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Data protection, privacy and law: Is India ready yet?

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The debate surrounding big data, privacy and security in India has reached different levels. One may ask that, how does the legal and regulatory framework in India, amongst other things, surrounding big data, surveillance, internet of things (IoT – Tech 5.0), cybersecurity and privacy balance the pre-requisites of protecting the privacy of its citizens on one hand; and, at the same time, foster novel inventions and effective developments on the other? Well, the answer to the above question is convoluted.

In the 21st century, data appears to be the new coinage. Hackers utilize the data for generating wealth illegally; Conglomerates utilize it for generating wealth legally and the Government utilizes the same for the purposes of keeping threats at bay and/or surveillance. Of course, there is no doubt about the fact that data is an extremely valuable commodity in the present century. Though, the law in India seems to be trying to address various nuances concerning data protection and privacy but, the law is stepping-up. Certain questions regarding the proposed personal data protection legislation in India emerge surrounding privacy related damage and probable misuse, if any.

PERSONAL DATA PROTECTION & PRIVACY

Before delving into the niceties of the Personal Data Protection Bill, 2019 (“Bill”) that is presently being discussed at length in a joint parliamentary committee – it is relevant to note that the Supreme Court of India (“SC”) vide its judgment dated August 24, 2017 held that the right to privacy is a fundamental right that is essentially emanating from the right to life and personal liberty under Article 21 of the Constitution of India. Interestingly, vide the aforesaid judgment, the SC also noted that “…privacy of personal data and facts is an essential aspect of the right to privacy[…]. Apart from declaring that privacy is a fundamental right, the SC also acknowledged ‘Informational Privacy’ to be a subset of the right to privacy .

Be that as it may, the aforementioned privacy judgment of the SC may entail wider implications insofar as the law governing data protection and privacy is concerned in India. The proposed Bill and the extant laws will now entail going through the strictures and/or frameworks concerning life and personal liberty of the citizens, as enumerated under Article 21 of the Constitution of India.

Consequent to the aforesaid privacy judgment rendered by the SC, an expert committee was set-up and led by Justice B.N Srikrishna to scrutinize the feasibility of a new law concerning data protection and privacy in India regarding its contours and/or limits surrounding the same. Per the ‘Statement of Object and Reasons’ of the Bill, the same is based on the endorsements of the expert committee’s report and the comments received from numerous stakeholders involved in the process.

At the outset, one may note that privacy as-a-concept is not absolute or unfettered and there is no ‘one size fits all approach’ if one were to define it. However, trying to define privacy is a herculean task for the simple reason that the term (aka privacy) may signify different things to different people. Regrettably, it remains a challenge to ensure that the legal framework and the intent thereof concerning the Bill satisfies the needs and requirements of every entity – be it the Government, Corporates or NGOs (including citizens). All in all, it appears to be a challenge to effectively harmonize the clash between the privacy of one entity vis à vis the security of the other entity.

At this juncture, it is imperative to understand the extant legislations (other than the Bill) and/or policies surrounding data protection and privacy in India. Apart from the regional legislations concerning data protection and privacy, the personal data of citizens in India is also protected via concomitant safeguards developed by the Courts, especially the SC under the common law doctrine(s), rules of equity and the principle of breach of confidence.

The extant legislations are primarily regional-in-nature that includes, but is not limited to, the applicable provisions of the Information Technology Act, 2000 and the applicable rules framed thereunder, the Aadhaar (Targeted Delivery of Financial and Other Subsidies Act) 2016, etc. Moreover, numerous entities in highly regulated sectors such as banking and financial services, telecommunications space are (also) amenable to information technology and confidentiality obligations arising under regional / local laws for the purposes of storing / utilizing the clienteles personal and confidential data / information for stipulated purposes only.

Yet, at this stage, two questions beg innumerable consideration(s), at the get-go, what measures ought to be taken to duly protect the personal and confidential data of the citizens till the time the Bill is enforced as a law ¬– are regional legislations apposite to address the same ? Next, is there a requirement to legislate and enforce a distinct – an all-encompassing law – concerning surveillance or legislate distinct regional / local laws with respect to the same ?

To my mind, it appears that we are currently functioning in a legal vacuum insofar as surveillance is concerned in India. As regards surveillance law, India does not address the issue of surveillance appositely as there is no (principal) surveillance law – matters concerning national interest and security have been laid out simply by the executive in exercise of its executive functions that do not provide for a legal framework and/or basis. Hence, a legislation governing not only data protection and privacy in India but, also necessitating the Union / Govt. to obey the prescribed data protection (including surveillance) rules warrants urgent necessity.

From the above, it necessarily appears that an all-inclusive legislation governing and regulating the storage, process and distribution of personal and sensitive data is a pressing priority. At present, there is no single (and an all-inclusive) legislation that governs and regulates the storage and distribution of personal and sensitive data / information in India.

THE BILL AND THE WAY FORWARD

The Bill has tried to address various issues surrounding the collection, process and utilization of personal and sensitive data / information by numerous entities in India. Rather interestingly, the Bill seeks to suggest a pre-emptive approach / system that hinges onto excessive governmental involvement and supposedly fortifies the Government. As a result, it may lead to a probable upsurge in compliance related costs for Corporates or other entities spanning numerous sectors and thereby leading to disturbing watering-down of the data privacy apropos the Government.

Further, the Bill intends to safeguard the privacy of the Indian citizens by establishing a pre-emptive system that controls how entities collect, process and utilize personal or sensitive data / information, rather than protecting the citizen’s privacy due to the resulting damage being caused by the perpetual infringement of the aforementioned privacy.

Besides, the proposed Bill is problematic and questionable when it comes to the fortification of the citizen’s privacy as the Bill considerably reinforces the Government’s part in the digital space and consequently leads to increasing surveillance and watering-down of the property rights in India without ensuring apposite counterbalance. In this regard, it is likely that India as a digital economy may observe disastrous outcomes concerning novelty in the digital space, though, brushing aside the intended object and purpose of protecting data privacy in India.

As a matter of fact, recently, the Jio-Facebook deal wherein Facebook acquired a 9.99% stake in Reliance Jio platforms appears to be worrisome in the context of data privacy. Both the Conglomerates now have entry to copious amounts of personal data / information of numerous citizens of India. What that means is, pending the enactment of the Bill into a legislation, the collection, process and utilization of personal and sensitive data / information by the aforesaid Conglomerates would be subject to their privacy policies in India.

Nevertheless, what worries me is that the users have not been provided with adequate information as to why or what plans the entity has to do with the personal data / information being sought and/or collected, and I don’t think most users understand the meaning of the terms – ‘Data Policy’ or ‘Privacy Policy’ – concerning the privacy and data policy of the entity.

If one were to study Facebooks’ privacy and data policy , it sets forth distinct data distribution arrangements not only with its users but, also third-party partners, albeit, restricted to stipulated purpose(s) only. Popular Facebook products like – Instagram and Messenger are (behind-the-scenes) disseminating significant amounts of data considerably among its popular products. Meanwhile, WhatsApp – a popular cross platform messaging and VoIP service application acquired by Facebook in the year 2014 already shares extant systems, processes, technology and apposite infrastructure with a view to provide its users a stable and reliable experience across its business eco-system.

This exemplifies my worried state concerning the Jio-Facebook deal, amongst others, for the reason that India does not have a data protection regime. In the absence of a legal and regulatory framework concerning data protection and privacy in India, nobody can stop the two Conglomerates (including others) – beyond their morals, values and ethics – to persuade them to stop the collection, process and utilization of personal and sensitive data / information of its users. Of course, it goes without saying that, one can drag them to the Court(s) of law should things falter but, sans any legal or regulatory framework in place, things (or your data) might get out of hand. Hence, it is desirable to duly implement, as soon as practicable and keeping in mind the interest of all stakeholders, the Bill (at the earliest) in order to protect our privacy. This is precisely why we need the legislation for safeguarding our privacy we so badly deserve.

[Disclaimer: Ali Waris Rao is an in-house legal counsel at Hindalco Industries Ltd., Aditya Birla Group. The views expressed are personal and have no bearing on the firm he represents.]

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Policy & Politics

RS 2 lakh crore outlay announced for PLI schemes

Tarun Nangia

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budget 2021

Keeping in view India’s vision of becoming ‘Atmanirbhar’ and to enhance India’s Manufacturing capabilities and Exports, an outlay of INR 1.97 lakh crore (US$ 26 billion) has been announced in Union Budget 2021-22 for PLI schemes for 13 key sectors of manufacturing starting from fiscal year (FY) 2021-22.

(Source: Concerned implementing Ministries/ Departments)

The 13 key sectors include already existing 3 sectorsnamely (i) Mobile Manufacturing and Specified Electronic Components, (ii) Critical Key Starting materials/Drug Intermediaries & Active Pharmaceutical Ingredients, (iii) Manufacturing of Medical Devices and 10 new key sectorswhich have been approved by the Union Cabinet in November 2020. These 10 key sectors are:

(i) Automobiles and Auto Components, (ii) Pharmaceuticals Drugs, (iii) Specialty Steel, (iv) Telecom & Networking Products, (v) Electronic/Technology Products, (vi) White Goods (ACs and LEDs), (vii) Food Products, (viii) Textile Products: MMF segment and technical textiles, (ix) High efficiency solar PV modules, and (x) Advanced Chemistry Cell (ACC) Battery.

PLI Scheme for an additional sector, Drones and Drone Components, has also been approved by the Union Cabinet in September 2021. With the announcement of PLI Schemes, significant creation of production, employment, and economic growth is expected over the next 5 years and more.

The PLI schemes are being implemented by the concerned Ministries/ Departments. A statement on details received from concerned Ministries/Departments regarding investment made by various sectors after 1st April, 2021, to avail Production Linked Incentive (PLI) scheme is placed in the table below:

There is no plan to relax Production Linked Incentive Scheme for White Goods.

This information was given by the Minister of State in the Ministry of Commerce and Industry, Som Parkash, in a written reply in the Lok Sabha today.

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Policy & Politics

RS 56,000 CRORE RELEASED TO CLEAR DUES TO EXPORTERS

Tarun Nangia

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Government has released Rs 56,027 crore in order to clear pending export incentive dues to exporters, which is for various Schemes namely: Merchandise Exports from India Scheme (MEIS) – Rs 33,010 crore, Service Exports from India Scheme (SEIS) – Rs 10,002 crore, Rebate of State and Central Taxes and Levies (RoSCTL) – Rs 5,286 crore, Rebate of State Levies (RoSL) – Rs330 crore, Remission of Duties and Taxes on Exported Products (RoDTEP) – Rs 2,568 crore and other legacy Schemes like Target Plus Scheme (TPS), Focus Product Scheme (FPS) etc. – Rs 4,831 crore. This includes support for exports made under RoDTEP and RoSCTL Schemes during the 4th quarter of FY 2020-21. It is estimated that such benefits would be disbursed to more than 45,000 exporters, out of which around 98% may fall in the Micro, Small and Medium Enterprises (MSME) category.

Clearance of dues under these Schemes is dependent on meeting the eligibility criteria by the applicant exporter, whose applications are scrutinized for any deficiency. The process of approval of complete applications under these Schemes varies. In certain Schemes, such as MEIS, ROSCTL and ROSL, online applications are largely system approved, whereas for SEIS, TPS, FPS online applications require manual scrutiny and examination of documents. Accordingly the detail of exporters’ dues state-wise isnot maintained.

To reach the target, some of the key schemes/interventions taken by the Government are:

i. The Foreign Trade Policy 2015-20 has been extended upto31.03.2022 to provide a stable regime during the COVID-19 pandemic, wherein Schemes such as the Advance Authorization Scheme and the Export Promotion Capital Goods (EPCG) Scheme are being implemented to enable duty free import of raw materials and capital goods for export production.

ii. Remission of Duties and Taxes on Exported Products (RoDTEP) Scheme has been introduced with a budget of Rs 12,454 crore for FY 2021-22.

iii. Rebate of State and Central Levies and Taxes (RoSCTL) Scheme for apparel and made-up exports has been extended till March 2024 with existing rates.

iv. Transport and Marketing Assistance (TMA) scheme for specified agriculture products is being implemented to provide assistance for the international component of freight and marketing of agricultural produce and to promote brand recognition for Indian agricultural products in the specified overseas markets.

v. A common digital platform for Certificate of Origin (CoO) has been launched to increase Free Trade Agreement (FTA) utilization by exporters.

vi. Monthly monitoring of exports for 200 countries and 31 commodity groups is being done.

vii. Under the aegis of “Azadi Ka Amrit Mahotsav”, VanijyaSaptah was celebrated during 21-26th September 2021 to reach out to members of industry, exporters, association and State/Union Territory Governments for awareness and interaction on exports and various export related issues.

viii. In order to leverage full export potential, districts are being promoted as Exports Hubs by identifying products and services with export potential of each district.

ix. Exports of services is being supported through negotiating meaningful market access through multilateral, regional and bilateral trade agreements and through participation in and organization of international fairs/exhibitions like the Global Exhibition on Services.

x. An ‘Action Plan for Champion Sectors in Services’ to give focused attention to identified Champion Services Sectors through identified nodal Ministries/Departments is also in place.

xi. Assistance is being extended to exporters under the Market Access Initiative (MAI) scheme for various activities such as export market research, product development, product registration, organizing / participating in fairs, exhibitions and Buyer Seller Meets (BSMs) abroad, Reverse Buyer Seller Meets etc.

xii. In order to have a coordinated and focused attention on development of export infrastructure, a working group on infrastructure up-gradation has been constituted under National Committee on Trade Facilitation (NCTF) and a National Trade Facilitation Action Plan (NTFAP) has been formulated. This includes measures for improving road and rail connectivity to ports and smart gates at sea ports.

This information was given by the Minister of State in the Ministry of Commerce and Industry, Anupriya Patel, in a written reply in the Lok Sabha today.

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Policy & Politics

CONSTITUTIONALITY OF MARITAL RAPE IN INDIA: AN ANALYSIS IN THE LIGHT OF ARTICLES 14 & 21

Raju Kumar

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Recently, Chhattisgarh High court ruled that the sexual intercourse between man and wife is not rape even if it is done by force. In India, primarily Section 375 of Indian Penal Code (herein after referred as IPC) deals with the rape. The codified section of 375 includes all forms of sexual assault which involves all nonconsensual intercourse with a woman. Section 375 of the IPC reads as “Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:…….”— However, exception 2 of this section exempts unwilling sexual intercourse between a husband and a wife when it is done with over fifteen years of age and thus the act is protected from prosecution. According to the current prevailing law, it is presumed that a wife has already delivered his perpetual consent to have sex with her husband when she enters into marital relations. Around the globe, almost all countries have criminalized the marital rape. However, India is among the other thirty-six countries that still have not criminalized the marital rape. But, it is also notable that Supreme Court of India in the Judgment of Independent Thought v. Union of India, have criminalized the unwilling sexual contact with a wife between the age of fifteen and eighteen years. In this article, we will see the constitutional validity of Exception 2 of the Section 375.

VIOLATIVE OF ARTICLE 14 OF THE INDIAN CONSTITUTION.

Article 14 of the Indian Constitution states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. In one hand, where the constitution provides equality to all, on the other hand, the criminal law discriminates the female who have been raped by their own husbands.

This law finds its footprint in the colonial era. At that time the women were treated as a cattle and this law is based on the “Doctrine of Coverture”. However, the time has been changed now and women must get their rights which are enshrined under the Constitution of India.

Exception 2 of Section 375, is inconsistent with the provision of Article 14 insofar it is discriminatory in nature. This section creates two different classes of women based on the marriage status. This classification is constitutionally invalid and is inconsistent with the doctrine laid down in the judgment of Budhan Choudhary v State of Bihar and State of West Bengal v. Anwar Ali Sarkar, where it was held that the classification should have some rational nexus to the objective that the act seeks to achieve. However, in the current scenario, exception 2 of section 375 doesn’t qualify the ‘reasonable test’ as it simply exempts husbands from punishment, which is totally contradictory with the objective. Furthermore, this exception also encourages husbands to establish forcefully sexual intercourse with their wives, as the act of husband is neither discouraged nor penalized by the law. Therefore, no rational nexus can be inferred between the classification created by this exception and the underlying objective of act. Thereby, it doesn’t satisfy the ‘reasonableness test’ and therefore it is violative of Article 14 of the Indian Constitution.

VIOLATION OF ARTICLE 21.

Article 21 of the Indian Constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” Supreme Court while interpreting the clause of Article 21, in the judgment of State of Karnataka v. krishnappa, it was observed that “Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female”. Furthermore, in the same judgment the court further observed that whenever a non-consensual sexual intercourse takes place, it amounts to physical as well as sexual violence. Later on, Supreme Court in the year 2009, in the judgment of Suchita Srivastava v. Chandigarh Administration, while dealing with Article 21, equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity.

Recently, Supreme Court in the year 2018, in the landmark judgment of Justice K.S. Puttuswamy (Retd.) v. Union of India, recognized the ‘right to privacy’ as a fundamental right. Furthermore, it was also observed that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”. The above decision of the court doesn’t create any difference between married and unmarried women. Therefore, it is applicable universally and a woman doesn’t losses the rights enshrined under article 21 after the marriage.

Moreover, exception 2 is also inconsistent with Article 21’s ‘right to live with a healthy and dignified life’ as held in the judgment of C.E.S.C. Ltd. v. Subhash Chandr.

CONCLUSION

The above discussion clearly shows that exception 2 of section 375 clearly violates Article 14 and 21 of the Indian Constitution. Renowned scholar Dr. Br. Ambedkar once observed that “I measure the progress of a community by the degree of progress women have achieved”. In India, which is always knows for its vast diversity and culture, such laws prevailing is a dark side of it. Women should not be treated merely as an object. They must be stand on equal footage. Now, it is high time when Indian criminal jurisprudence should strike it down.

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Policy & Politics

Femtech Apps: An Analysis

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INTRODUCTION

Since times immemorial, women’s reproductive rights and allied healthcare have been deliberated upon behind closed doors. Even in the 21st century, these pressing issues have been largely stigmatised and have not received the recognition that they deserve. The scales were tilted in favour of women after the arrival of ‘Femtech’. Now, women can count upon such apps which provide them with a plethora of solutions including menstrual cycle tracking, pregnancy tracking and fertility solutions. Female technology commonly abbreviated as Femtech entails creation of hygiene products, reproductive health monitoring systems and other digital applications that empower a woman by keeping her abreast of her less talked about but significant, reproductive health. A report by Emergen Research estimated the global market size for Femtech to be around USD 60.01 billion by 2027. The rationale behind the tremendous popularity of this novel industry is its huge target audience which constitutes 50% of the global population.

ARE WOMEN, COMMODITIES MASQUERADING AS USERS FOR FEMTECH APPS?

The leading Femtech apps like Flo, My Calendar, Clue, Maya and Ovia enjoy millions of downloads on Google Playstore. Their remarkable success makes it all the more imperative to address the issues encircling them. Women share their extremely intimate and sensitive information with these apps including the duration of their menstrual cycle, mood swings, the last time the user had unprotected sexual intercourse and whether she is trying to get pregnant. The enormous faith and confidence reposed by a female upon these apps is quite conspicuous given that she is apprehensive about sharing such information even with the closest people in her life. It is understandable that these apps require particulars of the user for processing and delivering the accurate outcome without which they cannot function effectively. Nevertheless, the chink in the armour is that this data is being shared with third parties without the informed consent of the user. So, you never know where your information might end up! According to a significant report published by the Norwegian consumer council, an advocacy group revealed that multiple apps including Clue transmitted personal information of its users to at least 135 companies or data brokers. These entities consolidated sensitive data received from myriad sources to create digital profiles of the consumers that are further exploited for online targeted advertising. Its detrimental impact can be discerned where several women are spammed by online advertisements related to diapers after they start using a pregnancy app. ‘Menstrual/Intimate Surveillance’ can be observed as a phenomenon directly emanating from circulating personal data of female users. Every minute step taken on a Femtech app is watched, recorded and processed by hundreds of suspicious agencies for their dystopian ways. This manifests as being a downright intrusion and an encroachment over the right to privacy of a woman.

APERTURES IN REGULATORY STANDARDS AROUND THE WORLD

Even the law does not come to the rescue of these women who continue to be susceptible to data exploitation by these Femtech apps. With respect to data protection laws, European Union (EU) observes that 12 non-EU countries have an acceptable legal framework for data security.

USA has Health Insurance Portability and Accountability Act (HIPAA), 1996 which caters to patients’ privacy concerns by defining ‘Protected Health Information’ (PHI) that specific entities are mandated to protect. These encompass healthcare providers, clearinghouses and business associates. The Femtech apps can come within the purview of HIPAA only under the third category, business associates because they are independent corporate houses that provide specialized technology. Nonetheless, they evade liability and keep themselves safe from any legal ramifications. EU’s General Data Protection Regulation (GDPR) can be viewed as a silver lining. It is a stringent legislation that administers how businesses ought to safeguard the confidentiality of digital personal information of EU residents. GDPR places the explicit and unconditional consent of the users at the highest pedestal without which their data cannot be transmitted to a third party at any cost. It is commendable that the residents of the EU are protected by a sound legal framework as regards data security. At the same time, it cannot be denied that the Femtech apps cater to women in non-EU jurisdictions as well who remain bereft of the protection offered by GDPR. Under these circumstances, it becomes imperative for the Femtech apps to have a universal policy addressing this issue.

ABSENCE OF DATA GOVERNANCE FRAMEWORK IN INDIA

Closer home, a path-breaking judgement Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors. transformed the privacy landscape. The Supreme Court of India recognized the right to privacy as a fundamental right under Article 21 of the Constitution. It further held that “….from the right to privacy in this modern age emanate certain other rights such as the right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the “world wide web” and to disseminate certain personal information for limited purposes alone.” To follow the judgement in its letter and spirit, Srikrishna Committee was constituted by the Ministry of Electronics and Information Technology (MeitY). It submitted a comprehensive report on 27 July 2018 which was later codified as the draft Personal Data Protection (PDP) Bill, 2018. The revised version of this draft was introduced before the Lok Sabha on 11th December, 2019 and was referred to a Joint Parliamentary Committee, formed exclusively for providing recommendations to the PDP Bill, 2019. The Bill once passed would be an immaculate attempt at bringing India at par with other jurisdictions, especially the EU. It prescribes a robust mechanism for notifying the user before his/her data is collected and mandates unambiguous consent of the user concerning sensitive data which can be easily withdrawn, as well. The Bill goes a step further by providing a host of rights including but not limited to, right to access and correction. Hopefully, the revered Parliament will soon make history by passing the first, one of its kind Data Protection law in our country.

THE ROAD AHEAD

Given the sky-rocketing downloads of Femtech apps all across the globe, the stakes are quite high. It is the need of the hour to explore optimal yet expedient solutions. A company must adopt the ‘privacy by design’ model by default. The principles of privacy such as data encryption can be embedded into the system to ensure user privacy and accessibility coupled with empowering user-friendly interface. Having said that, enhancing safeguards is a costly affair for corporations. Yahoo refused to address the issue of strengthening data security owing to exorbitant costs and complexities. As a result, the company suffered a major setback at the time of its data breach during 2014-2015. Thus, the state is expected to extend a helping hand to leading Femtech companies for setting a ‘commercially reasonable standard’ practice. The significance of prioritizing digital awareness to create more educated users cannot be emphasized enough. In addition to that, the apps should take the bull by its horns by having a simplified and comprehensible privacy policy.

CONCLUSION

We acknowledge that Femtech apps are quite efficacious and are empowering women to take charge of their health and body. Nevertheless, the unwavering trust that women have in them should not be compromised for ulterior motives. In other words, these apps can turn into Frankenstein monsters if data exploitation is trivialised.

At the cost of repetition, it is re-iterated that the right to privacy loses its true essence if Femtech apps are given leeway to commercialise intimate data. Henceforth, states should realise the significance of the interface between health, technology and confidentiality.

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Policy & Politics

Vehicle Scrappage Rules’ Enforcement in current times

Anu Bhuvanachandran & Anju Joseph

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In the Union Budget 2021, the country’s Finance Minister Smt. Nirmala Sitaraman has introduced vehicle scrappage policy where the reason for its introduction is to bring down pollution levels across the nation and to uplift the automobile industry.

Srcapping Policy

36. We are separately announcing a voluntary vehicle scrapping policy, to phase out old and unfit vehicles. This will help in encouraging fuel-efficient, environment friendly vehicles, thereby reducing vehicular pollution and oil import bill. Vehicles would undergo fitness tests in automated fitness centres after 20 years in case of personal vehicles, and after 15 years in case of commercial vehicles. Details of the scheme will be separately shared by the Ministry.”

On 18th March 2021, the Motor Vehicles (Registration and Functions of Vehicle Scrapping Facility) Rules, 2021 draft was issued vide notification by the Ministry of Road Transport and Highways. The Draft Motor Vehicles (Registration and Functions of Vehicle Scrapping Facility) Rules, 2021 aims to the establishment of Registered Vehicle Scrapping Facility (RVSF) and regulate automobile collection, scrapping and recycling centres, dismantling automobiles etc.

ELIGIBILITY TO GET SCRAPPED

It is clearly said in the draft rules, the vehicles not renewed under Rule 52 of Central Motor Vehicle Rules 1989, vehicles not granted with fitness certificate under section 62 of MV Act, 1988, vehicles damaged in natural disaster, fire, accidents, riots or owner himself certifies his vehicle a scrap, vehicles which are declared obsolete by state or central organizations of government, vehicle bought by any agency even RVSF in an auction for scrapping, vehicles outlived utility, manufacturing rejects and test vehicles certified by vehicle OEM and vehicles auctioned, abandoned or impounded by any Enforcement Agency.

So your vehicle in hand has more probability to get scrapped if you have a private vehicle of twenty years or above age or a commercial vehicle of fifteen years or above age and it fails to get fitness certificate.

END OF LIFE OF YOUR VEHICLE

Once your vehicle fails to get fitness certificate or if no valid registration is present or if registrations are cancelled under Chapter IV of MV Act or due to court order or any criteria said above, it will be called as End of Life of your vehicle and you will the Registered Owner of the End of Life Vehicle. Next step is to leave your vehicle for scrapping.

VEHICLE SCRAPPER FACILITY AND PROCEDURE

If you have an entrepreneur inside you, then you can be a registered scrapper by registration of your name or firm or company or establishment for Vehicle Scrapping as prescribed under this Draft Rules and owns and operates the same. To be an efficient scrapper you need to know some elementary definitions which are essential. Legally speaking, Rule 3(l) defines scrapping as the entire process from receipt and record of the “ELV including depolluting, dismantling, segregation of material, safe disposal of non-reusable parts, and issuance of “Certificate of Vehicle Scrapping to the registered owner of a motor vehicle. Clause (m) defines Scrapping Yard as the designated location within the premises of the RVSF where dismantled vehicle parts are processed for further treatment including recycling. Whereas Rule.3(n) says “Treatment” means any activity after the end of life vehicle has been handed over to a collection centre of an RVSF for depollution, dismantling, shearing, shredding, recovery or preparation for disposal of the shredder wastes, and any other operation carried out for the recovery and/or disposal of the end of life vehicle and its components.

Draft Rules says that Eligible RVSF means person, trust, company formed in accordance with the law and entity shall possess Certificate of Incorporation, valid PAN and GST registration. There are additional set of criteria such as evidence for availability of usable land, consent from State Pollution Control Board, obtain quality certification etc. or the undertakings of the concerned documents.

Once you find yourselves eligible, you can file Form-1 as prescribed by Registration Authority along with processing fee of One lakh rupee per RVSF and an Ernest Money Deposit (EMD) in the form of bank guarantee of Ten Lakh Rupees per RVSF with initial authorization period of ninety plus days. Approval or dismissal of your application has to be made by the Registration Authority within sixty days from the date of submission of application. If your application gets rejected the above EMD will be refunded but not the processing fee i.e. One Lakh Rupees.

RVSF is duty bound to keep up connectivity to the VAHAN database, maintain record of scrapping vehicles, issuance of Certificate of Issuance, Certificate of Scrapping and shall have necessary IT systems certifications for safe access to VAHAN database and also install CCTV cameras at the yard, in the customer and vehicle reception area.

Once get registered means its initial validity shall be ten years and can be renewed for another 10 years after the expiry of the initial validity period. If you need to do renewal, you have to submit application under Form-1 and the certificate will be issued under Form- 1A. It is to be noted that the registration issued is not transferable.

Now you have RVSF, and the question is how vehicles will come to you or if you are Registered owner of End of Life Vehicle how will you scrap the vehicle. The registered owner or authorized representative can submit two originals of Form-2 to the Regd. Scrapper or designated collection centre.

If the vehicle does not have valid registration, then Regd. Scrapper or the designated collection centre has to match the identity of registered owner as per VAHAN database with person who handover the vehicle and then receive the vehicle and issue receipt linked to VAHAN database.

In case of impounded vehicles Enforcement Agency shall handover the registered scrapper as per procedure prescribed by the appropriate government. Also Registered scrapper shall match the handed over vehicles with the database of the stolen vehicles held by NRCB as well as with local police before scrapping.

The documents to be produced along with Form-2 to the Registered scrapper include Original Certificate of Registration, authorization from registered owner, if inheritance applicable then death certificate of the registered owner with proof of succession, certificate confirming sale in public auction in his favour and undertaking that there is no pending criminal record or litigation.

The registered scrapper shall also keep self-certified copies of documents prescribed under Rule 10(8) of the Draft Rules.

Registered Scrapper shall always keep in mind that the RVSF established in a state shall accept and scrap the vehicles registered in any of the State/UTs under the jurisdiction of any Registering authority. The whole process shall be smooth linked with VAHAN and on PAN India basis irrespective of the location of any vehicle registering authority.

Being a Registered Owner of End of Life Vehicle handed over to registered scrapper, shall always be keen to collect Certificate of Deposit from the scrapper only by which the owner will be able to avail benefits for the purchase of new vehicle. This certificate is tradeable and once utilized will be stamped as cancelled by the agency providing benefits to the holder of said certificate. Matching entries shall also be made by the RVSF on VAHAN portal.

These are also additional provisions on removal of fuel, hazardous substance etc. from vehicles is discussed which has to be ensured by the registered scrapper before scrapper.

Certificate of Vehicle Scrapping shall be provided by the registered scrapper after completing necessary treatment including digital photograph of the cut out of Chassis in Form-4 to update national register VAHAN database and inform competent authority on the same. Central government shall maintain a separate record on the same.

The Draft Rule further concentrates on detailing the description of scrapping yard vide Rule 13 which a proposed registered scrapper shall always look into, before applying for the registration. It is also to be noted by the Registered Scrappers that your RVSF facility will be subject to audit and certification which shall be revalidated at least three months before its expiry.

DISPUTES & ADJUDICATION

Further the Registration has the right and authority to inspect upon on receipt of complaint, report of non-compliance from appropriate authority and shall prepare Report of Inspection. A copy shall be given to the scrapper. After providing opportunity to hearing to the Regd. Scrapper the authority may pass speaking order to cancel or suspend the authorization for the facility. Appeal can be filed by the aggrieved party to the Commissioner of Transport within thirty days of passing such order. There is an appeal fee of Ten Thousand Rupees. The said appeal shall be disposed in fourteen days.

DRAFT RULES AND PANDEMIC

From the Draft Rules, it is understandable that the implementation will be possible only if there are full-fledged RVSF is available in the states. Also, for commencing RVSF, the applicant has to have risk of Rs. One Lakh as processing fee of Application which is preferably high especially during this pandemic. Also, usable bulk lands are already turned to cemeteries in the first and the ongoing second Covid-19 wave. In this period, people regardless their wealth are securing assets for their health to escape from Corona virus.

Even though vaccine drive is actively conducted all over India, recovery cases are also hiking, many people are again suffering from Covid-19 even after taking two doses of vaccination. Every Today in recent comes up with terrifying news of people succumbed, begging for ventilators and even oxygen.

In addition, M. Vidyasagar (Scientist) and K Vijay Raghavan (Principal Scientific Advisor) vide news reports informed that the third wave of Covid-19 will hit by the January 2022. This is also not good news for people as no preparedness can be taken at ground level as variants of viruses are hitting person to person.

In our view, the government shall take into consideration about the appealing situation of India amidst of Covid-19 and take a prudent decision either by not implement it anytime soon and to decrease the amount fixed as processing fee, bank guarantee and fees for filing appeal.

We suggest that the implementation of this Draft Rules shall be a very slow process and both the proposed registered scrappers and registered owners shall get amicable time and may not take steps that further traumatize the registered owners of the vehicles.

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Policy & Politics

Back from the brink: Positivity is the key

Anil Swarup

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“Anil, it is not good news. You have malignancy”. This was my doctor-friend, Ambrish Mithal on phone. He was the one who had persuaded me to get the necessary tests done after some painless growth was detected in my groin and armpits. I had half expected it as the tuberculosis treatment for this growth was not working and the PET Scan had revealed growth in many parts of the body. Ambrish went on to explain that it was Non-Hodgkin’s Lymphoma, cancer of lymph glands. Though I had lost my mother to cancer a few years ago, I didn’t have much of an idea of this variety of cancer. Hence, all that he told me made no sense except that I had been afflicted with this dreaded disease. My wife, Ruchi was with me. My first reaction was that irrespective of the outcome, we will fight it out. She was a step ahead. She looked totally unfazed and was confident that we will tide over the crisis. If there was any turmoil going inside, she didn’t show it. She remained that way right though the six-month trauma of debilitating medication called chemo-therapy. It was her emotional strength that made all the difference.

I looked at the entire crisis differently. If I were to die, so be it. Everyone does some day. I had always believed in living in the moment and enjoying each one of it simply because I had no control over the consequences. This approach helped. I continued to fire on all cylinders. In a sense, COVID was a blessing in disguise. We were cut off physically from most of the world during the past year and a half. Hence, this quarantine on account of lowered immunity made no difference. I was physically shattered because of extreme weakness, loss of appetite, intermittent nausea, loss of weight, strange sensations, high pulse rate, long sessions of hiccups and sleeplessness. Consequently, I lost 10 Kgs of weight (I had previously thought I didn’t have additional weight to shed) and gained 10 years in age. All this made life extremely difficult. However, I was mentally as alert and as positive as ever, penning down my usual three articles every week and working on my next book, “No More A Civil Servant”. However, the Webinars stopped after some time. Intermittent appearances on television also were without the video feed because I could barely recognize myself in the mirror. To begin with, I could continue with physical exercises but as the body became weaker, I had to give it up. Even walking became difficult

I was lucky to run into a very competent set of doctors at Max Hospital at Saket, New Delhi. Ambrish who works in the same hospital was a great help in introducing me to Dr Harit Chaturvedi who performed the biopsy and, he in turn put me across to Dr Rajesh Naithani, a cool-headed doctor who knew his job. The experience otherwise with the hospital was a forgettable one. I have often wondered how and why do such accomplished doctors work in an environment that is so poorly managed. For a patient it is even worse. The hospital is interested in “catching” you. You are a VIP till then but once you are “caught”, you are left to the wolves. The only concern of the management is to somehow make money. Unfortunately, the doctors who have nothing do with this “mismanagement” end up getting a bad name.

The incompetence and callous attitude of some para-medical staff has to be experienced to be believed. You pay through your nose (though my bills were taken care of CHGS), yet get such poor service. My first experience was blood extraction for tests. The person just shoved the needle while engaging in a casual conversation with his colleague. Experience at Sir Gangaram hospital where I went for PET Scan was totally different. Here the para medical staff was not only polite but competent. When I asked one of them how did they manage such painless insertion of needles, I was pleasantly surprised at his response. He said that since all the patients that came to him were already in pain, they made an effort not to add to their misery.

Obtaining medical reports was another tragic experience at Max. Those at the front desk, almost always indifferent and sometimes even rude, have no clue. They make people run around for locating medical reports. The callous indifference is pretty appalling. The hospital takes regular feedback after each visit but follows up with no action.

Despite all the mismanagement, the hospital continues to attract patients on the strength of the quality of its doctors. My miraculous recovery in just six months after six rounds of chemo-therapy can be attributed totally to Dr Naithani. The para-medical staff, however, gave me an infection on account of their incompetence in inserting the Cannula needle.

The news relating to my ailment wasn’t kept a secret but I made no effort to share it with everyone. Still, many of my friends, former colleagues and relatives got to know of it. Their reaction ranged from disbelief to a variety of positive inputs. Many of them narrated cases where Lymphoma had been cured. All this helped enormously in staying positive. It was also extremely heartening to know that so many cared and prayed for me.

In such a crisis, support from family is the key. I was lucky to have them around. For my wife, everything else became secondary as she committed full time to take care of me. One of the fall-out of chemo-therapy was the loss of taste and appetite. She researched and cooked stuff that I could eat. There was never an occasion that she was found wanting, keeping awake with me during many sleepless nights to ensure that I was not put to any inconvenience. More than anything else, she never lost hope. My daughter, Aditi and son, Apurv were living elsewhere in Delhi.

They had their own professional and personal commitments but they ensured that at least one of them was around to assist my wife. Apurv also ferried me to the hospital and undertook the difficult task of engaging with the “people” at the hospital. In his absence, Divam, my son-in-law deputized for him. During these six months what I missed most was the company of my twin grand-daughters, Dviti and Srisha.

It was a tough journey, perhaps one of the very few in my life that I didn’t enjoy. However, it was an experience where positivity helped. It is not all over yet as there could be recurrence of this deadly disease but this experience will hopefully stand me in good stead.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

The incompetence and callous attitude of some para-medical staff has to be experienced to be believed. You pay through your nose (though my bills were taken care of CHGS), yet get such poor service. My first experience was blood extraction for tests. The person just shoved the needle while engaging in a casual conversation with his colleague. Experience at Sir Gangaram hospital where I went for PET Scan was totally different.

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