Nujs law review & ficci symposium on privacy, free speech and technology event Transcripts

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(Session 2, Speaker 3)
Thank you. First, I want to differ with my colleague about Black Friday. Black Friday went through three rounds of censorship including receiving a certificate from the censor board. The principle then follows that once something is passed by the censor board, it should not be struck down by any other body.
Privacy Protection through Executive Action
In the past 2-3 years the Government, civil society and industry have taken efforts and developed a privacy protecting provision. It is unique in many ways – its a meeting of minds between people who disagree a lot. Therefore, there is a shared need between them, to create these laws, though perhaps for different motives.

But I want to differ over here; and talk about the ease with which one can develop privacy laws by executive action. However, before that, I want to place it in a context. In the 2000s, and even now, a context exists in the Supreme Court and higher judiciary. This context locates itself, first, in 2004 when the first UPA government came to power. It had a pronounced a leftist agenda that immediately clashed with the Supreme Court; that represented, as you all may know, certain middle class values. In 2004, the Supreme Court even struck down a statute deciding it was not ‘efficacious;’ thus introducing a 3rd ground to invalidate statutes. Every Friday, the Court had a routine hearing on the matter of forests in which the Central Government hired a person purely to challenge the jurisdiction of the Court. The SC said that the Union government did not have wide executive powers to run the country. They tried to strengthen this, but couldn’t because of the jurisprudence that exists since the 1950s which argues to the contrary.

There are three kinds of executive power: First, the wide executive power originating from Article 73 that deals with the executive power of the Union. In the Punjab Exports Case it was held that even in the absence of legislation, the Central government can legislate on the matter. This was further affirmed in cases of 1982 and 1990. Even in the presence of controlling legislation, it could legislate as long as there is no conflict between the two legislations. Hence, if there is a surveillance law, the central government can still legislate upon it as long as it does not cause conflict between the two legislations. Therefore there are two wider executive powers here. Second, as we have all studied under administrative law; the legislature cannot delegate an essential legislative function or the right to frame policy. Later decisions have almost flattened it this principle, though. There exist two subordinate powers – rule-making powers – and there more interesting one: orders. The distinction between them is important. Using this power, orders have been passed on issues relating to the partition, Tibet, Sri Lanka, Bangladesh, Burma, Uganda, Iran, Iraq, Ethiopia, Sudan, etc. It is a vast power.

In addition, there exists the directory power, which we are not presently concerned with. The point I am trying to make is that the constitution and case law on the matter allows the central government to cover surveillance in the absence, and even in the presence, of existing legislation, as long as it does not conflict directly with it.

Before we move on, it is important to note that there are large, important and pervasive government programs implemented solely through the executive. This is demonstrated by examples of the CMS and UID. The general rule of executive action and fundamental rights is that executive actions in furtherance of the wider power, not subordinate action, can do anything parliament can do but cannot violate Fundamental Rights. There is a host of case law. Under Article 21 stating that the right to privacy is located here. There has been some discourse under Article 19, but there is consensus that right to privacy exists as a furtherance of personal liberty under Article 21. The specific rule for this arises from Subbaro’s dissent on privacy where he locates it under personal liberty. In the case of Govind v State of Madhya Pradesh, some rights can be seen as contributing to the right to privacy. The rule in Article 21, as opposed to the general rule is that any executive action invoking personal liberty requires the process of affirmation to be just and fair. Hence, wider executive power can be used to govern privacy, as long as it does not directly contradict any existing legislation.
Now, moving on to the issue of categorization – it is just not possible. However, regarding the general taxonomy on the subject, the 2011 Government Bill deals with four types of issues: data for commercial purposes, data for communication, visuals of grievance and spam (direct marketing). If you remove spam which is not harm, but nuisance, then three basic aspects arise:

  1. Collection of data by state or private persons;

  2. Inceptions; Voice and data communications;

  3. Surveillance;

  4. Collection of data by state or private persons.

With respect to collection of data, there is very little law on the limited or large scale collection of data for specific purposes. However, this is dated and is an area that is open to new legislations.

With respect to the second field, the only existing legislation is under S. 5(2) of the Telegraph Act and several Rules. The Central Government can legislate on this area, if it does not conflict with 5(2). There is no decided law for if ‘wider executive power conflicts with subordinate executive power.’ Further, there is no law that covers surveillance currently. To the limit or extent of the Telegraph Act, the government under its wider power can legislate, as long as it does not directly conflict with existing legislation. If it does so, it will provide for two things. Firstly, it will provide an immediate regime for privacy protection. Second, it will hold the field till the Parliament takes over.

The last thought, is on legislative competence. The issue here lies under Articles 245-247 of the Constitution and between entries under List One and List Three. The Central Government is competent to frame laws on the same. The only problem is with respect to the fact, that public order and police are state subjects. Under List 2, State List matters exclusively of state power are present. However, even this distinction is not black and white. The courts have held that in cases of or elevated threat, like terrorism and surveillance, the Central Government may intervene. The only issue is whether privacy or matters of such are elevated threats, allowing Central Government to intervene.
This entire process would allow the Central Government to act without going to Parliament, dilute the bill and pass a document that would eventually be a compromised legislation. This is the limited argument I wanted to make on this subject, thank you.

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