Unconstitutional And Illegal Biometrics Collection Laws And Practices In India

India is passing through one of the “Most Dangerous Periods” for Civil Liberties and Human Rights Protections. No time in the past Indian Citizens were so “Vulnerable” to Human Rights Violations and blatant violation of their Fundamental Rights.

The Constitution of India has conferred many Fundamental Rights upon Indian Citizens and Persons. However, Indian Government is acting in clear “Derogation” of these Fundamental Rights and Human Rights.

Article 21 of Indian Constitution confers Privacy Rights in India to all. Similarly, Article 21 also confers Right to Life and Liberty to all that cannot be taken away except by “Due Process of Law”. Articles 14, 19 and 21 collectively protect against “Arbitrary and Unconstitutional State Actions”.

Despite all these “Protections and Rights” we have Authorities like Unique Identification Authority of India (UIDAI) that is not governed by any Law whatsoever. Similarly, we have provisions pertaining to National Population Register (NPR) of India that are clearly “Unconstitutional”.

We have no dedicated Data Protection Laws in India, Data Security Laws in India, Cyber Security Laws in India, etc. Even the Cyber Law of India, incorporated in the Information Technology Act, 2000 (IT Act 2000), is an “Endemic E-Surveillance Enabling Law” that requires urgent “Repeal”.

Cyber Security in India is also in bad shape and even the Supreme Court of India has chided Indian Government to boost up its Cyber Security to protect National Security of India. National Security and Right to Information in India are on “Crossroads” where the “National Security Card” is very frequently played by Indian Government to deny “Legitimate and Eligible Information” to Indian Citizens.

In all this “Political and Legislative Mess” we have a “Bonus” for Indian Government as well. The Parliamentary Oversight of Intelligence Agencies of India is missing and they are “Not Accountable” to any “Legislative and Parliamentary Scrutiny”.  Intelligence related Projects like National Intelligence Grid (NATGRID), Central Monitoring System (CMS) of India, proposed National Counter Terrorism Centre (NCTC) of India, etc have no Parliamentary Approval and Oversight.  

There is no second opinion that collection of “Highly Sensitive Biometric Details” by any Governmental Agency or Authority in such circumstances is not only “Unconstitutional” but is also “Highly Risky” for Life and Liberty of Indian Citizens/Persons. In fact, collection of Biometric Details by UIDAI and NPR are clearly “Unconstitutional and Illegal” and Indian Citizens and Residents can “Refuse” to provide the same no matter what these Authorities and Laws say.

Human Rights Protection in India is at its nadir. Similarly, Civil Liberties Protection in Indian Cyberspace is in doldrums. If we keep on succumbing to the “Pressure Tactics” of Indian Government, the day would be not far when Indian Government would have complete control over our “Body and Soul”.

National Security And Right To Information In India

National Security and Right to Information are interrelated concepts. We occasionally find them on Crossroads. In fact, the National Security Card is played so often by Governments around the World that the concept of National Security has become the most abused and most favourite method of defeating Civil Liberties Protections in Cyberspace.

Indian Judiciary has not been much involved with Cyberspace issues for long. Of late it has started dealing with issues pertaining to Cyberspace like Websites Blocking. Clearly, Indian Judiciary has not been comfortable with Cyberspace issues so far. Even issues pertaining to Information and Communication Technology (ICT) have not been properly appreciated by Indian Judiciary.

I personally believe that there must be a “Constitutional Balance” between National Security and Human Rights and Fundamental Rights Protection Requirements. Giving “Primacy” to one over the other, without engaging in a “Reconciliatory Exercise”, would be “Counter Productive” in the long run.

Further, the Fundamental Rights themselves must be “Reconciled” so that our Constitutional Scheme remains intact. The Indian Constitutional Scheme is based upon “Balance of Rights” and no right is absolute in nature. In case of conflict between two Fundamental Rights, the Fundamental Right that strengthens and substantiate the Public Interest should prevail”.

For instance, if there is a conflict between Right to Privacy and Right to Information/know, any information can be disclosed in certain circumstances to substantiate and strengthen Public Interest.

Thus, not all tapped conversations of Nira Radia and Ratan Tata can be labeled as “Private” or pertaining to “National Security” and barring few “Exceptional Disclosures” all other can be made “Public” by the Supreme Court of India.

The Supreme Court of India must not unnecessarily put a “Blanket Ban” upon disclosure or publication of such conversations as that would amount to “Unreasonable Curtailment” of other Fundamental Rights like Right to Information. The “National Security Card” should not be used by any individual or institution, including the Supreme Court of India, to defeat the Constitutional Protections and Safeguards.

I have already written about this issue to Indian Government in February 2011 and this was sufficient time for it to deliberate and formulate an effective Policy in this regard. If still the Indian Government has failed to formulate such Policy, it only shows that it is not interested in formulating one.

Finally, Intelligence Infrastructure of India needs Rejuvenation as it has become synonymous for Non Accountability and Mess. There is neither any Parliamentary Oversight nor and Transparency and Accountability of the working of Intelligence Agencies of India. E-Surveillance in India is presently done in much derogation of Constitutional Protections.

The matter is pending before Supreme Court of India and if it does not handle the issue properly, the chaos would persist for some more decades.

Supreme Court Guidelines On National Security And Mobile Connections Verification In India

Of late Indian Government has shown great concerns regarding National Security issues and national threats arising out of use of Information and Communication Technology (ICT). Indian Government has been stressing really hard to regulate and control ICT, especially the Internet and Mobile Communications.

For instance, the Central Monitoring System (CMS) Project of India has been proposed to regulate and control Telecom Communications over Telecommunication Infrastructure in India. Similarly, establishment of the National Cyber Coordination Centre (NCCC) of India has been suggested to exercise control over Indian Cyberspace.

While National Security is of paramount importance yet it should not be a ground to violate Human Rights and Civil Liberties. Human Rights Protection in Cyberspace is an area that requires urgent attention of United Nations and International Community. The way National Governments are engaging in Illegal and Unconstitutional E-Surveillance and Phone Tapping, Civil Liberties in Cyberspace are in great danger.

I personally believe that there must be a “Constitutional Balance” between National Security and Human Rights Protection Requirements. Giving “Primacy” to one over the other, without engaging in a “Reconciliatory Exercise”, would be “Counter Productive” in the long run.

The Big Brother must not overstep its Constitutional Limitations. For instance, the proposal of Indian Government to constitute an Agency that would scan all Tweets, E-mails, etc must maintain a “Balance” between Civil Liberties and National Security Requirements.

In a significant development regarding National Security arising out of use of Mobile Phones in India, the Supreme Court of India would issue “Directions” on Monday (26-03-2012) on the plea for making strict adherence to verification of consumers before providing connections for mobile phones in the interest of National Security.

The guidelines have been framed by the Central Government for tightening the verification process for mobile phone connections in India. The Telecom Regulatory Authority of India (TRAI) has also provided its inputs in this regard to the Supreme Court of India. A Bench of Chief Justice SH Kapadia, Justice AK Patnaik and Justice Swatanter Kumar reserved its order in the past.

However, the entire exercise seems to be a “Piecemeal Effort” as we have no dedicated Cell Phone Laws in India. The way developments are happening at National and International levels, enactment of dedicated Mobile Phone Laws in India are urgently required. Presently, they are missing and this is creating lots of problems to Telecom Operators, Consumers, Indian Government and various Stakeholders.

National Counter Terrorism Centre (NCTC) Of India Got Cabinet Approval

The National Counter Terrorism Centre (NCTC) of India is a “Dream Project” of Home Minister Mr. P. Chidambaram. The NCTC Project of India is also very “Significant” for the National Security of India. Terrorist Attacks against India are on increase and we need a “Specilaised Institution” like NCTC to provide Valuable Intelligence Inputs and Leads.

According to Media Reports, the Central Government's Cabinet Committee on Security (CCS) on Thursday cleared the proposal to set up NCTC. It is expected that the NCTC may get Cabinet Approval this month. It is also expected that NCTC would be an expanded form of the Multi-Agency-centre (MAC), the Nodal Intelligence Cell under the Union Home Ministry.

NCTC would be the “Central Body” that would include, among others, the Intelligence Bureau (IB)’s MAC, Joint Intelligence Committee, National Technical Research Organisation (NTRO) and the National Security Guard. NCTC would be supported by National Intelligence Grid (NATGRID) Project, Crime and Criminal Tracking Network and System (CCTNS), etc.

Projects like NCTC, NATGRID, CCTNS, etc are Crucial for National Security of India. However, they must be “Properly Planned and Executed”. These Projects should not face the same “Fate” that the Aadhar Project of India has faced.

These Projects must be implemented with Proper Planning and Foresight. Further, a “Special Care” must be taken get “Parliamentary Oversight” for these Projects before they are made “Operational”. These Projects cannot serve their purpose if they do not defend Civil Liberties and ensure Procedural Safeguards for Protection of Human Rights in Cyberspace through a Legal Framework. For instance, Intelligence Gathering should not violate Privacy Rights of Indians.

The NCTC would be reporting to the Union Home Minister and it has been reported that it would be “Accountable to the Parliament”. Presently Intelligence Agencies of India are not governed by any Legal Framework. Even the draft Intelligence Services (Powers and Regulations) Bill 2011 has failed to become an applicable law. Strangely, even the proposed Central Bureau of Investigation Act 2010 failed to become an applicable law.

As on date, both Intelligence Agencies of India and CBI are working in India without “Constitutional Laws” governing their operations. This is a “Serious Issue” that Indian Government must resolves as soon as possible. Even for the successful operations of Projects like NCTC, NATGRID, CCTNS, such “Parliamentary Oversight” is essential. I hope Mr. P. Chidambaram would consider these issues on priority basis.