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Monday, 20 September 2021

Why Amarinder Singh’s Exit as Punjab CM Was a Long Time Coming

 

While his removal was not a surprise for close observers of Punjab politics, it has opened up new possibilities in the political scenario going ahead.

With New ‘Industrial Relations’ Code, What Does the Future Look Like for India’s Trade Unions?

 

Amidst the pandemic, digital acceleration and related developments in the US and the UK, provisions in the Code address India's absence of a central framework to recognise and regulate trade unions.

“Let’s leave it for state governments,” says SC; dismisses PIL by student seeking physical reopening of schools

 

 “Let’s leave it for state governments,” says SC; dismisses PIL by student seeking physical reopening of schools 

THE Supreme Court Monday turned down a Public Interest Litigation (PIL) filed by a minor student seeking directions to the Union and State Governments to take a time-bound decision about the physical re-opening of schools.

Describing the petition as “misplaced”, a two-judge bench of Justices D.Y. Chandrachud and B.V. Nagarathna said, “Let’s leave it for the state governments to take a call whether schools should be opened. Supreme Court can’t take over governance”.

The bench added it could not pass an order on the reopening of the schools based on an omnibus statement made by the petitioner that schools should be re-opened.

“Governments are answerable and conscious of the need of children to go back to school. We cannot say by a judicial diktat to send them to school disregarding the possibility of a third wave …”, Justice Chandrachud said. He added the government itself has to tread with extreme care when the issue is of exposing younger children to the dangers of COVID-19. Similarly, the Court must be equally or even more careful because “there is the absence of data before us, the absence of scientific knowledge on our part and also on the part of the petitioner who has moved the Court”.

Justice Nagarathna, for her part, pointed out that children and teachers were yet to be vaccinated.

The apex court asked the petitioner to withdraw the petition and pursue the matter with the government.

source '  /www.theleaflet.in/

Delhi: Muslim Woman in Custody for Minor Alleged Offence Accuses Police Officer of Brutality

 Hamida Idrisi alleges that the officer concerned only let her go after a payment of Rs 5,000 and threats of consequences if she spoke about what had happened.

Delhi: Muslim Woman in Custody for Minor Alleged Offence Accuses Police Officer of Brutality Hamida Idrisi. Photo: Ghazala Ahmad

 

New Delhi:A 37-year-old Muslim woman with a disability from Northeast Delhi has alleged that she was brutally beaten in custody by Girish Jain, the station house officer (SHO) of Dayalpur police station, after she intervened in a heated argument between her neighbours and her tenant on August 30, 2021.

Hamida Idrisi filed a complaint on September 3 against SHO Girish Jain at the Seelampur office of the Deputy Commissioner of Police, Northeast Delhi, demanding strict action against the officer for inflicting “physical and sexual brutality” on her.

A copy of the complaint has been sent to the Delhi Commissioner of Police, the Delhi Human Rights Commission and the Delhi Minorities Commission.

Idrisi was born with no movement in one leg.

The events of August 30

Hamida and her husband, Mumtaz Idrisi, own a single-storey house in Nehru Vihar, Karawal Nagar, and have rented a part of this house to Kareem, whose sons Suhel and Suheb use it as a shop to sell beverages. The rent from the shop is the couple’s sole source of income.


On the evening of August 30, a quarrel broke out between Suheb and four of Hamida’s neighbours across the street, named Soni, Arif, Suhail and Shahrukh.

When the argument threatened to turn into a fight, Hamida stepped in to mediate and separated the two groups. The shop was then closed and Suheb went to his home.

“But after some time, when everything had settled down, Girish Jain, the SHO of Dayalpur police station, and other police personnel barged into my house and asked me to produce the lease agreement with my tenant and the verification form. I immediately produced an 11-month lease agreement. They then asked me to take them to my tenant’s home, but I refused as my husband was not home,” Hamida told The Wire.

There were five policemen including Jain, Hamida said. Three of them were in uniform and two in plainclothes. There was no policewoman among them.

Hamida continued: “The policemen dragged me into their jeep and took me to the police station for inquiry. Soni, my neighbour’s son, was with them. After we reached the police station, they kept me sitting there till 10 pm, and then a lady constable named Komal tied my hands and pushed me into a small room. Then SHO Girish arrived with a green pipe of the kind used for cleaning and started beating me vigorously on my thighs and back. He used abuses and communal slurs to target my religion and continued to beat me for the next two hours.”

Hamida claimed that Jain had taken off her dupatta and hit her with the pipe till her skin was cut and bruised and she was bleeding. “Even 15 days after it happened, my body still has clear marks of the brutality inflicted upon me by the officer.”

Eventually, she said, she was let go later that night at 2 am after the officer threatened her with consequences if she ever spoke about what had happened.

“I remember his actual words,” said Hamida. “He said: ‘Don’t say a single word about this or I will destroy your entire family and your future and will do worse to you than I did this time’.”

They only released her after she paid them a bribe of Rs 5,000, Hamida added. “They wanted more, but that was all I had,” she said.

When Hamida got home, she found that her house and Kareem’s shop had been ransacked by the police and several valuable items, including a sofa, had been destroyed.

Counter allegations

Hamida and Kareem allege that Jain had taken her into custody and beaten her at the behest of Soni, her neighbour’s son, because Soni’s family had wanted the shop the Idrisis had rented to Kareem.

The two of them accused Soni of bribing the police with Rs 50,000 to arrest and beat Hamida.

Soni had been with the police when she had been taken to the police station, Hamida recalled. She said that at the police station, when she had appealed to Soni to sort out the issue through discussion rather than police intervention, he had said: “Bahut bol rahi thi, na, tum ladai khatam karwate waqt. Ab bolo (You said a lot, didn’t you, when trying to end the fight. Now talk).”

Also read: Wounded, Paralysed, but Still Jailed: Delhi Riots Victim Recounts 17-Month-Long Ordeal

Girish Jain, the SHO of Dayalpur Police Station, denied Hamida’s claims.

“Her claims are false,” Jain told The Wire. “I took her to the police station but only for inquiry and let her go after that.”

Asked about Hamida’s complaint against him, Jain said that Hamida was “dragging him into a conspiracy” because he had brought crime in the area under control.

But Sanjeev Kumar Singh, the deputy commissioner of police, Northeast Delhi, said, “Hamida’s complaint was heard and attended thoroughly by a senior official. It has been marked to the public grievance cell and the investigation is underway. Appropriate action will be taken after the investigation.”

‘Sheer contempt of humanity’

Ever since the communal violence that set Northeast Delhi aflame last February, Muslim residents of the area have been feeling harassed and targeted by the police.

Even Kareem, Hamida’s tenant, believes that she was picked up by the police simply because of her religion.

“They took Hamida for no crime of hers. Since the Delhi pogrom in 2020, the police have become more hostile towards Muslims in Northeast Delhi. It has become normal for uniformed men to pick up anyone and put them in jail though they have not committed a crime,” Kareem alleged.

Zafarul Islam Khan, former chairperson of the Delhi Minorities Commission, has been following Hamida’s case since it was first reported and raises serious concerns about the alleged brutality of the police and their hostility to Muslims.

“No day passes without some such incident of attack on hapless Muslims,” Khan told The Wire. “But the attack on Hamida was doubly alarming because the only reason given for taking her to the police station was that she had failed to have her tenant verified. Shecould have been fined or even sent to jail for a few days for what the police believe is such a “grave offence”. But to use that excuse to unnecessarily beat a handicapped woman black and blue is sheer bestiality and contempt of humanity.”

Ghazala Ahmad is an independent journalist based in Delhi.

 source ; the wire

 

Who Will Penalize the Laxity on the Part of Law Enforcers? – Part IV

 

An analysis of the poor quality of labour statistics and the urgent need for labour inspection reforms

 Who Will Penalize the Laxity on the Part of Law Enforcers? – Part IV 

In the fourth of a five-part series on the absence of checks and balances on the State to ensure the effective operation of labour laws, and how it led to the shameful and tragic predicament faced by thousands of migrant workers across the country during the COVID-19 induced nation-wide lockdown last year, K.R. SHYAM SUNDAR delves into the poor quality of labour statistics and the need for reforms in labour inspections in India.

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THERE are two kinds of official sources of labour statistics in India, viz. the administrative data (based on annual returns submitted by firms/trade unions) and household surveys (i.e., the National Sample Surveys (NSS) or the Periodical Labour Force Surveys (PLFS)). In this part, we concentrate on the administrative data.

The system of annual returns submissions works as follows: The primary data-giving units are factories, shops and establishments, plantations, mines, ports and docks, contractors, and so on which are registered under their respective generic laws; for example, factories under the Factories Act, 1948. They are required, under the various labour laws, like the Factories Act, the Payment of Wages Act, 1936 (the PW Act), and the Contract Labour (Regulation and Abolition) Act, 1970 (CLRA Act), among others, to provide relevant data to government agencies.

Under the Trade Unions Act, 1926, registered trade unions of employers and workers are required to provide data. The State Labour Departments (SLDs) receive these returns. After due scrutiny of the returns, the SLDs compile the data for their respective states and send them to the Labour Bureau, the apex labour statistics body operating under the Union Ministry of Labour and Employment. The Labour Bureau cleans up and compiles the data and publishes it in its annual outlets and on its website.

The Bureau collects statistics on various labour variables statutorily, save a few, like strikes and lockouts, which are collected on a voluntary basis.

The basic shortcomings of the administrative statistics are two, viz. the primary units (employers and trade unions) default often and data coverage is restricted due to the existence of thresholds for applicability under labour laws. But during recent decades, especially in recent years, even the state governments have defaulted. They send incomplete or delayed reports due to non-compliance by the primary units, or due to their inefficiencies or work pressure. The problem is that major industrialised states like Tamil Nadu, Maharashtra and Gujarat have often been the defaulters.

Two outcomes of these combined deficits are as follows.

First, there is nothing called “all-India statistics”, which means the data published by the national agencies like the Labour Bureau does not cover even the restricted and proposed universe. Second, the SLDs send data erratically to the Labour Bureau. Hence, the available national data is not reliable. We cannot even compile a time-series data for most of the states and UTs.

Historical Context to Labour Reforms

India ratified the International Labour Organisation (ILO) Labour Statistics Convention, 1985 (No. 160) in 1992 and Labour Inspection Convention, 1948 (081) in 1949, and is bound to publish certain key labour statistics as provided under these agreements.

It is galling to note that despite the recommendations made by several commissions/committees, viz. the National Commission on Labour (NCL, 1969), the Working Group headed by T.S. Sankaran (1975), the K.C. Seal Committee (1981), the Study Group chaired by Professor Lalit Deshpande (1999), the Second National Commission on Labour (SNCL, 2002), and Professor T.S. Papola’s study for ILO (2014), the labour statistical system in India continues to suffer from many historical shortcomings.

Also Read: Labour Law Reforms: After a Tearing Hurry, Ad-hocism, Lethargy and Complexities Dominate Processes of Making Regulations – Part I

Given these gaping holes in the labour statistics in India, it is ironical that the government emphasizes the important role of “statistics” in “policy making”. If social dialogue were driven by an “evidence based approach”, its outcome could be far more efficient than that based on “views and ideological positioning” of the “actors” in the industrial relations system (IRS), viz., the employers, trade unions and workers.

During the COVID-19 pandemic, as explained in detail in the previous parts of this series, none of the state governments or the central government had data on migrant workers or their plight, including job losses and deaths. It is also not clear as to what basis the central government reformulated the existing labour laws into the four Labour Codes, as major amendments with far-reaching consequences for all stakeholders have already been made.

This is another instance of “State Failure”.

Also Read: IRC an unnecessary law on labour negotiations

Labour inspections

Responding to and even endorsing the “inspector raj” critique of labour inspections, many states have introduced reforms surrounding inspections. [These reforms are too numerous to be detailed in this article and can be found here, as summarised by me.] Briefly, the reforms of the inspection system comprise of the following measures.

First, voluntary self-certification by employers which allows only a complaints-based inspections and one routine inspection in five years for prescribed labour laws (e.g., the “Self-Certification-cum-Consolidated Annual Return Scheme” for Boilers/ Economisers in Maharashtra).

Second, a risk-based inspection system is devised wherein establishments seen as high risks will be inspected more often (once in two years) than those seen as less (once in three years) or least (once in five years) risks (e.g., the “Computerised Risk Assessment based inspection” in Telangana).

Third, several governments have accepted annual third-party certification or auditing in place of the official inspection, and they would conduct inspections only in response to complaints (e.g., the “Third Party Certification/ Audit Scheme” in Haryana).

Fourth, inspections would no longer be universal and would now be determined by a combination of randomised and risk-based inspection systems (e.g., the “Transparent Central Labour Inspection Scheme for Random Inspection of Units”).

Fifth, many state governments have granted labour inspection powers to the Development Commissioner of the Special Economic Zones, who has the discretion to reduce inspections and does not possess technical skills akin to those in the Labour Departments.

Sixth, some states have classified inspections into mandatory and optional (such as Jharkhand).

Thus, we see that almost all the states have substantially liberalised the labour inspection systems. We see from the following figures (viz., figures 1 to 3) that inspections by the Factory Inspectorate and the SLDs have declined steeply during the post-reform period, i.e., 1991 onwards in three states, viz. Maharashtra, Haryana and West Bengal.

Fig 1: Percentage Registered Factories Inspected in Maharashtra, 1990-2012

Source: Directorate of Safety and Health, Government of Maharashtra

 

Fig 2: Inspections of Factories in Haryana, 2011-2017

Source: Fig. 8, CRUSHED, 2020 Edition

Fig 3: Percentage of Factories Inspected in West Bengal, 1991-2013

Source: Fig. 6.2., p.113 in Achin Chakraborty, Subhanil Chowdhury, Supurna Banerjee and Zaad Mahmood (2019), Limits of Bargaining: Capital, Labour and the State in Contemporary India, Cambridge University Press.

According to some scholars, the proportion of factories inspected in India over 1986-2008 declined from 63% to 18%. Under the Minimum Wages Act, 1948 (the MW Act), an inspector was to inspect 2,428 establishments in a year. In Bihar, in 2013, one inspector was to inspect more than 1,060 factories, which is well-nigh impossible.

These statistics highlight the fantastic and unachievable workload of the inspectors and hence, the narrow coverage of the inspection system. In 2011, 76.36% of the sanctioned posts of general factory inspectors and 57.76% of the chemical inspectors (specialists) were appointed, and the ratio of working factories per appointed inspectors was 365:1 (computed from data available here).

Fig 4: Number of inspection Visits and Irregularities Detected Under All Labour Laws in Maharashtra, 1991-92 to 2012-13

Source: Commission of Labour, Government of Maharashtra

We see from the above figure (no. 4) that the total inspection visits under various labour laws administered by the Commissioner of Labour, Government of Maharashtra declined steeply – the inspection visits declined from 3.20 lakhs (0.32 million) in 1992-93 to 62,635 in 2012-13.  The decline in the irregularities detected could be interpreted either way, i.e., either to show the labour administrative system in a poor light or to compliment employers for being increasingly compliant. The elaborate submissions made by the Commissioner of Labour, the Government of Maharashtra, deserves full reproduction here, which would expose the internal contradictions in the entire labour market governance scheme.

The paradox is that on the one hand, the Government extends important labour rights but on the other, it does not have the capacity to secure the same for the target groups, who are the workers, especially those in the unorganised sectors.

A common criticism is that various labour laws are not being properly implemented by the Labour Commissioner’s office in Maharashtra. The Labour Commissioner’s office admits that:

“This criticism is not all together without substance. However, it must be stated here that, for proper enforcement, adequate machinery is necessary … the total number of establishments covered under the various scheduled employments in respect of which minimum rates of wages have been fixed/revised so far, are approximately 601,137 in 2009 and 595,776 in 2010, in the entire State (this does not include agricultural holdings). The total number of officers appointed as Inspectors under the MW Act (excluding Non-Gazetted MW Inspectors for Agriculture) are 131 in 2009 and 76 in 2010 (excluding 14), cadre posts working on Mathadi Boards and 4 administrative functionaries, only. Thus, each Inspector gets on an average 5,062 establishments for enforcement of MW Act, alone. It must however be remembered here that these Labour officers (sic) are also Inspectors under the labour enactments mentioned above as well. According to the present norms of inspections, each officer has to visit 100 establishments per month. At this rate, each officer would require more than 3 years (sic) time to cover all the 5,062 establishments under his charge in respect of the MW Act, alone. This inadequacy of the enforcement machinery is the largest single factor, which inhabits (sic) enforcement.”

[Set-up functions, Work and Important Labour Statistics of the Office of the Commissioner of Labour, Maharashtra State, for the Year 2009-10; for the Year 2010-11, Commissioner of Labour Office, Mumbai, pp.21-22, (Undated)].

Global workers’ advocacy organization IndustriALL has recorded 30 industrial accidents during May-June 2020 in India which killed 75 and injured more than 100 peersons. The industrial accidents include a gas leakage like the Bhopal Gas Tragedy, in LG Polymer in Andhra Pradesh, a boiler explosion in Yashashvi Raasayan Private Limited in Gujarat, accidents in chemical plants, coal mines, steel factories and boiler blasts in power stations.

The Labour Bureau collects statistics on industrial injuries only pertaining to the organised sector and within it, only factories, mines, railways, and ports.  It does not collect statistics on industrial injuries in industries like construction, plantation, and agriculture (which are highly accident-prone sectors) and the entire unorganised sector. Even this data is defective, as we have seen.

A retired Joint Commissioner of Labour makes a startling observation which is worthy of note here: “Very few big accidents get noticed where compensation to workers or dependents is paid. Majority of the accidents are hushed up and no compensation is paid in such cases.”

Part I Part II | Part III

This article series is an updated version of an earlier article by the author published by Newsclick last year. It has been published as a chapter in a book written by the author titled ‘Impact of COVID-19, Reforms and Poor Governance on Labour Rights in India’ (Synergy Books India, 2021).

(Dr K. R. Shyam Sundar is Professor, HRM Area, XLRI, Xavier School of Management, Jamshedpur. The views expressed are personal.)

source ;  //www.theleaflet.


Conundrum of expectations: are courts prepared for challenges against facial recognition technology?

 

In the absence of frameworks for privacy and data protection, the existence of legislation dedicated to the regulation of State use of facial recognition technology (FRT) appears to be a distant dream. MUSTAFA RAJKOTWALA & TEJAS NAIK juxtapose the unregulated use of FRT in India with the judgements that treat privacy as a fundamental right.

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IN the past few years, India has seen a rise in the use of facial recognition technologies (FRTs) by ‘State’ actors. At this point, they have been deployed as part of police investigations (in New DelhiChennaiPunjab, and Hyderabad), identification of citizens at airports and railway stations, and for the identification of school students. Further, the government plans to launch the National Automated Facial Recognition System (NAFRS) under the ambit of the National Crime Records Bureau (NCRB) that will be used by police, pan-India. 

 At the outset, it is pertinent to understand the functioning of this technology. Based on machine learning (ML) and artificial intelligence (AI) tools, FRT systems host a number of algorithms to identify specific and distinctive details about a person’s face and facial features. These details are then stored onto a database for future reference. Since FRTs include algorithmic functions, the system can segregate, profile and compare data with other facial data that is stored on the database.

Law enforcement and governmental agencies have been utilising FRTs under the pretext that they (a) assist in preventing crimes and (b) aid in investigations. The notion of enhancement of “efficiency, transparency and accountability” in the course of social justice is the primary justification.

However, in the pursuit of this technological advancement, there are ethical and legal issues, primarily relating to the State’s responsibility in safeguarding an individual’s privacy, and in ideating constitutionalism. While who has access to this database is a question that a data protection framework can deal with, the liability in case of a breach of such data is yet to be conceptualised.

It is interesting to hypothesise how the Courts in India would respond to this technology if and when claims arise against it.

Safeguards that must exist as per precedent

The first pertinent point to engage with is that the collection of susceptible forms of personal data such as facial data/biometric data must be accorded the ‘highest degree’ of protection. In order to restrict privacy (which is a Fundamental Right), a test of proportionality affirmed in the Supreme Court judgments in the cases of K.S. Puttaswamy vs. Union of India (2017) (‘Puttaswamy’) and the K.S. Puttaswamy vs. Union of India (2018) (‘Aadhaar) cases must be looked into.

Further, it is to be noted that India does not have adequate legislation that includes individual data and privacy protection. In such a case, if a challenge has to be brought against the constitutionality of the technology, it would have to be done based on the parameters laid down in the aforementioned cases. The restrictions placed on the deployment of a technology that utilises the personal data of an individual (which extends to public spaces) must be (a) imposed by law; (b) have a suitable means of achieving a legitimate aim; (c) must be necessary and balanced, i.e. the restrictions must be the least restrictive of the alternatives available to achieve the said goal and on balance, must not disproportionately impact the rights of citizens; and (d) should have sufficient procedural guarantees to place a check against abuse of state interference.

These parameters are of relevance when analysing how courts will potentially respond when the use of FRTs is challenged before them.

Also read: How India’s Data Protection Regime Must Learn from the WhatsApp Privacy Policy Fiasco

With regard to parameter (a), a pertinent issue to note is that law enforcement agencies, apart from building their own technology systems, are entering into contracts with software companies and third-party organisations, in order to set up infrastructure and software. 

This raises several constitutional questions of legitimacy, as this exercise involves the personal data of individuals.

However, such a third-party contractual arrangement cannot be regarded a restriction imposed by law. Further, as highlighted in Supreme Court judgments such as that in State of Madhya Pradesh & Anr. vs. Thakur Bharat Singh (1967), an executive action (although not backed by a legislation) which acts to the prejudice of a citizen, must not be permitted by law.

Legitimate aim and disproportionate measures

With regard to parameter (b), to rationalise the necessity of this technology, law enforcement agencies argue that the legitimate aim is the prevention and investigation of crimes. But the question which must be answered before the court is whether FRT is the “suitable means” to achieve this legitimate aim.

For instance, the Delhi Police (under the Union Home Ministry), one of the foremost law enforcement agencies to actively deploy FRTs, has justified its use for security purposes during Independence Day and Republic Day arrangements. At various instances, Delhi Chief Minister Arvind Kejriwal has boasted about the robust FRT framework across the Union Territory, with approximately 1,826 cameras per square mile.

However, in 2018, the Delhi Police reported that the trial FRT system had an accuracy rate of merely 2% while identifying defaulters. Latest official figures report that only forty two arrests have been possible in New Delhi, up till 2021. This is one of the several examples of inconsistencies in the effectiveness of the technology, and the minimal benefit it contributes towards the investigation and prevention of crimes.

The crippling issues of lacklustre investigations and inordinate delays remain, for which the police are answerable. This huge density of cameras in and around Delhi has neither prevented crimes, nor has it made the city safer for women and children.

Furthermore, incompetent investigations by the police fail to secure convictions. In this case, it would be safe to argue that FRT has so far not aided law enforcement agencies in achieving any of the goals they claim to be working on through its application.

Also read: A Sound Data Protection Authority is the Need of the Hour

With regard to parameters (c) and (d), necessary and balanced are the two requirements of any restriction imposed, that has the effect of taking away an individual’s right to privacy. While answering this question, the court has stuck to the concept of proportionality, especially in cases like Aadhaar.

Intervening with proportionality on Section 57 of the Aadhaar Act, which allowed private companies access to the data collected by the Unique Identification Authority of India (‘UIDAI’), the Supreme Court excluded private parties from using Aadhaar as a form of identification and held that any legislation requiring this would also be unconstitutional. Proportionality, here, was the ‘stake’ of private entities when it came to the data of and the utility through Aadhaar, and the court while trying to maintain the status of the Aadhar Bill as a money bill, flagged the commercial exploitation of this data as a threat.

While scrutinising these ‘contracts’ between the various law enforcement agencies and private firms, the access to data that is contractually provided will play a huge role in determining proportionality.

For the most part, the courts are likely to rely on the affidavits of the State, which will likely provide that no private access to data has been provided.

Subjective application by courts

In the United Kingdom, in the case of Ed Bridges v. South Wales Police (2020), the Court of Appeal of England and Wales has stressed on the fact that having a legal framework is a necessary but not sufficient condition to authorise the use of FRT. The court went on to say that a law that authorises the use of FRT must be clear and lay down sufficient safeguards to check the exercise of discretion by law enforcement agencies.

Although the European Union and the United States are heavily debating the use of this technology (with San Francisco being one of the firststates to ban the same), this discussion is yet to commence in India.

While Puttaswamy in India maintains the status of privacy as a fundamental right, other judgements on the matter have failed to create a foundation of data protection laws. The infirmity of our legal system is not only that there are no laws which create a legal framework for FRT use, but also that we do not have an overreaching law for data protection.

Also read: UP Uses Facial Recognition Technology to Mete Out Discriminatory Treatment

Courts have held that privacy is a fundamental right, but for every claim against State (executive) action that has rendered this right violated, the courts have for the most part stood with the justifications provided by the Executive. In Govind v. State of Madhya Pradesh (1975), the Supreme Court consistently upheld the ‘Regulation’ that provided for surveillance of suspected people. This consistency has been traded for convenience in subsequent judgments like People’s Union for Civil Liberties v. Union of India (2003) (‘PUCL’), wherein the court noted the importance of privacy and also acknowledged that privacy was indeed a fundamental right for the individual.

However, when it came to the challenges and claims made against State action, it sided with the Executive. In PUCL, the court demanded stricter scrutiny of the procedure followed while tapping the phones of suspects. A similar observation was made by the Bombay High Court in Vinit Kumar v. CBI and Ors. (2019).

This trend of the courts not intervening can be seen in endless other examples, where if a procedural safeguard is already in place, the Court does not engage with the instant question of breach and merely directs the Executive to adhere to the guidelines more strictly. Therefore, if law enforcement agencies are able to produce and claim that legal parameters in the course of application are being adhered to, courts are unlikely to strike it down as a restriction not imposed by law.

While on one hand this trend makes the outcome of these claims ‘pre-defined’, where the court is more likely to stand by executive orders, on the other hand, it also elucidates the expectations of the court for qualifies as safeguards. It needs to be seen how the courts will respond to the lack of a framework on data protection and FRT vis-a-vis the submissions that will be made before it by the government.

(Mustafa Rajkotwala and Tejas Naik are both fourth year undergraduate law students at NALSAR University of Law, Hyderabad. The views expressed are personal.)

source ; www.theleaflet.in/