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RaghukulCS
May 28, 2021

Daily Mains Newsletter For UPSC
| RaghukulCS

28 May 2021

Index

Mains Value Addition
Mains Analysis
Topic No	Topic Name	Source
1	Nine-pin bowling aimed at free speech, privacy	The Hindu
2	Efficiency Vs Dignity	Indian Express

Mains Value Addition

Supreme Court had cautioned government on invasion of individual privacy

Syllabus–GS 2: Polity

Analysis: –

A 2019 Supreme Court order, used by the government to justify its new Information Technology (IT) Rules, which compel encrypted social media messaging platforms to disclose their users’ identity, also cautions the Centre from doing anything which amounts to invasion of individual privacy.
On September 24, 2019, hearing a petition filed by Facebook, the apex court showed deep concern at the utilisation of social media for committing crime.
It said the medium had become a source for pornography. Paedophiles used social media in a “big way”.
Criminals exploited it to run weapons, drugs and contraband. Hate and violence were shared and spread through these virtual platforms.
The court had even felt that some messages on social media may even threaten national sovereignty.
It was in this context; the court had called for a “properly framed regime” to allow the government to get information about first originators of messages from “significant” social media intermediaries with end-to-end encryption technology like WhatsApp.
The court had exercised restraint too. It warned that “de-encryption, “if easily available, could defeat the fundamental right to privacy”.

Pandemic takes a toll on mental health

Syllabus – GS 2: Health

Analysis: –

Psychologists say extended isolation, loss of loved ones, constant anxiety severely affected mental well-being of many.
“The World Health Organisation (WHO) has warned that mental health problems could be the next pandemic after COVID-19 fades away,” said Indian Council of Medical Research (ICMR) senior fellow Akshay Kumar.
People fear they might get infected or a family member might catch the virus. Many have suffered loss of livelihood or business or job.
Even those who are working fear they might lose their job. A chief executive officer of a multinational company in Gurugram, one of my clients, suffered loss of appetite and developed insomnia fearing that he might lose his job.
He is doing well at work but you tend to think illogically when you are anxious.
Another client, an eminent engineer, had fully recovered from COVID-19 but felt he could not breathe without oxygen support.
Post-Traumatic Stress Disorder, Obsessive-Compulsive Disorder, anxiety and panic disorders, generalised anxiety disorder and mood disorders will be at the top of the list and the impact on mental health could be long-lasting.
There are many vulnerable groups who will suffer from psychological distress, anxiety, depression, substance abuse, suicide and suicidal behaviour due to economic recession, insecure job situation, unemployment, lower socio-economic status.
The effects on mental health will last several years after the pandemic ends.
Delay in seeking professional help because of stigma surrounding mental health will cause more issues.

Mains Analysis

Nine-pin bowling aimed at free speech, privacy

Why in News?

The new rules i.e., Information Technology Rules, 2021 being implemented by govt. go against landmark judicial precedents upholding key rights.

Syllabus–GS 2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation

The life of Indian Law rather than being shaped along mathematical exactitudes finds itself at the receiving end of an experiential tussle.
This tussle has aimed at every stage to bargain for a Fundamental Right in return for some negotiation, sometimes with the desire of the coloniser and at others with the dominant ideology at the Centre.

Issues: –

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 threatens to deprive social media platforms of their immunity with non-compliance of the rules.
There are both positive aspects, and also ambiguities and stifling susceptibilities that should render these contrary to past Supreme Court of India precedents such as K.S. Puttaswamy.

The Rules are useful as mandate duties such as:

removal of non-consensual intimate pictures within 24 hours,
publication of compliance reports to increase transparency,
dispute resolution mechanism for content removal and
adding a label to information for users to know whether content is advertised, owned, sponsored or exclusively controlled.

Concerns of violating Fundamental rights:

Supreme Court, in the case of Life Insurance Corpn. Of India vs Prof. Manubhai D. Shah (1992) said that ‘any attempt to stifle, suffocate or gag this right would sound a death knell to democracy’ and would ‘help usher in autocracy or dictatorship’.
Therefore it becomes increasingly important to critically scrutinise the recent barriers being imposed via these Rules against our right to free speech and expression.
Rules were framed by the Ministry of Electronics and Information Technology (MeiTY). The Second Schedule of the Business Rules, 1961 does not empower MeiTY to frame regulations for ‘digital media.’
This power belongs to the Ministry of Information and Broadcasting.
This action violates the legal principle of ‘colourable legislation’ where the legislature cannot do something indirectly if it is not possible to do so directly.
Information Technology Act, 2000, does not regulate digital media. This makes the Rules ultra vires to the Act.

Fair recourse, privacy issues

An intermediary is now supposed to take down content within 36 hours upon receiving orders from the Government.
This deprives the intermediary of a fair recourse in the event that it disagrees with the Government’s order due to a strict timeline.
Thus it hampers free speech by fixing the Government as the ultimate adjudicator of objectionable speech online.
These Rules undermine the right to privacy by imposing a traceability requirement. The immunity that users received from end-to-end encryption was that intermediaries did not have access to the contents of their messages.
Imposing this mandatory requirement of traceability will break this immunity.
All the data from these conversations vulnerable to attack from ill-intentioned third parties. The threat here is not only one of privacy but to the extent of invasion and deprivation from a safe space.

On fake news

The problem here is that to eliminate fake news — rather than defining its ambit as a first step, the Rules proceed to hurriedly take down whatever an arbitrary, ill-decisioned, biased authority may deem as “fake news”.
Rules create additional operational costs for intermediaries by requiring them to have Indian resident nodal officers, compliance officers and grievance officers. Intermediaries are also required to have offices located in India.
Rules place a barrier on the “marketplace of ideas” and also on the economic market of intermediaries in general by adding financial burdens.

Way Forward:

By rapidly diluting right to free speech are only those of caution — of a warning that democracy stands undermined in direct proportion to every attack made on the citizen’s right to have a private conversation, to engage in a transaction, to dissent, to have an opinion and to articulate the same without any fear of being imprisoned.

Question: –

By and large, the Information Technology Rules, 2021 go against landmark judicial precedents upholding key rights. Comment

Efficiency Vs Dignity

Why in News?

Thiseditorial highlights the dangers of a centralised database for justice system

Syllabus—GS2: Issues related to Criminal Justice System

A sobering reality of crime is that it does not respect jurisdictional boundaries. And unfortunately, many police agencies utilize databases that only contain information compiled by their own organization.
As a result, a crime series that affects several towns within a few miles of each other may go undetected because there is no collective awareness of a regional crime problem.
Conversely, when agencies within a region use a shared system for their records, efficiency is improved and crimefighting capabilities are enhanced. In effect, a commonsense approach to using technology becomes an effective force multiplier.

SC’s e-Committee

Recently SC’s e-committee headed by Justice D Y Chandrachud published a draft document digitizing the criminal justice system.
The main aim is to integrate digital technologies in courts to enhance judicial efficiency.
The vision is to put in place an interoperable digital architecture that facilitates easy data-sharing among all pillars of the criminal justice system.

About Interoperable Criminal Justice System (ICJS): –

The Interoperable Criminal Justice System (ICJS), launched in 2019, is set to be fully operational, and will replace the existing need-based physical exchange of information.
It will integrate existing centralised data systems such as the Crime and Criminal Tracking Network & Systems (CCTNS), e-prisons and e-courts, promising “seamless exchange of live data” among these branches.
Critics have raised privacy concerns, given the absence of data protection laws, and questioned the implications of the data being housed in the home ministry for judicial independence.

Concerns:

The main concern is privacy due to the absence of data protection laws in India.
There is also the concern of implications of the data being housed in the home ministry for judicial independence.
The major issue is of a neglected danger that this seamless exchange likely to whitewash the biased & illegal process of data creation.
In other words, it can possibly hamper the objectivity & neutrality of technology.
It will have a huge impact on certain tribes classified as Habitual Offenders.

Habitual Offenders & Central Database:

Habitual offenders are historically maintained a register of persons belongs to certain communities like VimuktaJanjatis that have been criminalized by the British through the Criminal Tribe Act 1871.
For colonial rulers, Caste System offered the rationale to identify & branding of communities as HOs that resulted in extensive surveillance & intrusive policing.
This has been sustained post-independence through state laws allowing the police to maintain records of lives & movements of the communities.
The gravest injustice of being labeled as a HO is that it entirely hinges on police suspicion & discretion that are based on caste prejudices.
The register also includes juveniles that contravene the principles enshrined in the Juvenile Justice Act.
The creation of permanent digital databases based on biased offline databases with no oversight that utilizes ambiguous & outdated provisions is grave injustice & illegal.
For years, the Hos registers were hidden inside specific police stations & shred with other stations when required.
With CCTNS, police used digitized data for crime & criminal mapping & predictive policing.
The existence of HO registers is a ready refuge for the police both while looking for a person to pin a crime on as well as manufacturing one.

Challenges ahead: –

Before the interoperable system, the accused has given a right to challenge the correctness of the record, but now the interoperable system creates a potential for the police information to be used to the detriment of accused persons without their knowledge.
The e-committee’s vision to integrate all existing data systems to make ICJS one expansive centralized system would be feed with biased data of habitual offenders.

Way Forward:

Even if caste-informed biases of data are taken away, we still need to consider the risks of centralized, interoperable & permanent digital databases on privacy & individual liberties.
Efficiency & Digitization cannot recede the rights & dignities of marginalized individuals who are often the subjects of the Indian criminal justice system.

Question: –

Discuss the privacy concerns raised over the judicial independencegiven the absence of data protection laws. Illustrate how the interoperable digital architecture will facilitate “easy” data-sharing among all pillars of the criminal justice system — the police, prosecutors, prisons and courts.