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.

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.