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CRIME AND PUNISHMENT

Churning in place, not law

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An unintended consequence of the Radia tapes is the sudden focus on the need for a robust privacy law. India's poor safeguards for data protection are undermining its achievements in business, governance and human rights protection.

For all the sensation caused by them, none of the conversations in the Niira Radia tapes fall foul of a privacy law enacted barely two years ago. Not even the one cited before the Supreme Court by Ratan Tata, in which the lobbyist jokes with the industrialist about her desire to wear a certain designer dress at a party thrown by him.

The law would not have been attracted even if the leaked intercepts had discussed subjects more private than Radia's clothes. For, the 2008 amendment to the Information Technology (IT) Act, introducing the one and only provision dealing with "violation of privacy", does not cover any material that is purely in audio form. Section 66E of the IT Act defines privacy so narrowly that it takes cognizance of only "video voyeurism".

In other words, the solitary privacy provision is specially designed to punish those who secretly capture and transmit the image of "the naked or undergarment clad genitals, pubic area, buttocks or female breast" of anybody without their consent. The provocation for a provision with such graphic description of private parts was the MMS scandal involving a Delhi school girl.

Quirky as it is, the statutory reduction of privacy to video voyeurism could well be linked to the Indian tradition of placing little value on personal space. The law reflects the popular attitude of condoning all sorts of transgressions of privacy so long as they don't involve exposure of private parts.

To be fair, the 2008 amendment dealt with other privacy issues as well. Except that the term "privacy" does not figure in those provisions as the leakage of personal information is regarded by them more as a contractual violation. While Section 72A makes an individual liable to imprisonment for divulging personal information in the teeth of contractual confidentiality, Section 43A imposes monetary penalty on a body corporate for failure to protect such sensitive data in its custody.

These two provisions were also triggered by a privacy controversy: the sting done by a British newspaper on a Gurgaon-based BPO exposing the ease with which somebody could buy personal data entrusted to that outsourced company. Since Sections 72A and 43A operate entirely within the framework of commercial contracts, Tata could not, however, have invoked either of them against the CBI and income tax department, who are the custodians of the 5, 000-odd intercepted conversations from Radia's telephones.

In the absence of any statutory remedy for privacy violations allegedly committed by governmental agencies, Tata had little option but to invoke the extraordinary writ jurisdiction of the Supreme Court. His case hinges on the right to privacy inferred by the apex court from the fundamental rights guaranteed by the Constitution: specifically, the right to life and personal liberty (Article 21) and the freedom of speech and expression (Article 19).

In the 1996 landmark case of the People's Union for Civil Liberties, the Supreme Court held that tapping somebody's telephone line violated their right to privacy and that the government could not therefore resort to such covert action unless it was warranted by the public interest grounds specified in the Telegraph Act 1885. It took such judicial intervention to lay down the law on the infringement of personal privacy by government actions. There is as yet no case law on privacy violations by private entities, especially by those who owe no contractual obligations to the aggrieved party.

This issue has assumed significance as the Supreme Court, in Tata's case, issued notices not only to the government but also to the two magazines that had put the Radia tapes in the public domain. Last week, Prime Minister Manmohan Singh added fuel to the privacy debate by asking the Cabinet secretary to report within a month on the corporate sector's concerns - or "nervousness", as he put it - over the powers conferred on governmental agencies to tap telephones, whether for protecting national security or for checking tax evasion and money laundering.

Whatever the outcome of the SC case or the Prime Minister's initiative on the Radia tapes, the ruling elite of India seems to have woken up to the need to develop the privacy law. The very rise in consciousness is a big step forward given that our Founding Fathers took no notice of the privacy issue even as they drew heavily from the constitutional legacies of Western countries.

The right to privacy, enunciated in 1890 by American thinkers Louis Brandeis and Samuel Warren, had struck roots in advanced democracies by the time India came around to drafting its Constitution from 1946 to 1949. India's omission to incorporate the right to privacy in its Constitution contrasts with a ringing declaration made around the same time by the Federal Republic of Germany, emerging from the trauma of Nazi excesses. Article 10 of Germany's "Basic Law", which came into force in 1949, says: "The privacy of correspondence, posts and telecommunications shall be inviolable. "

The privacy law in liberal democracies has since grown beyond the confidentiality of personal communications. The more recent battles have been against intrusive governance and driven by concerns over the personal information amassed by public and commercial entities, online or otherwise. For a country that prides itself on being the world's largest democracy, India continues to be out of sync with these liberal trends.

Take this tell-tale coincidence of India launching its ambitious scheme of issuing unique identity (UID) numbers to all its residents in the very year in which the UK, under its newly-elected Prime Minister David Cameron, had scrapped a similar programme because of its privacy repercussions. The technocrat in charge of the UID project, Nandan Nilekani, has never been able to make a convincing case, especially from the viewpoint of privacy, on why India should persist with the scheme of tagging its residents even after countries like the UK and US had developed second thoughts about it.

The irony is that, barely a fortnight after Manmohan Singh and Sonia Gandhi inaugurated the UID scheme on September 29, the department of personnel and training (DoPT) came up with a report nailing Nilekani's disclaimers on privacy. In its "approach paper for a legislation on privacy", DoPT admitted that the UID project would have an adverse impact on data privacy. The current scenario of different entities maintaining personal information in different silos, DoPT said, "has a low likelihood of causing any damage". But all this is "likely to change with the implementation of the UID project" as it will unify multiple silos and "help create an identifiable profile of everyone on that public database". Displaying uncharacteristic candor, DoPT's approach paper also questioned the hype about the UID number promoting transparency in governance. "There are other ways in which transparency could be demonstrated - ways that do not impinge on personal privacy, " it said. In any event, a data protection law, it added, needs to be in place before the UID number links up the vast storehouses of private information and "the threat of data security breach becomes real".

The need for such a privacy law is also evident from the five-year experience of the RTI. The right to access public data has often raised concerns about the right to protect private data. This is because of the RTI's caveat that, in the larger public interest, personal information can be disclosed even if it has "no relationship to any public activity" or would cause "unwarranted invasion of the privacy of the individual".

As a result of this rather sweeping formulation, the Supreme Court, for instance, is still grappling with the scathing controversy over whether the Chief Justice of India is legally obliged to disclose personal information such as the assets of judges. Likewise, the Central Information Commission ended up giving conflicting rulings on whether income tax returns of individuals could be disclosed on the basis of the public interest override.

The recurring challenge of choosing between public interest or transparency, on the one hand, and personal privacy or data protection, on the other, does call for codification to reduce scope for subjective interpretation. It is high time India followed the precedent set in more advanced democracies like the UK, which entrusted its transparency law as well as its data protection law to the same regulator to ensure harmonious implementation. Far from being an impediment, the privacy law in those countries has often clarified and strengthened its transparency counterpart.

The churning on the right to privacy is a happy augury for India's tradition-bound society. In the context of human rights, it already witnessed the efficacy of that right in the historic 2009 verdict of the Delhi high court decriminalising homosexuality. The right to privacy was the crucial basis on which the high court held that the state could not interfere with an individual's sexual orientation. There is also a growing realisation that invasive technologies are shrinking one's personal space. The impact made by a small-budget film on this theme, Love, Sex Aur Dhoka, indicates that privacy concerns have begun to resonate in popular consciousness.

If it is enacted as an unintended consequence of the Radia tapes, the proposed privacy law may prove to be as revolutionary as the RTI. After all, privacy protection is as much a marker of modernity as transparency in governance.

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