Short Q & A: Privacy

Hello my law professionals and law knowledge seekers. This is short Q & A collection on Privacy law. Privacy is deeply related to data protection.

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Q. Does data protection affects all types of privacy?

Ans. Basically data protection is linked with informational privacy but also indirectly has impact on decisional privacy and physical privacy.

Q. How information privacy is a freedom to an individual?

Ans. Informational privacy is often understood as the freedom of individuals ―to determine for themselves when, how, and to what extent information about them is communicated to others and this freedom allows for individuals to protect themselves from harm.

Q. What is a key difference between defamation law and privacy law?

Ans. Laws on defamation generally prohibit disclosure of personal information only if it is false. Privacy, on the other hand, would even protect against disclosure of truthful personal information.

Q. What is a subjective harm to an individual?

Ans. A subjective harm is one where an individual has not actually suffered any tangible loss but anticipates such loss after personal information is collected. The uncertainty, anxiety and fear of potential observation are the identified harms in this situation.

Q. What is an objective harm to an individual?

Ans. Objective harms are separately identified when the use of one’s personal information actually results in some damage, whether through loss of reputation or through some other change in the treatment of the individual by society. Data protection must account for both these kinds of harms which arise as a result of unregulated collection and use of personal information.

Q. Which committee initialised the data protection need in United States?

Ans. Advisory Committee in the Department of Health, Education and Welfare (HEW Committee) of United States examined the various legal and technological issues raised vis-a-vis increasingly automated processing of data during 1970s.

Q. Name the landmark report of HEW committee of United States?

Ans. Records, Computers and the Rights of Citizens: Report of the Secretary’s Advisory Committee on Automated Personal Data Systems

Q. What are FIPPS?

Ans. The HEW committee’s report suggested Code of Fair Information Practices based on Fair Information Practices Principles (FIPPS). The FIPPS are a set of principles which prescribe how data should be handled, stored and managed to maintain fairness, privacy and security in a rapidly growing global technology environment. FIPPS are now deemed to be the bedrock of modern data protection laws across the world.

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Article 13 of COI

Article 13 as it is in Constitution:

13. Laws inconsistent with or in derogation of the fundamental rights.—

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

1[(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.]

Note: 1. Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 2 (w.e.f. 5-11-1971).

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Short Q and A:

Q 1. What is Article 13 is about?

Ans. Article 13 is about the inconsistency of the laws with fundamental rights described in Part III of the Constitution.

Q 2.  Which laws are made void under Clause (1) of Article 13 of COI?

Ans. All laws in force within the territory of Bharat immediately before the commencement of the constitution which are inconsistent with the fundamental rights described under Part III of the constitution are made void upto the extent of such inconsistency under Clause (1) of Article 13 of COI.

Q 3. Is there any provision for making laws by State in future? What is it?

Ans. Yes there is a provision under Clause (2) of Article 13 for making laws by State in future. State shall make laws which are not in contravention to the provisions given under Part III of COI.

Q 4. What if any law made by State is in contravention of provisions of Part III of COI?

Ans. If any law made by State is in contravention of provisions of Part III of COI then it must deemed void to the extent of the contravention.

Q 5. What is meaning of Law under Article 13?

Ans. Under Article 13 "Law" means any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India. (Sub-Clause (a) of Clause (3))

Q 6. What is meaning of "Law in force" under Article 13?

Ans. As per Article 13: “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (Sub-Clause (b) of Clause (3)).

Q 7. When Article 13 was amended?

Ans. Article 13 was amended in 1971 by Constitution (Twenty Fourth Amendment) Act, 1971.

Q 8. What provision inserted by 24th amendment of constitution in Article in 13?

Ans 24th Amendment of Constitution inserted Clause (4) in Article 13 which state that no provisions shall be applied to any amendment of Constitution under Article 368. This provision empowered the Parliament to amend the fundamental rights of the people of Bharat.

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Related Case Laws:

The State of Madras vs. Srimathi Champakam:

Facts of the case: An order (known as the Communal G. O.) issued by the Province of Madras regarding to admission of students to the Engineering and Medical Colleges of the State which states that seats should be filled in by the selection committee strictly on the following basis, i.e., out of every 14 seats, 6 were to be allotted to Non-Brahmin (Hindus), 2 to Backward Hindus, 2 to Brahmins, 2 to Harijans. 1 to Anglo-Indians and Indian Christians and 1 to Muslims.

The court held that the Communal G.O. constituted a violation of the fundamental right guaranteed to citizens of India by Art. 29 (2) of the Constitution, namely, that "no citizen shall be denied admission to any educational institution maintained by the State or receiving aid out of the State funds on grounds only of religion, race, caste, language or any of them” and was therefore void under Art. 13.

Short notes: First Amendment of the Constitution of India

Act: The Constitution (First Amendment) Act, 1951,

Year enacted in: 1951,

Moved by: Jawaharlal Nehru, the then Prime Minister of India.

Presented in Parliament: on 10 May 1951

Enacted by Parliament: on 18 June 1951

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Changes:

(i) several changes to the Fundamental Rights provisions of the Indian constitution.

(ii) provided against abuse of freedom of speech and expression,

(iii) validation of zamindari abolition laws, and

(iv) clarified that the right to equality does not bar the enactment of laws which provide "special consideration" for weaker sections of society.

(v) set the precedent of amending the Constitution to overcome judicial judgements impeding fulfilment of the government's perceived responsibilities to particular policies and programmes.

Freedom of speech: in 1^st amendment a provision was made limiting Article 19(1)(a) of Constitution of India against "abuse of freedom of speech and expression". This was based on the landmark judgment in "Romesh Thappar vs The State Of Madras" on 26 May 1950.

The Parliament of India noted that in other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.

Freedom of trade: The right of citizens of India to practice any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose "in the interests of general public".

Upholding land reforms: Though the provisions of clauses (4) and (6) of article 31 were enacted but the validity of agrarian reform measures passed by the State Legislatures had formed the subject-matter of dilatory litigation. The result of which the implementation of these important measures, affecting large numbers of people, had been held up.

A new article 31A was introduced with retrospective effect to uphold such measures for implementation of provisions of clauses (4) and (6) of article 31.

Another new article 31B was introduced to validate 13 enactments relating to zamindari abolition.

Equality

It is laid down in Article 46 as a Directive Principle of State Policy that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice.

In order that any special provision that the State may make for the educational, economic or social advancement of any backward class of citizens may not be challenged on the ground of being discriminatory, article 15(3) was suitably amplified.

Jawaharlal Nehru encouraged the Parliament of India to pass the amendment in response to State of Madras v. Champakam Dorairajan, which went before the Madras High Court and then the Supreme Court of India. In that case, a Brahmin woman in Madras challenged the state's Communal General Order, which established caste quotas in government-supported medical and engineering schools, on the grounds that it denied her equality under the law; both courts had upheld her petition.

Certain amendments in respect of articles dealing with the convening and proroguing of the sessions of Parliament were also incorporated in the Act. So also a few minor amendments in respect of articles 341, 342, 372, and 376.

LIST OF ABBREVIATIONS USED IN COI

Art., arts. for Article, articles.

Cl., cls. ″ Clause, clauses.

C.O. ″ Constitution Order.

Ins. ″ Inserted.

P., pp. ″ Page, pages.

Pt. ″ Part.

Rep. ″ Repealed.

S., ss. ″ Section, sections.

Sch. ″ Schedule.

Subs. ″ Substituted.

w.e.f. ″ with effect from.

Short Q and A: IT Act

Here are some short Q and A on IT Act and SPDI rules.

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Q. Which Act governs the rules for and laws for data protection in India?

Ans. The general data protection rules under the Information Technology Act, 2000 (IT Act) as well as various sector specific laws on data protection.

Q. Why right to privacy is not an absolute right?

Ans. The right to privacy is fundamental right of a citizen of India but it is subjected to some restrictions and has expressly recognised protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits as certain legitimate aims of the State – as held in case of Puttaswami by Supreme Court.

Q. What is mean by SPDI Rules?

Ans. SPDI rules means The Information Technology (Reasonable Security Practices and Sensitive Personal Data or Information) Rules, 2011.

Q. Under which section of which Act SPDI rules were issued?

Ans. Under Section 43A of Information Technology Act, 2000 (for short IT Act) SPDI rules were issued.

Q. What is Section 43A of IT Act?

Ans. Section 43A, relates to Compensation for Failure to Protect Data and enables the enactment of reasonable security practices and procedures for the protection of sensitive personal data.

Q. Which OECD guidelines were incorporated in SPDI rules?

Ans. The OECD guidelines incorporated in SPDI rules are collection limitation, purpose specification, use limitation and individual participation.

Q. To whom the SPDI rules are applicable?

Ans. The SPDI Rules apply only to corporate entities and leaves the government and government bodies outside its ambit.

Q. Which tribunal was to hear appeals under IT Act?

Ans. Cyber Appellate Tribunal (CyAT). But it has given it’s last order in 2011. There is absence of effective machinery for enforcement of law related to digital sector.

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Theory of Basic Structure of Constitution

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Landmark Judgments: 

Shankari Prasad Case:

The question whether fundamental rights can be amended under Article 368 came for consideration in the Supreme Court in Shankari Prasad case. In this case validity of constitution (1st amendment) act, 1951 which inserted inter alia, articles 31-A and 31-B of the constitution was challenged. The amendment was challenged on the ground that it abridges the rights conferred by Part III and hence was void. The Supreme Court however rejected the above argument and held that power to amend including the fundamental rights is contained in Article 368 and the same view was taken by court in Sajjan Singh case.

Golak Nath Case:

In Golak Nath case, the validity of 17th Amendment which inserted certain acts in Ninth Schedule was again challenged. The Supreme Court ruled the parliament had no power to amend Part III of the constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh case. In order to remove difficulties created by the decision of SC in Golak Nath case parliament enacted the 24th Amendment act.

Kesavanand Bharati Case:

The Supreme Court recognized BASIC STRUCTURE concept for the first time in the historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by parliament. In this case validity of the 25th Amendment act was challenged along with the Twenty-fourth and Twenty-ninth Amendments. The court by majority overruled the Golak Nath case which denied parliament the power to amend fundamental rights of the citizens. The majority held that Article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the constitution. This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history.

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Short Q & A: Data protection law

Hello law professionals and law knowledge seekers. This blog is comprising of short Q and A on Data protection law history and introduction.

Q. Why data protection law is necessary in any country?

Ans. Data protection law is necessary in any country to ensure growth of the digital economy while keeping personal data of citizens secure and protected.

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Q. What do you mean by data protection?

Ans. Data protection is synonym to protection of information privacy.

Q. What are the objectives of the data protection law?

Ans. The objectives of the data protection law are: 1) to provide protection of information privacy; 2) to provide a foundation for datadriven innovation and entrepreneurship for empowerment, experiment and equal access committed by the digital future.

Q. Where can be data analytics used by organisations and government?

Ans. The data analytics can be used by organisations and government to gain remarkable insights into areas such as health, food security, intelligent transport systems, energy efficiency and urban planning.

Q. What does digital India initiative involves?

Ans. Digital India initiative involves the incorporation of digitisation in governance; healthcare and educational services; cashless economy and digital transactions; transparency in bureaucracy; fair and quick distribution of welfare schemes etc to empower citizens.

Q. Why Indian government uses personal data?

Ans. In India, the state uses personal data for purposes such as the targeted delivery of social welfare benefits, effective planning and implementation of government schemes, counter-terrorism operations, etc. Such collection and use of data is usually backed by law, though in the context of counter-terrorism and intelligence gathering, it appears not to be the case.

Q. How right to privacy is a fundamental right of a citizen of India?

Ans. Right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution and as a part of the freedoms guaranteed by Part III of the Constitution. Well explained in Puttaswamy case.

Q. Why data protection is necessary for an individual or for a community?

Ans. The usage of personal information not only reaps many benefits but is also capable of causing considerable harm. The need to prevent such harms, and hinges on the question of who should be permitted to use personal information and how; the data protection is necessary for an individual. The protection of privacy permits individuals to plan and carry out their lives without unnecessary intrusion.

Q. What are the types of privacy?

Ans. Three broad types of privacy have been identified: 1) the privacy pertaining to physical spaces, bodies and things (spatial privacy); 2) the privacy of certain significant self-defining choices (decisional privacy); 3) and the privacy of personal information (informational privacy).

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