Puttaswamy’ and the fading promise of a right
Context:
August 2022 marked 5 years since a constitutional Bench of the Supreme Court delivered a crucial judgment in the case of Justice K.S. Puttaswamy (retd.) vs Union of India.
The Puttaswamy judgement:
- The judgment delivered on that date formally recognised the right to privacy as being a fundamental right stemming from the right to life and personal liberty, guaranteed under Article 21 of the Indian Constitution.
- The Bench also held that while the right to privacy is intrinsic to an individual’s ability to exercise bodily autonomy, it is still not an “absolute right” in and of itself, placing limitations in a manner similar to those placed on the right to free speech and expression.
The essential test:
It held that privacy is a natural right that inheres in all natural persons, and that the right may be restricted only by state action that passes each of the three tests:
- First, such state action must have a legislative mandate;
- Second, it must be pursuing a legitimate state purpose; and
- Third, it must be proportionate i.e., such state action — both in its nature and extent, must be necessary in a democratic society and the action ought to be the least intrusive of the available alternatives to accomplish the ends.
Impact of Puttaswamy judgement:
- Government appointed a committee of experts for Data protection under the chairmanship of Justice B N Srikrishna that submitted its report in 2018 along with a draft Data Protection Bill.
- The Report has a wide range of recommendations to strengthen privacy law in India. Its proposals included restrictions on processing and collection of data, Data Protection Authority, right to be forgotten, data localisation, explicit consent requirements for sensitive personal data, etc.
- However, a much changed Draft Personal Data Protection Bill was tabled and then withdrawn from Parliament by the government. It has promised to bring a revised bill soon.
An erosion
- Five years later, however, the once eventual-beneficiaries of the agency that the recognition of the fundamental right had promised may realise that the order delivered as part of the judgment has not been upheld in letter or in practice.
- For example, one can consider the nature of the relationship that is currently shared among consumers and companies. If one looks at how the negotiation of privacy is placed now, they would realise that not much changed following the formal recognition of the right to privacy.
- The Personal Data Protection Bill, 2021, which had been in the offing for quite some time now (despite how flawed it may have been) was withdrawn earlier this month after an unnecessarily long period of stagnation.
Personal data for a price
- Meanwhile, the ground reality for the citizenry has not changed much either. Data security breaches which result in the loss and theft of personal, sensitive data have not reduced in terms of measurable frequency or their impact.
- Data concerning the scale and nature described here is used most often by some legitimate advertising agencies, unscrupulous telemarketing firms, and cyber criminals.
- Brokers of such data have in fact become so brazen where they have taken to listing their goods for sale on mainstream e-commerce platforms. This may be done in a bid to reach more customers who can discover and subsequently purchase the data they provide, but perhaps also in an attempt to lend some kind of legitimacy to the unethical and possibly illegal nature of their trade.
- This status quo leaves the general populace open to a range of harm in the form of elaborate phishing attacks and financial scams aided by the attacker’s access to personal information, as well as other harmful activities which rely on the attacker possessing key bits of information about an individual.
‘Spying’ from above: the Pegasus controversy:
- While the threat model for a general user of the Internet in India may only comprise non-state actors (such as cyber criminals and unscrupulous businesses), individuals with certain political and intellectual affinities however have found themselves worrying about the capabilities of the Government in this regard.
- An investigation in January 2022 by The New York Times revealed that the Indian government had purchased access to the Pegasus spyware suite in 2017 as part of a roughly $2 billion acquisition deal for weapons and miscellaneous surveillance gear from Israel.
- It is a blatant disregard for any jurisprudential significance the Puttaswamy judgment might have been thought to carry.
Other ‘transgressions’:
- The recent interventions by the Government which aim to restrict Indian nationals from subscribing to and accessing VPN services shows a similar disregard, too. Summarily, the Government has demanded that VPN service providers — most of which operate in jurisdictions outside of India — start collecting and maintaining KYC records on Indian nationals who seek to avail their services.
| A virtual private network (VPN) extends a private network across a public network and enables users to send and receive data across shared or public networks as if their computing devices were directly connected to the private network. |
- The kind of information requested to be collected and stored includes general identifiers such as full name, phone number, home address, and more (information which generally is not sought by VPN service providers, and which may only be validated by a potential customer having to furnish valid identity documents to a given service provider), along with a small box asking for the “reason” for which an individual sought access to the VPN service.
- The justification provided by the Government for the request to collect and furnish data predictably begins and ends with a mention of the words “national security”.
- While it need not even be said that VPN services in and of themselves do not enable or significantly further criminal activity in a way where such a response would be warranted, the Government’s position demonstrates that it is not above placing hindrances in an individual’s effort to exercise their fundamental right to privacy, of which informational privacy is a part.
- However, this should not be surprising given other privacy-infringing transgressions, and considering that the initial position, argued by the then Attorney General was that “the right of privacy may at best be a common law right, but not a fundamental right guaranteed by the Constitution”.
Conclusion:
In light of all of this, five years later, it can be said confidently that the Puttaswamy judgment has missed the mark quite spectacularly for the objective that was sought, and that it represents a foregone opportunity to protect the rights of Indian citizens while ensuring all of the checks and balances necessary to prevent Government overreach and abuse of power.
A draconian law that needs to disappear
Context:
- The statement made by the Prime Minister this year, to the people of the North-east to the effect that the Government intends withdrawing the much-dreaded Armed Forces (Special Powers) Act 1958, or AFSPA, completely from the region — this follows its partial withdrawal from parts of Assam, Nagaland, Arunachal Pradesh and Manipur in March this year — could spell tidings for the denizens of these States.
- The statement made by the Prime Minister, Narendra Modi, in April this year, to the people of the North-east to the effect that the Government intends withdrawing the much-dreaded Armed Forces (Special Powers) Act 1958, or AFSPA, completely from the region — this follows its partial withdrawal from parts of Assam, Nagaland, Arunachal Pradesh and Manipur in March this year — could spell tidings for the denizens of these States.
- The Prime Minister was addressing a ‘Peace, Unity and Development’ rally in Diphu in Assam’s Karbi Anglong district. In the north-east, Nagaland has largely borne the brunt of this draconian law after it was imposed in the late 1950s when insurgency raised its head in the State.
History of AFSPA:
- The genesis of the law can be traced to the Armed Forces (Special Powers) Ordinance 1942 which was enacted by the British to subjugate the rebels in the country during the Quit India movement, particularly in Assam and Bengal in October 1942.
- It was the foundation for four ordinances, including one for the “Assam disturbed areas” invoked in 1947 to deal with Partition-induced internal security challenges.
- The law was needed in the 1950s when Naga insurgents resorted to large-scale violence. Hundreds of Indian Army soldiers, central and State paramilitary personnel were either killed or injured in ambushes.
- The law continues to be enforced in its new format as the Armed Forces (Special Powers) Act 1958. A similar Act specific to Jammu and Kashmir was enacted in 1990.
Powers under AFSPA:
- AFSPA gives sweeping powers to the armed forces.
- For example, it allows them to open fire, even causing death, against any person in contravention to the law or carrying arms and ammunition.
- Also, it gives them powers to arrest individuals without warrants, on the basis of “reasonable suspicion”, and search premises without warrants.
- It can be imposed by the Centre or the Governor of a state, on the state or parts of it, after these areas are declared “disturbed’’ under Section 3.
- The Act was amended in 1972 and the powers to declare an area as “disturbed” were conferred concurrently upon the Central government along with the States.
- Currently, the Union Home Ministry issues periodic “disturbed area” notification to extend AFSPA.
Nagaland, other aberrations:
- While there was some semblance of peace having been restored after the Shillong Peace Accord with the Naga insurgents in 1975, the situation took an ugly turn after the breakaway group led by Isak Chishi Swu and Thuingaleng Muivah formed the Nationalist Socialist Council of Nagalim (Isak-Muivah), better known as the NSCN(I-M), in 1980, and resorted to large-scale violence across the States of Nagaland and Manipur.
- The Naga Framework Agreement had been signed between the Government and the NSCN (I-M) in 2015. It is believed that the agreement was rushed through and it has been hanging fire since then as the Government has not agreed to permit a separate flag and constitution for Nagaland which the NSCN (I-M) is determined to have.
Misuse of AFSPA:
- While AFSPA gives sweeping powers to the security forces to shoot and kill anyone on suspicion and even search or arrest any person without warrant, no prosecution against them is possible for any wrongdoing without the previous sanction of the Central government.
- AFSPA 1958 empowers even a non-commissioned officer to “fire upon or otherwise use force; even to the causing of death”; no prosecution against them is possible without the consent of the Central Government.
The Mon accident:
- It is the consent from the Central government that is delaying any further action being taken against the commandos of the Army’s 21 Para (Special Forces) who killed six locals initially in a case of mistaken identity in Mon district of Nagaland inDecember 2021.
- The incident led to a riotous situation and renewed demands by the people for removal of this draconian law.
Court’s stand:
- Meanwhile, the Supreme Court of India passed an interim order recently “staying further proceedings on a petition filed by the wives of the commandos found guilty by the SIT.
- Armed with unbridled power, aberrations by security forces operating in the States are bound to take place.
- When the Extrajudicial Execution Victim Families’ Association Manipur (EEVFAM) approached the top court in 2012 to have 1,528 cases of alleged fake encounters investigated through the Central Bureau of Investigation ( Extra Judicial Execution Victim Families Association (EEVFAM) vs Union of India & Anr.), it was found that the first six cases investigated were indeed fake encounters.
- This prompted the Court to conclude that the veracity of the allegations made by the Association was beyond suspicion. Having come under the scanner, the AFSPA drew critical comments from the Supreme Court.
In the case of Naga People’s Movement of Human Rights vs. Union of India, the validity of AFSPA was challenged before the Supreme Court and the five-judge bench concluded that the act cannot be considered as violative of the Constitution and the powers conferred under the section 4 and 5 of the Act are not arbitrary and unreasonable and therefore not in violation of the provisions of the Constitution.
Further, the guidelines stated that
- The army personnel are required to strictly follow minimum force under Section 4 against suspected of violating prohibitive orders.
- A person arrested and taken to custody under section 4 has to be handed over to the nearest police station within 24hours of such arrest.
- The act has to be reviewed every six months by the state.
B P Jeevan Reddy Committee recommendations :
- In 2005 the killing of Thangjam Manorama by the Assam Rifles in Manipur triggered widespread protests and outrage against the enforcement of AFSPA and as a follow up the government set up the Jeevan Reddy Commission to review AFSPA.
- The committee was firm that the Armed Forces (Special Powers) Act, 1958, should be repealed.
- The committee also said that Security forces must be brought under the purview of ordinary criminal law rather than under army law.
- It also noted that AFSPA had become “an object of hate and an instrument of discrimination and highhandedness’’.
Resistance to the law:
- Efforts made in the past to rescind the law have met with failure. The iron lady of Manipur, Irom Chanu Sharmila, went on a 16-year long hunger strike starting from November 2000. Her struggle partly led to the withdrawal of AFSPA in several parts of Manipur, Assam and Nagaland,
- The Justice B.P. Jeevan Reddy Commission that was tasked with reviewing the provisions of AFSPA submitted its report in 2005 with the recommendation that AFSPA be withdrawn.
- Surprisingly, it had suggested making amendments to the Unlawful Activities (Prevention) Act, 1967 (UAPA) to achieve the purpose of AFSPA. The report was subsequently shelved.
- The Indian Army offered stiff opposition to any proposal to do away with the much-detested law.
Way forward:
- The present dispensation at the Centre has been hailed for its bold decision to rescind the law as the Army would have still offered resistance to its withdrawal.
- In Nagaland, AFSPA has been removed from the jurisdiction of 15 police stations in seven districts, while in Assam, it has been removed completely from 23 districts; one district will be covered partially under the Act.
- In Manipur, 15 police station areas of six districts will be excluded.
- However, there needs to be a comprehensive and serious periodical review undertaken by the Centre till the entire North-east is freed from the tentacles of AFSPA.
- Investigations into the 1,528 alleged fake encounters also need to be fast tracked and taken to their logical conclusion.
- If necessary, there needs to be incarceration of the guilty, thereby sending out a clear message that those who murder under the cloak of the uniform of the security forces cannot expect to go scot free if there are violations.
