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The withdrawal of the Personal Data Protection Bill from Parliament came as a surprise, particularly after so much effort was put into it over the last five years.
Between August 2017 and July 2018, a 10-member committee chaired by a former Supreme Court judge drafted the Bill. The committee included four senior government officials.
The Bill was then revised by the government, approved by the Cabinet, and tabled in Parliament in December 2019.
Subsequently, a joint parliamentary committee, or JPC, comprising a majority of BJP members, reviewed the bill and submitted its report in December 2021.
The withdrawal does not reflect well on the government, the entire process having been played out under its regime. This also increases uncertainty about the future of privacy regulation in India.
One way to understand this decision is to go back to the genesis of this law, which arose out of the JusticeK.S. Puttaswamy v. Union of India case where the court held that the right to privacy had both a positive and negative aspect.
The former implies the need for the state to actively take measures to protect an individual’s privacy. Thus, the government was more or less forced to initiate the drafting of a data protection law.
This experience also tells us something about the limits of judicial inducement for regulation, for which active effort of the other two branches of the state is needed. The options of delay and dilution are always available.
The growing importance of the digital economy and the broad scope of the proposed law also contributed to contestations between stakeholders as the law was being deliberated.
Shaped by different interests and incentives, the state, industry, and advocacy groups all have very different expectations of what a data protection law should look like.
For instance, for domestic industry such a law represents a compliance hurdle which could put it at a disadvantage. However, a law can also promote regulatory certainty, thereby opening up the possibility of increased data flows and the growth of data processing business.
For the state, a law could limit intrusive data processing by state agencies, but it could also promote geopolitical, strategic or regulatory interests.
Similarly, individuals could benefit by the restrictions on harmful data processing, but on the other hand, a poorly drafted law could legitimise certain intrusive practices.
Making bail impossible (Page no. 7)
(GS Paper 3, Internal Security)
While upholding the right to privacy in 2017, the Supreme Court overruled the decision in ADM Jabalpur v. Shivkant Shukla (1976). However, the recent decision in Vijay Madanlal Choudhary v. Union of India, upholding the constitutionality of the Prevention of Money Laundering Act (PMLA), is proof that the ghost of ADM Jabalpur has been resurrected.
The old maxim of bail being the norm and jail the exception has been judicially cremated with this decision. Bail is now not even an exception; it is impossible.
First, consider the draconian preconditions for the grant of bail in Section 45 of the PMLA. To be eligible for bail, the arrested person must persuade the court that there are reasonable grounds for believing that he is not guilty of the money laundering offences brought by the Enforcement Directorate (ED).
The onus is on the accused to prove that an event did not transpire. If he cannot do this, he will continue to languish in jail.
To justify this high bar, the court overturned its decision in Nikesh Tarachand Shah v. Union of India (2017) that had directed treating the offence of ‘money laundering’ as less heinous and therefore differently a crime from ‘terrorism’ under the Terrorist and Disruptive Activities (Prevention) Act (TADA).
The court stated that the offence of money laundering was as heinous as a terrorist act and as great a danger to the sovereignty and integrity of our country.
In doing so, it ignored the fact that under the PMLA, money laundering also covers monies associated with offences relating to infringement of copyrights and trademarks, arts and antiquities, securities, information technology, companies, and air and water pollution.
The court also declared that the ED does not need to share the Enforcement Case Information Report (ECIR) with the accused. This is bizarre because the same notion of secrecy is not applicable to equivalent documents (FIRs) for agencies like the police and the Central Bureau of Investigation.
The ECIR contains the rationale for the ED to register the offence. However, the court chose not to equate the ECIR with an FIR.
According to the court, the fundamental fights of the accused are satisfied if he is informed of the grounds of arrest at the time of arrest. However, there is no definition of what qualifies as grounds for arrest and how detailed such grounds need to be.
Typically, criminal arrest memos will only inform the accused of the Section(s) under which the alleged offence is committed. Now, with the ED informing the accused that the arrest is on account of an offence under one or more Sections of the PMLA, the court seems to have judged that the fundamental rights of the accused have been upheld.
Put together, this means that once a person has been arrested under the PMLA, in order to get bail, he will have to show that he has not committed the offence that he stands accused of and he will also be unaware of the specifics of the offence he is alleged to have committed.
He is oblivious of the transactions being investigated or the assets being labelled proceeds of crime. This renders bail impossible.
Text & Context
Delhi Police’s use of facial recognition technology (Page no. 8)
(GS Paper 3, Science and Technology)
Right to Information (RTI) responses received by the Internet Freedom Foundation, a New-Delhi based digital rights organisation, reveal that the Delhi Police treats matches of above 80% similarity generated by its facial recognition technology (FRT) system as positive results.
The Delhi Police first obtained FRT for the purpose of tracing and identifying missing children. According to RTI responses received from the Delhi Police, the procurement was authorised as per a 2018 direction of the Delhi High Court in Sadhan Haldar vs NCT of Delhi.
However, in 2018 itself, the Delhi Police submitted in the Delhi High Court that the accuracy of the technology procured by them was only 2% and “not good”.
Things took a turn after multiple reports came out that the Delhi Police was using FRT to surveil the anti-CAA protests in 2019.
In 2020, the Delhi Police stated in an RTI response that, though they obtained FRT as per the Sadhan Haldar direction which related specifically to finding missing children, they were using FRT for police investigations.
The widening of the purpose for FRT use clearly demonstrates an instance of ‘function creep’ wherein a technology or system gradually widens its scope from its original purpose to encompass and fulfil wider functions.
As per available information, the Delhi Police has consequently used FRT for investigation purposes and also specifically during the 2020 northeast Delhi riots, the 2021 Red Fort violence, and the 2022 Jahangirpuri riots.
Facial recognition is an algorithm-based technology which creates a digital map of the face by identifying and mapping an individual’s facial features, which it then matches against the database to which it has access.
It can be used for two purposes: firstly, 1:1 verification of identity wherein the facial map is obtained for the purpose of matching it against the person’s photograph on a database to authenticate their identity.
For example, 1:1 verification is used to unlock phones. However, increasingly it is being used to provide access to any benefits or government schemes. Secondly, there is the 1:n identification of identity wherein the facial map is obtained from a photograph or video and then matched against the entire database to identify the person in the photograph or video. Law enforcement agencies such as the Delhi Police usually procure FRT for 1:n identification.
For 1:n identification, FRT generates a probability or a match score between the suspect who is to be identified and the available database of identified criminals.
A list of possible matches are generated on the basis of their likelihood to be the correct match with corresponding match scores. However, ultimately it is a human analyst who selects the final probable match from the list of matches generated by FRT.
According to Internet Freedom Foundation’s Project Panoptic, which tracks the spread of FRT in India, there are at least 124 government authorised FRT projects in the country.
The OpenSea tale on the future of NFTs (Page no. 9)
(GS Paper 3, Science and Technology)
The writing is on the wall for the crypto market. Popular cryptocurrencies have nosedived after a meteoric rise last year.
Several crypto exchanges laid off a significant portion of their employees and lending platforms are struggling to remain solvent. Being part of this ecosystem, non-fungible tokens, or NFTs also took a hit as a result of the crypto fallout.
NFTs are digital assets whose ownership is verified through transaction records stored on blockchains. Art work, digital avatars and accessorised monkeys are some of the most commonly traded NFTs.
OpenSea is said to be one of the largest NFT marketplaces in existence. Earlier this year, the platform was valued at over $13 billion after raising around $300 million in venture capital.
By August 2022, based on Ethereum blockchain data, OpenSea was used by two million traders who transacted at least once on the network.
OpenSea was built on the Ethereum blockchain to trade NFTs. The digital goods sales on the platform jumped in August 2021, according to analytics platform Dune Analytics.
In November, Bitcoin and Ether hit their all-time high as the market reached a state of ecstasy. OpenSea monthly volumes soared between December 2021 and January 2022.
In January OpenSea’s monthly volumes for Ethereum shot over $4.8 billion. In February and March, monthly transactions plunged before rising again in April.
That recovery was brief as the collapse of TerraUSD [UST] stablecoin and its partner coin LUNA wiped billions of dollars in shareholder wealth off the market in May 2022.
As a result, both Bitcoin and Ether fell and more than halved in value during the first six months of 2022. Daily transactions on OpenSea have been gradually declining since then.
OpenSea’s June trade volume dropped to about $695 million. It further dropped about 30% in July to $528 million.
Adding to the heavy loss in volume, the number of NFTs sold (Ethereum blockchain) have also been declining since January 2022, which saw the sale of more than two million NFTs.
July 2022 saw around 1,702,302 NFTs sold at the time of writing. However, this followed increases in May and June 2022.
But NFT trades on OpenSea for the Polygon blockchain show even fewer transactions. Monthly volumes fell to about $6.4 million from nearly $80 million between January and July 2022.
While proponents of NFTs laud these assets as a way to revolutionise the art scene or explore new models of proving ownership, OpenSea users complain of excessive downtime on the platform.
There have also been reports of breaches and security vulnerabilities. In one such instance, an employee of the platform’s email delivery vendor had caused the security breach.
News
‘Forcible’ Aadhaar-voter ID linking (Page no. 11)
(GS Paper 2, Polity and Governance)
Despite clarifications from various government authorities that the linking of Aadhaar with the voter identity card is “voluntary”, there have been instances of people being warned by booth-level officers that their voter ID would be cancelled if it is not linked to their Aadhaar number.
In one such case, the Internet Freedom Foundation (IFF), which advocates digital rights and privacy, in a tweet, alleged that a booth-level officer called one of its staff members seeking the Aadhaar number "or else they'll be deleted from the electoral roll".
The contentious Election Laws (Amendment) Bill, 2021, which allows for the linking of electoral data with the Aadhaar number, was passed by Parliament in December 2021, amid strong protests by the Opposition.
At the time, Union Law Minister Kiren Rijiju had informed Parliament that linking the voter ID with a person’s Aadhaar details would be voluntary.
Responding to the tweet thread by the IFF, the Chief Electoral Officer of Haryana reiterated the same. "Submission of Aadhaar number in Form 6B is voluntary.
No entry in electoral roll shall be deleted on the ground of non-submission of Aadhaar number. Purpose of obtaining Aadhaar number is for authentication of electors’ entries in electoral roll & extending better electoral services," the CEO said in a tweet.
Replying to a similar tweet on the issue by a different account, the Chief Electoral Officer of Delhi said that the matter had been “noted to seek more details”.
However, the IFF also pointed out that the Ministry of Law and Justice recently amended Form 6, and introduced Form 6B to the Registration of Electors Rules, 1960. These forms make it compulsory for those who have Aadhaar to provide their Aadhaar Numbers in order to vote.
The Election Commission of India started a campaign on August 1 for the “voluntary” linking of Aadhaar details with the voter ID.
As part of the campaign, the Commission has set up camps and also begun door-to-door collection of data. It has collected over 2.5 crore Aadhaar details till August 11.
Mr Rijiju told Parliament in August that the reasons behind linking voter IDs with Aadhaar numbers were to streamline electoral rolls and the process of registration of migrated voters without duplication in the rolls and to curb the menace of multiple enrolment of the same person in different places.
The move, however, has drawn flak from various sections of society citing violations to an individual's right to privacy. Many have also flagged concerns that the linkage would help in creating voter profiles which may be used to influence the voting process.
Crammed together in dingy camp, life swings from hope to despair for Rohingya (Page no. 12)
(GS Paper 3, Internal Security)
For Mariyam, a mother deserted by her husband, it was not easy to build a ladder. The ladder, which she made herself hammering together pieces of waste furniture, is a lifeline whenever it rains and her tent gets flooded.
In the tiny room made of bamboo sticks, plastic sheets and old bedsheets, she has managed to add another makeshift floor. The steep ladder is her bridge away from the outside world. On a worn-out mat, she plays with her pet cat.
“I may not get food every day, but I ensure my cat has. Allah is there to feed everyone,” chuckles Mariyam, a ragpicker. Among her possessions are a few utensils, a water container and clothes, some of them belonging to her daughter.
Like hundreds of other Rohingya, Mariyam has been living in the congested and poorly ventilated tents along the Yamuna at Madanpur Khadar in Delhi over the past one year.
Their previous tents, located on Uttar Pradesh government land, were destroyed in a mysterious fire on June 13, 2021.
Overnight, they were shifted by the Delhi government officials and the Delhi Police to a nearby piece of land owned by an NGO, the Zakat Foundation of India (ZFI).
The 50-odd tents that house close to 350 people are at the centre of a political storm between the Bharatiya Janata Party-led Union government and the Aam Aadmi Party (AAP) government in Delhi.
There is no toilet in the entire camp. “We urinate on old clothes and then either wash or throw them away,” says Miza, a 20-year-old who studied in a private school nearby and can read and write English.
A mobile toilet is stationed a few hundred metres away, but Miza says that it is not possible for women, children and the elderly to go there frequently.
Pointing to a square shape in her tent, Mariyam says it is the spot where she bathes. Next to it is the kitchen where she stores the essentials.
Outside the tent lay a common mud stove where the inmates take turns cooking.Fatima, 35, sat by the stove coating the tava (iron plate) with a layer of mud. “In Burma [Myanmar], we have special rotis made of rice.
Since the rice powder is slurry, I am applying this coat so that it doesn’t stick and the rotis come out hot and crisp,” Fatima explains.
She says their food habit has changed after coming to India, but there are some culinary delicacies that they have managed to preserve.
Freebies come at a price: economist (Page no. 12)
(GS Paper 2, Polity and Governance)
Freebies are never ‘free’ and when political parties offer such schemes, they must be required to make the financing and trade-offs clear to voters, RBI Monetary Policy Committee (MPC) Member Ashima Goyal, adding this would reduce the temptation towards “competitive populism”.
Dr. Goyal further said a cost is imposed somewhere when governments provide freebies, but this is worth incurring for public goods and services that build capacity.
Noting that this hurts production and resource allocation and imposes large indirect costs, such as the water table falling in Punjab due to free electricity, Dr. Goyal said such freebies come at the cost of low quality health, education, air and water that hurt poor the most.
“When parties offer schemes they must be required to make the financing and such trade-offs clear to voters. This would reduce the temptation towards competitive populism,” the eminent economist argued.
Prime Minister Narendra Modi has in recent days hit out at the competitive populism of extending ‘rewaris’ (freebies) which are not just wastage of taxpayers’ money but also an economic disaster that could hamper India’s drive to become atmanirbhar (self-reliant).
His comments were seen directed at parties like the Aam Aadmi Party (AAP) which have in the run-up to assembly elections in states like Punjab and more recently Gujarat promised free electricity and water, among others.
Earlier this month, the Supreme Court suggested setting up a specialised body to examine “irrational freebies” offered to voters during elections.
On India’s macroeconomic situation, Dr. Goyal, currently emeritus professor at the Indira Gandhi Institute of Development Research, said, “Indian growth is sustaining despite continuing global shocks and rate rises.”
While observing that India has done better than most expectations and in comparison to many countries under challenging conditions, she said among reasons for this are growing economic diversity that helps to absorb shocks.
“Large domestic demand can moderate a global slowdown; if industry suffers from lockdown, agriculture does well,” she said, adding that services compensate for less contact-based delivery with digitisation, distance work and exports.
According to Dr. Goyal, even if global growth slows, diversification from China, India’s digital advantage and government efforts to promote exports would support India’s outbound shipments.