27th December 2019 : The Hindu Editorials Notes :Mains Sure Shot
Question – Analyze the data protection Bill, 2019.
Context – the bill.
Note – also refer to article of 26th August
Data protection bill
- The Bill governs the processing of personal data by: (i) government, (ii) companies incorporated in India, and (iii) foreign companies dealing with personal data of individuals in India.
- Personal data is data which pertains to characteristics, traits or attributes of identity, which can be used to identify an individual.
- The Bill categories certain personal data as sensitive personal data. This includes financial data, biometric data, caste, religious or political beliefs, or any other category of data specified by the government, in consultation with the Authority and the concerned sectoral regulator.
Obligations of data fiduciary:
- A data fiduciary is an entity or individual who decides the means and purpose of processing personal data. Such processing will be subject to certain purpose, collection and storage limitations. For instance, personal data can be processed only for specific, clear and lawful purpose.
- Additionally, all data fiduciaries must undertake certain transparency and accountability measures such as: (i) implementing security safeguards (such as data encryption and preventing misuse of data), and (ii) instituting grievance redressal mechanisms to address complaints of individuals. They must also institute mechanisms for age verification and parental consent when processing sensitive personal data of children.
Rights of the individual: The Bill sets out certain rights of the individual (or data principal). These include the right to: (i) obtain confirmation from the fiduciary on whether their personal data has been processed, (ii) seek correction of inaccurate, incomplete, or out-of-date personal data, (iii) have personal data transferred to any other data fiduciary in certain circumstances, and (iv) restrict continuing disclosure of their personal data by a fiduciary, if it is no longer necessary or consent is withdrawn.
Grounds for processing personal data: The Bill allows processing of data by fiduciaries only if consent is provided by the individual. However, in certain circumstances, personal data can be processed without consent. These include: (i) if required by the State for providing benefits to the individual, (ii) legal proceedings, (iii) to respond to a medical emergency.
Social media intermediaries: The Bill defines these to include intermediaries which enable online interaction between users and allow for sharing of information. All such intermediaries which have users above a notified threshold, and whose actions can impact electoral democracy or public order, have certain obligations, which include providing a voluntary user verification mechanism for users in India.
Data Protection Authority: The Bill sets up a Data Protection Authority which may: (i) take steps to protect interests of individuals, (ii) prevent misuse of personal data, and (iii) ensure compliance with the Bill. It will consist of a chairperson and six members, with at least 10 years’ expertise in the field of data protection and information technology. Orders of the Authority can be appealed to an Appellate Tribunal. Appeals from the Tribunal will go to the Supreme Court.
Transfer of data outside India: Sensitive personal data may be transferred outside India for processing if explicitly consented to by the individual, and subject to certain additional conditions. However, such sensitive personal data should continue to be stored in India. Certain personal data notified as critical personal data by the government can only be processed in India.
Exemptions: The central government can exempt any of its agencies from the provisions of the Act: (i) in interest of security of state, public order, sovereignty and integrity of India and friendly relations with foreign states, and (ii) for preventing incitement to commission of any cognizable offence (i.e. arrest without warrant) relating to the above matters. Processing of personal data is also exempted from provisions of the Bill for certain other purposes such as: (i) prevention, investigation, or prosecution of any offence, or (ii) personal, domestic, or (iii) journalistic purposes. However, such processing must be for a specific, clear and lawful purpose, with certain security safeguards.
Offences: Offences under the Bill include: (i) processing or transferring personal data in violation of the Bill, punishable with a fine of Rs 15 crore or 4% of the annual turnover of the fiduciary, whichever is higher, and (ii) failure to conduct a data audit, punishable with a fine of five crore rupees or 2% of the annual turnover of the fiduciary, whichever is higher. Re-identification and processing of de-identified personal data without consent is punishable with imprisonment of up to three years, or fine, or both.
Sharing of non-personal data with government: The central government may direct data fiduciaries to provide it with any: (i) non-personal data and (ii) anonymized personal data (where it is not possible to identify data principal) for better targeting of services.
* Amendments to other laws: The Bill amends the Information Technology Act, 2000 to delete the provisions related to compensation payable by companies for failure to protect personal data.
- The government has stored personal data of citizens. But this poses a grave risk to the principle of the right to privacy. Even the economic survey 2019 also emphasizes that the elite notion of privacy should not be applied to poor people while making data a public good and improving the better of quality of living.
- Government is using personal data of citizens for supporting revenue of the government –
- Recent sale of vehicular registration data and driving licences by the Ministry of Road Transport and Highways. This use of personal data violated the fundamental premise of purpose limitation.
- Gopalkrishnan committee also defines the community data a data category critical for economic advantage.
- There is broad exemptions in the name of national security and fiscal interest. It also contains the element of data nationalism by requiring the compulsory storage of personal data on servers located within India.
- Privacy is not the primary goal but conditioned by the business interest and state interest. These contradictions in aims and objectives ultimately provide the very weak data protection regime.
The present scenario:
- At present the clause of proportionality is being neglected and mass surveillance programmes are being commissioned with little regard for necessity or proportionality.
- For example- in December 2018, 10 Central agencies were authorized to “intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer in the country”. Here the word to be noted is ‘any’. This notification is presently under challenge in the SC.
- Similarly, in July last year, a tender was floated for ‘Social Media Monitoring Hub’, a technical solution to snoop on all social media communications, including email. Later the government had to withdraw the project after SC’s intervention.
- It needs to be understood that Right to privacy does not mean information security.
- The restrictions to the Right to Privacy as said by the SC ment restricting the right of ‘targeted individuals’ in the interest of national security and not to be applied unanimously to all citizens.
- There must be a rights-oriented (i.e. it should not equate privacy to mere information security) data protection legislation — which prohibits mass surveillance.
- And also the people must be more aware of their rights and the unprecedented consequences of the misuse of their data.
Question – write about the status of women in politics. Why has the establishment of a democratic structure and economic growth not led to the simultaneous upliftment of women in India?
Context – The status of women in politics.
Women in politics:
- Status of women in politics can be defined as the degree of equality and freedom enjoyed by women in shaping and sharing of power and in the value given by society to this role of women.
- The former UN-Secretary General Kofi Annan had said on the eve of International Women’s Day that “the role of women in decision-making was central to the advancement of women around the world and to the progress of humankind as a whole. There was still far to go in ensuring that half of the world’s population took up its rightful place in the world’s decision-making”.
- Women all around the world at every socio-political level find themselves under-represented in national parliaments and far removed from decision-making levels. While the political playing-field in each country has its own particular characteristics, one feature remains common to all: it is uneven and not conducive to women’s participation. Women who want to enter politics finds that the political, public, cultural and social environment are often unfriendly and even hostile to women.
- Gender has been an enduring limitation to opportunities for women. Qualities considered necessary for achievement have been attributed to men, and opportunities to develop these qualities through education, training and association have also been reserved for them.
- Characteristics defined as “feminine” – dependence and powerlessness – have always served asa basis for denying women civil, political and economic rights.
- From the 19th century “cult of true womanhood” to the 20th century image of women as “feminine mystique”, women’s position in the society has been explained by an elaborate ideology. Central to these ideologies and elaborations of womanhood has been a concept of woman’s role in family.
- Both the religious and secular establishments have historically valued women only as mothers and wives.
Democracy and upliftment:
- When a society adopts democracy as its form of governance, it is the beginning of a social transformation because the representatives are chosen by the people from all sectors and groups. It is assumed that the groups that were till now marginalized can raise their voice through their representatives and gain upliftment, ending of domination by some over others and a general ushering in of equality of opportunity.
- The chances become even stronger with economic growth and the emergence of markets, which enable people to shed the constraints that have held them back. This is a more or less universal trajectory.
- But this did not happen in India. The most prominent reason is the empowerment of religion through ‘Indian secularism’ and a caste-laden political discourse has served to encourage a public discussion of the ‘ladies’ search files from’ in India. It is now not refined to examine that India’s politics as ‘honor among men’ leaves patriarchy gleans from peril. The opposition of caste-based entirely political occasions to the Women’s Reservation Bill easiest displays this.
- Affirmative motion geared toward a much greater inclusion of girls in India’s institutions of governance, specifically the police and the judiciary, is central to ending the violence against ladies. India’s gender-blind political discourse needs disruption.
Note – Make an addition to your CAA notes about India’s refugee policy.
India’s refugee policy
- As far as illegal immigrants are concerned, India does not have a national policy on granting asylum or refugee status. The Home Ministry, however, has a standard operating procedure for dealing with foreign nationals who claim to be refugees. According to that, anyone who could establish persecution of any form — not just religious, but also social persecution, caste-based and so on, would be entitled to a long-term visa in India. And, this would be examined on a case-to-case basis. So, that SOP actually provides you the base for what could be a decent legal regime. . Significantly, there was no provision in the Citizenship Act to grant citizenship particularly to minorities or refugees till the latest amendment.
- The basic premise of a refugee law is that humanitarian concerns motivate the whole idea of having an inclusive regime.
- India should sign and ratify the various international conventions and such a policy must be clear and non-discriminatory and inclusive in nature.
- India should adopt national standard to be followed by these laws related to citizenship.
- Discussion should be done around the larger issue of migration.