Wednesday, June 22, 2011

Committee Of Secretaries (COS) Considers Right to Privacy

Right to privacy is a very important law that is missing from the list of Indian laws. For decades the right to privacy has been ignored by Indian government. However, a stage has reached where many crucial projects of Indian government have become “unconstitutional” as these are violating the crucial right to privacy as declared by the Supreme Court of India.

Now Indian government is considering enacting a privacy law for India. A Right to Privacy Bill 2011 has been proposed by Indian government in this regard. However, it has not been made public by Indian government till now and this raised a question upon the commitment of Indian government in this regard.

Meanwhile media reports have claimed that the proposed privacy law may cover all individuals in India irrespective of whether they are citizens of the country or not. This means foreigners who work in India and tourists from abroad will enjoy the same privacy rights as Indian citizens. This is a good provision if finally incorporated in the proposed privacy law.

The decision was taken at a meeting of the committee of secretaries (COS) called by the cabinet secretariat a few weeks ago. The COS members said just as every person living in India had a right to life and liberty, the right to privacy should cover every individual in India.

The COS also decided to exempt journalistic publications. It also suggested a few exemptions related to protection of sensitive personal data. It proposed that insurance companies be allowed to access the health data of individuals and employers the banking and financial data of their employees. It also agreed on strong provisions to check unsolicited commercial communication. This will curb spam emails that fraudsters use to get financial information from individuals.

The COS also wanted a list of agencies that could intercept phone calls. The circumstances under which a communication can be intercepted and the authorities that can order such interception should also be detailed, according to the COS.

However, the Prime Minister’s Office has made it clear that surveillance by intelligence agencies for national security should not be hampered. The members pointed out that intelligence gathering for security purposes would be exempted. However, intelligence work should not be an excuse for non accountability and non transparency.

The COS suggested that while there should be a provision on CCTV coverage and other methods of surveillance, the right to privacy should not apply to images captured in a public place as the individual concerned is well aware that he is at such a place. The members also wanted more clarity on sharing of information among government departments.

The COS also decided to set up a council to advise the government on data privacy issues. It was also agreed that the cyber tribunal set up under the Information Technology Act 2000 should be designated as the appellate tribunal for the purpose of this Bill. A data protection authority with powers to punish offenders was also proposed.

Some of these proposals are really good whereas others require more detailed analysis and discussion. Further, there are many more issues that have not yet been covered by the proposed Bill and they also need to be incorporated in the same.

Attorney General Bats For CBI Exclusion From RTI Act 2005

Central Bureau of Investigation (CBI) is the premier investigating authority of India. It is, however, not at all an intelligence agency though it may be handling few intelligence related aspects or cases. Intelligence work was the main excuse that was given by Indian government to exempt CBI from the applicability of right to information act 2005 (RTI Act 2005).

Indian government also exempted national investigation agency of India (NIA) and national intelligence grid (Natgrid) from the applicability of RTI Act 2005. Interestingly, the constitutional validity of national investigation agency act, 2008 (NIA 2008) is still doubtful and CBI and Natgrid are not governed by any legal framework.

Attorney General of India Goolam Vahanvati has opined that the exclusion of CBI from the purview of RTI Act 2005 is justified on the ground that CBI was also involved in intelligence-gathering as well as safeguarding the country’s economic security. He, however, failed to understand that national security and fundamental rights must be reconciled and primacy of one over another without reconciliation attempts would itself violate the constitutional provisions.

Further, Natgrid, CBI and Intelligence Agencies of India are presently not “Accountable” to Parliament of India, informs Praveen Dalal, leading techno legal expert of India and CEO of Human Rights Protection Centre in Cyberspace of India. Human Rights are regularly targeted by Indian Government and its Agencies without “Constitutional Laws”. Without Parliamentary Scrutiny and Judicial Review these Agencies cannot be considered to be “Constitutional”. If these Agencies are themselves “Unconstitutional” their functioning is also “Unconstitutional”, suggests Dalal.

Vahanvati justifies the stand of Indian government by saying that while the “main purpose of intelligence gathering and assessment is prevention and occurrence of activities which would endanger the security of the country, it cannot be restricted only to gathering of intelligence prior to happening of an event but should extend to post-event intelligence gathered which falls under investigation.

While this is a sound proposition but it does not mean that intelligence work should be an excuse for non accountability and non transparency. If Indian Government wishes to make the functioning of Intelligence Agencies “secret” there must a “Mechanism” to ensure that “Parliamentary Oversight” of these agencies does exists, opines Dalal. Presently there is no Parliamentary Oversight of these Agencies, informs Dalal.

In these circumstances, the decision of Indian Government to exempt CBI and Natgrid is not based upon “National Interest” and “National Security” but upon “Extraneous Considerations” and it deserves to be set aside by our Constitutional Courts, suggests Dalal. Let us see how things develop in this regard in India.