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BEING HUMAN WITH TECHNOLOGY; PRE-EMINENCE OF HUMAN RIGHTS DURING THE DIGITAL ERA IN INDIA

Updated: Feb 6

By

  1. Krisha Ajay Shah, III Year of BBA.,LL.B(Hons), from VIT School Of Law, Chennai

  2. Swathika D, III Year of BBA.,LL.B(Hons), from VIT School Of Law, Chennai

Abstract:

It is not the internet per se that is substandard, it is the digital rights management that has been inadequate. Over a while there has been an increase in the advancement of automation which has raised various concerns over privacy, data protection, freedom of expression, and digital rights which, to date, remain as common apprehension among the many. This article concentrates on examining human rights in the internet era by addressing each of the distresses mentioned earlier, observing the constitutional validity of certain rights, and finally examining if India’s data protection laws can lead to triumph.


Introduction:

History

A historical mandate called the Universal Declaration of Human rights (UDHR) was first introduced by the United Nations in 1948. This document had given birth to the inalienable rights of all humans. It was indeed a revolutionary document, which ascended a sense of respect among fellow humans by suggesting changes in the then existing government systems. The fruit of human rights may be planted by the European nations, but its root digs deep to "Rig Veda" and "Atharva Veda" which had upheld ancient human culture in India.


Digital era

World over, 7.77 billion people are internet users as against 413 million users back in 2000. The internet is something that emerged through biological intelligence which may not be able to surpass the digital intelligence if protection against human rights violation aren't taken seriously. Right to education, freedom of association, multilingualism all fall under the purview of human rights in the digital era. The government of India had introduced a flagship program named "digital India" aiming to transform the country into a digitally empowered society, which naturally would be carried out by the improved online infrastructure. Improved online infrastructure might end up resulting in a threat to digital rights if not adhered to suitably.


Constitutional validity

Any right to be exercised must be upheld by the constitution. Most of the human rights related to the digital scenario are protected by the constitution under the fundamental rights, such as:

  • Freedom of expression — Article 19(1)(a) of the constitution says that all citizens of India have the right to freedom of speech and expression. Freedom of speech and expression includes the right to express one’s own views and beliefs freely by word of mouth, writing, pictures or any other mode.

  • Right to education — Article 21-A of the constitution makes it compulsory to educate all children in the age group of six to fourteen years in such a manner as the State may, by law, determine.

  • Freedom of association — Article 19 (1)(b) provides that all citizens shall have the right to assemble peaceably and without arms.

  • Multilingualism – Multilingualism is the way of life in India, this is protected by the eighth schedule of the constitution which has recognized 22 official languages.

  • Privacy — The Constitution of India does not blatantly grant the fundamental right to privacy. However, the courts have read and implemented the other existing fundamental rights, i.e., freedom of speech and expression under Art 19(1)(a) and right to life and personal liberty under Art 21 of the Constitution of India into the right to privacy. Justice K S Puttaswamy (Retd.) & Anr. vs. Union of India and Ors., was a landmark case where the constitution bench of the Hon'ble Supreme Court had held right to privacy as a fundamental right, subject to certain reasonable restrictions.


Legal aspects of data protection:

Data protection-Data Protection refers to the set of privacy laws, policies, and procedures aimed at mitigating privacy infringement triggered by the personal data collection, storage, and dissemination. Personal data usually refers to information or data relating to a person identifiable from the information or data either obtained by some individual, government or private entity or an agent. Intending to introduce a codified law on the subject of data protection shortly, the government introduced the 2019 personal data protection bill in the parliament, which would create the first cross-sectoral data protection legal footing in India. Currently, the pertinent laws in India dealing with data protection are the Information Technology Act, 2000 and the (Indian) Contract Act, 1872.


Few instances in India where these rights were susceptible:

Introduction of Aadhar cards

Aadhar Card is a mandatory document introduced by the government of India for the sole purpose to assist as a proof of identity and address anywhere in India, this was done by providing the holder a unique identification number. The Aadhar card at the time of registration of the same had made it compulsory to provide demographic data, biometric data, facial, and iris scanning. The government also made it mandatory to link the bank accounts of the holder with the card. This had naturally created quite some concerns regarding data protection and privacy, like identity theft, using the Aadhar data with unauthorized access, correlation of identities across domains, and illegal tracking of individuals. In the writ petition Puttaswamy, KS, and Another v Union of India, all the privacy issues had been addressed in a three-fold proportionality test, where the majority had held the constitutionality of Aadhar by striking down most of its private grounds and limiting its scope.


Introduction of FAS-Tag

"Worldwide, mass warrant-less surveillance of cars is a major human rights issue," states Fennel Aurora, a Finnish cyber security and privacy company.


FAS-Tag is a new method that has been introduced by the government for the collection of tolls operated by the NHAI (National Highways Authority of India) electronically. It mainly engages Radio Frequency Identification (RFID) technology. This is widely called the Aadhar for the vehicle, where the owner's details and bank account are to be linked with the FAS-Tag. This is now made mandatory for all vehicles to pass the NHAI operated tolls. This had instantly caused various apprehensions mainly because of the data protection measures whilst providing demographic and banking details with telecom companies or other authorities to fulfill the KYC norms. the information so provided can track down vehicular actions and it is easily accessible to all the stakeholders as well as the common public because the RFID scanners are available at very cheap rates, this has increased the possibility of identity theft as well as unauthorized surveillance.


Kashmir shutdown

"Internet is not a luxury; it is a necessity", quoted Barack Obama

The abrogation of article 370 had led to the longest internet shut down in a democracy. India on its way to becoming digital India almost had every other activity to be steered online, it was a huge rugged mess among millions, businessmen and the student communities were the most affected out of them all. The courts had pronounced that, according to India's telecommunication rules, internet suspension can only be temporary and the unspecified period of extension had violated the rules. In the writ petition Anuradha Bhasin vs Union of India & Others 2020, the Supreme Court declared that freedom of speech and expression and freedom to practice any profession over the medium of the internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g).


Arogya Setu App

The coronavirus pandemic has taken over the world and its way beyond anything the modern society had expected to tackle. The take of digital advancement in handling the biological threat had created various possibilities of mapping the vulnerable by the following methods:

  • Information portals (such as information for self-diagnosis or maps of risk areas),

  • anonymous data analytics (especially from mobile phone networks),

  • an app that attempts to record possible infection situations (contact tracing),

  • app to check quarantine measures

  • Attempts to track infected persons via various data such as mobile phone tracking with the help of Bluetooth and location services.


On an attempt to contain the community spread, the Government of India had created an app named "Arogya Setu". The app aims at cutting off the spread of the virus by gauging the user's exposure to infection based on the locality of residence. This is done by observing their travel and medical history, through tracking the handler's contacts with their location and Bluetooth services and alert the user in case they crossed paths with someone who had tested positive. With India being a nation which doesn't have concrete data protection laws in place, the government cannot be held responsible for the adversities with regards to the app because there aren't any established methods of redressal or statutory validation to proceed against them in case of an infringement in a person's privacy on this regard, this resulted in resistance from few, although the main reason for resistance would have to be lack of trust in the method of operation with their personal information out there on the line. Later, the officials had rectified the app's privacy policy with stronger and safer encryption methods and declared that the data will be given to medical examiners and other officials only for examining purposes, further the data of people who tested positive of the virus is programmed to be deleted after 60 days and for those who tested negative after a period of 30days.


Social media platforms:

Social media is a powerful platform which exhibits people’s opinion. A few consider it as a sacred space to pen down their thoughts and others consider it a place to criticize those thoughts. This platform has been one of the major dwellings for controversies and has been a place where human rights are at the pinnacle of vulnerability. For so long, women had been held susceptible to the pitfalls of social media due to their sensitive nature and whatnot. The events during the #metoo movement” and “Bois locker room” had proved to us that; gone are the days when women had been victimized. The above-mentioned scenarios are living proof of how these platforms can be misused and how the tables can be turned from being a victim and playing a victim. These platforms have even been used to spark communal violence in India repeatedly, and it has even been an active place for hate speeches. These situations show how flexible social media has been about infringing human rights.


Conclusion:

Currently there has been a call for the Universal Declaration of Digital Rights (UDDR) which shows how human rights in the digital era have been a tenacious issue world over. FAS-Tag, Arogya Setu, Aadhar were all introduced in pursuit of digital India and making lives easier with the growing technology. Somewhere in between attempting to build a great internet infrastructure and a digitally connected nation, India has failed to protect human rights. the UNHRC clearly states that "the same human rights that people have offline must be protected online." These technological advancements, as we call them, have violated several rights that are constitutionally validated. There is a pressing need to find a way to capitalize on the upsides of digital technology along with reduced risk to human rights. Situations like these must have serious legal ramifications, which is why more bills like The Personal Data Protection Bill,2019 must be rehabilitated into laws as soon as possible.


Reference

  1. Puttaswamy, KS and Another v Union of India. Writ petition (Civil) No 494 of 2012. Supreme Court judgment dated Sept.26, 2018; https://indiankanoon.org/doc/127517806/

  2. Puttaswamy, KS v Union of India. Writ petition (Civil) No 494 of 2012. Supreme Court judgment dated Aug. 24, 2017.

  3. Anirudh Burma 2020 ‘Carnegie India’ “will India’s proposed data protection law protect privacy and promote growth” https://carnegieindia.org/2020/03/09/will-india-s-proposed-data-protection-law-protect-privacy-and-promote-growth-pub-81217

  4. madhav khosla, ananth Padmanabhan 2018 ‘ThePrint’ “the aadhar challenges; 3 features that put constituitional rights at risk https://theprint.in/opinion/the-aadhaar-challenge-3-features-that-put-constitutional-rights-at-risk/75576/

  5. Shivaji Bhattacharya, Anindhya Shrivastava 2020 ‘S&R Associates’ “COVID19: Implication on the data protection framework in India” https://www.mondaq.com/india/data-protection/928998/covid-19-implications-on-the-data-protection-framework-in-india

  6. Mohandas, Nisha Holla 2020 ‘Gateway house’ “case for universal declaration of Digital Rights” https://www.gatewayhouse.in/digital-rights/

  7. Sankalp Phartiyal, Fayaz Bukhari 2020 ‘Reuters’ supreme court says indefinite Kashmir internet shutdown is illegal https://in.reuters.com/article/india-kashmir-internet/supreme-court-says-indefinite-kashmir-internet-shutdown-is-illegal-idINKBN1Z90FJ

  8. The Constitution of India, 1950