COMPENDIUM_PETIONER[1]
COMPENDIUM_PETIONER[1]
PETITIONER
(M-38)
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THE INFORMATION TECHNOLOGY ACT, 2000
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UNIVERSAL DECLARATION OF HUMAN RIGHTS
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International Covenant on Civil and Political Rights
The Convention on Cybercrime (Budapest Convention, ETS No. 185) and its
Protocols
PRIVACY BY DESIGN
Principle 1: Proactive not reactive; Preventative not remedial
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A privacy-first attitude supports a preventative approach to privacy. Instead of reacting to privacy
risks or invasions when they happen, companies will actively build processes and procedures to
prevent them from occurring in the first place.
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That promise should be supported by an accessible and effective complaint submission and
resolution process, as well as independent verification of your policies and promises to users.
DOCTRINE OF PROPORTIONALITY
The same was agreed to in essence by a nine-judge Bench of the Supreme Court in Justice KS
Puttaswamy v. Union of India, in which the Court upheld privacy as a fundamental right. In the
judgment authored by Justice Sanjay Kishan Kaul, proportionality can be ascertained on the basis of
the following:
(a) the action must be sanctioned by law;
(b) the proposed action must be necessary in a democratic society for a legitimate aim;
(c) the extent of such interference must be proportionate to the need for such interference;
(d) There must be procedural guarantees against abuse of such interference
Justice AK Sikri, in the majority judgment, considers the above for determining whether Aadhaar
passes the proportionality test, albeit with a more nuanced approach.
He has also considered the approach suggested by Prof David Bilchitz of the Faculty of Law at
Johannesburg University.
“Bilchitz proposes the following inquiry. First, a range of possible alternatives to the measure
employed by the Government must be identified. Secondly, the effectiveness of these measures must
be determined individually; the test here is not whether each respective measure realises the
governmental objective to the same extent, but rather whether it realises it in a ‘real and substantial
manner’. Thirdly, the impact of the respective measures on the right at stake must be determined.
Finally, an overall judgment must be made as to whether in light of the findings of the previous steps,
there exists an alternative which is preferable.”
Justice DY Chandrachud, in his dissenting judgment, on Aadhar Act came to an altogether different
conclusion with respect to the proportionality test. To determine the same, he used the four-fold test
laid down in Puttaswamy.
As regards the legitimacy of the State’s interference with the Right to Privacy, Chandrachud J held,
“…by collecting identity information, the Aadhaar program treats every citizen as a potential
criminal without even requiring the State to draw a reasonable belief that a citizen might be
perpetrating a crime or an identity fraud. When the State is not required to have a reasonable
belief and judicial determination to this effect, a program like Aadhaar, which infringes on the
justifiable expectations of privacy of citizens flowing from the Constitution, is completely
disproportionate to the objective sought to be achieved by the State.”
On the subject of a less restrictive but equally effective alternative, he held,
“The object of the state is to ensure that the benefits which it offers are being availed of by genuine
students who are entitled to them. This legitimate aim can be fulfilled by adopting less intrusive
measures as opposed to the mandatory enforcement of the Aadhaar scheme as the sole repository of
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identification. The state has failed to demonstrate that a less intrusive measure other than biometric
authentication will not subserve its purposes.”
Needless to say, he was of the opinion that the Aadhaar scheme does indeed have a
disproportionate impact on the right holder [point (d), as per Sikri J’s tests for proportionality. He
also held that the existence of a legitimate aim is insufficient to uphold the validity of the law, which
must also meet the other parameters of proportionality spelt out in Puttaswamy. To put it in his
words,
“Constitutional guarantees cannot be subject to the vicissitudes of technology.”
https://www.barandbench.com/columns/legal-insights-on-cryptocurrency-restructuring-the-wazirx-
case-and-why-creditor-votes-are-key-to-successful-recovery
CHILLING EFFECT
A "chilling effect" refers to a situation where individuals or groups refrain from engaging in protected
activities, like free speech or expression, due to fear of potential negative consequences, like legal
sanctions or retaliation, even if those consequences are not guaranteed. The chilling effect is a
phenomenon where the threat of legal or social repercussions discourages people from exercising
their rights or engaging in activities, they would otherwise be free to do. Examples:
A journalist might avoid reporting on a controversial issue due to fear of legal action or reprisal.
Employees might be hesitant to speak out against workplace discrimination or harassment due to
fear of losing their jobs.
People might avoid participating in protests or expressing dissenting opinions due to fear of police
action or public condemnation. Related Concepts:
Overbreadth: A law is considered overbroad if it restricts more speech than necessary to achieve a
legitimate government purpose.
Vagueness: A law is considered vague if it is not clear what conduct is prohibited, leading to
uncertainty and a chilling effect.
BUDAPEST CONVENTION
Article 15 – Conditions and safeguards
Each Party shall ensure that the establishment, implementation and application of the powers and
procedures provided for in this Section are subject to conditions and safeguards provided for under
its domestic law, which shall provide for the adequate protection of human rights and liberties,
including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe
Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations
International Covenant on Civil and Political Rights, and other applicable international human rights
instruments, and which shall incorporate the principle of proportionality. Such conditions and
safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter
alia, include judicial or other independent supervision, grounds justifying application, and limitation
of the scope and the duration of such power or procedure. To the extent that it is consistent with the
public interest, in particular the sound administration of justice, each Party shall consider the impact
of the powers and procedures in this section upon the rights, responsibilities and legitimate interests
of third parties.
PUTTASWAMY 2017
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