On October 16, the Group of Experts on Privacy, Chaired by Mr. A. P. Shah, submitted its Report to the Planning Commission. The Expert Group was appointed to set out the principles that Indian privacy law should abide by. Even though privacy has been held to be a fundamental right as long back as in 1962, India does not have a law that specifies safeguards to privacy. Moreover, recent government initiatives, such as the UID, involve collection of personal information and storage in electronic form. The absence of a law on privacy increases the risk to infringement of the fundamental right. In this blog we list the recommendations made by the expert group, discuss the status of the right to privacy in India, and why there is a need for an enactment. Recommendations of the Expert Group on Privacy
Present status of the Right to Privacy While the Supreme Court has held privacy to be a fundamental right, it is restricted to certain aspects of a person’s life. These aspects include the privacy of one’s home, family, marriage, motherhood, procreation and child-rearing. Therefore, to claim privacy in any other aspect, individuals have to substantiate these are ‘private’ and should not be subjected to state or private interference. For instance, in 1996 petitioners had to argue before the Court that the right to speak privately over the telephone was a fundamental right. Risks to privacy Government departments collect data under various legislations. For instance, under the Passport Act, 1967 and the Motor Vehicles Act, 1988 persons have to give details of their address, date of birth etc. These enactments do not provide safeguards against access and use of the information by third parties. Similarly, information regarding ownership of property and taxes paid are publicly available on the MCD website. Furthermore, recent government initiatives may increase the risk to infringement of privacy as personal information, previously only available in physical form, will now be available electronically. Initiatives such as the National e-Governance Plan, introduced in 2006 and Aadhaar would require maintenance of information in electronic form. The Aadhaar initiative aims at setting up a system for identifying beneficiaries of government sponsored schemes. Under the initiative, biometric details of the beneficiaries, such as retina scan and fingerprints, are collected and stored by the government. The government has also introduced a Bill in Parliament creating a right to electronic service delivery. As per news reports, a draft DNA Profiling Bill is also in the pipeline.
Recently, the President repromulgated the Securities Laws (Amendment) Ordinance, 2014, which expands the Securities and Exchange Board Act’s (SEBI) powers related to search and seizure and permits SEBI to enter into consent settlements. The President also promulgated the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014, which establishes special courts for the trial of offences against members of Scheduled Castes and Scheduled Tribes. With the promulgation of these two Ordinances, a total of 25 Ordinances have been promulgated during the term of the 15th Lok Sabha so far. Ordinances are temporary laws which can be issued by the President when Parliament is not in session. Ordinances are issued by the President based on the advice of the Union Cabinet. The purpose of Ordinances is to allow governments to take immediate legislative action if circumstances make it necessary to do so at a time when Parliament is not in session. Often though Ordinances are used by governments to pass legislation which is currently pending in Parliament, as was the case with the Food Security Ordinance last year. Governments also take the Ordinance route to address matters of public concern as was the case with the Criminal Law (Amendment) Ordinance, 2013, which was issued in response to the protests surrounding the Delhi gang rape incident. Since the beginning of the first Lok Sabha in 1952, 637 Ordinances have been promulgated. The graph below gives a breakdown of the number of Bills passed by each Lok Sabha since 1952, as well as the number of Ordinances promulgated during each Lok Sabha. 
Ordinance Making Power of the President The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution. This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws. Additionally, the President cannot promulgate an Ordinance unless he ‘is satisfied’ that there are circumstances that require taking ‘immediate action’. Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They also cease to operate in case resolutions disapproving the Ordinance are passed by both Houses. History of Ordinances Ordinances were incorporated into the Constitution from Section 42 and 43 of the Government of India Act, 1935, which authorised the then Governor General to promulgate Ordinances ‘if circumstances exist which render it necessary for him to take immediate action’. Interestingly, most democracies including Britain, the United States of America, Australia and Canada do not have provisions similar to that of Ordinances in the Indian Constitution. The reason for an absence of such a provision is because legislatures in these countries meet year long. Ordinances became part of the Indian Constitution after much debate and discussion. Some Members of the Constituent Assembly emphasised that the Ordinance making power of the President was extraordinary and issuing of Ordinances could be interpreted as against constitutional morality. Some Members felt that Ordinances were a hindrance to personal freedom and a relic of foreign rule. Others argued that Ordinances should be left as a provision to be used only in the case of emergencies, for example, in the breakdown of State machinery. As a safeguard, Members argued that the provision that a session of Parliament must be held within 6 months of passing an Ordinance be added. Repromulgation of Ordinances Ordinances are only temporary laws as they must be approved by Parliament within six weeks of reassembling or they shall cease to operate. However, governments have promulgated some ordinances multiple times. For example, The Securities Laws (Amendment) Ordinance, 2014 was recently repromulgated for the third time during the term of the 15th Lok Sabha. Repromulgation of Ordinances raises questions about the legislative authority of the Parliament as the highest law making body. In the 1986 Supreme Court judgment of D.C. Wadhwa vs. State of Bihar, where the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate Ordinances, the Constitution Bench headed by Chief Justice P.N. Bhagwati observed: “The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be "perverted to serve political ends". It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.” 
Thanks to Vinayak Rajesekhar for helping with research on this blog post.
