Post-humous Privacy: Should India re-think Privacy after death? - The Daily Guardian
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Post-humous Privacy: Should India re-think Privacy after death?

Pulkit Mogra

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The expectation of privacy has been evolving over the centuries. In previous eras, people enjoyed little privacy, even though information about their private lives hardly used to escape from the confines of their family or community. However, as society developed along with the technological advancement of social media, disseminating information beyond the local community was no longer an impossibility. Privacy has been an area of law that has continuously seen an evolution-based society’s progression. Over the last two decades, in the majority of nations, the evolution of privacy as a right has majorly focused on striking a balance between the public’s right to know and an individual’s right to privacy. In addition to this, nations have exclusively taken into account a viewpoint of privacy of the living, leaving us with a question, if there should be privacy for the dead as well?

Post-humous privacy invokes several ethical, philosophical, moral and legal issues. It has been a topic of debate globally for granting it as a status of the “right” of a citizen. This also brings us to dwell on whether “citizenship” expires post-death. Until the past two decades, mainly celebrities and politicians have been amongst the population whose existence were documented in a manner for whom a reputation emerging through public data was a point of concern. However, with the exponential growth of digital technologies and social media platforms, individuals developed a complex relationship with their personal data available in the public domain. That has now resulted in digital footprints that shall not only outlive them but also those data debris will persist in the online space for years post-death of an individual.

The standpoint of Indian law-making bodies has failed to consider the growing need to bring in post-humous privacy rights. Neither the upcoming bill nor the Indian judiciary has considered the post-humous aspect of privacy. Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) & another v. Union of India specifically limited the privacy rights merely to living human beings, until one breathes last. Hence established that the right to privacy extinguishes along with the person’s life. The primary argument against the recognition of post-humous privacy is the notion that “the deceased cannot be harmed or hurt.” However, this line of reasoning is inconsistent with the principle of freedom of testation. Therefore, denying control to a person over online data on the grounds of no harm caused would be analogous to denying the rights of the testament; as Edina Harbinja quotes, “the deceased should not be interested in deciding what happens to their property on death as they would not be present to be harmed by the allocation.”

While most nations, including India, are yet to discuss the same on the legislative front, some companies have taken initiatives to protect post-humous privacy. Google in 2013 launched ‘inactive account manager,’ and Facebook’s ‘memorialization’ and ‘legacy contact’ are some such examples. However, such solutions have proven to fall short of clarifying the rights of a legacy contact over the rights of kin. Hence, the existence of privacy interests post-death of an individual is still muddled and requires to be explored in detail. One of the generic questions that build upon post-humous data is over its impreciseness on “who owns the data.”

A civilizational question

Currently, no legal protections exist to stop one from getting digitally resurrected. Because of the non-recognition of post-humous privacy, there is no way to ‘opt-out’ of the system and, in turn, to protect the data of the deceased. Nevertheless, at the same time, there is a growing graveyard of deceased, outlasted by digital footprints. A study by Oxford University has claimed that by 2100, Facebook itself will have 4.9 Billion deceased accounts, and by 2070, the dead would already outnumber the total number of living. Hence this bank of data is going to take on an important role for not only historians, anthropologists and sociologists but also for the for-profit organizations that are thriving on human research. Hence, what happens to our data after our death, is a question we may have to answer sooner. Oxford University’s study’s highlight the need for overarching changes, and it raises several pertinent questions such as, Is it time that we should think of appointing social media executors? If our passwords should form a part of our wills and should be explicitly included? Moreover, can our Instagram accounts and their data can become a part of archives and public records in libraries to make future civilizations aware of #OurLivesOurRulz #SquadGoals.

Under the law, the deceased do not enjoy or possess any personal rights even if any false or malicious statement has been made; there exists no legal recourse. Nevertheless, reputation is a component that exists even beyond deaths where the living heirs manage posthumous legacies of the deceased through post-humous. Furthermore, the law duly recognizes intentions in the last will and is defended as a contractual obligation. Airing of embarrassing evidence cannot merely be justified under the transparency umbrella or vicarious drama. Such one-sided robbery of reputation with nobody alive for justifications hurts the deceased individuals and living heirs and, at times, the entire community. Hence, history is not merely gossip about the deceased. Edmund Burke’s in his enduring work, “Reflections On the Revolution in France,” believed society as a partnership that is based on the contributions of living, dead and unborn. This idea brings along the debate on the methodology that furthers to induce historians to interpret personages from the past, even the one that may comprise mortal failings, with similar notions of justice as we extend to the living.

THE ROAD AHEAD…??

There is a reason why we all draft our wills before our deaths and divvy up all of our possessions. These drafts mostly accommodate the claim on tangible and material objects in practice. Hence, making these decisions before death is one way of avoiding arguments over how the deceased person would have dealt with the mentioned objects of the will. However, social media accounts, digital data, records and emails are rarely afforded similar protections. Principally, limiting privacy on death is because traditional notions of the law tie privacy to the life of the right-holder. So, once life ends, privacy rights end simultaneously. However, there might be valid reasonings for limiting privacy as the claimant will not be available to exercise the decisions and rights post-death. At the same time, now, due to technological advancements, we have reached on to a point where our information legacies have extended the boundaries where the impact of information available of deceased can extend on to the life of survivors.

The right to privacy and data protection “for the living population” is already one of the most contested rights in India, and the nation is still in the process of implementing the Personal Data Protection Bill. However, when upcoming legislation is at the implementation and discussion front, the expectations of the legislations being at the “state of the art” level become multi-folds. In the meantime, before countries understand the severity of the claims and extend this right as a subset of privacy rights, social media networks, messaging applications and data collectors, as their social responsibility, must consider an option of “digital living wills.” That would not only bring in a safer online community standard with appropriate mechanisms to accept a choice to delete or memorialize their information upon death but would also bring in the data under data protection regime since the deceased’s data shall have a heir as a legacy owner.

This article has been written by Mr Pulkit Mogra, PhD in Law candidate at the University of Ottawa’s Centre for Law, Technology & Society and an Assistant Professor at University of Petroleum and Energy Studies, India.

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Legally Speaking

AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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