India does NOT have a privacy law. If the legal interpretations in 'secular' states like Canada are any indication, here they are. And another view on lethal surveillance versus privacy in the Indian context.
It appears that it is jolly good time for the experts in jurisprudence to argue till the cows come home.
Kalyanaraman
See: http://bharatkalyan97.blogspot.in/2013/12/women-dont-pity-themselves-anymore.html
DEC 3
'Women don't pity themselves anymore' -- Stella James to Preethika Rana
See: http://bharatkalyan97.blogspot.in/2013/12/women-dont-pity-themselves-anymore.html
DEC 3
'Women don't pity themselves anymore' -- Stella James to Preethika Rana
Published: June 22, 2013 00:08 IST | Updated: June 22, 2013 00:08 IST
Lethal surveillance versus privacy
There has been no public debate on the level of watch citizens can be put through, and on what the red lines should be while using intrusive mechanisms
The tussle between government agencies’ need for a better, faster and real-time interception, surveillance and monitoring mechanism through the Central Monitoring System (CMS), on the one hand, and demands by privacy, civil rights and free speech activists, for ensuring higher privacy for citizens in view of CMS, on the other, is gaining ground. India today has nearly 900 million mobile subscribers, 160 million Internet users and close to 85 million citizens on social media. Internet and social media users are expected to double by 2015.
The discussions have been coloured by the startling revelation relating to the PRISM project which, if true, may have meant that the privacy of millions of Indian Internet users could have been compromised, in varying degrees.
Meanwhile, closer home, the CMS project, aimed at improving the capability of security agencies to protect national security and fight crime, including terrorism, has also raised serious privacy issues.
Shrouded in secrecy
First, very little real information is available about the CMS working procedure, technical capabilities and privacy safeguards in the public domain. While governments worldwide remain reluctant to share information about their surveillance and monitoring systems, successive governments in India have fared no better.
Key unanswered issues include the uncontrolled use of technical capability and intrusive technologies, which are capable of “instant, real time and deep search” surveillance. There has been no debate in Parliament or outside about the level of surveillance citizens should be put through or whether there should be red lines when using intrusive surveillance mechanisms, even when technology presents an option.
Further, there is no information about whether there are additional safeguards against interception by political authorities, of potential “targets” carrying out sensitive assignments such as judges, opposition leaders, editors, regulators, advocates, vigilance officials, corporate CEOs, etc. Should there be? How far should the spy agencies take lethal technological capability against their own citizens? Can all technological prowesses be used against any category of citizen, regardless of the level of security clearance they are entitled to? Who decides the correctness and propriety of such authorisations, especially since these are approved by bureaucrats who, in turn, report to political authorities?
The U.N. Special Rapporteur on Promotion and Protection of Right to Freedom, in his report of April 17, 2013, has concluded that apart from increasing public awareness of threats to privacy, States must “regulate the commercialization of surveillance technology”.
Legal infirmities
Secondly, while the existing law primarily relates to interception of calls, CMS expands surveillance across Meta-Data which includes CDRs and SDRs. Access, transfer and retention of CDRs is weakly defined under the existing laws. Provisions for authorisation of interception are contained in Section 5(2) of the Indian Telegraph Act 1885, Rule 419(A) of the Indian Telegraph Rules 1951, as well as Section 69 of the Information Technology Act 2000, read with Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules 2009.
“The Right to Privacy,” on the other hand, is protected under Article 21—– Right to Life — and Article 19(1)(a) — Right to Freedom of Speech and Expression — under the Constitution of India, “unless it is permitted under procedure established by law.” While the Supreme Court has upheld the constitutional validity of interceptions, and monitoring under Section 5(2) of the Act through its order dated December 18, 1996, it subsequently laid down guidelines narrowing the scope of interception down to five instances — “national sovereignty and integrity, state security, friendly relations with foreign states, public order or for preventing incitement to the commission of an offence”.
With CMS, questions about the mismatch between the privacy legislation and the lethal forensic surveillance capabilities arise. These border on what is now recognised as a human rights issue. Are “public order” or “preventing incitement to the commission of an offence” sufficiently vague or broad for the security agencies to practically put through any authorisation request for interception, however weak, under these two heads? Can prevention of crime leave the door open to any agency, getting permission to monitor any citizen without adequate burden of proof? Since the authorities giving approval are not judges, will they have the judicial expertise to make legally valid decisions? Worse still — if the surveillance is extra-judicial, how will it be uncovered?
Further, interception under CMS can be done instantly and, since existing laws allow government agencies to intercept any phone conversation without the Home Secretary’s mandatory permission, for seven days, should this procedure be reviewed under CMS? Should a lower level officer’s approval be sufficient to begin surveillance? The law also says “the directions for interception shall remain in force, unless revoked earlier, for a period not exceeding 60 days, after issue, and may be renewed, but same shall not remain in force beyond a total period of 180 days”. In effect, monitoring can continue for half the year. Is this period too long, without a periodic review? If there is a review, is it sufficiently independent and robust?
Here again, the U.N. Rapporteur in the recent report on surveillance, recommended that surveillance must occur under, “the most exceptional circumstances and exclusively under the supervision of an independent judicial authority”. Further that “surveillance techniques and practices that are applied outside the rule of law must be brought under legislative control”.
Meanwhile, there is no consensus on the opposing views between DoPT, the Home Ministry and civil rights activists, two-and-a-half years after a ‘privacy’ group was set up under Secretary, DoPT, and seven months after the Justice A.P. Shah Committee submitted its Report on ‘Privacy,’ suggesting a privacy legislation which was “technologically neutral, inter-operable with international standards, protected multi-dimensional privacy, ensured horizontal applicability and conformity with privacy principles in a co-regulatory enforcement regime”. Ironically, the latest draft of the privacy legislation itself remains a mystery.
Lastly, bureaucrats authorise interception without any need to pass judicial muster by securing a prior valid court order. The surveillance is not subject to any ongoing bipartisan Parliamentary oversight either.
Before CMS, the mobile operator who gave access to the target’s phone calls for interception was required to ensure that the interception order received had been duly authorised by the persons identified under the Act. This is no longer the case. The government has justified CMS in Parliament, by arguing that CMS, to avoid the recordings from being leaked, circumvents manual intervention by mobile operators, and is therefore more secure, allowing instant access. However, this means that the checks-and-balance system provided by the nodal officers in mobile networks — which discovered the illegal request for BJP leader Arun Jaitley’s CDRs, leading to the arrest of three persons including a Delhi police constable — will no longer exist. Is there a new safeguard?
Potential misuse
Under CMS, one government official will authorise interception. This will be reviewed and executed by other fellow officers in different agencies — but all within the government. What is the guarantee that such permission will be subject to the rigorous due diligence that it deserves? Will every government officer follow the laid down procedure, especially if he knows that all authorisations are covered under absolute secrecy with no chance of public disclosure or scrutiny? What happens if the procedure is violated? Will violations, when discovered, be acted upon since everything remains secret within the government? The identity of targets or duration of monitoring cannot be revealed publicly, even under the RTI, as it falls under specific exemptions granted in Section 8 of the RTI Act. How will mistakes be corrected and misuse prevented?
There are other questions that remain unanswered in law. Who all within the government can have access to the Intercept Related Information (IRI), Call Content (CC) and CDRs? How long can intercept information be kept with the government and what is the procedure for its safe keeping — especially given a track record of leaked tapes — without a single official being found guilty in such instances? Are there any circumstances under which “targets”, especially when found innocent, will be informed that they were under surveillance?
The privacy issues are sufficiently serious — both outside India and within. Hopefully, the government can present the Privacy Bill early for Parliament to debate it. Equally it may be time for the Supreme Court to review its guidelines which were written at a time when there were less than a million mobile subscribers and no Internet users.
CANADA: Offender Privacy v. Public Interest Disclosure
Background
The representative of a non profit advocacy group supporting victims of crime asked Correctional Service Canada (CSC) for access to the report of a Board of Investigation into the release and supervision of an offender who was charged with second-degree murder while on statutory release status. Most of the report was withheld, pursuant to subsection 19(1) of the Act, in order to protect the privacy of the offender.The requester was surprised by this response as, in the past, Board of Investigation reports into crimes allegedly committed by offenders while on release status had been disclosed on the basis that the public interest in disclosure clearly outweighed any invasion of privacy that could result. The requester complained to the Information Commissioner and asked him to determine why, in this case, the offender’s privacy was given primacy over the public interest in disclosure.
Legal Issue
Did CSC properly exercise its discretion to disclose personal information in the public interest, pursuant to the related provisions of paragraph 19(2)(c) of the Act and subparagraph 8(2)(m)(i) of the Privacy Act?Paragraph 19(2)(c) of the Act authorizes government institutions to disclose personal information if disclosure is permitted by section 8 of the Privacy Act. Subparagraph 8(2)(m)(i) of the Privacy Act provides that personal information may be disclosed:"(m) for any purpose where, in the opinion of the head of the institution(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure…"The Commissioner’s investigation determined that CSC had, indeed, disclosed Board of Investigation reports in the past, pursuant to subparagraph 8(2)(m)(i) of the Privacy Act. The investigation also determined that, at some point in the Fall of 2002, the then Privacy Commissioner of Canada had written to the Commissioner of CSC, expressing a concern about the disclosure of Board of Investigation reports in the public interest.In response to the Privacy Commissioner’s concerns, CSC revised and restricted its disclosure policy with respect to Board of Investigation reports. CSC adopted a policy, in late November 2002, to authorize disclosure of such reports in the public interest, only if the requester is a victim of crime, an organization acting with the written consent of a victim of crime, or a family member of a victim of crime.The Information Commissioner was mindful of the fact that the discretion to disclose offender personal information clearly resides with the head of CSC. However, he was concerned that the strict policy governing the application of subparagraph 8(2)(m)(i) of the Privacy Act might constitute an improper fettering of the head’s discretion.The Information Commissioner asked CSC to review the facts of this case carefully to ensure that the discretion to disclose in the public interest was exercised on a case-specific basis, taking into account all relevant factors, both pro- and con-disclosure. In other words, the Information Commissioner needed to be satisfied that the discretion had been properly exercised and that the decision had not been dictated by the policy.CSC agreed to reconsider the matter. Some additional portions of the Board of Investigation report, containing details which had already been reported in the media, were disclosed. Portions remained withheld, however, to protect the offender’s privacy. Secrecy was not maintained solely on the basis of the policy but also because of a specific circumstance of this case - the offender had been apprehended and incarcerated and, hence, no longer posed a danger to the community.The Commissioner was satisfied that the discretion to disclose (or not disclose) in the public interest, had been properly exercised and found the complaint to be resolved.
Lessons Learned
Institutions have an obligation, before withholding personal information under subsection 19(1) of the Act, to consider the exceptions to the exemption set out in subsection 19(2). One of these exceptions, paragraph 19(2)(c), requires the proper exercise of a discretion, being a decision as to whether or not the public interest in disclosure clearly outweighs any resulting invasion of privacy.Parliament intended that this provision not become a routine basis for privacy invasion - that is why the phrase "clearly outweighs" appears in subparagraph 8(2)(m)(i) of the Privacy Act. Further evidence of Parliament’s intention is that the Privacy Commissioner must be notified of any disclosures of personal information in the public interest.Yet, in their efforts not to overuse the public interest override, institutions must take care not to refuse to exercise the discretion Parliament gave to them, or to restrict, or fetter their ability to properly exercise the discretion through the adoption of rigid or narrow policies limiting the situations in which the public interest override will be invoked. Rather, the presence of the discretionary authority, as a matter of law, requires government institutions to exercise the discretion in good faith, on a case-by-case basis, taking into account the specific information at issue and all relevant factors weighing both for and against disclosure.
POLITICAL CLASS RAPS JUDICIARY FOR LETTING GANGULY OFF HOOK
Saturday, 07 December 2013 | PNS | New Delhi
With the Supreme Court washing its hands off from the case of sexual harassment of a law intern by Justice (retired) AK Ganguly, demands for action against him grew louder on Friday.
Law Minister Kapil Sibal and Leader of Opposition in the Rajya Sabha Arun Jaitley slammed the judiciary for not acting against the judge. Echoing their views, Women and Child Development Minister Krishna Tirath demanded that Justice Ganguly should quit as chairman of the West Bengal Human Right Commission and action be taken against him.
Similarly, the National Commission of Women wrote a fresh letter to the Delhi Police asking it to lodge a formal complaint against the judge in the light of the indictment by the apex court panel. It has also issued notice to Justice Ganguly on the issue asking why action should not be taken against him.
While West Bengal Chief Minister Mamata Banerjee wrote a second letter to President Pranab Mukherjee asking him to urgently take “appropriate action” against the former SC judge, an angry Justice Ganguly snapped at reporters saying he has tolerated enough. “Don’t disturb me...Don’t disturb me. I have tolerated enough,” Justice Ganguly told reporters in Kolkata when he stepped out of his house
A Committee of three judges of the Supreme Court had indicted Justice Ganguly for “unwelcome behaviour” and “conduct of sexual nature” towards the intern, prompting demands that action under criminal law should be initiated against him.
But Chief Justice of India Justice P Sathasivam had explained that since Justice Ganguly was not a serving judge at the time of the incident, no further follow up action was required by the Supreme Court. The political class was quick to seize its chance to show mirror to the judiciary. Law Minister Kapil Sibal questioned the decision of the Supreme Court of not taking further action against the judge, saying the issue cannot be “brushed under the carpet.”
“I am a little disappointed because the institution which has found that sexual overtures were made, was to have taken the matter forward,” he said. He said in his view, prima facie the apex court has “brushed it under the carpet, in a sense that they have said that they have nothing to do with the matter because he is no longer a judge.
“Well, if he was no longer a judge, then they should not have set up the inquiry. Having come to a conclusion, they cannot give that reason to say they won’t take it forward,” he said in unusually strong remarks.Continued on Senior Congress leader Ambika Soni said those occupying high offices must step down, whether guilty or not, as it only increases their moral stature. “The accusation of wrong behavior, to put it mildly is the same whether you are serving or you are a retired person. The accusation does not change,” she said when asked about the issue.
The BJP asked Justice Ganguly to step down as Chairman of WBHRC and said it was now incumbent on the Supreme Court to ensure that the law must take its own course. The Opposition party stated that the “administrative decision” of the Supreme Court - no follow up action could be taken against the retired judge facing allegations of sexually harassing an intern - was being closely watched by all citizens.
“This reasoning of the full court fails the test of conscience. Mahatma Gandhi had said, ‘There is a higher court than the courts of justice, and that is the court of conscience. It supersedes all other courts’. Is the Court dealing with a former Judge, who currently holds the office as the Chairman, Human Rights Commission, West Bengal in the same way as it would have dealt with any other person who is or has been the holder of an exalted office?” Leader of Opposition in the Rajya Sabha Arun Jaitley wrote on Facebook.
Jaitley argued that the standard that the Supreme Court follows for every holder of High office “must apply even more sternly” to a sitting or former judge of the court. In Kolkata, the ruling TMC stepped up the heat on Justice Ganguly demanding his resignation as the chairman of WBHRC to facilitate an even handed probe into the sexual charges levelled against him by a law intern.
Mamata Banerjee on Friday wrote another letter to the President seeking urgent action to remove Justice Ashok Kumar Ganguly from the chairman’s post of the state Human Rights Commission. Keeping up the heat on Justice Ganguly, Banerjee wrote on her Facebook page that she had on Thursday written to the President requesting him to take appropriate action urgently against Justice Ganguly for his “alleged misconduct”.
“Today, it is reported in the media that the three-judge panel of the Hon’ble Supreme Court has indicted him, prima facie, guilty of the charges levelled against him,” Banerjee said. “On this basis, I have sent another letter today to the Hon’ble President of India for taking urgent necessary action, so that Shri Ganguly is removed from his office at the earliest,” she said.
JUSTICE GANGULY PRIMA FACIE GUILTY OF SEXUAL MISCONDUCT: SC PANEL
Friday, 06 December 2013 | PNS | New Delhi
A three-judge panel looking into the sexual harassment complaint of a law intern has found retired Justice Asok Kumar Ganguly prima facie guilty of sexual misconduct.
In its report submitted to Chief Justice of India on November 27, portions of which were made public on the SC website on Thursday, the Committee said: “The committee is of the considered view that the statement of the intern, both written and oral, prima facie discloses an act of unwelcome behavior by Justice (Retired) AK Ganguly with her in the room in Hotel Le Meridien on December 24, 2012 approximately between 8 pm and 10.30 pm.”
The unwelcome behaviour was by way of unwelcome verbal and non-verbal conduct of sexual nature, explained the panel, comprising Justices RM Lodha, HL Dattu, and Ranjana Desai.
Terming the incident as an “aberration”, CJI P Sathasivam, issued a public notice to indicate that no further “follow up action” will be taken as the incident was subsequent to the judge’s retirement in February 2012. Moreover, the intern who complained against the judge was not an intern on the roll of the Supreme Court.
Leaving it open for the victim and accused judge to pursue their legal remedies, the CJI directed the Secretary-General to supply a copy of the committee’s report to the intern and Justice Ganguly, who currently heads the West Bengal Human Rights Commission.
Legal experts are of the view that the report would be sufficient to lodge an FIR against the judge and also seek his removal from the State human rights panel. It is the first time ever that a judge (former or sitting) of the highest court has been indicted for sexual misconduct. To meet such future contingencies, the SC Full Court met on Thursday and decided that representations against former SC judges will not be entertained on the court administration.
The incident was reported in the national media on November 12 that threatened to sully the reputation of the institution, considering the fact that the victim was a law intern working under Justice Ganguly. Even the Attorney-General approached the court to take remedial steps. It was in this backdrop, the CJI formed a three-judge panel to ascertain the truth behind the allegation.
The committee scrutinized the statement of the victim, the affidavits of her three witnesses, and statement of Justice Ganguly to reach its conclusion.
It said: “It appears to the committee that on the night of December 24, 2012, the intern had visited hotel Le Meridien where Justice AK Ganguly was staying, to assist him in his work.” This fact was not denied by Justice Ganguly either. However, he denied the remaining sequence of events. According to him, the girl had dinner and left without anything of the sort alleged by the intern having taken place. When his name was first made public at the time the committee submitted its report to the CJI, Justice Ganguly remarked saying he was “shocked and shattered.”
Journal of Indian Law and Society shared a link.
November 21 near New Delhi
Stella James' statement on account of the media speculating on her communication with the committee
http://jilsblognujs.wordpress.com/2013/11/21/statement-of-stella-james-21-11-2013-2/
http://jilsblognujs.wordpress.com/2013/11/21/statement-of-stella-james-21-11-2013-2/
Statement of Stella James – 21.11.2013
On the 12th of November 2013, the Chief Justice of India set up a three-member Committee to look into a matter of sexual harassment that I had faced by a former Supreme Court Judge.
As requested by the Committee, I appeared before them on the 18th of November. During the meeting, I presented all the details of the case to the Committee. I am confident that the Committee will follow all the different lines of enquiry, and will establish the truth of my statements.
The Committee has assured me complete confidentiality. Some media reports are violating the confidentiality of testimony given by the Committee. They have been distorting facts, and misreporting my statements. Such pernicious and mala fide reporting must cease immediately. I would like to request the media to stop speculating on my communications with the Committee, and continue to respect my privacy.
Issued on 21.11.2013 at 4.45pm
SC panel names judge accused of sexual harassment
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NUJS Intern requests media to respect her Privacy
Last December was momentous for the feminist movement in the country – almost an entire population seemed to rise up spontaneously against the violence on women, and the injustices of a seemingly apathetic government. In the strange irony of situations that our world is replete with, the protests were the backdrop of my own experience. In Delhi at that time, interning during the winter vacations of my final year in University, I dodged police barricades and fatigue to go to the assistance of a highly reputed, recently retired Supreme Court judge whom I was working under during my penultimate semester. For my supposed diligence, I was rewarded with sexual assault (not physically injurious, but nevertheless violating) from a man old enough to be my grandfather. I won’t go into the gory details, but suffice it to say that long after I’d left the room, the memory remained, in fact, still remains, with me.
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