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1.Switching to data rights system (Live Mint)

2.Flawed way for environmental regulations (Live Mint)

1.Switching to data rights system (Live Mint)

Synoptic line: It throws light on the need to have a comprehensive framework for digital data protection. (GS paper III)

Overview

  • The collection and use of personal data in order to deliver public and commercial services is now routine in India. For a country with large digital ambitions, one of the key questions would be to think about regulating the use of Indians’ personal data.

User data rights

  • Like rights to most goods, personal data will be best protected by a system of user data rights. The objective of such a regime would be dual: to empower people to use their information as they desire and to protect people from undesirable harms.
  • The Supreme Court decision in the K.S. Puttaswamy case (2017) sits squarely within this understanding. It declares privacy to be a fundamental human right of Indian citizens protecting us from undesirable privacy harms that result from disclosure of our personal details and empowering us by reiterating our right to determine what we disclose about ourselves in different aspects of our lives.
  • The core of a new data protection regime for India must be built around a system of user data rights serving these dual objectives. Such an approach would trigger graded obligations and liabilities for entities using personal data.
  • The implied premises of several existing approaches to data protection are that of a “property-only” view that commodifies data to give users the illusion of control.
  • This has led to the creation of the fiction that when users are given a voluminous legal notice and asked for consent through “I agree” buttons, they are in effect exercising their property rights to sell or trade their data in exchange for services.
  • The limitations of this “informed consent” or “notice and consent” model are well established. We know that users face cognitive constraints in evaluating the costs and benefits of consenting to data collection and use, since the benefits to be had are immediate and the costs of sharing personal information are often not apparent. This means we cannot rely solely on consent, but consider other user data rights to control the flow of personal data.

Blueprint for future regime

  • Focus of our future regime should be a system of user data rights. These rights should build in features from a range of legal paradigms to empower and protect individuals. Property-like rights granting “ownership” over personal data can only be a starting point.
  • To avoid reinventing the (broken) wheel, we must consider lessons from paradigms like intellectual property, moral rights and human rights. Intellectual property rights like copyrights allow holders to grant licences for use for limited periods—a device which could have relevance to data sharing protocols.
  • Moral rights, which give authors the right to stop modifications of their work that could harm their reputations, could provide parallels when considering the distortion of personal data. Human rights paradigms have increased relevance with the growing interaction between our digital and physical selves, binding us closer to our personal information.
  • The judgements in the Puttaswamy case embolden this view, placing, as they do, certain rights in relation to informational privacy within the realm of inalienable human rights which individuals even acting autonomously cannot discard or give up.

Way ahead

  • In India, we are at a decisive moment for data protection regulation. The Supreme Court has recognized our fundamental right to keep certain information about ourselves private. A committee on data protection chaired by Justice B.N. Srikrishna is currently working on a framework for a wider law that will determine the granular data protections afforded to individuals.
  • We believe that a system of user data rights will balance the reality of new technologies and increased data processing with the need to limit harms to individuals and society. The law that enshrines these rights must be in line with users’ reasonable expectations about how their data will be used, and also identify harms to be avoided.
  • While designing these user data rights, we must cast the net wide to gain insights from a range of legal paradigms rather than defaulting to the current, unsatisfactory notice-and-consent-led model that neither empowers nor protects users.

Question– What is the need to move towards new digital data protection policy. Analyse in the light of Digital India initiative.

2.Flawed way for environmental regulations (Live Mint)

Synoptic line: It throws light on the Supreme court’s recent decision to ban crackers in Delhi. (GS paper II)

Overview

  • The Supreme Court order on Monday banning the sale of firecrackers in Delhi and the National Capital Region (NCR) has expectedly turned into a controversy. The period of the ban till 31 October covers the festival of Diwali, which is celebrated with elaborate fireworks. Some of those disappointed have gone to the extent of arguing that the court order is “anti-Hindu” in nature.
  • Others point to judicial overreach that they think this order best exemplifies. In essence, there are two distinct issues that need to be separately analysed: a) the scope of the state’s regulatory power vis-à-vis a religious celebration, and b) the agency of the state that such regulation should vest with.

Wisdom of court’s decision

  • On the first count, the matter is relatively clear. The bursting of firecrackers releases a heavy dose of carcinogens in the atmosphere, presenting a public health challenge for the entire city. This is similar to smoking at public places a regulated activity but different from consumption of liquor, which harms the individual.
  • In so far as even the latter causes harm to others, the laws and regulations do kick in think, for example, of drink and drive penalties. As soon as it is clear that bursting of firecrackers by one person presents a health challenge to another, any argument of religion cannot reign supreme in a constitutional, secular republic.
  • The more difficult question is the choice between regulation, short of a complete ban, and a complete ban. The decision requires weighing trade-offs, which would depend on numerous inputs from scientific organizations, regulatory institutions, public policy experts and civil society.
  • Since a court of law does not have in-house expertise in these domains, it should leave such matters to the executive. While the Supreme Court delivered its arguments in the broader framework of the “right to breathe clean air” and the “right to health”, it went about dismissing the commercial considerations of the firecracker industry.
  • These considerations could have equally been framed in terms of the right to livelihoods of thousands who depend heavily on the sale of firecrackers during Diwali.

Problems in the present move

  • It is high time the executive returned to take charge at the wheel. The elected government is in the best position to elicit scientific and economic inputs and take a call, even if it involves expending political capital. The governments at the Centre and the states should involve different agencies like the Petroleum and Explosives Safety Organisation and the pollution control boards and invest in setting regulatory standards for the medium to long term. What is currently happening, however, is a far cry: The complementary phenomena of executive abdication and judicial activism have created an ugly spectacle of environmental mismanagement in India.
  • The manner in which the Supreme Court has dealt with this particular case also raises a number of concerns. It first passed an order on 11 November 2016 (after Diwali) banning the sale of firecrackers. Then it partially lifted the ban on 12 September 2017. In this second order, it introduced several arbitrary caps like limiting the number of temporary licences for firecracker sellers to 50% of those given in 2016.
  • And then finally, it decided on Monday that while the 11 November 2016 order will stay in force, the 12 September 2017 order will only be effective from 1 November 2017.
  • To make matters worse, the court has ordered suspension of all the temporary licences issued after its 12 September 2017 verdict which allowed the grant of these licences albeit with a cap. The Supreme Court couldn’t have followed a more muddled and ad hoc approach.

Way ahead

  • It is high time the executive returned to take charge at the wheel. The elected government is in the best position to elicit scientific and economic inputs and take a call, even if it involves expending political capital.
  • The governments at the Centre and the states should involve different agencies like the Petroleum and Explosives Safety Organisation and the pollution control boards and invest in setting regulatory standards for the medium to long term. What is currently happening, however, is a far cry: The complementary phenomena of executive abdication and judicial activism have created an ugly spectacle of environmental mismanagement in India.

Question– How do you think that Judiciary sanctioned action will be effective to tame pollution in Delhi? What more steps can be taken in this regard?