Idea Exchange: Privacy defined as a fundamental right, says Justice BN Srikrishna

By: | Published: August 19, 2018 1:55 AM

Justice BN Srikrishna talks about ways to improve the ‘tone and tenor’ of the Aadhaar Act, calls for a systematic law to restrict State access to citizens’ data, underlines the need for a data protection authority.

Privacy, fundamental right, Justice BN Srikrishna, Personal Data Protection Bill 2018Surveillance is restricting fundamental rights of citizens. The Supreme Court clearly said that such rights cannot be restricted except through a law passed by Parliament which stands the scrutiny of constitutionality.

SEEMA CHISHTI: Your committee submitted the draft Personal Data Protection Bill 2018 last month. There is a commonly held view that the committee was kinder to the State and stricter with private entities. Do you think the committee missed out on the opportunity to introduce surveillance reforms?

Most of the surveillance done in this country is done without the warrant of law. What is surveillance? Surveillance is restricting fundamental rights of citizens. The Supreme Court clearly said that such rights cannot be restricted except through a law passed by Parliament which stands the scrutiny of constitutionality.
What we need is a systematic law on how access to data by State authorities can be restricted. It is not possible to carry out the exercise in a limited time and with limited resources. Each ‘access’ will need a different method… For example, the State might require access because it is chasing a terrorist. And then there can be (access needed) for an ordinary crime investigation — how we deal with both these will be different. Or if somebody is trying to steal your military secret; that again will be a separate issue. Or when a citizen’s data is being snooped upon — there are different ways of dealing with each of these situations. We realised that one size will not fit all. Therefore, Parliament has to, by law, prescribe how to deal with it.

SUSHANT SINGH: A lot of the debate around data privacy is related to Aadhaar. What is your position on it?

The Aadhaar issue is still in the Supreme Court. Till the constitutionality is decided by the apex court, it will be premature for me to comment on it. There is a lot of good stuff in Aadhaar and there is scope for improvement as well. For example, in the Aadhaar Act, there is no method of monitoring, no method of enforcing privacy… In the annexure of the report, we have suggested how the Aadhaar Act can be improved, though, it is subject to the SC agreeing with the constitutionality. If that is done, any conjunction with the Personal Data Protection Bill will do good. Also, Aadhaar is just one of the aspects. It (the data protection law) will be an overarching law which will take Aadhaar into account.

PRANAV MUKUL: Why were amendments to the Aadhaar Act included in the Data Protection Report and not in the draft Personal Data Protection Bill?

This is because it is not directly within our ambit to deal with amendments. That amendment has to come through Parliament by a separate law. The Government of India didn’t say that you go ahead and tell us what is to be done with the Aadhaar Act. Therefore, we have said that if you want to improve the tone and tenor of the Aadhaar Act, these are the likely things that you should look into. (Last month, along with the draft Personal Data Protection Bill 2018, the Justice BN Srikrishna Committee also submitted a report on Data Protection to the ministry of electronics and information technology).

PRANAV MUKUL: Another criticism is that the data protection authority is burdened with a lot of responsibilities, and that when it comes into effect there will be problems in handling situations effectively. How do you respond to that?

There has to be a regulator. Whoever it is, that person has to carry out his responsibilities. For example, SEBI is a regulator for the capital market. Is it not overloaded with work? The RBI is a regulator for the banking sector. Can we say they have too much work? If there’s too much work, there will be many people to do it — break it up into sectors, it’s easier to coordinate that way. The data protection authority is absolutely necessary. Technology is changing every half an hour and Parliament does not meet that often. And, even if they do meet, I don’t think they have time to look into this all the time.

SEEMA CHISHTI: In your report, some say, you have not clearly identified who owns data?

If you treat it (data) as a property, then (it will be subject to) the Transfer of Property Act, Indian Contract Act, etc. There can be innumerable disputes. That’s unnecessary. Now, can data be gifted? If it is a gift, then you can’t take it back. The moment you treat data as a property, innumerable legal questions will arise. Say, this is my data and I am giving it to you for certain reasons. Beyond that (the specified reasons) if you want to do anything with the data, you will have to come back to me for consent. So, I have the right to have my data properly maintained by you and it should be used only for the purpose I gave it to you. And, I have a right to recall. I have a right to modification, rectification… all rights are guaranteed. But the moment you call it property there will be problems.

KARISHMA MEHROTRA: Sometimes, when machine algorithms make decisions based on data, even programmers who have made the technology will not be able to tell you why certain decisions are made. When it comes to accountability, as mentioned in the draft Bill, there is a lot of reliance on assessments and audits. How much can you actually understand about how data is used based on all these assessments and audits when you don’t know why an algorithm has made a certain decision?

There is a provision in the Bill: if somebody asks you, you should be able to tell them how the decision is made. I remember that famous example. Somebody in the US said that a single Black person will always be deemed poorer. Why? Because the data showed it, the algorithm showed it. Now there can be someone like Oprah Winfrey who is single, Black but a millionaire. So that is an exception. There is a provision (in the Bill) for this. If a decision is based on machine analysis and an algorithm, it can be challenged and then you can show me the algorithm which was used.

RISHI RANJAN KALA: Eighty per cent of the members of the committee drafting the Bill were from the government. Shouldn’t it have had adequate representation from other sections as well?

The government will be directly affected and they are the ones who will ultimately implement the Act. And as far as the citizens are concerned, their interests will always be foremost. I don’t care if industries are not pampered.

SHOBHANA SUBRAMANIAN: The report mentions separate non-consensual grounds when the State can access data for certain entities and certain functions. The criticism here is that it should have been specified as to when the State can access the data non-consensually.

This is exactly the problem. Now if I say the State can access the data only for ‘X’ purpose, then what happens if the access is necessary for purpose ‘Y’? The State’s hands are tied then. Therefore, we have somebody who can access data only on the basis of an authority, who in turn can analyse (the reason for the access).

SHOBHANA SUBRAMANIAN: Would a ‘negative list’ have been possible?

Impossible. See, the point is, can I determine today what is the positive or negative list? How do I determine it? Things keep changing. Politics is as much in flux as governance and technology. Each of them change within the hour.

SHOBHANA SUBRAMANIAN: But the perception is the State has got the upper hand.

Nobody has the upper hand. If the State makes a law that is unconstitutional, the Supreme Court takes care of it. The State has to make a law under which it can access data and that law has to meet all the requirements of the Constitution. The fundamental rights get inspected and privacy has been now defined as a fundamental right. Every law has to ensure it.

SUSHANT SINGH: What do you make of the developments in the Supreme Court in the past 12-15 months?

Frankly, I do want to be dragged into a debate about what is happening in the Supreme Court. It’s quite embarrassing for me to talk about the Supreme Court. Tell me, have you lost your faith in the Supreme Court? Then, there is something serious happening. I don’t think you have lost your faith but you have got perturbed… Fine, we get perturbed by many things. Have you lost faith in the country? Not yet. So somebody will stand up and deal with it (matters of the Supreme Court).

MUZAMIL JALEEL: In 2005, you wrote a piece, ‘Skinning A Cat’, where you were clear about the lines between ‘activism’ and ‘restraint’. In light of that, what is your view on Supreme Court judges holding a press conference against the Chief Justice of India?

That was something that was never done in my time. We were told that this should not be done by a judge. It (filtered) down to us — not by Parliament — but by self-acceptance. Things have changed. Now whether it is good or bad, I’m not willing to make that moral judgment.

RAVISH TIWARI: How do you see the Opposition’s attempt to impeach the Chief Justice of India?

Look, impeachment was a foregone conclusion. Impeachment is a political process and it was deliberately made complicated, so that a judge could not be impeached. In this case, it was just about showing their (the Opposition’s) anger. That’s all.

SEEMA CHISHTI: What makes you optimistic about our times as you reflect back on your career and the developments that you have been a witness to?

Look at history, India has passed through so many crises. There is some resilience that brings us together and we have been able to pull through. The British regime was a disaster but we got through it. And thereafter too, there have been trying times but we got through… So, I am an optimist. There are bound to be peaks and troughs in the life cycle of any country.

SUSHANT SINGH: You are also inquiring into the conflict of interest allegations against ICICI’s CEO Chanda Kochhar. Why is the banking system facing such crises?

After banks were nationalised, what happened? If I go to the bank for a `100 loan, I will be asked 20 questions. They will make me sign 200 documents and ask me, ‘What is your security? What if you run away to London tomorrow, how am I going to get back the money back?’. But, if I ask for `100 million, it’ll be immediately sanctioned. Why? It happens because there is no integrity of purpose. Either somebody calls from Delhi and says ‘Yeh hamara bhatija hai, isko paisa do (He is my nephew, give him the money)’ or some palms are greased and the loan is sanctioned. Is there any other reason? So, (the crises) is because of a series of wrong judgments or corrupt judgments. The combination is there for all to see.

KARISHMA MEHROTRA: What were some of the contentious issues that came up before the committee while drafting the data privacy Bill?

Localisation of data, cross-border flow of data, access to data by authorities are all contentious issues and there could be two views on them; they’re likely to be debated. Then there is the question of consent. How does consent matter? Should consent be a necessary prerequisite or can there be situations where consent can be totally immaterial? Issues such as children’s consent — whether parental control is necessary… Actually, if you notice, the two dissents (in the committee) are on localisation, that’s all. There’s no other dissent. They are all in line with the rest of the recommendations.

RAVISH TIWARI: Is it too early to have an over-arching data protection law?

No. We are ensuring that data generated from this country is retained here, so that we can use it for our benefit. Or else, it will all go to someone else. It’s a simple argument. For example, climate data. My climate data will be useful for my farmers. If it is lying in Timbuktu, can I access it when I want to? This is for the empowerment of citizens. Empowerment means my data is going to be here. For what purpose? For the purpose that it is intended to help the citizen.

MUZAMIL JALEEL: In these times, when we are seeing social and political angst, what are some of things that you believe this country should protect?

When I was a young man, just getting into Bombay University, I remember seeing a plaque on one of the walls of the university. It said, ‘Sa vidya ya vimuktaye’, which means, ‘That is education, which is liberating’. I did not understand it. But at the end of this long, useless life of mine, it has occurred to me that it could have a tremendous sociological meaning. We have to liberate our minds from violence, hatred, pettiness, jealousy; these are the things that infect our minds. Why do you think there is so much social unrest? Because we cannot think of anything apart from ourselves; self-interest. If we liberate ourselves, we will have a peaceful world. Why not? That is exactly what is needed.

MUZAMIL JALEEL: You have been interested in refugee law. What do you make of the entire Rohingya debate?

We are not part of the UN’s Refugee Convention. We don’t want to be a party to it. Why? Because if we are a party to it, then we have a lot of other obligations. What is our stand? Our stand is that, ‘This is only useful in a developed country with a lot of money. Let them fund us, we will do it’. What happened in 1971? All the Bangladeshis were coming into our country. As a result, population increased tremendously, there were a lot of social problems. Therefore to solve that, ultimately, there was a war. We are experts at knee-jerk reactions. We wait till something happens, and then cure it. We see the writing on the wall, but we believe in bashing our head against the wall and then saying, ‘Ah it hurts, remove the wall’.

SEEMA CHISHTI: You have seen two governments in power — the NDA and the UPA. Do governments try to influence the judiciary and how?

Nobody has ever tried to influence me, because I have a bad reputation. I refuse to be taken in… I have a job to do, I will do it. You like it, accept it. One reads in the newspaper about how they (the government) try to influence and harass judges… But in my case, I was a mad man to start with. I had given the (1993 Mumbai) riot report, I had identified two of the political parties. I was the chief justice in Kerala, I was fairly senior at the time I think. Once I met someone at a wedding and he said, ‘Sir, there is no chance of you going to the Supreme Court. The papers are full of your misdeeds’. But fortunately for me, two things happened. Although there was a BJP government (at the Centre) and the Speaker was a Shiv Sena man, the CJI was Justice (Sam Piroj) Bharucha who knew me from the Bar. He is a tough man. He put his foot down and the government was receptive. Though it took more than a year for all the bargaining, finally I was made an (SC) judge out of sheer disgust.

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