Roundtable on Indian Privacy Law and Policy

The meeting began with a talk by Bhairav Acharya on the origin of privacy law, its jurisprudential evolution, and the current context in which privacy is being debated in India and around the world.

Bhairav began by talking about the nature of privacy law around the world. Privacy has, until recently, never been a right in English common law. Indeed, the tort of invasion of privacy is also relatively incomplete. Privacy is protected through other torts, including the torts of nuisance, trespass, and others. European treaty requirements have foisted a right to privacy upon the British legal system; the contours of this right remain unclear.

American courts, on the other hand, have been more receptive to claims of the right to privacy. There is much in the American political and legal tradition that has contributed to the easy acceptability of privacy claims. Not least among these are the strong emphasis on the individual as the fundamental unit of governance and sovereignty, and the American libertarian tradition of autonomy.

Bhairav then spoke of the right to privacy in India. Early cases in the Supreme Court of India see privacy as a negotiation between the liberties of citizens and the power of the state. In a legal tradition deeply influenced by colonialism, Indian courts readily accepted claims against physical police surveillance and other related rights in the criminal justice process – public rights against the state that were once denied to Indian subjects of colonial rule, but held short of viewing privacy as a necessary individual protection against society. This has resulted in dichotomous privacy jurisprudence.

Bhairav then talked about the contexts in which privacy claims arise in India today. Specifically, he spoke about increasingly sophisticated surveillance techniques and large-scale personal data collection and processing. There are many complexities in both these fields and a lot of time and questions were spent going over them. Surveillance is older than the nation-state; privacy law does not seek the end of surveillance, but only its optimal use. There are many kinds of surveillance, the contemporary debate deals solely with wiretapping and electronic surveillance. Privacy law cannot be blind to the many other kinds of surveillance, including old-fashioned physical surveillance on the road.

Data collection, too, cannot be ended, nor should it for it forms the basis of modern commerce and is tied to India’s economic growth. There were questions and discussion on ‘big data’, data mining, analytics, business models, and other related areas. In India, however, in the absence of an innovative IT industry, the dominant business model is of receiving foreign personal data, usually of Europeans and Americans, to provide cheap processing services. This model depends entirely on comparatively lower Indian wages. Hence, it is not surprising that the first personal data protection rules issued by the Indian government in 2011 applied solely to foreign data that was outsourced to India.

Bhairav then introduced the 2011 draft Right to Privacy Bill that was proposed by the Department of Personnel and Training of the Indian government, as well as the Personal Data Protection Rules issued under the Information Technology Act, 2000. These measures were studied clause-by-clause.

Similarly, Indian law in respect of communications surveillance was analysed in detail. The Indian Telegraph Act 1885, the Indian Telegraph Rules 1951 (including the amendments of 1961, 1999, 2007, and 2014) were looked at in detail. These laws were compared to the Indian Post Office Act 1898 and the Information Technology Act 2000. The 1968 report of the Law Commission of India that examined the wiretapping power and suggested possible overreach was also examined.

Bhairav reviewed Indian law in respect of wiretapping. All Supreme Court case law, especially the cases of Hukum Chand and Peoples Union for Civil Liberties, were analysed. Finally, the group looked at how the legal principles applicable to wiretapping have been extended to electronic and Internet surveillance. Over here, the group studied the two sets of 2011 Rules under the IT Act that enable Internet and email surveillance of both content and metadata.

After a lunch break, the group spoke about possible models for privacy regulation and protection in India. In respect of surveillance, a lot of time was spent discussing the merits and demerits of judicial warranting of surveillance, as opposed to executive authorisations. The consensus of the group, with a few exceptions, was that judicial warranting would not be a suitable model for Indian surveillance, due to several systemic weaknesses. The group also rejected several of the principles proposed by Justice A. P. Shah in the 2012 Report that was commissioned by the Planning Commission.

After a discussion on legislative models, the group discussed, clause-by-clause, the CIS proposal on privacy that was read through by Bhairav. This discussion lasted several hours, and covered many areas.