With the recent general elections giving the Bharatiya Janata Party (BJP) a massive mandate in the Lok Sabha, it is no surprise to see a number of legislations with far-reaching consequences up for debate in the Parliament.
Both the Lok Sabha and the Rajya Sabha are in session, and Prime Minister Narendra Modi’s cabinet has spent little time introducing some new legislations and reintroducing some old ones, which critics posit can put civil liberties in peril.
From the now-passed Aadhaar amendments to possible DNA profiling, here are the laws that have been put before the Parliament of which you should keep track – and one vital law they haven’t bothered with.
Parliament Considering 3 Laws That Impact Your Fundamental Rights
1. UAPA Amendments
Proposed legislation
Status
Introduced in Lok Sabha on 8 July 2019.
What does the government want to do?
The Central government wants to make three broad amendments to the Unlawful Activities (Prevention) Act 1967 (commonly known as the UAPA).
- First, they want to empower themselves to designate individual persons as terrorists. Currently, only organisations can be designated as terrorist outfits, the membership and/or support of which is an offence under the UAPA. The amendment would allow individuals to be listed as terrorists in the Fourth Schedule to the UAPA, without having to show their affiliation to any such organisation.
- Secondly, they want to allow the Director General of the National Investigation Agency (NIA) to approve the seizure or attachment of property which is believed to represent the proceeds of terrorism. Currently, any seizure or attachment requires the approval of the Director General of Police of the state in which the property is situated.
- Thirdly, they have proposed that officers with the rank of Inspector of the NIA should be able to investigate terrorist activities and terrorist organisations. Currently, investigations of such offences can only be carried out by officers with the rank of Deputy Superintendent of Police or Assistant Commissioner of Police or above.
Why is this controversial?
The UAPA is already an extremely controversial legislation, with critics such as constitutional scholar Gautam Bhatia pointing out how the offences under the Act are vague and over-broad – making it easy to misuse.
67 percent of UAPA cases result in the acquittal or the discharge of the accused, as per data made available by the National Crime Records Bureau. In comparison, 18 percent of cases under other special and local laws (the category under which the NCRB classifies the UAPA) end in acquittal or discharge.
The UAPA is also considered a draconian law because it extends the amount of time people can be sent to custody without being charged, does not allow anticipatory bail, and prevents courts from releasing the accused on bail if the case against them is prima facie true.
The punishment of persons accused of being members of a terrorist organisation has also been a critical flashpoint, since it has allowed people to be accused on extremely flimsy grounds – for example, activists were arrested last year on the pretext of them being members of the banned CPI (Maoist) organisation.
The Supreme Court has tried to prevent this kind of abuse by saying that the membership of a banned organisation must also be accompanied by violence or incitement of violence, but the order’s implementation has been inconsistent.
The existing regime is therefore ripe for abuse, allowing virtually indefinite detention without trial, without much in the way of evidence. The amendment suggested by the Centre to allow individuals to be designated as terrorists will only make matters worse, no commensurate safeguards for this arbitrary power have been introduced.
The designation process is entirely up to the discretion of the central executive, with no opportunity to be heard before it happens, and once designated, the burden of proof is shifted to the individual/organisation, who has to approach a Review Committee.
Congress MP Shashi Tharoor opposed the introduction of the Bill and highlighted this specific issue, noting that this would be far more difficult for individuals, who wouldn’t have the operational structure an organisation would, to approach the Review Committee. The Bill should ideally have mentioned a separate procedure for individuals.
Tharoor also pointed out two other key flaws in the Bill:
- There is no need to designate individuals as terrorists in this manner as global terrorists recognised by the United Nations can already be targeted under Section 51A of the UAPA – the government’s Statement of Objects and Reasons says it needs this amendment to comply with international law.
- No public consultation was conducted before drafting this Bill as is required under the Pre-Legislative Consultation Policy 2014.
Expand2. DNA Profiling
Proposed legislation
Status
Introduced in Lok Sabha on 8 July 2019.
What does the government want to do?
The Bill seeks to regulate the use of DNA technology to establish the identity of victims, offenders, suspects, undertrials, missing persons and unknown deceased persons.
There will be a DNA Regulatory Board, which will certify which laboratories are authorised to carry out DNA testing, and establish DNA databanks. The Bill also proposes the establishment of national and regional DNA databanks which will maintain indices for crime scenes, suspects, undertrials, offenders and missing persons.
Why is this controversial?
This is the fourth iteration of the Bill – the third version which was introduced a year ago, followed recommendations from the Law Commission and amended previous proposals which had received severe criticism.
However, serious privacy concerns surround the legislation, as does the risk of profiling without sufficient safeguards.
First, the continuing absence of a data protection law in the country makes misusing the information collected pursuant to this Bill a relatively easy proposition.
The maintenance of an index for suspects is specifically concerning because this could lead to violations of the right to life and liberty, without having actually been found to be guilty of any crime. No safeguards are in place to ensure that a person will be taken off this index if found innocent.
It is also worrying that the framework allows for “voluntarily” submission of one’s DNA to databanks, which raises the spectre of Aadhaar being misused by banks and mobile phone companies.
Speaking of which...
Expand3. Aadhaar Amendments
Proposed legislation
Status
Passed by Lok Sabha on 4 July 2019. Passed by Rajya Sabha on 8 July 2019. Awaiting Presidential Assent.
What does the government want to do?
The Bill makes a number of amendments to the Aadhaar Act 2016 and other relevant laws, ostensibly to ensure compliance with the Supreme Court’s order and to prevent the misuse of Aadhaar. The amendments are already in force through an ordinance brought by the government in February this year.
The amendments include increasing civil penalties for contravention of the Aadhaar Act to Rs 1 crore; prohibiting denial of services to children and others unable to authenticate because of age, infirmity or illness; requiring Aadhaar enrolment for children only with informed consent of parent/guardian; and allowing children enrolled for Aadhaar to opt out when they reach 18 years of age.
The headline amendments in the Bill, however, are those that allow usage of Aadhaar for authentication and offline verification on a voluntary basis for private services. Amendments to the Telegraph Act and Prevention of Money Laundering Act have been made to allow this for mobile SIMs and bank accounts respectively.
The Bill also revives Section 33 of the Aadhaar Act 2016 to allow disclosure of Aadhaar information to authorities in certain circumstances. Section 33 had been struck down by the Supreme Court in its September 2018 judgment, though it said it could be reintroduced with certain safeguards.
A last-minute amendment to the Bill also allows Aadhaar to be made mandatory for State-provided benefits (this was previously possible only for Central benefits).
Why is this controversial?
The return of mobile-bank Aadhaar linking means the return of the concerns that Aadhaar could be used to create 360-degree profiles of individuals, allowing it to be used for surveillance as argued by those who had challenged the Aadhaar scheme in the Supreme Court.
While any such linking is supposed to be voluntary, the ground reality is quite different – for example, to open a bank account or get a mobile SIM, you will either have to provide your Aadhaar details or your passport details (no other ID is acceptable). As only 5.15 percent of Indians have passports (according to MEA data), Aadhaar is the only acceptable form of ID for the vast majority of people, contrary to the Supreme Court’s order.
This also means that people can be cut off from these services lest they provide their Aadhaar to private service providers, which can have serious consequences, especially when it comes to bank accounts.
The continuing absence of a data protection law means all privacy concerns raised in relation to Aadhaar remain relevant. Violations of the fundamental right to privacy were the basis for the apex court’s striking down the possibility of using Aadhaar for authentication, even on a voluntary basis, for private services.
The revised Section 33 also has serious implications for fundamental rights as it allows a person’s Aadhaar information to be disclosed without giving the individual in question a right to be heard (in terms of Section 33(1)) and without judicial oversight (in terms of Section 33(2)) – the Supreme Court had said Section 33 would be unconstitutional without these safeguards.
Essentially, the risk of these provisions is that police and other officers can access your biometrics and other information without your knowledge, and without proper oversight – something which the Aadhaar Act is supposed to prohibit.
Expand4. The One They Should be Considering, But Are Not: Data Protection
Proposed legislation
N/A
Status
What does the government want to do?
When the Srikrishna Committee on Data Protection finally submitted its report on 27 July 2018, it was with the hope that India would finally get the law it desperately needs to properly protect the personal data of its citizens from being misused.
The report included a draft Data Protection Bill, which the cabinet was supposed to use as a base for drafting a new law. Law & IT Minister Ravi Shankar Prasad has said the government would be bringing the law soon on multiple occasions.
The Economic Survey for 2018-19, published just before the Budget, includes an entire chapter on data as a public good, the usage of which is predicated on a privacy law which it claims has already been tabled in the Parliament.
No such law has been introduced yet.
Why is this controversial?
The absence of a data protection law puts the privacy of Indians at serious risk. The overload of junk messages and emails in every person’s inbox is the least of the problems this creates, though it is the perfect example of how data provided by us for one purpose is used for others – primarily, sold off as a resource to anyone willing to pay for it.
Without proper restrictions on the use of collected data, it can not only be sold to pesky marketers, but also to foreign countries, hackers and scamsters, and even the government, without your consent or knowledge. Their usage of this data is a violation of your fundamental rights, including the right to privacy and the right to life and personal liberty under Article 21 of the Constitution of India.
As mentioned earlier, the failure to bring in this law compromises other legislations as well, and makes provisions in those laws unconstitutional.
It should be noted that even if the Srikrishna Committee’s draft Data Protection law was introduced in the Parliament, it would not be a panacea for all our ills. The draft Bill failed to provide protection against surveillance, and also suffers a number of flaws including a failure to notify people whose personal data has been breached, sweeping exemptions from consent requirements if the government wants your personal data, and a clunky data localisation requirement.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
UAPA Amendments
Proposed legislation
Status
Introduced in Lok Sabha on 8 July 2019.
What does the government want to do?
The Central government wants to make three broad amendments to the Unlawful Activities (Prevention) Act 1967 (commonly known as the UAPA).
- First, they want to empower themselves to designate individual persons as terrorists. Currently, only organisations can be designated as terrorist outfits, the membership and/or support of which is an offence under the UAPA. The amendment would allow individuals to be listed as terrorists in the Fourth Schedule to the UAPA, without having to show their affiliation to any such organisation.
- Secondly, they want to allow the Director General of the National Investigation Agency (NIA) to approve the seizure or attachment of property which is believed to represent the proceeds of terrorism. Currently, any seizure or attachment requires the approval of the Director General of Police of the state in which the property is situated.
- Thirdly, they have proposed that officers with the rank of Inspector of the NIA should be able to investigate terrorist activities and terrorist organisations. Currently, investigations of such offences can only be carried out by officers with the rank of Deputy Superintendent of Police or Assistant Commissioner of Police or above.
Why is this controversial?
The UAPA is already an extremely controversial legislation, with critics such as constitutional scholar Gautam Bhatia pointing out how the offences under the Act are vague and over-broad – making it easy to misuse.
67 percent of UAPA cases result in the acquittal or the discharge of the accused, as per data made available by the National Crime Records Bureau. In comparison, 18 percent of cases under other special and local laws (the category under which the NCRB classifies the UAPA) end in acquittal or discharge.
The UAPA is also considered a draconian law because it extends the amount of time people can be sent to custody without being charged, does not allow anticipatory bail, and prevents courts from releasing the accused on bail if the case against them is prima facie true.
The punishment of persons accused of being members of a terrorist organisation has also been a critical flashpoint, since it has allowed people to be accused on extremely flimsy grounds – for example, activists were arrested last year on the pretext of them being members of the banned CPI (Maoist) organisation.
The Supreme Court has tried to prevent this kind of abuse by saying that the membership of a banned organisation must also be accompanied by violence or incitement of violence, but the order’s implementation has been inconsistent.
The existing regime is therefore ripe for abuse, allowing virtually indefinite detention without trial, without much in the way of evidence. The amendment suggested by the Centre to allow individuals to be designated as terrorists will only make matters worse, no commensurate safeguards for this arbitrary power have been introduced.
The designation process is entirely up to the discretion of the central executive, with no opportunity to be heard before it happens, and once designated, the burden of proof is shifted to the individual/organisation, who has to approach a Review Committee.
Congress MP Shashi Tharoor opposed the introduction of the Bill and highlighted this specific issue, noting that this would be far more difficult for individuals, who wouldn’t have the operational structure an organisation would, to approach the Review Committee. The Bill should ideally have mentioned a separate procedure for individuals.
Tharoor also pointed out two other key flaws in the Bill:
- There is no need to designate individuals as terrorists in this manner as global terrorists recognised by the United Nations can already be targeted under Section 51A of the UAPA – the government’s Statement of Objects and Reasons says it needs this amendment to comply with international law.
- No public consultation was conducted before drafting this Bill as is required under the Pre-Legislative Consultation Policy 2014.
DNA Profiling
Proposed legislation
Status
Introduced in Lok Sabha on 8 July 2019.
What does the government want to do?
The Bill seeks to regulate the use of DNA technology to establish the identity of victims, offenders, suspects, undertrials, missing persons and unknown deceased persons.
There will be a DNA Regulatory Board, which will certify which laboratories are authorised to carry out DNA testing, and establish DNA databanks. The Bill also proposes the establishment of national and regional DNA databanks which will maintain indices for crime scenes, suspects, undertrials, offenders and missing persons.
Why is this controversial?
This is the fourth iteration of the Bill – the third version which was introduced a year ago, followed recommendations from the Law Commission and amended previous proposals which had received severe criticism.
However, serious privacy concerns surround the legislation, as does the risk of profiling without sufficient safeguards.
First, the continuing absence of a data protection law in the country makes misusing the information collected pursuant to this Bill a relatively easy proposition.
The maintenance of an index for suspects is specifically concerning because this could lead to violations of the right to life and liberty, without having actually been found to be guilty of any crime. No safeguards are in place to ensure that a person will be taken off this index if found innocent.
It is also worrying that the framework allows for “voluntarily” submission of one’s DNA to databanks, which raises the spectre of Aadhaar being misused by banks and mobile phone companies.
Speaking of which...
Aadhaar Amendments
Proposed legislation
Status
Passed by Lok Sabha on 4 July 2019. Passed by Rajya Sabha on 8 July 2019. Awaiting Presidential Assent.
What does the government want to do?
The Bill makes a number of amendments to the Aadhaar Act 2016 and other relevant laws, ostensibly to ensure compliance with the Supreme Court’s order and to prevent the misuse of Aadhaar. The amendments are already in force through an ordinance brought by the government in February this year.
The amendments include increasing civil penalties for contravention of the Aadhaar Act to Rs 1 crore; prohibiting denial of services to children and others unable to authenticate because of age, infirmity or illness; requiring Aadhaar enrolment for children only with informed consent of parent/guardian; and allowing children enrolled for Aadhaar to opt out when they reach 18 years of age.
The headline amendments in the Bill, however, are those that allow usage of Aadhaar for authentication and offline verification on a voluntary basis for private services. Amendments to the Telegraph Act and Prevention of Money Laundering Act have been made to allow this for mobile SIMs and bank accounts respectively.
The Bill also revives Section 33 of the Aadhaar Act 2016 to allow disclosure of Aadhaar information to authorities in certain circumstances. Section 33 had been struck down by the Supreme Court in its September 2018 judgment, though it said it could be reintroduced with certain safeguards.
A last-minute amendment to the Bill also allows Aadhaar to be made mandatory for State-provided benefits (this was previously possible only for Central benefits).
Why is this controversial?
The return of mobile-bank Aadhaar linking means the return of the concerns that Aadhaar could be used to create 360-degree profiles of individuals, allowing it to be used for surveillance as argued by those who had challenged the Aadhaar scheme in the Supreme Court.
While any such linking is supposed to be voluntary, the ground reality is quite different – for example, to open a bank account or get a mobile SIM, you will either have to provide your Aadhaar details or your passport details (no other ID is acceptable). As only 5.15 percent of Indians have passports (according to MEA data), Aadhaar is the only acceptable form of ID for the vast majority of people, contrary to the Supreme Court’s order.
This also means that people can be cut off from these services lest they provide their Aadhaar to private service providers, which can have serious consequences, especially when it comes to bank accounts.
The continuing absence of a data protection law means all privacy concerns raised in relation to Aadhaar remain relevant. Violations of the fundamental right to privacy were the basis for the apex court’s striking down the possibility of using Aadhaar for authentication, even on a voluntary basis, for private services.
The revised Section 33 also has serious implications for fundamental rights as it allows a person’s Aadhaar information to be disclosed without giving the individual in question a right to be heard (in terms of Section 33(1)) and without judicial oversight (in terms of Section 33(2)) – the Supreme Court had said Section 33 would be unconstitutional without these safeguards.
Essentially, the risk of these provisions is that police and other officers can access your biometrics and other information without your knowledge, and without proper oversight – something which the Aadhaar Act is supposed to prohibit.
The One They Should be Considering, But Are Not: Data Protection
Proposed legislation
N/A
Status
What does the government want to do?
When the Srikrishna Committee on Data Protection finally submitted its report on 27 July 2018, it was with the hope that India would finally get the law it desperately needs to properly protect the personal data of its citizens from being misused.
The report included a draft Data Protection Bill, which the cabinet was supposed to use as a base for drafting a new law. Law & IT Minister Ravi Shankar Prasad has said the government would be bringing the law soon on multiple occasions.
The Economic Survey for 2018-19, published just before the Budget, includes an entire chapter on data as a public good, the usage of which is predicated on a privacy law which it claims has already been tabled in the Parliament.
No such law has been introduced yet.
Why is this controversial?
The absence of a data protection law puts the privacy of Indians at serious risk. The overload of junk messages and emails in every person’s inbox is the least of the problems this creates, though it is the perfect example of how data provided by us for one purpose is used for others – primarily, sold off as a resource to anyone willing to pay for it.
Without proper restrictions on the use of collected data, it can not only be sold to pesky marketers, but also to foreign countries, hackers and scamsters, and even the government, without your consent or knowledge. Their usage of this data is a violation of your fundamental rights, including the right to privacy and the right to life and personal liberty under Article 21 of the Constitution of India.
As mentioned earlier, the failure to bring in this law compromises other legislations as well, and makes provisions in those laws unconstitutional.
It should be noted that even if the Srikrishna Committee’s draft Data Protection law was introduced in the Parliament, it would not be a panacea for all our ills. The draft Bill failed to provide protection against surveillance, and also suffers a number of flaws including a failure to notify people whose personal data has been breached, sweeping exemptions from consent requirements if the government wants your personal data, and a clunky data localisation requirement.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)