legislations : news and updates

Synopsis– Present data-based technological development and Personal Data Protection Bill 2019 presents a unique challenge to the privacy of individuals.  

Introduction Personal Data Protection Bill 2019   –

By Puttaswamy v India (2017) case, privacy was established as a fundamental right. In other cases, MP Sharma v. Satish Chandra (1954) and Kharak Singh v. Uttar Pradesh (1962), as well, Privacy rights were upheld by SC.  

However, the development of global technology and implementation of the Aadhaar biometric programme in India have diluted the effect of these rulings. Now there is an urgent need to take a new look at the legal position of privacy in India. 

As depicted by Aadhaar based technology and global social media platforms, data has become a new oil i.e., it has become a tool for economic and political gain. It created a stream of data protection legislations, globally. India is also trying to join the league by Personal Data Protection Bill 2019 (DPB).   

In India, the Personal Data Protection Bill 2019 (DPB) is currently under consideration by a parliamentary committee. There are various issues in this bill that go against the privacy rights of individuals. 

Commercial and Political consequences of the Data Protection Bill (DPB): 

Data Collection related issues  

• First- Bill will negatively impact the emerging technologies market of India dealing in creation, use, and sale of data that is valued at $1 trillion by 2025.  
• Second- The bill requires digital firms who want to operate in India to obtain permission from users before collecting their data.  
• Third– Bill also declares that users who provide data are, in effect, the owners of their own data and may control its usage or request firms to delete it.  
  • • European internet-users are able to exercise a “right to be forgotten” and have evidence of their online presence removed. 
• Fourth– The bill allows the government to use “critical” or “sensitive” personal data, related to information such as religion, to protect national interest. 

• Fifth– Open-ended access to government could lead to misuse of data. Mr. B N Srikrishna, the chairmen of the drafting committee of the original bill, warned that government-access exemptions risk creating an “Orwellian state”.

Issues related to Establishment of Data Protection Authority (DPA)  

• Bill aims to establish a Data Protection Authority (DPA), which will be charged with managing data collected by the Aadhaar programme. 
  • • Authority will consist of chairperson and six committee members,  
    • Members will be appointed by the central government on the recommendation of a selection committee.
    • Members will be selected from senior civil servants, including the Cabinet Secretary. 
• The government’s power to appoint and remove members at its discretion provides it an ability to influence the independence of agency.
• Unlike similar institutions, such as the Reserve Bank of India or the Securities and Exchange Board, the DPA will not have an independent expert or member of the judiciary on its governing committee.
• The UIDAI, for its part, has a chairperson appointed by the central government and reporting directly to the Centre.

Issues related to government use of data for surveillance

There are instances that suggest, India is acquiring some features of a surveillance state. 

• As stated by the Union Home minister recently, police used facial recognition technology to identify people after the anti-CAA protests and the Delhi riots. 
• There is a high possibility that police was matching the video offstage with the database of Election Commission and e-Vahan, a pan-India database of vehicle registration.

Issue related to safety of data 

There are instances of controversy where government has shown casual approach towards data safety and privacy of its citizens:  

• First, Safety concerns were raised during aadhaar data collection, which stores biometric data in the form of iris and fingerprints which is a violation of right to privacy.  
• Second instance was of Aarogya Setu contact-tracing app which was allegedly not able to protect the data provided by citizens.  

Way Forward 

• The Data Protection Bill is a unique opportunity for India, a country with some 740 million internet users.  It would be a standard setter for privacy of individuals. 
• Inclusive debate needs to take place in the Joint Parliament Committee and then in Parliament to examine the Data Protection Bill and promote transparency.

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News: United Nations Commission on Narcotic Drugs(CND) has voted to remove cannabis and cannabis resin from Schedule IV of the 1961 Single Convention on Narcotic Drugs.

Facts:

• Earlier Status: Cannabis was a part of both Schedule I and IV of the UN’s Single Convention on Narcotic Drugs — and while drugs in Schedule I can be used for medicinal purposes with state consent, drugs in Schedule IV are strictly controlled and their usage is a criminal offence.
• Present Status: Now, both cannabis and cannabis resin will only remain on Schedule I which includes the least dangerous category of substances.
• Status in India: Currently in India, the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, illegalises any mixture with or without any neutral material of any of the two forms of cannabis – charas and ganja — or any drink prepared from it.
• Significance: This decision has opened the door to recognising the medicinal and therapeutic potential of cannabis.

Additional Facts:

• Cannabis: It is a generic term used to denote the several psychoactive preparations of the plant Cannabis sativa.According to WHO, cannabis is by far the most widely cultivated, trafficked and abused illicit drug in the world.
• Commission on Narcotic Drugs: It is the UN agency mandated to decide on the scope of control of substances by placing them in the schedules of global drug control conventions.It was founded in 1946 and is headquartered in Vienna,Austria.
• Single Convention on Narcotic Drugs of 1961: It is an international treaty to prohibit production and supply of specific (nominally narcotic) drugs and of drugs with similar effects except under licence for specific purposes, such as medical treatment and research.India is a party to the convention.

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This article is based on the two Indian Express articles (links Indian Express, Indian Express) published today and in October, 2020 respectively.

Why in News

• US President Biden promises decriminalising the use of marijuana and also gave assurance to clearing out the past convictions related to it during his election campaign.
• In India also Recent case of wide spread drug usage among Bollywood actors and actresses created a wide debate on whether to legalise Marijuana or not?

 What is Cannabis?

• According to the World Health Organisation (WHO), cannabis is a generic term used to denote marijuana, hemp, weed etc and several other psychoactive preparations of the plant Cannabis sativa and other plants in Cannabis super family.
• In general Cannabis family has two major components

1. CBD (cannabidiol): It is a does not cause intoxication or psychoactive side effects and it is proven as effective chronic pain relief drug
2. Delta-9 Tetra Hydro Cannabinol (THC) is the major psychoactive constituent in cannabis

The WHO says that cannabis is by far the most widely cultivated, trafficked and abused illicit drug in the world.

How the Cannabis/Marijuana is regulated in India?

• Bhang, charas and ganja were regulated by the state excise departments and legally sold till 1985.
• In 1985 The Narcotic Drugs and Psychoactive Substances (NDPS) Act has been enacted central level commercial cultivation of cannabis by production, possession, sale/purchase, transportation, interstate import/export or any other forms is punishable. The Act has been amended three times – in 1988, 2001, and most recently in 2014.
• While CBD oil manufacturing is licenced under the Drugs and Cosmetics Act, 1940 can be legally used and sold. Some Indian websites do sell. But to purchase it one needs a prescription and many even facilitate it.
• Similarly, Bhang, ganja and charas are enlisted in the Drugs and Cosmetics Rules, 1945 for use in Ayurveda, Siddha and Unani

Important Provisions of NDPS Act:

• There are no restrictions on cultivation and procurement of cannabis for medical and scientific purposes.
• The legislature left seeds and leaves of the cannabis plant out of the ambit of the NDPS Act.
• The Act establishes Narcotics Control Bureau as the apex drug law enforcement agency and empowers them to oversee the implementation of of NDPS Act and also the other International conventions related to the it..
• For holding a small quantity, the prescribed punishment is rigorous imprisonment for up to six months, fine of Rs. 10,000 or both.
• For holding more than a small quantity but less than the commercial quantity, the prescribed punishment is rigorous imprisonment for up to 10 years, fine of Rs. 1 lakh, or both.
• For holding commercial quantity, the prescribed punishment is rigorous imprisonment for up to 10-20 years, fine of Rs. 1-2 lakh, or both.
• The Act covers three broad classes of substances:

1. narcotic drugs, that is, those covered under the 1961 UN single Convention on Narcotic drugs;
   • Hashish, resin or charas, ganja, any mixture of charas or ganja is prohibited.
   • Bhang or the cannabis leaf is excluded from the act, but regulated through state excise laws.
   • leaf; derivatives include cocaine and any preparation containing 0.1% of cocaine
   • Opium: Poppy based products, preparations with 0.2% morphine
2. psychotropic substances or those covered under the 1971 UN Convention on psychotropic substances as well as other psychoactive substances such as ketamine which are not yet classified under international conventions; and
3. “Controlled substances” that are used to manufacture narcotic drugs or psychotropic substances, for example precursor chemicals such as acetic anhydride, ephedrine and pseudoephedrine.

• ‘Manufactured substances’ category includes drugs such as Amphetamines, methamphetamines, LSD’s

What are the significant aspects of the Act?

• The Act prescribes quantity-based punishment. The Act differentiates between small and commercial quantities of various drugs such as:
  • Heroin: 5 grams-250 grams
  • Cocaine: 2 grams-100 grams
  • Hashish or Charas: 100 grams-1 kg
  • Opium: 25 grams-2.5 kg
  • Ganja: 1kg-20 kg
• The Act Criminalize people who use drugs and provide treatment for their relief from National Fund for the Control of Drug Abuse.

Why Marijuana should be legalised?

• Historic significance of Marijuana in India:
  • In later Vedic literature Atharva Veda mentions Bhang plant as one of the 5 sacred plants and usage of Bhang since ancient times is common during the Hindu festivals of Holi and Mahashivaratri.
  • Indian Hemp Drugs Commission in 1894 recommended against complete ban and found the usage as ancient and religious. (For source)
  • In 1961, India opposed the inclusion of marijuana in the UN Convention on Narcotic Drugs, citing its role in social and religious customs
• WHO study concluded Marijuana is not as unhealthy compared to alcohol and tobacco products.
  • It implies that the harms associated with marijuana use were greatly overestimated and society should respond to its use through progressive public health policies rather than ban.
• Magnitude of substance use in India: This is a survey released by the Ministry of Social Justice and Empowerment in 2019, it states that about 2.8 percent of Indians aged 10–75 years (3.1 crore people) were using cannabis in one form or other. (for source)
• Burden on Executive and Judiciary:
  • Narcotics Control Bureau investigate, interrogate and arrest people with small or miniscule amounts of marijuana and produce them in front of judiciary. It requires huge man power and state exchequer to control small or miniscule amounts of drug usage.
  • It leads to wide scope of corruption at lower level of executive which harass people even for petty crimes.
  • By legalising it India can release many young people landed in overcrowded jails whose only crime was using marijuana for fun and free up precious police time and go after the big drug mafias.
• International wave of legalization of cannabis, based on its medicinal properties and commercial utilities Ex. Uruguay became the first country to fully legalize marijuana in 2013. Then Canada followed the path.Now many states in USA legalised marijuana.

Why Marijuana should stay Illegal? (Financial Express)

• Short- and long-term side effects of Marijuana
  • Short term side effects may include a short-term memory loss, impaired motor skills, dry mouth and feelings of paranoia or anxiety.
  • In long term addiction, decreased mental ability and behavioural problems in children (when mothers used marijuana during pregnancy)
• Marijuana is a gateway drug
  • A private study found more than 40% who used marijuana also used other ‘Hard’ drugs.
• Against the Directive Principles of Article 47 which specifically calls for the prohibition of intoxicating drinks and drugs that are injurious to health
• Against International Conventions such as 1961 and 1971 UN conventions against Narcotic drugs and Psychotropic substances respectively and also International Opium Convention’ (1925).
• Difficulty in regulation: The fallouts of pharmaceutical product divergence into cattle market and drugs without prescription can continue in Marijuana too and put India’s younger generation at risk
• Not have completely proven medical records. For Ex., there is no evidence that cannabis is beneficial when used in diseases such as Crohn’s disease, sleep disorder, glaucoma, etc.

Way forward:

Instead of banning, India at present needs a progressive public health policy which control their use and reduce the harms by focusing on health education, age restrictions for buying, taxation policies, limiting the dose of the active ingredients and access to counselling for those who wish to stop is the need of the hour.