Draft Right To Privacy Bill 2011 Of India

The right to privacy bill 2011 of India may be the first attempt to regulate privacy related issues. However, as per media reports it seems to be more like a data protection initiative rather than a privacy safeguarding law.

India has created a problem for itself by neglecting the privacy protection requirements for long. India has been launching projects without any legal framework and procedural safeguards. For instance, we have projects like central monitoring system (CMS), national intelligence grid (Natgrid), Aadhar, crime and criminal tracking network and systems (CCTNS), etc that are not governed by any legal framework and procedural safeguards. Even we do not have any lawful interception law in India that can be claimed to be constitutionally sound.

According to Praveen Dalal, managing partner of New Delhi base law firm Perry4Law and leading techno legal expert of India, India is the only country of the World where Phone Tapping and Interceptions are done without a Court Warrant and by Executive Branch of the Constitution of India. Phone Tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” for Phone Tappings and Lawful Interceptions. Even the Supreme Court’s directions in PUCL case have proved futile and presently the Court is dealing with the issue once more, informs Dalal.

What is more surprising is the fact that the law enforcement agencies and the intelligence agencies that indulge in unconstitutional e-surveillance and phone tapping are themselves governed by no law. It is no surprise that the central bureau of India (CBI) is also not governed by any law and it is operating in India without any law. It is only now that the central bureau of investigation act 2010 was drafted. Till now it is a mere draft and has not become an enforceable law. Even the constitutional validity of the national investigation agency act 2008 is doubtful. Even the draft Intelligence Services (Powers and Regulations) Bill, 2011 has been recently circulated in the Parliament of India.

If the proposed privacy bill sees the light of the day, a data protection authority of India may be constituted. This authority must be constituted through an Indian regulatory services examination so that it can perform the challenging tasks that it would be entrusted with. For the time being, let us wait for the final draft of privacy bill available for public discussion.

Data Protection Law In India Is Urgently Required

Indian government’s hunger for e-surveillance as well as the pressure from the industrial bodies for weak and ineffective cyber laws is costing Indians their privacy and data protection law. The truth is that privacy rights in India are at sale.

The e-surveillance projects include unique identification project of India (UID project) or Aadhar project of India. It is managed by Nandan Nilekani as the chairman of unique identification authority of India (UIDAI). Other projects include national intelligence grid (Natgrid), CCTNS, etc.

The ineffective and cyber criminal’s friendly laws include information technology act 2000. IT Act 2000 is the sole cyber law of India that has been made an instrumentality of e-surveillance by Indian government. Further, under pressure from industrial bodies, almost all the cyber crimes have been made bailable.

However, the gravest of all concerns is the high level of e-surveillance in India with no corresponding privacy laws, data protection laws and procedural safeguards. Even the IT Act 2000 is silent on the procedural safeguards against illegal and unconstitutional e-surveillance, internet censorship, etc.

In these circumstances, it is of paramount importance that suitable privacy laws and data protection laws must be enacted by Indian parliament as soon as possible.

Data Security Problems In India Getting Chronic

Cyber Law in India is in bad shape and so are cyber security and cyber forensics in India. The problem lies with the fact that India does not have “Legal Enablement of ICT System in India”. The Information Technology Act, 2000 (IT Act, 2000) is the sole cyber law of India that is not at all addressing the requirements of cyber law, cyber security, cyber forensics, data security, data protection, etc in India.

The Government of India (GOI) was lethargic enough to not to touch the IT Act, 2000 for full 8 years. Even after proposing the amendments to the IT Act, 2000 the GOI further weakened and destablised it. Fortunately, the proposed Information Technology Amendment Act, 2008 (IT Amendment Act 2008) seems to be stalled as it has not yet been “Notified” even after a lapse of more than four months of passing the same. The legal position in this regard is that IT Act, 2000 is still “Unamended” and the proposed IT Amendment Act, 2008 has no “legal significance”.

Other allied problems pertain to Data Protection Law in India, Data Security Problems in India, etc. Data breaches and cyber crimes in India cannot be reduced till we make strong cyber laws. We cannot do so by mere declaring a cat as a tiger.

The GOI is also clueless about data security and cyber security. The notion of data security and cyber security is presently revolving around an insignificant and almost unrelated aspect of encryption level, which the GOI can neither control nor should it endeavour to do so. There is no reasonable and fair law in the World that can force the netizens to adopt a particular “Standard” of online communication and dealing. The GOI is killing whatever cyber security measures that netizens adopt and apply themselves by formulating rules and regulations in an ignorant manner and without understanding the technology and its applications. In short, the GOI is trying to beat the wind by a stick says Mr. Praveen Dalal.

The first step that the GOI must take is to get help of knowledgeable experts of techno-legal field who can in fact contribute for strong and effective legal enablement of ICT systems in India. India cannot do much with industry inputs and government expertise as they have failed India so far.

AUTHOR: CATHY