Data privacy is a law and it’s in force. It came into force on 11th August 2023.

Recently an election process was held for electing a Mayor in Chandigarh Municipality. The issue started with Presiding Officer Anil Mansinh looking at surveillance camera and mainly ruling Aam Adami Party lost Mayoral post. Hence an issue is raised that returning officer defaced the ballot papers. The AAP approached the Supreme Court and upon seeing the video a judgment is drawn that returning officer Anil Mansinh tempered the ballot paper.

There are two issues:

  1. The video presented in court is available on social media platform and all are interpreting the way they want. This is breach of #dataprivacy. How we will discuss here.
  2. Can court become judgmental by declaring returning officer guilty without scrutinizing the records? Is court pre-decisive and judgmental in this case?

 

DISCUSSION AND ANALYSIS:

[A]

The video presented in court is available on social media platform and all are interpreting the way they want. This is breach of #dataprivacy.

While answering point No.i let us go back to recent history of constitution bench judgment in which current CJI was a part of it.

Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2017), also known as the Right to Privacy verdict, is a landmark decision of the Supreme Court of India, held that, the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India.

A nine-judge bench of J. S. Khehar, J. Chelameswar, S. A. Bobde, R. K. Agrawal, R. F. Nariman, A. M. Sapre, D. Y. Chandrachud, S. K. Kaul, and S. A. Nazeer unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” It explicitly overruled previous judgements of the Supreme Court in Kharak Singh vs. State of UP and M.P. Sharma vs. Union of India, which held that there is no fundamental right to privacy under the Indian Constitution.

This judgment settled this position of law and clarified that the Right to Privacy could be infringed upon only when there was a compelling state interest in doing so. This position was the same as with the other fundamental rights . Supreme Court ruled that Right to Privacy is “intrinsic to life and personal liberty” and is inherently protected under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

DATA PROTECTION:

Central Government passed an Act to provide for the processing of digital personal data in a manner that recognises both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes and for matters connected therewith or incidental thereto.

The definition of the term data under this Act is as under :

(h) “data” means a representation of information, facts, concepts, opinions or

instructions in a manner suitable for communication, interpretation or processing by human beings or by automated means;

(i) “Data Fiduciary” means any person who alone or in conjunction with other persons determines the purpose and means of processing of personal data;

(j) “Data Principal” means the individual to whom the personal data relates and where such individual is—

(i) a child, includes the parents or lawful guardian of such a child;

(ii) a person with disability, includes her lawful guardian, acting on her Behalf

CHAPTER II

OBLIGATIONS OF DATA FIDUCIARY

  1. (1) A person may process the personal data of a Data Principal only in accordance with the provisions of this Act and for a lawful purpose,—

(a) for which the Data Principal has given her consent; or

(b) for certain legitimate uses.

(2) For the purposes of this section, the expression “lawful purpose” means any purpose which is not expressly forbidden by law.

  1. (1) The provisions of Chapter II, except sub-sections (1) and (5) of section 8, and those of Chapter III and section 16 shall not apply where—

(a) the processing of personal data is necessary for enforcing any legal right or claim;

(b) the processing of personal data by any court or tribunal or any other body in India which is entrusted by law with the performance of any judicial or quasi-judicial or regulatory or supervisory function, where such processing is necessary for the performance of such function;

(c) personal data is processed in the interest of prevention, detection, investigation or prosecution of any offence or contravention of any law for the time being in force in India;

(d) personal data of Data Principals not within the territory of India is processed pursuant to any contract entered into with any person outside the territory of India by any person based in India;

(e) the processing is necessary for a scheme of compromise or arrangement or merger or amalgamation of two or more companies or a reconstruction by way of demerger or otherwise of a company, or transfer of undertaking of one or more company to another company, or involving division of one or more companies, approved by a court or tribunal or other authority competent to do so by any law for the time being in force; and

(f) the processing is for the purpose of ascertaining the financial information and assets and liabilities of any person who has defaulted in payment due on account of a loan or advance taken from a financial institution, subject to such processing being in accordance with the provisions regarding disclosure of information or data in any other law for the time being in force

NOTE:

In given case video in question which is attached hereto appears to be leaked and circulated by one of the party affected by the defaced ballots and the same is a serious breach of fundamental right and also breach of data privacy.

ii. Can court become judgmental by declaring returning officer guilty without scrutinizing the records? Is court pre-decisive and judgmental in this case?

Surveillance Cameras, body language and psychology

Feeling as if you lack control over your life can lead to increased stress levels. Individuals under surveillance have to constantly filter what they say or do, especially if their actions going public can result in dire consequences. Not knowing who’s watching or willing to report you can also increase stress. It can have negative psychological effects, including anxiety and depression, and can even become a physiological stressor. Further, social and psychological theories state that the home allows for autonomy, isolation, and well-being. Any form of computerized surveillance can disturb all these pillar.

Conclusion:

[I ]This matter is sub- judice and operative part of the order is as under:

KULDEEP KUMAR VERSUS U.T. CHANDIGARH & ORS.

We direct that the entire record pertaining to the election of the Mayor of the Chandigarh Municipal Corporation shall be sequestered under the custody of the Registrar General of the High Court of Punjab and Haryana. This shall include:

(i) The ballot papers;

(ii) Videography of the entire electoral process; and

(iii) All other material in the custody of the Returning Officer.

  1. This exercise shall be carried out forthwith by 5 pm this evening.

7.  Mr. Tushar Mehta, Solicitor General appearing on behalf of the Returning Officer, states that the Returning Officer has handed over the entire record in a sealed format to the Deputy Commissioner, UT Chandigarh on 30 January 2024.

8 The Deputy Commissioner, UT Chandigarh, shall comply with the above direction by handing over the entirety of the record to the Registrar General of the High Court of Punjab and Haryana for safe keeping and custody.

9 The ensuing meeting of the Chandigarh Municipal Corporation, which is to take place on 7 February 2024, shall stand deferred, pending further orders of this Court.

10 List the Special Leave Petition on 19 February 2024

[ II} The #CJI court must institute inquiry into leakage of video which breaches fundamental right to privacy and data privacy law.

More after 19th February 2024

 

Shruti Desai

Mumbai

6 February 2024.