The SC in the case of Puttuswamy vs UOI dealt with the question of reasonable restrictions. It provides us of the test used for all restrictions on Article 21, under which privacy is being read.
“The first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21. For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement.”
“Second, the requirement of a need, in terms of a legitimate state aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action. The pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness.”
“The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.”
The government also needs to identify its legitimate aims. “The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits,” the order says.
Police in Delhi used facial recognition software to screen crowds at a recent political rally – a first for India – raising concerns about privacy and mass surveillance amidst nationwide protests against a new citizenship law.
The Automated Facial Recognition System (AFRS) software that the Delhi Police had installed to identify missing children, was used at Prime Minister Narendra Modi’s rally on Dec. 22, a police spokesman said on Monday, without giving further details.
The use of the system for profiling and surveillance at public congregations is illegal and unconstitutional. It is an act of mass surveillance. From building an underlying database of people from public protests to running it on crowds of people attending rallies, this directly impairs the rights of ordinary Indians from assembly, speech and political participation,” he said.
Delhi Police assures that best industry standard checks and balances against any potential misuse of data are in place. Racial or religious profiling is never a relevant parameter while building these datasets,” the Delhi Police spokesman.
1. The Indian Government extended the ban on websites uploading child pornography as per IPC provisions. The director of a website filed a petition against the order before the SC challenging the same. Counsel the director on his line of argument.
(a) The ban is invalid as it is not proportionate to purpose to the problem before the government.(b) The ban is invalid as it does not pursue a legitimate aim.
(c) Director should withdraw as he will face societal backlash.
(d) Both (A) and (B).
2. The govt decided to ban websites with child pornography in line with measures of IPC which also criminalise sexual acts against children. The IPC imposes rigorous imprisonment up to 10 years for sexual crimes. Owners of website if found in violation of the new law shall be given a blanket death penalty.
(a) The law is invalid as it is not provided by law.
(b) The law is invalid as it does not pursue a legitimate aim.
(c) The law is invalid as the restriction is not proportionate to the aim of the law.
(d) The law is valid and the petitioner should withdraw the petition.
3. There has been a rise of fake news over social messaging apps. The apps have also been hacked by terrorists recently. The Govt. decided to ban all internet based social messaging apps. A files a petition challenging the law. Choose the line of argument that is most likely to stand in support of the petition to challenge the law.
(a) The law is invalid as it does not pursue a legitimate aim.
(b) The law is invalid as the restriction is not proportionate to the aim of the law.
(c) Both (A) and (B).
(d) None of the above.
4. The Indian Government recently imposed a complete lockdown of the country due to the outbreak of Coronavirus. No one in the country is supposed to move outside their houses including doctors and nurses even for emergency situations. Decide the legality of the action.
(a) The action is not pursuing a legitimate aim as absolute lockdown is harmful for those who are already infected with no scope for their treatment available.
(b) The action is not proportionate as it imposes an absolute lockdown even on emergency situations.
(c) Both (A) and (B).
(d) The action is illegal as Coronavirus is a global pandemic.
5. The government had no law in place to provide for datasets of facial recognition. What test of privacy does this violate if it does so?
(a) The restriction is not proportionate.
(b) The restriction is not provided by law.
(c) The law does not possess a legitimate aim.
(d) Does not violate Right to Privacy.
1. Ans. (d) The question is about the line of argument for a client. To uphold a ban, the law has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Thus, (A) and (B) are valid lines of argument against the state’s ban on websites. Option (c) is irrelevant. Hence, (d) is the correct answer.
2. Ans. (c) The question is about the line of argument for a client. To uphold a ban, the law has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Herein, the punishment is disproportionate as for committing the same sexual crime, a perpetrator is given rigorous imprisonment but the owner of website where the content is uploaded is given death penalty. Thus, option (c) is the most likely line of argument to succeed before the SC.
3. Ans. (c) The question is about the line of argument for a client. To uphold a ban, the law has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Herein, the problem is the spread of fake news but the government has decided to ban all social media websites. It is a blanket ban which is not pursuing a legitimate aim and is disproportionate, thus both (A) and (B) are correct.
4. Ans. (c) To challenge a ban, it has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Herein, the ban is absolute with no provision for emergency services. This is self-defeating for its legitimate aim and also disproportionate as the medical staff and other essential services are not being permitted. Thus, both (A) and (B) are correct.
5. Ans. (b) To limit a fundamental right, it has to be provided by law, pursuing a legitimate aim and proportionate to the aim sought. Herein, the government had no law for facial datasets which violates the first test, i.e. provided by law. Thus option, (B).