Rhetoric in data security paper: Ex-judge

In a damning criticism of the white paper issued by the committee constituted by the NDA Government to examine data protection framework and draft a data protection law, a former Supreme Court judge has said the issue of balancing citizens' rights and interests of the state is "mostly missing" in the white paper.

He has also asserted that the "rhetoric" in the white paper is "meant to divert our attention from the fundamental rights of citizens to other issues which are not relevant from the point of view of fundamental rights of citizens".

In his comments to the 10-member panel headed by former Supreme Court Judge BN Srikrishna, Justice M Jagannadha Rao (retd) has pointed out that the white paper refers to collection of data but "not to the boundaries of the right to collection of data which is the essence of the SC judgment".

"The collection of data is given a go-bye and only the right to use it is considered, without going into the extent the extent of permissible surveillance by the State," the eminent jurist has observed.

DNA is in possession of a letter containing Justice Rao's views on the issue, which he has sent to the Justice Srikrishna panel.

The Justice Srikrishna committee was constituted on July 31 last in the wake of the landmark judgment by the nine-judge bench of the Supreme Court in the KS Puttaswamy case, which held that the Indian citizens have a fundamental right to privacy which it is intrinsic to life and liberty guaranteed under the Constitution.

It had invited comments from the public to the white paper by December 31.

In his comments, the former SC Judge, who has also remained Chairman of the Law Commission of India, has said, "To start with, the (white) paper refers in the Foreword to the judgment of the SC in Puttaswamy that the SC stressed the "balancing" of individual rights and the legitimate interests of the State and that this exercise has to be undertaken by the Government. This is almost missing in the paper."

"In the 243-page Consultation paper, a few paras here and there refer to the problem but nowhere the boundaries of legitimate interference by the State or other official bodies for the first step of collection of data into the fundamental right of privacy has been addressed (sic)," his comments say.

In a clear indication as to how he feels about the collection of citizens' data for Aadhaar, Justice Rao has also pointed out that "there is vast case law as to how general data of all citizens cannot be collected by the State and as to what the State cannot collect and even if it can collect, cannot retain or direct retention by citizens".

He has also underlined the need for discussion on the law laid down by the courts "as to where the privacy rights start and where the State's surveillance must stop ".

"There is absolutely no discussion on these vital aspects," he has observed.

Incidentally, while setting up the committee, the Central government had said that its objective is to "ensure growth of the digital economy while keeping personal data of citizens secure and protected."

In August last year, the Supreme Court had refused to be swayed by the Centre's logic that the right to privacy was not an absolute right and was subject to interests of the State.

Incidentally, a bunch of petitions challenging the constitutionality and legality of Aadhaar card are pending in the Supreme Court.

A slamming view

• Justice M Jagannadha Rao (retd) has said the “rhetoric” in the white paper is “meant to divert the court’s attention from the fundamental rights of citizens.