In July 2018, it became known
that the Ministry of Information Broadcasting had floated a tender for ‘Social
Media Monitoring Hub’, a technical solution to snoop on all social media
communications, including email. The government had to withdraw the project
following the top court’s stinging rebuke.
o
A request for proposal for a
similar social media surveillance programme was floated in August 2018 by the Unique
Identification Authority of India (UIDAI), which is presently
under challenge before the Supreme Court.
o
The Income-Tax department has
its ‘Project Insight’ which also has similar mass surveillance ends.
§ Data use Vs Privacy:
o
The government has shunned a
rights-oriented approach in the collection, storage and processing of personal
data and has stuck to its ‘public good’ and ‘data is the new oil’ discourse.
o
This is evident from this
year’s Economic Survey as it commends the government for having been able to
sell and monetise the vehicle owners’ data in the Vahan database and exhorts it
to replicate the success with other databases.
o
The Draft Personal Data
Protection Bill that urged for a ‘free and fair digital economy, has the
digital economy as the end and the notion of privacy merely being a shaper of
the means.
§
A rights-oriented
data protection legislation is the need of the hour-
o
which includes comprehensive
surveillance reform prohibiting mass surveillance and institution of a judicial
oversight mechanism for targeted surveillance, and
o
which recognizes the principle
that the state ought to be a model data controller as it deals with its
citizens’ personal information.
§
For the privacy judgment to
fulfil its true promise, it needs to go beyond spirited dissents to firm,
binding judgments that keep the political executive within clear, limited
constitutional boundaries.