Editorial 1: The French connection
Recent context:
- Recently, India’s Prime Minister Narendra Modi will be the Guest of Honour at France’s Bastille Day parade in Paris on Friday.
- The visit coincides with 25 years of the oldest among India’s almost 30 strategic partnerships around the world and one of the few that has been marked by “total convergence” ever since the two nations committed themselves to it in 1998.
India-France holds a special partnership
- The two countries commenced their strategic partnership as France was the first country to recognise the strategic importance of India after the nuclear tests in 1998.
- The partnership with France is India’s most important strategic partnership in Europe. It is one of the rare such partnerships that India has that is marked by total convergence
- France has stood by India, including during the civil nuclear negotiations with the US in support of Civil nuclear deal with USA.
- Along with it, recently signing of an agreement for the supply of 36 Rafale aircraft in September 2016, and an industrial agreement in March 2018 to build six European pressurized water reactors (EPR) at the Jaitapur site are directly linked to this partnership of both nations.
- Therefore, both the nations focus of multiple spheres of civil nuclear energy, defence, counter-terrorism, space cooperation, cyber security and digital technologies.
Bilateral relation in sphere of Defence, climate, tech
- Recent visit of India’s PM to France is an opportunity for India to assert its strategic autonomy,
- As “France’s strong belief in its own strategic autonomy adds to India’s strategic autonomy.
- The defence relationship, a critical element in ties, is marked by trust and reliability.
- While defence deals with the US are determined by unpredictability due to Congressional interventions and export control regimes, the French deals come with no strings attached. France understands that India would not like to put all its defence eggs in one basket.
- PM’s visit is likely to see agreements or announcements on the acquisition of 26 Rafale-M (the marine version) fighters for the Indian Navy, and co-production of three more Scorpene class submarines at the public sector Mazagon Dock Shipbuilders Ltd, which has already produced six Scorpene/Kalvari-class submarines under an earlier agreement.
- Along with it, French offered their own Safran engine that would be fully made in India. With the promise of 100 per cent technology transfer.
- Both nations also cooperate closely on climate change initiatives.
- Last October, they signed a Road Map on Green Hydrogen, which aims “to bring the French and Indian hydrogen ecosystems together” to establish a reliable and sustainable value chain for a global supply of decarbonised hydrogen.
- Earlier in February 2022, both nations signed a Road Map on the Blue Economy and Ocean Governance.
- Another roadmap on digital technology co-operation
- It is on the cards for 6G, artificial intelligence, and quantum computing.
- An MoU signed last month between NPCI International Payments Limited (NIPL) and Lyra, a France-based payment services provider to enable UPI and RuPay payments in Europe.
France, India, the world
- Both India and France value their strategic autonomy, pursue independence in their foreign policies, and seek a multipolar world, even as both acknowledge the place and importance of the US in the world order.
- In April, on his way back to France after a three-day state visit to Beijing where he had long meetings with President Xi Jinping, French President Emmanuel Macron told accompanying media that Europe must not get entangled in America’s confrontation with China and preserve its “strategic autonomy”.
- He warned that Europe’s security dependence on the US and the “extraterritoriality of the dollar” could turn European states into “vassals” if the US-China confrontation escalated.
- He also pushed the idea of Europe as a “third superpower” with France in the lead.
- Along with it, Russia’s invasion of Ukraine and the geopolitical changes it triggered have brought a new European awareness of the strategic importance of India and vice versa.
- As India’s foremost partner in Europe, France, with its more nuanced view of the war than most other countries in the continent, has a better appreciation than other European states of New Delhi’s position on the war including that the world has to make serious diplomatic efforts to restore peace.
- Along with it, As the only EU state with territories in the Indo-Pacific, France can play role of an important partner for building maritime domain awareness and keep an eye on China’s presence in the region, augmenting India’s participation in the Quad.
Conclusion:
- Therefore, both the nations have strong relation in the multiple spheres of civil nuclear energy, defence, counter-terrorism, space cooperation, cyber security and Climate which need to be further strengthen in upcoming time for its people and peaceful world.
Editorial 2: Hiding behind consent
Recent context:
- Recently, The Union Cabinet recently approved the draft Data Protection Bill, which is envisaged to be the bedrock for the digitalisation and data ambitions of both the state and the private sector. The Bill will now go to Parliament for debate and approval.
- The Bill is crucial because irrespective of our levels of digital literacy or comfort with digital technologies, digitalisation and data will inevitably and increasingly impact vital aspects of our public and private lives
Debate over Data protection and right to privacy as one the objectives of the bill:
- Provisions of the bill is being criticised that The central design objective of the Bill appears to be to facilitate data collection and processing by the government and private entities rather than address the concerns for data protection that led the SC to recognise privacy as a fundamental right of citizens.
- The SC identified informational self-determination and control to be the crucial aspects for the protection of privacy and liberty of individuals, and laid down the standards of determination with the three-fold tests of legality, legitimacy and proportionality.
- The requirement of legality would suggest that there needs to be enabling laws as pre-conditions, at least for large public service digital applications of the government, including around digital surveillance.
- But, Section 5 of the last available draft seems to suggest that the proposed Act will allow any purpose which is not expressly forbidden by law.
There should be legitimate interest behind a proposed digitalization
- Legitimacy demands that the state should be obligated to establish that there is a legitimate interest behind a proposed digitalisation, and proportionality demands that the digital application should be the least intrusive for the purpose and that there should be a balancing of the extent to which Fundamental Rights are likely to be impinged.
- But there are as yet no standards for either of these tests.
- As Legitimacy requires a rigorous and not a mere speculative theory of public good and it also required standards for proportionality which are left vague and unclear.
- The directives of “reasonable efforts” and “appropriate technical and organisational measures” are inadequate for determining whether an application is the least intrusive for the purpose, or whether it balances the risks correctly.
- In particular, balancing requires specifying clear standards for both risk assessments and legitimacy.
- It appears to be entirely unlikely that these standards can be worked out without well-thought-out guidelines and grammar, or that they can be left to subordinate regulations.
- As, An effective data protection bill also needs to understand the various nuances of privacy risks from digital applications.
- AS SC SC judgment highlighted that apart from the risks of direct harms arising out of illegal surveillance, profiling and possible uncovering of one’s private world to the public , the other crucial aspects of privacy are the indirect harms that arise out of invasions that link siloed data items to create digital hallucinations of personae and use them inappropriately.
- AS, the indirect harms are hard to detect, often because their effects are more subtle and long-term.
- Hence, the measures of post-violation complaints and penalties — of the type envisaged in the last draft of the Bill — are not adequate for protection and mitigation.
- Therefore, Protection from indirect harms needs to be ex-ante rather than ex-post, and data fiduciaries and data controllers need to have exacting standards for ex-ante privacy protection and purpose limitation.
Criticism against over-dependence on consent:
- The other problematic aspect of the draft Bill appears to be its over-dependence on consent.
- Apart from unreasonably putting the onus on unsuspecting individuals to correctly recognise all privacy risks entailed in complicated digital applications, consent also often presents a false choice.
- Denying consent in pervasive applications may unreasonably limit options, cause hardships or put barriers to freedom of expression.
- Hence, effective data protection requires an accountability-based rather than a consent-based framework which puts the onus on data controllers and fiduciaries, irrespective of the level of consent rather than on individuals.
- However it does not mean that consent is not required but that one cannot hide behind consent for privacy protection.
- But the current section on “deemed consent” seems to grant dangerous powers to the state or even employers.
- The clauses of deemed consent under “in public interest” or “for provision of any service or benefit to the Data Principal… by the State or any instrumentality of the State” appears to be unacceptably empowering.
Provisions of standards of anonymisation, encryption and access control:
- The draft Bill was also completely silent about the standards of anonymisation, encryption and access control. These are not merely technical and operational issues, but crucial considerations for digitalisation and data without which any data protection discourse is woefully incomplete.
- Even if the details are relegated to subordinate regulations, the objectives and standards need to be specified in an effective and modern data protection bill.
Concerns of fairness, bias and misinformation:
- Moreover, a data protection bill that fails to address the concerns of fairness, bias and misinformation that arise out of the automated processing of data, especially by AI applications, is probably outdated even before it is passed.
- Therefore, an effective data protection bill must take these into account.
Conclusion:
- In summary, the current draft Bill falls short of expectations in many respects. Most significantly, it bears testimony to a mindset of technocrats and the executive to somehow bypass the objections and concerns including those articulated in the SC judgment in their zeal to enable digitalisation, rather than try to understand and address them in earnest. This should hopefully change.
( Note : This article is written with the critical point of view of recently cabinet approved draft of Digital Personal Data Protection Bill, 2022)