SPDI rules

The Puttaswamy judgment is a landmark legal development in the discourse on privacy, especially informational privacy; prior legislative attempts have been made to secure informational privacy in various sectors in India. These includes the general data protection rules under the Information Technology Act, 2000 (IT Act) as well as various sector specific laws on data protection.


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The SPDI Rules have been issued under Section 43A of the IT Act. 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. The SPDI Rules incorporate, the OECD Guidelines such as collection limitation, purpose specification, use limitation and individual participation.

The Information Technology (Reasonable Security Practices and Sensitive Personal Data or Information) Rules, 2011 (SPDI Rules):

Key features of SPDI rules are:

1) It mandates certain requirements for the collection of information,

2) It is insisted that data collection be done only for a lawful purpose connected with the function of the organisation.

3) every organisation is required to have a detailed privacy policy.

4) instructions for the period of time information can be retained,

5) it gives individuals the right to correct their information.

6) Disclosure is not permitted without consent of the provider of the individual, or unless such disclosure is contractually permitted or necessary for legal compliance.

7) the consent of the provider is not required for sharing the personal information collected by any organisation with Government  

8) personal information can be shared for purposes such as verification of identity, prevention, detection and investigation including of cyber incidents, prosecution, and punishment of offences.

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

10) the rules are restricted to sensitive personal data which includes attributes like sexual orientation, medical records and history, biometric information etc. and not to the larger category of personal data.

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Right to privacy and Constitution of India

Right to privacy is need of today's digital era. Here are some judgments discussed in the view of Constitution of India and right to privacy. Though these are overruled by Supreme Court in case of Puttaswami they are still necessary to be known by a law aspirant. 

M.P. Sharma v. Satish Chandra (M.P. Sharma)  

The Supreme Court in M.P. Sharma examined whether the constitutionality of search and seizure of documents pursuant to a FIR would violate the right to privacy. A majority decision by an eight-judge Constitution bench observed that the right to privacy was not a fundamental right under the Constitution.

Kharak Singh v. State of Uttar Pradesh (Kharak Singh):

i) In Kharak Singh, the issue at hand was whether regular surveillance by police authorities amounted to an infringement of constitutionally guaranteed fundamental rights. A Constitution bench of six judges analysed this issue in the backdrop of the validity of the regulations governing the Uttar Pradesh police which legalised secret picketing, domiciliary visits at night and regular surveillance. The Supreme Court struck down night-time domiciliary visits by the police as violative of ordered liberty. 

ii) Further, the Supreme Court held that Article 21 of the Constitution of India is the repository of residuary personal rights and it recognised the common law right to privacy. However, the Court observed that privacy is not a guaranteed fundamental right. It must be noted though, dissenting judge, Justice Subba Rao, opined that even though the right to privacy was not expressly recognised as a fundamental right, it was an essential ingredient of personal liberty under Article 21 and thus fundamental. 

iii) The approach of the Supreme Court of putting the freedoms given under Part III of the Constitution of India under distinct compartments was also rejected. Instead, it was held that these rights are overlapping and the restriction of one freedom affects the other, as was also held previously in the Maneka and Cooper judgments. Therefore, a law restricting a freedom under Article 21 of the Constitution of India would also have to meet the reasonableness requirements under Article 19 and Article 14 of the Constitution of India.

A. K. Gopalan v. State of Madras 

i) The approach of the Supreme Court of putting the freedoms given under Part III of the Constitution of India under distinct compartments was also rejected. Instead, it was held in Puttaswami case that these rights are overlapping and the restriction of one freedom affects the other, as was also held previously in the Maneka and Cooper judgments. Therefore, a law restricting a freedom under Article 21 of the Constitution of India would also have to meet the reasonableness requirements under Article 19 and Article 14 of the Constitution of India.

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Data protection law in India: Puttaswami case

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Puttaswami case:

The Supreme Court of India noted following points: -

i) Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. Intrinsically, a regime for data protection is synonymous with protection of informational privacy.

ii) “Uber”, the world’s largest taxi company, owns no vehicles. “Facebook”, the world’s most popular media owner, creates no content. “Alibaba”, the most valuable retailer, has no inventory. And “Airbnb”, the world’s largest accommodation provider, owns no real estate.

iii) The right to privacy as a fundamental right. 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. 

iv) Further, it went on to recognise informational privacy as a facet of the right to privacy and directed the Union Government to put in place a robust data protection regime to ensure protection against the dangers posed to an individual‘s privacy by state and non-state actors in the information age.

v) The Supreme Court in Puttaswamy overruled its previous judgments of M.P. Sharma v. Satish Chandra (M. P. Sharma) and Kharak Singh v. State of Uttar Pradesh (Kharak Singh) which appeared to observe that there was no fundamental right to privacy enshrined in the Constitution of India. 

vi) Justice Subba Rao in Kharak Singh, opined that even though the right to privacy was not expressly recognised as a fundamental right, it was an essential ingredient of personal liberty under Article 21 and thus fundamental. Following this approach of Justice Subba Rao, the nine-judge bench of the Supreme Court in Puttaswamy recognised the right to privacy as an intrinsic part of the fundamental right to life and personal liberty under Article 21 of the Constitution of India in particular, and in all fundamental rights in Part III which protect freedoms in general, and overruled the aforementioned judgments to this extent.

vii) Notably, it was held that the Constitution of India must evolve with the circumstances of time to meet the challenges thrown up in a democratic order governed by the rule of law and that the meaning of the Constitution of India cannot be frozen on the perspectives present when it was adopted.

viii) The right to privacy was grounded in rights to freedom under both Article 21 and Article 19 of the Constitution of India encompassing freedom of the body as well as the mind. It was held that privacy facilitates freedom and is intrinsic to the exercise of liberty and examples of the freedoms enshrined under Article 25, Article 26 and Article 28(3) of the Constitution of India were given to show how the right to privacy was necessary to exercise all the aforementioned rights. 

xi) The Supreme Court acknowledged that the concept of the right to privacy, as seen from jurisprudence in India and abroad has evolved from the basic right to be let alone, to a range of negative and positive rights. Thus it now includes the right to abort a foetus; rights as to procreation, contraception, general family relationships, child rearing, education, data protection, etc. The Court recognised informational privacy as an important aspect of the right to privacy that can be claimed against state and non-state actors. The right to informational privacy allows an individual to protect information about oneself and prevent it from being disseminated. 

x) Further, the Court recognised that the right to privacy is not absolute and may be subject to reasonable restrictions. In order to limit discretion of State in such matters, the Court has laid down a test to limit the possibility of the State clamping down on the right the action must be sanctioned by law, it must be necessary to fulfil a legitimate aim of the State, the extent of the State interference must be proportionate to the need for such interference, there must be procedural safeguards to prevent the State from abusing its power. It 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.

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Judicial Review: Landmark Judgments

The concept of judicial review and its extent in government contracts is not unknown to Indian Jurisprudence. It is no longer res integra that source of judicial review lies in Articles 32, 226 and 227 of the Constitution of India with its charter flowing from Article 13.

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Mahmadhusen Abdulrahim Kalota Shaikh v. Union of India: It was stated by the judge of Supreme Court, that judicial review forms part of the basic structure of the Constitution and that the violation of judicial review is another way of saying that the separation of powers between the principal three organs of the State have been violated. Overseeing the sphere of control of the other two organs of the State, the Court has power to afford protection from executive and/or legislative encroachment. Where judicial review is put off the way, the Court shall still review the constitutional validity of such an action. It would be incorrect to assume that judicial review has emerged of late.

State of Madras v. V G Row: It was observed by the judge that the Constitution of India contains express provision for judicial review. The courts have been assigned the role of a sentinel on the qui vive. In last six decades the Supreme Court has time and again reiterated that judicial review is a part of the inviolable basic structure doctrine. It is trite that any provision of law which bars judicial review is unconstitutional for all purposes. Amendments to the Constitution are subject to judicial review and hence, it becomes an important task to undertake a study of the contours of judicial review particularly in the field of government contracts. An attempt has been made in this paper to analyze judicial review in the context of government contracts dividing the themes for better appreciation of law.

Advocates-on Record-Association v. Union of India: It was ruled that the importance of the power of judicial review vested with the higher judiciary (to examine the validity of executive and legislative actions), bestowed superiority to the judiciary over the other two pillars of governance. This position, it was pointed out, was critical to balance the power surrendered by the civil society, in favour of the political and the executive sovereignty. The question which arose for consideration was the nature of the standards of judicial review required to be applied in judging the validity of the constitutional amendments in the context of the doctrine of basic structure.

M Nagaraj v.Union of India: Speaking for a Constitution bench it was held that the Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges.

P. Sambamurthy v. State of A P: Dealing with a special provision for Andhra Pradesh constitutionally mandated, Chief Justice P N Bhagwati, for a Constitution Bench, recorded that it is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the Constitution with view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits- of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound, the death-knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the State Government to defy the law and yet get away with it.

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Functions and Purpose of Law

We have already studied about some facts of history of law or origin of law. In this article I am discussing functions and purpose of law. This is very common question asked in subjects like "Legal language and legal writing" and it gets repeated in "Jurisprudence" also.

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Ever since the down of Human civilization, mankind has had some sort of rule or that they used to Govern itself in society laws set the standard in which we should live in if we want to be part of society. Law set up rules and regulations for society so that we can freedom, gives Justice to those who were wronged, and it set up that it protects us from our own Government.

Most importantly the law also provides a mechanism to resolve disputes arising from those duties and rights and allows parties to enforce promises in a court of law. According to Corley and Reed (1986) law is a body of rules of action or conduct Prescribed by controlling authority, and having legal binding forces.

Laws are created because it helps prevent chaos from happening within the business environment and as well as society. In business law sets guide lines regarding employment regulatory, compliance, even inter office regulations.

What is Legal System?

A legal system encompasses a set of legal principles and norms to protect and promote a secure living to its subjects in a cultured society. It recognizes rights, prescribes duties of people and provides the ways and means of enforcing the same. To achieve this particular objective, the legal system considering the sociological, economic and political conditions in the society designs its own goals and evolves a set of principles/rules/laws which help the society to attain its identified goals.

A system connotes a coherent whole. It is animated by a philosophy or ideas which connect its different parts leading to a harmonious working. The corpus of the system is its variable elements. Changes in the laws may result from legislation and judicial decision. But the concepts and methods of the system are its constant elements.

Purpose and Functions of Law:

Here are purposes and functions of law:

(i) Justice and law:

The ultimate purpose of law is justice. Salmond says that law is "the body of principles recognised and applied by the State in administration of justice. Justice consists in giving to every man his own. 

The rule of justice determines the sphere of individual liberty in the pursuit of individual welfare, so as to confine that liberty so delimited for every man by the rule of justice, he is left free to seek his own interest in accordance with the rule of wisdom.

(ii) Stability (Uniformity):

Law must aim at stability of the society. To achieve stability a balance has to be struck not between persons, but between interests. The law has to maximise the fulfillment of the interests of the community and its members and to promote the smooth running on the machinery of the society. Indeed, the motion of the law represents the need of uniformity and certainty to achieve stability. The stability and security which the social order derives from uniform unchanging and certain rules of law.

(iii) Peaceful Change (flexibility or social control):

The existing rules may not provide solution to the cases of changed times and no rule can provide for every possible case. There is need for flexibility. Flexibility is necessary to enable the law to adapt itself to social change. As society alters, new social, political and economic requirements creep in and the needs of the people change from time to time. In progressive society of law has to keep pace with the changing needs of society. Law has to undergo a progressive change if it is to sub-serve the needs of the society which it seeks to govern. In relatively static societies, law can be used as a powerful instrument of social change. Law then induces a new pattern of social behaviour mote conductive to the prosperity of the society.

Role of Law in Society:

Without law our society would be chaotic, uncivilized mess and anarchy would reign supreme. The role that law has in society is that it creates a norm of conducts in the society we live in laws are made to protect its citizen from harm. It set in way that all citizens are given equal opportunity, protection from harm no matter your race, Gender, religion and social standing.

Under the law all its citizens are guarantee equal protections. In society laws are made to promote the common good for everyone. That is sets up Guideline for everyone in society to act in way that brings the Greater Good. Everyone acted without thinking about the Greater Good, society would revert to those days where survival of the fittest was the common sight.

We live in world where we have finite amount of resources should shared or used. Laws are made on how to manage these and how we resolve if issues arise over these resources. If no laws were in place these sources would be controlled by the string and the wealthy.

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Fun facts about Law of Human Society

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Hello friends. In this article I am sharing some interesting one liner facts about history of Law in Human society. These are short notes which are helpful in describing the origin of law.

1) Ancient Egyptian law: Civil code written in 12 books long back in 22nd Century BC. It was based on the concept of Maat characterized by tradition rhetorical speech, social equality and impartiality.

2) Ur-nammu: Ur-nammu was an ancient Sumerian ruler. He formulated the first law code consisting of casuistic statements (if…then…”) during his era i.e. during 2100-2050 BC. This is known as Ur-nammu code and is written on tablets in Sumerian language.

3) Hammurabi: Around 1960 BC king Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as Stelae, for the entire public to see this became known as the codex Hammurabi.

4) India: The Arthashastra, dating from the 400 BC and the Manusmriti from 100 BCE were influential treatises in India, but this Hindu tradition, along with Islamic law was supplanted by the common law when India became part of British Empire. Malaysia, Brunei, Singapore and Hongkong also adopted the common law. 

5) Japan: Japan was the first country to begin modernizing its legal system along western lines by importing bits of the French but mostly the German Civil Code. 

6) China: Similarly traditional Chinese law gave way to westernization towards the final years of the dynasty in the form of six private law codes based mainly on the Japanese modal of German law.

7) Islamic Law: One of the major legal systems developed during the Middle Ages was Islamic law and jurisprudence. During the classical period of Islamic law and jurisprudence “Hawala” and institution of law was an early informal transfer system which is mentioned in text of Islamic Jurisprudence as early as the 8^th century. Hawala itself later influenced the development of the “Aval” in French civil law and Avallo in Italian law. 

8) Roman Law: Roman law was heavily influenced by Greek teachings.

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Section 23 of Indian Contract Act, 1872

Section 23 of Indian Contract Act 1872 deals with lawful objects and consideration and the said Section is reproduced below for ready reference.


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Statutory provision:

23. What considerations and objects are lawful and what not.-

The consideration or object of an agreement is lawful, unless-

-it is forbidden by law; or

-is of such nature that, if permitted, it would defeat the provisions of any law; or

-is fraudulent; or

-involves or implies injury to the person or property of another or;

-the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

Illustrations

(a) A agrees to sell his house to B for 10,000 rupees. Here B's promise to pay the sum of 10,000 rupees is the consideration for A's promise to sell the house, and A's promise to sell the house is the consideration for B's promise to pay the 10,000 rupees. These are lawful considerations.

(b) A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here the promise- of each party is the consideration for the promise of the other party and they are lawful considerations.

(c) A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here A's promise is the consideration for B's payment and B's payment is the consideration for A's promise and these are lawful considerations.

(d) A promises to maintain B's child and B promises to pay A 1,000 rupees yearly for the purpose. Here the promise of each party is the consideration for the promise of the' other party. They are lawful considerations.

(e) A, B and C enter into an agreement for the division among them of gains acquired, or- to be acquired, by them by fraud. The agreement is void, as its object is unlawful.

(f) A promises to obtain for B an employment in the public service, and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful.

(g) A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal.

(h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful.

(i) A's estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing, the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect a purchase by the defaulter, and would so defeat the object of the law.

(j) A, who is B's mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, because it is immoral.

(k) A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code.

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