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Capital punishment and its justification in 2020

The death penalty as a punishment and its purpose as whole should be revisited.

Sushil Kumar Jain

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The debate over capital punishment in India is a long standing one. 40 years after Bacchan Singh in a country where inequality transcends every aspect of life including the social and cultural sphere, where equal and effective access to rights are merely words on paper, and a system that barely acknowledges the structural defects of the criminal justice system, the question that one must address today is whether capital punishment can continue to be justified on mere unproven jurisprudence bereft of these inequalities

Jurisprudential backing

Throughout the course of history, various politicalsocial thinkers have tried to juggle with the concept of ‘crime’, ‘the criminal’, ‘the society’ and what measures must the State take to ensure prevention of further crime. Of all the theories that have dominated over time, the retributive (“just deserts”) and the deterrence theory have been predominantly used to justify the capital punishment.

The retributive theory in its simplest form propagates the idea of ‘an eye for an eye’ and attempts at restoring the balance in society caused by the taking away from the criminal in the same proportion as what was taken away from the victim and society. However, one of the biggest criticisms of this school is the fact that ‘crime’ is seen as a relation between the State and the individual only, without taking in consideration the victim and without recognizing that crime is a culmination of socio-cultural phenomenon, thereby eliminating the consideration of the background of the offender and the scope of reformation and rehabilitation. The Deterrence Theory places great emphasis on maintaining the common good and larger interests of society over an individual, and therefore the punishment is significantly higher than the individual benefit one may derive from committing a crime. By setting an example for one, it hopes that the other members would be dissuaded from repeating the same offence. This theory suffers primarily for the lack of empirical data to shows its effectiveness and also disregards the individuality altogether. It also does not factor in the role of society in ‘crime’ as well.

Development in India

Prior to the British rule in India, the retributive system (Shariat Law) prevailed in the criminal delivery system. The subsequent Codification of laws on the basis of report by Lord Macaulay in 1860, enacted penal code and introduced the minimum sentence for offences, however, largely motivated by deterrence. The 1898 Criminal procedure Code provided for the sentence of death as the rule and required special reasons for a departure from the rule of death to award a punishment of transportation for life, now life imprisonment. However, studying and analyzing the ever evolving criminal jurisprudence, international trends and national experience, law commission report, a landmark shift in legislative policy with respect to sentencing emerged in 1973. The 1973 Code brought in Section 235 that mandated a separate stage for hearing on sentence after conviction. The Hon’ble Supreme Court in Santa Singh v. State of Punjab (1976) 4 SCC 190, highlighted the significance in the change in policy and laid down the special significance of a separate sentencing stage that would allow for an individualized appropriate sentences. Another significant change and an acceptance of reformative theory was inserted vide Section 354(3) in the Code, which now mandated life imprisonment as the rule and required ‘special reasons’ for awarding death, thereby making the death penalty an exception to the rule. The legislature provides no guidance for the application of this exception and we rely upon the judicial interpretation of the same.

In Bacchan Singh v. State of Punjab (1980) 2 SCC 684, the Supreme Court by majority view upheld the validity of death penalty however, also laid down the broad law as is now accepted to it recognized the ‘crime’ as well as the ‘criminal’ and further the test of ‘rarest of the rare’ for awarding of death penalty after going through the mitigating and aggravating circumstances. Though the Supreme Court did not specify the guidelines, in Macchi Singhs case, it introduced the balance sheet approach to compare the aggravating and mitigating circumstances, laying great emphasis on the ‘criminal’ at the stage of sentencing. The crime test, criminal test and the test of ‘rarest of the rare’ are highly subjective and our experience post Bacchan Singh would lead us to believe that unguided sentencing policy has allowed for too wide a discretion that is applied arbitrarily. The bar set in Bacchan Singh to justify awarding of death sentence is unimaginably high; “That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed”, which leads us to believe that the State ought to consider all possibilities of reformation, rehabilitation and only if there could be no iota of doubt about whether the convict would be reformed, would the death penalty be considered. To ever expect an individual judge having no assistance by experienced human psychologist to assess whether another human is incapable of reform and impossible to rehabilitate, places great responsibility and burden upon him and therefore the process ought not to leave any flaw particularly when it is a question of life and death.

Ignoring the ethos of the Bacchan Singh entirely, in Ravji v. State of Rajasthan (1996) 2 SCC 175, the Supreme Court gravely erred in ignoring the ‘criminal test’ and focussed solely on the ‘crime’. In total ignorance of the possibility of reform of the criminal, the Court proceeded to sentence the accused by justifying their action on deterrence. 6 more cases were decided by the Supreme court following Ravji and after 13 years, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498, the Supreme Court finally acknowledged the error in Ravji and held it to be per incuriam. Restoring the ethos of Bacchan Singh, in Bariyar (supra), the Court held that the death sentence ought to be resorted to only when the alternative option is unquestionably foreclosed, the award of life sentence would be a futile exercise and that there was no possibility of reform of the accused and thus the only option is to award death.

What constitutes as aggravating and mitigating circumstances, can neither be laid down in a straightjacket formula in law nor be enumerated in an exhaustive list. In such a scenario, the Courts below look for guidance from the Supreme Court in interpreting and analysing the factors to be considered while awarding an appropriate sentence. The confusion at the supreme Court has only led to inconsistent and unfettered application of sentencing across the country and acknowledging the discrepancy, the Apex Court in Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 requested assistance of the Law Commission to decide whether the death penalty served as deterrent punishment or retributive justice or serves an incapacitative goal. The Law Commission in its 262nd report, answered the question posed to it by observing that the death penalty does not serve any penological goal of deterrence any more than life imprisonment in all matters and recommended the abolition of death penalty in all matters except terrorism. It expressly cautioned against letting vengeance take place of retribution and at the same time highlighted that the focus of debate on the death penalty ignores the pertinent and more important problems ailing the criminal system like poordefective investigation, crime prevention, victims’ rights, ineffective prosecution and poor legal aid.

Besides the unfettered discretion and inconsistent application of sentencing guidelines, the Law Commission emphasised on the structural defects in the criminal justice system itself where more often than not, it is the most vulnerable parts of society that are ultimately found guilty and also form the majority of the death penalty convicts. In a Report prepared by the Project 39A, NLUD it was found that majority of death row convicts belonged to poor economic, socio-religious and education backgrounds. It was as recent as in 2018, when the Court in M.A. Antony v. State of Kerala 2018 SCC Online 2800 held that the socio-economic factors ought to be considered at the stage of sentencing.

A case which highlights the potential impact of the structural defects in our system is that of Ankush Maruti Shinde & Ors. v. State of Maharashtra (2019) 15 SCC 470, wherein the accused were sentenced to death by the Sessions Court, death sentence confirmed by the High Court and also affirmed by the Supreme Court. Upon hearing of the review petition, a fresh hearing was conducted and not only did the Supreme Court acquit all six death row convicts but also directed the State to pay compensation to each convict. A case with such a chequered history should remind us that despite multiple appellate stages, re-appreciation of evidence etc., the criminal justice system is not infallible. The report of Project 39A, highlights poor legal assistance amongst others contributing to structural defects wherein vulnerable persons are unable to afford a private lawyer who would take an interest in their case. In recognition of the same, an attempt at giving the accused a fair representation in matters where the sentence could be of death, the Hon’ble Supreme Court has in Anokhilal v. State of MP 2019 SCC Online SC 1637 (a case where the trial under POCSO Act was complete in 13 days and the accused sentenced to death) stressed upon the legal representation given to the accused and also laid down guidelines in this respect so as to ensure quality and able assistance.

Recognizing the possibility of injustice in the system and the irreversible nature of death penalty, the Supreme Court made an exception to its Rules and allowed open court hearings before three Hon’ble Judges in matters involving death penalty. (Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737.) At the post conviction stage too the Hon’ble Supreme Court has time and again interfered with the sentence and commuted the death sentence on account of delay in deciding of mercy petitions, improper procedure followed and factors like subsequent health concerns like mental illness. However, the question to be raised at this juncture is why there doesn’t exist a continuous evaluation system which assesses the convicts changed circumstance and possibility for rehabilitation subsequent to many years of incarceration. (See Triveniben v. State of Gujarat (1989) 1 SCC 678, Shatrughan Chauhan v. Union Of India (2014) 3 SCC 1, Union of India v. Dharam Pal (2019) 15 SCC 388, X. v. State of Maharashtra (2019) 7 SCC 1, (2019) 12 SCC 460)

Role of Victims in Sentencing

Though an increasing role for victims to participate in trials is welcome, it is my opinion that the stage of sentencing ought to be restricted between the convict and State so as to ensure that the Court can objectively decide the most appropriate sentence assessing whether the convict can be reformed and remain uninfluenced by victims and the ‘demands’ of Society. It would not be wrong to assume that victims are usually filled with vengeance and seek the highest punishment, however, the primary interest of the State and society is not to award the highest punishment, but, to award what is appropriate for the purpose of reforming and rehabilitating the accused. One must understand, the purpose of a trial and the criminal justice system is not to identify and eliminate the convict, but, to identify, reform and rehabilitate the convict and prevent other crime.

Conclusion

In a Society that has now come to an agreement that the purpose of sentencing is to reform and rehabilitate the accused, it is imperative that the sentencing be individualised. Every endeavour ought to be made to assess what punishment would be appropriate for the convict to enable him to reform himself and to help integrate him into Society as a valuable member. To achieve this, the help of psychiatrists, psychologists, good conduct reports and an opportunity to the defence to provide all materials they deem fit to should be called for and assessed. The stage of sentencing post conviction is not a routine affair but one with grave consequences. The standard of ‘Unquestionably foreclosed’ in my opinion raises the bar beyond rarest of the rare and places an enormous burden upon the Judge to take a call on whether he is of the belief that the accused would ever be worthy of returning to Society. In the absence of a streamlined and consistent sentencing policy, the Courts below allow for greater variance and discrepancy in sentencing to the extent that the application of death penalty is arbitrary and violative of equal treatment under Article 14. All things said and done, neither is there any jurisprudential justification that the death penalty is essential, nor is there any empirical research to show that a it operates as a deterrent, and on the contrary, in practice, is outright arbitrary in its application and has led to mostly persons of vulnerable backgrounds suffering, which is rather an outcome of the structural defects in our system. In such a scenario, the death penalty as a punishment and its purpose as whole needs to be revisited.

 Sr. Adv. Sushil Kumar Jain practices at the Supreme Court of India.

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Legally Speaking

Supreme Court upholds cancellation of fair price shop vacancies in West Bengal to implement Food Security Act, “no estoppel against statue”

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The Supreme Court in the case State of West Bengal vs Gitashree Dutta (Dey) observed in view of the implementation of National Food Security Act, 2013 and the court further noticed and dismissed the challenges faced against the cancelation of the declaration of Fair Price Shop vacancies.

The bench observed while agreeing to these contentions and therefore allowed the appeal:

While going by the observations of the Division Bench in the impugned judgment, that the State was aware of the 2013 Act while issuing the vacancy notification on 30th April 2014, the said notification cannot be sustained and the notification being contrary to the mandate of the National Food Security Act, 2013, more importantly of Section 12 thereof, there can be no estoppel against a statute. the appellants endeavoured to enforce the statute, The respondent herein being a mere applicant in an unfinalized selection process and when by recalling the vacancy notification it is seen that the respondent has no vested right in his favour to seek

The respondent in an unfinalized selection process has no vested right in his favour to seek continuation of the notified vacancies and further it was contended before the court that there can be no estoppel against a statute as the State endeavoured to enforce the statute while recalling the vacancy notification

Before the Apex Court, the State contended that it was reposed with a responsibility for implementing the 2013 Act which, inter alia, entrusted a responsibility to reform the existing Targeted Distribution System.

Inter alia praying for quashing of the Notification dated 17th August 2015, the respondent filled a writ petition before the High Court of Calcutta. The Writ petition was dismissed by High Court single bench as This notification was issued in the light of implementation of the 2013 Act. the Division bench of the High Court held while allowing the intra court appeal that the State of West Bengal failed to justify the decision to recall the vacancies and that it has acted in an arbitrary and unreasonable manner, and hence, it is being said to quash the Notification dated 17th August 2015. However, no final order appointing the respondent was issued by the State Authority and the application of the respondent was pending before the court. The Food and Supplies Department of the State of West Bengal issued a notification dated 17.08.2015 while cancelling the declaration of vacancies.

The Bench comprising of Justice S. Abdul Nazeer and the Justice Vikram Nath observed that the State endeavoured to enforce the statute and that there can be no estoppel against a statute, while recalling the vacancy notification.

The Food and Supplies Department of the State of West Bengal issued a notification dated 17.08.2015 while cancelling the declaration of vacancies.

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To clear wage arrears of sweepers within 8 weeks, the Supreme Court directs Jammu & Kashmir

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The Supreme Court in the case Dr. Kunzes Dolma and Anr. v. Mehraj-ud-Din Kumar and Ors observed and directed the Union Territory of Jammu and Kashmir to clear the wages of sweeper from March 2015, within 8 weeks as the arrears of sweepers sustaining at a monthly wage of as the minimum wage of sweeper is of Rs. 100/- per month (Rs. 3 per day).

In an order dated May 7, 2016 the LPA was preferred by the Department against which the High Court refused to entertain and passed the impugned order.

the Jammu and Kashmir High Court vide order dated May 7, 2016 confirmed the earlier order and again directed those minimum wages to be paid by the sweeper is to the extent of Rs. 4500 per month. Thereafter the order dated 06.11.2015 was not being implemented However in the contempt petition and since the Contempt Petition was preferred by the sweepers.

On 06.11.2015, the Single Judge of High Court directed in their favor for the release of the unpaid minimum wages.

the part time sweepers with wages of Rs 4500 each which has been done without any approval and authorization from any authority as accordingly in an order passed by the Chief Medical Officer The sweepers were aggrieved by the clubbing of plan grants into non plan which was done on the account.

For challenging the grant of same wage irrespective of the enhancement Part Time Sweepers in different Health Centers in District Kupwara by the then District/Block Level Officers who were entitled to monthly wages @Rs.100/- had approached High Court, a case before Jammu & Kashmir High Court.

It is being noticed by the bench in the impugned judgement that the sweepers continued to be paid meagre wages of INR 100 per month despite of repeated directions.

In an order dated 05.15.2019, the Top Court issued the directions while considering SLP assailing Jammu and Kashmir High Court’s, the top court further observed and refused to entertain the LPA.

The directions issued by the Top Court while considering an order dated May 15, 2019 as in the said order the SLP assaulted Jammu and Kashmir High Court’s while refusing to entertain the LPA furthermore the Court observed that the same was an abuse of the process of law.

In an order dated 15.05.2019, while considering SLP assailing Jammu and Kashmir High Court’s by which it further observed while refusing to entertain the LPA that the same was an abuse of the process of law, the directions issued by the Top Court.

The bench comprising of Justice BR Gavai and the Justice AS Bopanna observed and further directed for paying the monthly payment to the sweepers from the month of May, 2022 and which is to be paid a regularly without any break.

In an order dated 05.15.2019, the Top Court issued the directions while considering SLP assailing Jammu and Kashmir High Court’s, the top court further observed and refused to entertain the LPA.

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Supreme Court: Asks Comptroller of Examinations to examine students grievances about differences in marks allotted by CBSE exam

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The Supreme Court in the case Jay Dhande & ors vs Union of India & ors observed and directed the Comptroller of Examinations to reconsider grievances of the students and take appropriate decision as there is a difference in marks calculated by CBSE and the respondent School.

It was argued by the school that the CBSE is trying to cover up this inaccuracy and now the CBSE has used the opportunity to put the entire blame on the school.

According to the School Committee, it was submitted that the CBSE portal was an all-inclusive portal and the portal worked as per the algorithm/program as designed by CBSE and if there is a wrong or inaccurate moderation process, the onus and the responsibility of that lies with the CBSE and not the school, according to the School Committee.

Thereafter it was being argued that as per the CBSE instructions, the entire process was done precisely and as now the CBSE is putting the onus of its wrongs on the School as the School had no independent rule either in moderating or assigning the marks.

Further it was argued by the School Committee that the school did not have any power or any option to moderate or assign marks on its own and the school as mentioned in the CBSE portal, the school meticulously followed each and every instruction

It was further argued by the petitioner that the CBSE does not have any authority and the CBSE has changed the marks given by the School and the CBSE has awarded much less marks given by the school

In the present petition the main grievance is that the marks uploaded by CBSE are much less than the marks given by the school whereas the CBSE results that are uploaded reveal by the present petitioner school students is that according to their school, the school allotted them particular marks.

Further it being clarified by bench that it hasn’t expressed any opinion on the contentious issue.

No expressed opinion on the contention issue is being expressed by Bench, as bench clarified

In this case the main dispute is in regards with the marks allotted to the students as per 30:30:40 formula for class X, XI, XII respectively for the 2021 exams, where an alternative assessment is being restored by the Board in lieu of written exams due to.

The bench comprising of Justice AM Khanwilkar and Justice JB Pardiwala has asked to explain the flow of algorithm and software which provides for different deduction of different marks student-wise to take assistance of technical team by the Comptroller of Examination

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Supreme Court: Asks Petitioner On Plea Challenging Talaq-E-Hasan, To Mention Next Week

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The Supreme Court observed the Muslim personal law practice of Talaq-E-Hasan which was mentioned before a vacation bench for urgent listing. A petition was filed before the Supreme Court challenging the Muslim Personal Law Practise.

The petitioner argued before the court that the practise is arbitrary and is a violation of Article 14, Article 15, Article 21 and Article 25 of the Constitution and is therefore unconstitutional as the practise is discriminatory since only men can exercise the same and seeks a declaration. As it is not an essential practice of Islamic faith, according to the petitioner.

the Chief Justice of India NV Ramana had refused to grant urgent listing for the plea on 09.05.2022.

by pronouncing “talaq” once a month for three months, a Muslim man can divorce his wife as per Talaq-E-Hasan.

Ms. Anand submitted that as on April 19, first noticed was issued and Now second notice has been issued and he further submitted that we are challenging the proceedings and hence for Talaq E Hasan, a notice have been issued through lawyer.

The bench led by Justice Chandrachud further remarked that “Why under Article 32?”.

Ms. Anand submitted that the Talaq-E-Hasan was left out and the only issue of Talaq E Biddat was considered was considered in Shayra Bano.

Justice Chandrchud further remarked that there is no urgency and We will keep it on the re-opening day after vacations.

As it will be over, she has received the second notice on 05.19.2022 and on 06.20.2022.

She has received the second notice on May 19 and on June 20 it will be over”

on May 19 and on June 20 she has received the second notice and by the time it will be over as by that time everything third talaq will be given and everything will be over.

The bench led by Justice Chandrachud further remarked that there is no urgency as the first notice issued was on April 19 and wait for a period to come here.

Ms. Anand submitted further submitted that it is about a woman being abused and by reopening everything will be over.

On which Justice Chandrachud further remarked to take his chance and mention it next week.

The Vacation Bench comprising of Justice DY Chandrachud and the Justice Bela Trived contended that the petitioner has received the second notice of talq as the Public Interest Litigation petition filed by Senior Advocate Pinky Anand

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KERALA HIGH COURT: NO QUARRYING OR CONSTRUCTION WORK ON LANDS ASSIGNED FOR CULTIVATION

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The Kerala High Court directed the State Government to take steps for the resumption of such land, notify and exempt the provisions of required and further the court directed that no quarrying activities are permitted on the land assigned for cultivation in the case Raphy John v. Land Revenue Commissioner & connected matter.

It was being contended that through the rule the authorities had made a conscious decision not to grant or renew any quarrying lease if the land was assigned for a specific purpose. The revenue authorities would be incapacitated from verifying if the land was assigned for cultivation as the appellants had argued that if quarrying permits are sought for such lands. The amendment was brought in since it was impossible to distinguish between assigned lands in an appeal moved by the State while citing and the week after the judgment was delivered and lands sold to third parties, The impugned decision was, however, put on hold by the Court.

It was mandate by the impugned rule made that for granting or renewing any quarrying lease a Certificate is required from Village Officer and if such lands are assigned for any specific purpose, the village officer has to certify it.

It was being observed by the bench led by a Single Judge that since a quarrying lease was executed by the State and the bench further stated that the State has given sanction to conduct quarrying on assigned land, it can be presumed

In January 2018, the bench comprising of Single Judge had interfered with the amendment in the Kerala Minor Mineral Concession Rules brought in by the State to prevent quarrying on assigned lands and then sold it to third parties through assignees.

once an application for the same is received, the State may take a decision on the land classification, in furtherance with the decision made.

The order issued by the Revenue Department barring other constructions on agricultural land shall be strictly enforced was also being emphasized by the Bench And it has also been established under the Kerala Land Assignment Rules, 1964 and that there will be a violation of the Land Acquisition Act if there are any other construction activities on assigned lands and that assigned lands could not be used for any other purpose.

It has also opined that the Revenue authorities are empowered to take action to suspend all quarries that are currently operating on such lands the Court all the work assigned on lands including the other constructions and has also stayed of all resorts and petrol pumps while emphasizing that quarries are not allowed on such land.

A division bench comprising of Justice S. Manikumar and Justice Shaji P. Chaly, while ruling a single Judge Decision, in a batch of petitions moved by filed by the quarry owners and the Stated related to quarrying in lands assigned for rubber cultivation at the State’s capital.

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DIGITAL TRACKER WATCHES AND THE SURVEILLANCE CONUNDRUM: A DAILY DEHUMANISATION OF INDIA’S MUNICIPAL WORKERS

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The issue around digital privacy, or rather the lack of it, has been a hot topic of debate in India and has even made its way to the Parliamentary lobbies. In India, personal data is collected and stored by various merchants, big tech companies and other entities through the innumerable digital applications and devices that people use. From digital payment and ecommerce applications to social media platforms, personal data collection and storage is happening en masse, all while individuals still scramble to understand its repercussions. What’s worse — this personal, often sensitive information including financial and medical records, of millions of Indians is available for sale online through “data brokers” who have put a price tag to these records.

WHAT’S HAPPENING WITH MUNICIPAL WORKERS IN INDIA

Going a step further, there is an urgent need to look into this invasion of digital privacy from the lens of India’s municipal workers. Over the past few years, there have been several news pieces buried amid the bulk of eye-catching headlines, about municipal workers across several Indian cities being made to wear smartwatches to track their daily working hours. As per news reports, municipal corporations in cities like Nagpur and Chandigarh have made it mandatory for sanitation workers to wear GPS-enabled watches that are used to monitor their arrival at work, attendance record, number of hours clocked at work and the end of their shifts. The reports suggest that some of these watches have in-built cameras and microphones to allow the supervisors to monitor them by the minute. To make things worse, any discrepancy in the recorded number of hours at work is reportedly manifesting itself in the form of workers’ salary deductions. Thus, workers have been protesting the use of these digital trackers as being humiliating and violating their privacy in the garb of improving work efficiency.

INFRINGEMENT OF WORKERS’ RIGHT TO PRIVACY

The fact that sanitation workers are often unaware of the ramifications of surveillance of this kind, as is enabled by these digital trackers, goes to show how their informed and aware consent is not likely sought while implementing this technology. In this case in particular, the employer being the State, these rules amount to digital snooping on citizens by a government. This form of a ‘surveillance state’ directly impinges on citizens’ right to privacy, a fundamental right that flows from Article 21 of the Indian Constitution (K.S. Puttaswamy & Anr. v. Union of India & Ors.). While one can argue that this right is not absolute and there can be certain grounds for restricting the same (legitimate state interest, necessary and proportionate to achieve the interest, among other things), this is a justification that would hold up when a comprehensive and well-defined legislation is in place to regulate the collection and storage of such personal data of citizens.

EXISTING LEGAL FRAMEWORK ON PERSONAL DATA PROTECTION

At present, the only legislation that to some extent deals with the handling of personal data of individuals is the Information Technology (IT) Act, 2008, and the subsequent rules framed by the government. However, the coverage of this law is very limited in that it does not apply to collection and use of personal data by various entities (Section 43A of the IT Act 2000 recognises personal data dealings by a ‘body corporate’ and the compensation in that regard). It primarily focusses on information security as opposed to personal data protection. There exist other sectoral, subject-specific laws that regulate data dissemination in the respective segments, however, these are very narrow in their scope of protection. Further, while the Privacy Rules 2011 define what comes under the meaning of personal information and sensitive personal data, but how far the data collecting entities adhere to compliance standards and rules on storage and disclosure, grievance redressal and user safety is a big question mark.

The Personal Data Protection Bill, 2019, can be viewed as a step in the direction of chalking out the contours of digital privacy and collection, storage and dissemination of personal data of individuals in India. To begin with, the bill seeks to define what all would come within the ambit of ‘personal data’, and would govern the processing of personal data by governments, Indian and foreign companies. This is especially significant as it would plug the gaps that exist in the IT Act and rules subsequent thereof. Further, it would also outline the rights of individuals with respect to their personal data and the remedies available. However, it has been in the pipeline for some time, with objections having been raised over several aspects of the proposed law.

THE WHYS AND HOWS BEHIND THIS DIGITAL SURVEILLANCE

The recent mandate by city municipal corporations requiring workers to wear the digital trackers (Human Efficiency Tracking Systems, as they’re being referred to) takes on another hue when viewed from the lens of worker exploitation. Reports suggest that the trackers are being used to map the daily hours of every employee, and failure to wear the watch at all times or getting disconnected could result in salary deductions. Also, in the event of device malfunction, the workers would have to bear the brunt of the pay cut despite having clocked their daily hours. How and when such grievances would be addressed and dealt with is not very clear. Thus, workers’ woes take a backseat in the productivity and efficiency-focused surveillance work environment. Since municipal workers and sanitation staff employed by city corporations are usually not very tech-savvy or comfortable with tech-based gadgets, they are wary of how the system works. It can result in unnecessary anxiety regarding loss of earnings due to technical glitches.

Another issue is the alleged in-built cameras and microphones in these trackers. For workers who are not very well versed in such gadgets, the fear of being watched constantly could be debilitating, more so in the case of female workers. Their movement at work is tracked down to minutes, even seconds, linking the same to productivity targets and goals. Failure to meet these targets and minute-to-minute monitoring requirements could lead to reduction in the month-end salary payments. Automated workplace management is a concern that is prevalent across countries, and a parallel can be seen in the surveillance systems implemented by tech giant Amazon at its warehouses across the United States. The hazards of this surveillance system, like higher rate of injuries at workplace or even leaving workers without bathroom breaks, is similar to what is being witnessed in the case of India’s digitally-tracked municipal workers. The only major difference in the above-mentioned sets of scenarios is the place of occurrence and the entity engaging in worker surveillance. In India, the State is the data collector, often times undertaking this feat with the help of a third-party IT services firm. This makes the workers’ situation more precarious as their personal, sensitive information could be easily accessible to such contractual firms, especially in the absence of a data privacy law to regulate the same.

With increasing technological advancement and innovation, the cost of such surveillance methods has dropped, thus making it easier and more convenient for employers to adopt and implement. In contrast, this weakens the position of workers and the unions advocating for them as there is limited knowledge and legal recourse in this regard.

CONCLUSION

Thus, these GPS trackers are problematic on various fronts- they infringe individual privacy, operate in regulatory grey areas (as there is no proper oversight) and finally and most importantly, they constantly dehumanize the workers by treating them in a manner similar to bonded labour and robots. The human element of taking into account genuine issues being faced by employees or the context as to why they may not have been available on the tracking systems throughout the day (like poor internet connection, device malfunction, etc.) is completely ignored and disregarded.

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