White paper on data protection

Author: 
Amritananda Chakravorty Mihir Samson

Close on the heels of the unequivocal assertion of the fundamental right to privacy by a nine judges bench of the Supreme Court in August, 2017, a Committee of Experts set up by the Government of India under the chairmanship of former Supreme Court Chief Justice, Shri B.N. Krishna, has published a White Paper on the Data Protection Law. The Committee was tasked to make specific suggestions on principles to be considered for data protection in India and suggest a draft Data Protection Bill. Other members of the committee include telecom secretary Aruna Sundararajan, Unique Identification Authority of India chief executive Ajay Bhushan Pandey, and additional secretary in the information technology ministry Ajay Kumar.The objective was to “ensure growth of the digital economy while keeping personal data of citizens secure and protected.”The paper comes after the Consultation paper released by Telecom Regulatory Authority of India (‘TRAI’) on Data Privacy. The government has sought public comments till 31stDecember on the white paper, which is aimed at securing digital transactions and addressing customer and privacy protection issues.
The Committee has identified seven principles on which the data protection model must be based, including technology agnosticism, i.e., the law must be flexible enough to accommodate changing technology; holistic application to both private and public entities but with some exceptions for the state to achieve certain legitimate aims, informed consent, collection of data only to the extent to which it is required, enforcement and penalties. The feedback received on this draft will help the government draft the bill eventually.
The biggest question for the white paper is the definition of personal data (PD) and sensitive personal data (SPD),which would frame the scope of the law to determine which data can be protected and which cannot. The data which would not fall in these definitions will not be subject to the restrictions. Thus, these definitions would be a crucial element of the law. This definition can encompass data like photos, biometric information, contact list, message histories, location data etc.The contours of PD and SPD, thus play a major role in determining the scope of data protection. The White Paper looks in detail at current uses of data, as well as various international practices in defining PD and SPD.
Major legal decisions
i. Hadiya released from father’s custody and allowed to go to Salem College to complete her education –After protracted arguments, the Supreme Courtin an interim order has allowed Hadiya to complete her homeopathy course from a college in Salem in Tamil Nadu. Kerala government and the Dean of the College have also been asked to make all the necessary arrangements for the same. Hadiya had submitted that she wanted to continue her education, not at the expense of the State as her husband was capable of taking care of the same. She further claimed that she had suffered mental harassment in the 11 months she was in the custody of her parents. The order came in the face of stern opposition from the NIA which claimed in its report that there have been various cases of religious indoctrination and brainwashing of women who are in the custody of Saniaba, the organisation that had admitted to being the guardian of Hadiya. (Shafin Jahan v Asokan K. M., Special Leave to Appeal (Criminal) No. 5777/2017, dated 27.11.2017)
ii. Constitution Bench to be constituted to hear pleas for interim orders on Aadhaar linkage – The Chief Justice of India has indicated the constitution bench of the Supreme Court will decide the applications seeking complete stay on the linking of Aadhaar with any government welfare schemes and other facilities. The Centre told the Supreme Court that Justice Srikrishna Commission has already released white paper on the data protection issue and there is a possibility that the commission would suggest some amendments also, which would take some time. In response, the counsel for the petitioner said that he had no issue with the final hearing being held later, but the application for interim order must be taken before the year end.
iii. High Court orders gag on case against Yogi Adityanath - The Allahabad High Court has prohibited the media from reporting on a case against the Chief Minister of Uttar Pradesh, Yogi Adityanath.A complaint was registered by the police against Adityanath and three others in 2008 for hate speech and instigating riots in Gorakhpur in 2007. (IPA/To be continued)

Sunday, 10 December, 2017