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'Use a paring knife to cut an apple, not a battle-axe': Justice BN Srikrishna on new IT rules

Former Supreme Court judge Justice BN Srikrishna had headed the expert committee formed by the Centre in August 2017 to study and identify key data protection issues and recommend methods to address them

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Amidst the ongoing debate over the new Information Technology (IT) Rules, 2021, and its impact on social media giants, former Supreme Court judge Justice BN Srikrishna, in an exclusive interview, said that "the debate has arisen because there is no comprehensive data protection law in the country."

Srikrishna had headed the expert committee formed by the Centre in August 2017 to study and identify key data protection issues and recommend methods to address them.

"If an Act is passed by Parliament, which comprehensively addresses, inter alia, these issues, and complies with the triple tests of constitutionality laid down in the Puttaswamy case by the Supreme Court, that may resolve these debates to a large extent," Srikrishna added.

Srikrishna, answering whether the new IT rules are likely to stand the test of judicial scrutiny, said the rules are too stringent and contain ambiguity, which would lead to eventual abuse of the law.

Srikrishna added: "The government should have power to interdict even private communication is indubitable, but that power has to be narrow and focused on an objective declared by an Act passed by a competent legislature. Again, the contingencies for exercise of that power must be clearly, unambiguously defined in the Act."

"There cannot a general power of interdiction on the assumption that something might turn up. That is the test of proportionality. It means that you must use a paring knife to cut an apple, not a battle-axe; use a fly-swatter, not a bomb, to kill a pesky fly!" he added.

The key difference between the recommendations made by Srikrishna's expert committee, versus the law currently in place, is the idea of keeping the fundamental right to privacy sacrosanct and compliance with the tests of constitutionality.

Srikrishna said, "Inroads into that should not be allowed except as and when permitted by a competent legislation."

(Edited by Vivek Dubey)

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