Is the Election Commission of India Outsourcing Regulation to the Private Sector?
A three-judge bench of the Supreme Court comprising Chief Justice of India (CJI) Ranjan Gogoi, Justices Ashok Bhushan and Sanjay Kishan Kaul has issued notice to the Central Government on a batch of Public Interest Litigation (PILs) seeking quashing of the Ministry of Home Affairs (MHA) notification dated December 20, 2018 authorising ten central agencies to “intercept, monitor, and decrypt (collectively described as “Electronic Surveillance”) any information generated, transmitted, received, or stored in any computer resource.” The PILs have been filed by Manohar Lal Sharma, Amit Sahni, Mahua Moitra, Shreya Singhal and Internet Freedom Foundation respectively.
Considering the elaborate scheme of Sections 69(1) of IT Act, 69(2) of IT Act and Rule 4 of IT Rules, even a cursory glance at MHA order would reveal that, MHA order is merely an authorisation and not a direction. It follows as a logical corollary that, the 10 agencies which have been authorised, cannot, merely based on MHA order, intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted or received or stored in any computer resource; at least legally.
Review petition has been filed in the Supreme Court against the judgment of the Constitution bench upholding constitutional validity of Aadhaar. Petitioner Imtiyaz Ali Palsaniya has contended that various grounds urged in applications filed weren't considered by court.
At 128 in 2018 alone, and about 266 instances of internet shutdowns since 2012, India wears the unenviable crown of curtailing internet connectivity because of flimsy political excuses, despite chanting “Digital India” 24 X 7 X 365. Precisely why the validity of the Internet Shutdown Rules has been questioned in no uncertain terms by Shashi Tharoor, who has urged the government to undertake a comprehensive review of the Internet Shutdown Rules.
The September 26 judgment violates the court’s own landmark ruling on citizen’s constitutional right to privacy by failing to address why biometric data is required at all for benefits and services received from government. It also fails to take account of the fact that its own orders were violated by both government and private companies during the pendency of the hearings and that passing of Aadhaar Act as a Money Bill was simply unconstitutional, as echoed in Justice Chandrachud’s strong dissent.
The is a table detailing the provisions and of the Aadhaar Act that were challenged and the grounds argued for their unconstitutionality by the Petitioners; the responses of the respondents, along with the decision on each of the provisions by the three separate opinions.
In the majority judgment passed by the five judge bench of the Supreme Court in the Aadhaar matter (referred to as “the Aadhaar judgment”) yesterday — September 26, 2018, the Supreme Court by a 4:1 majority has held that the Aadhaar project does not tend to create a surveillance state and further declared the Aadhaar Act, save and except some provisions, to be constitutionally valid.
Time will tell how Justice Chandrachud’s judgment will be regarded given that the constitutionality of the Aadhaar scheme and the Act of 2016 has been upheld by Justices Sikri, Khanwilkar, Bhushan, and the CJI Dipak Mishra. The only silver lining in this aspect is that the court declared that Money Bills, under which the Aadhaar Act was passed, are open to judicial scrutiny.
The petitioners are an interesting array of parties, two former judges, several academics, technologists, a few organisations that work for social justice, two retired army personnel who claim that Aadhaar is a massive national security threat, and individuals who have been not given their due services and benefits due to non possession of Aadhaar.
The Petitioner has contended that in the Uttarakhand State Elections held in February 2017, not only the Election Commission officials and employees of Electronics Corporation Of India Limited(ECIL) were allowed access to the EVMs, but also several persons belonging to a private firm M/s T&M Services Consulting Private Limited engaged by the ECIL were allowed to access the EVMs — thereby raising serious concerns and apprehensions about the possibility of a security breach.
While it creates a distinction between personal data, and sensitive personal data,the exemptions under Data Protection Bill include matters of security of state, for prevention, detection, investigation and prosecution of contraventions of law, processing for purposes of legal proceeding, research, archiving, or statistical purposes, personal or domestic purposes, journalistic purposes, or manual processing by small entities.