- The unassailable keywords for the Judiciary
- The Issues around Data Localisation
- Dual citizenship
THE UNASSAILABLE KEYWORDS FOR THE JUDICIARY
Why in news?
Modi a versatile genius who thinks globally and acts locally – says Justice Arun Mishra at the inaugural session of the International Judicial Conference 2020, ‘Judiciary and the Changing World’.
Reiteration of Independence of Judiciary
- In a 1981 judgment, the
Constitution Bench of the Supreme Court held that:
- Judges should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says: ‘Be you ever so high, the law is above you.’.
- This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community.
- It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.
- Later in
1993, another Constitution Bench in the Second Judges Appointment Case,
- It is obvious that only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge
THE ISSUES AROUND DATA LOCALISATION
Why in news?
- Personal Data Protection (PDP) Bill, 2019, was introduced in the Lok Sabha during the Winter session.
- The Bill was referred to a joint parliamentary committee, which is currently engaged in a process of public consultation.
- The draft law is a comprehensive piece of legislation that seeks to give individuals greater control over how their personal data is collected, stored and used.
- Once passed, the law promises a huge improvement on current Indian privacy law, which is both inadequate and improperly enforced.
Highlights of the Bill
- The Bill regulates the processing of personal data of individuals (data principals) by government and private entities (data fiduciaries) incorporated in India and abroad.
- Processing is allowed if the individual gives consent and by the State for providing benefits.
- In case of not able to give consent Eg. medical emergency,
- Owner of data can seek access to their data which is stored with the fiduciary.
- The fiduciary has certain obligations towards the individual while processing their data, such as notifying them of the nature and purposes of data processing.
- The Bill allows exemptions for certain kinds of data processing, such as processing in the interest of national security, for legal proceedings, or for journalistic purposes.
- The Bill requires that a serving copy of personal data be stored within the territory of India.
- Central government can declare some personal data as ,critical personal data must be stored and processed solely within the country.
- Classifies sensitive personal data which includes passwords, sexual orientation, genetic data, caste or tribe, political and religious belief. – such personal sensitive data can be processed only with the consent of individual.
- A national-level Data Protection Authority (DPA) is set up under the Bill to supervise and regulate data fiduciaries.
Key Issues and Analysis
- The data fiduciary needs to inform the DPA of a data breach if it is likely to harm the individual.
Drawbacks [of Govt. trying to impinge on individual freedom]
- The Bill allows exemptions without consent of individual for purposes such as journalism, research, or legal proceedings. It could be questioned if these meet the standards of necessity and proportionality required for infringements to an individual’s right to privacy.
- The State is not required to
seek the individual’s consent while providing benefits or services.
It is unclear why this exemption is not limited only to welfare services
of the State, as proposed in the Justice Sri krishna Committee Report.
- The Bill mandates storage of
a copy of personal data within India to expedite law enforcement’s access
to data. This purpose may not be served in some cases, such as when
the fiduciary is registered as an entity in a foreign country.
- It could be questioned why the DPA can exercise powers, such as arresting and detaining violators of the law in prison, without approval or order of a court
Data localisation in draft Bill
One of the more contentious issues in the law Bill are the provisions pertaining to “data localisation”. The phrase, which can refer to any restrictions on cross-border transfer of data.
Why in news?
The contentious Citizenship (Amendment) Act, 2019, has again triggered an ill-advised demand for dual citizenship to Tamil refugees from Sri Lanka.
- As on date, no Indian citizen holds the citizenship of any other country.
- Even when the Centre amended the Citizenship Act in 2003 to introduce the Overseas Citizens of India (OCI) scheme for sections of the Indian diaspora, all it provided was a limited version of ‘dual citizenship’ which came without political rights and with a bar on purchase of agricultural land.
- It would defy logic, then, to seek dual citizenship for those who are not Indian nationals.
- There is a need to treat the refugees in a humane manner and in the absence of a law on refugees, the Centre should stop seeing Sri Lankan refugees as “illegal migrants”; they entered India with the knowledge and approval of Indian authorities. As for those who wish to remain in India for studies or to earn a livelihood, the authorities should tweak the OCI Cardholder scheme or offer an exclusive long-term visa.