The six member delegation including three ministers and three MLAs from Goa said everyone has decided to pay for the Brazil trip out of their pocket
Goa's six legislators, including three ministers, whose proposed trip to watch the football World Cup in Brazil on State funds had kicked off a row, on Friday said that they have decided to pay for all expenses of the visit out of their own pocket without taxing the State exchequer.
The Brazil visit of the six members of legislative assembly (MLAs), including ministers Ramesh Tawadkar (Sports), Avertano Furtado (Fisheries), and Milind Naik (Power), sparked a controversy after the State sports department sanctioned Rs89 lakh for the tour.
That prompted the opposition Congress on Thursday to term the trip a 'wasteful expenditure' while seeking Prime Minister Narendra Modi’s intervention to 'stop the junket'.
“The six (of us) legislators met last evening. We decided to go to Brazil on our own without taking money from the State government. We don’t want to spend money from the State treasury. We don’t want to be a burden on the State coffers,” Furtado told reporters.
He said that the decision was unanimously taken by the six of them, including MLAs Benjamin Silva (Independent), Glen Ticlo and Carlose Almeida (both BJP), after the media created a 'hype' over the tour.
“It was a big hype created that we are going at the cost of the State exchequer. All six of us decided that we will pay from our own pockets and visit Brazil,” said Furtado, a former goalkeeper of Salgaocar Football Club.
All six MLAs are expected to meet Chief Minister Manohar Parrikar later in the day to convey their decision.
Defending the decision to send the MLAs on a State – sponsored 10-day trip, Parrikar had said that the tour was “an investment by the State government which has declared soccer as a State sport”.
“We are looking at this as an investment. Goa has declared football as a State sport. The delegation, which has been approved by the State government, has MLAs who are actually footballers. The government considers this to be an investment,” Parrikar had told reporters.
“The decision (to send a delegation) has been taken in the interest of the State. Recently, we held the Lusofonia games, which had Brazil as a participating country. The current trip is a continuation of the organisation of Lusofonia games,” he had said.
The decision of the State government had not gone down well with the two Goan footballers who were supposed to be a part of the delegation.
Arjuna award winners Bruno Coutinho, a former India captain, and Brahmanand Shankhwalkar had said they were hurt at not being included in the delegation.
According to the HC, the practice of exhibiting the picture of a person and shaming him in public for the sin of not paying back a loan cannot be encouraged in civilised societies
The Kerala High Court has said that only officers specified by the bank's board are entitled to send repayment notices to defaulters and not the lawyer appointed by the lender.
"Only an officer of the bank, as specified by the Board of Directors, can issue a notice of demand under Section 13(2) of the the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI) Act as contemplated under Rule 2(b) of the Security Interest Rules, 2002," Justice AV Ramakrishna Pillai of the Kerala HC said in a recent ruling.
The case relates to a petition filed by one Rajendran and his wife Bobby Sebastian, challenging the notice issued by a lawyer representing ICICI Bank's Thiruvananthapuram branch. They took a home loan of Rs1 crore from the lender and claimed to have paid nearly Rs76 lakh. However, the lender was demanding huge amounts as dues, they alleged. When they disputed the amount due, the lawyer representing the bank sent a notice. This notice was challenged by the couple stating that the lawyer was not competent to issue a notice as he was not an authorised officer of the bank.
In its submission, ICICI Bank said, the notice issued by the lawyer representing them was a notice of demand and constitutes an action. The Bank also citied judgements announced by Calcutta High Court and Rajasthan High Court in similar matters, upholding the view that a notice of demand under Section 13(2) of the Act, issued by a solicitor on the instruction of the secured creditor is valid. However, Justice Pillai of Kerala HC disagreed with the decision of both the Courts and ruled that the notice issued by lawyer to defaulters is not valid.
The mandatory biometrics registration in Chardham Yatra scheme of Uttarakhand shows how the ability of citizens and residents to partake of public service as consumers also becomes dependent upon implied waiver of their privacy rights otherwise guaranteed by the law
A few weeks back, the Government of Uttarakhand aired an FM radio jingle inviting pilgrims to undertake the Chardham Yatra, while also mentioning as fine print, that biometric registration would be mandatory for all pilgrims. The jingle encouraged interested persons to check the official website www.uttarakhandtourism.gov.in for more information; however, despite repeated visits to the website, requisite details remained unavailable till the writing of this note, particularly on important legal and public policy aspects such as: (i) purpose and justification for such mandatory biometric registration; (ii) the language and form of consent to be obtained from pilgrims for sharing (or withholding of sharing) of their sensitive personal information vis-à-vis third party access to biometric information; (iii) privacy protection infrastructure put in place for securing sensitive personal information; and (iv) identity of the agency authorised to handle, store and secure personal biometric information so gathered. Interestingly, all these elements comprise informed consent requirements that are mandated under Rules 4 and 5 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (the IT Rules).
One news item mentioned that the scheme would be implemented by the Uttarakhand Tourism Development Board (UTDB), a “body corporate” as per section 3 of the UTDB Act, 2001 read with section 43A of the Information Technology Act, 2000 (the IT Act), operations that the UTDB had apparently further outsourced to a private Indian company; while another report claimed that the registration process remained for “name sake” only. More details about actual providers of the underlying technology for biometric registration and/or authentication could not be located on official websites.
Law of Fingerprint Sharing in India
In order to fully appreciate various potential implications of mandatory biometric registration and/ or authentication, an introduction to existing privacy provisions protecting biometric information in India may be useful. The basic law is contained in Sections 3 and 5 of the Identification of Prisoners Act, 1920 (the IOP Act), which protect citizens and residents from forcible disclosure of their fingerprints to police officials. Essentially, the only four ways a police officer can obtain a person’s fingerprints are: (i) to obtain her/ his consent; (ii) to arrest her/ him in connection with an offence punishable with rigorous imprisonment more than an year; (iii) where a person has been ordered to give security under the Code of Criminal Procedure, 1973; or (iv) to obtain a (appealable and challengeable) court order.
These protections are reinforced by Section 72 of the IT Act, which lays down penalties for breach of confidentiality and privacy—both fines and imprisonment—where electronic personal information is disclosed by an official or private agency without the consent of the person concerned. Importantly, these protections are in addition to the overall protection under Article 20(3) of the Constitution of India, whereby no person accused of an offence can be forced to be a witness against her/ himself. Read together, there is clearly a strong framework for privacy protection of fingerprints already in existence in India, irrespective of whether the fingerprints are available only with the person her/ himself, or whether they are available with any entity that happens to come have come in possession of an electronic form for some other purpose (e.g. biometric office attendance systems).
The only possible downside to the Indian legal position is that these strong privacy protections contained in laws enacted by the Parliament contrast sharply with various parts of the (subsidiary) IT Rules issued by the Department of Information Technology; and the latter’s provisions allow, inter alia: (i) public officials tasked with investigation or national security functions to access personal fingerprints directly from a body corporate holding such information without intimation or consent of the person concerned; and (ii) the body corporate itself to share with its contractual partners or any other agency personal fingerprints based on legal requirements or contractual understanding, without intimation of consent of the person concerned—issues discussed in detail by this author elsewhere in an academic paper on the subject . The IT Rules thus have an unintended effect of derogating important constitutional and legal protections available to India’s citizens and residents, in contradiction to the provisions of the parent IT Act itself—a contra-intuitive aspect that was highlighted in a memorandum by the Centre for Internet and Society (CIS) to the Committee on Subordinate Legislation of the 15th Lok Sabha () last year, but any decisions thereon are still not known.
Possible Legal Implications of the Scheme
Given that the IT Rules facilitate, in effect, implied sharing of sensitive personal information held by a body corporate with law enforcement/ national security agencies and/ or their contractual partners without intimation or consent of potential pilgrims, a scheme for mandatory biometric registration as practised in Uttarakhand implies, inter alia, the following:
(i) firstly, that only those persons willing to waive their privacy rights under the IOP Act and the IT Act would be permitted to undertake the pilgrimage and avail of public services; and (conversely)
(ii) secondly, that any Indian citizen or resident not willing to waive such privacy rights would be prevented from undertaking the pilgrimage, thus potentially interfering with her/ his constitutional right to freedom of movement. As a corollary, if a person registers her/ his biometrics at the first check-post of entry, but changes his/ her mind later at any consequent stage, s/he may not be able to return unless s/he is willing to share her/ his fingerprint upon exit: thus implying, in a strictly legal sense, that the State could end up virtually incarcerating a person between two checkposts unless pilgrims have waived their privacy rights under the IOP Act and the IT Act.
An added legal complication is the doubtful nature of “informed” personal consent, if any, obtained by the State and private agencies at the time of such bulk registration or authentication. In a practical situation where lakhs of (largely legally illiterate) persons would line up at the checkposts eager to undertake the Yatra, it may be difficult to conclude if consent obtained under such circumstances would fulfil the “informed consent” requirements imposed by Rules 4 & 5 of the IT Rules.
Potential Public Policy Implications of the Scheme
The public policy implications of mandatory biometric registration under the Chardham Scheme are equally interesting:
Firstly, given that technologies for electronic de-duplication and authentication of personal fingerprints are not available in India, and were in all probability licensed by the Indian company from foreign entities without any associated technology transfer, the Chardham Scheme could well be the only government scheme anywhere in the world where delivery of public services and identity verification of citizens becomes completely dependent upon foreign proprietary technology platforms.
Secondly, given that the number of such foreign technology holders is really less than a handful and given the absence of meaningful technology transfer, cartelisation and rent-extraction could become severe in the near future once such a scheme has stabilised, leading to almost permanent vendor lock-in with concomitant public policy implications.
Thirdly, in complex public projects, the registration, de-duplication and authentication functions have hitherto typically been assigned to separate arms-length entities so as to prevent conflict-of-interest; but such conflicts could indeed be serious in the Chardham case, where one single company is apparently able to control all these sensitive functions.
Fourthly, it may be difficult for operators facing queues of eager pilgrims to have sufficient time for ensuring proper identity or address verification, implying that secondary identity and address verification may anyway have to be undertaken by concerned state agencies while handling disputes and claims arising out of any unfortunate incidents and mishaps during the pilgrimage—leading to extra and duplicated burden on pilgrims and their families.
The possible legal and public policy implications of the Chardham Scheme as outlined above—making public services delivery contingent upon implied waiver of privacy rights, and creating state dependency in perpetuity on foreign technology platforms—are thus complex and challenging indeed: they together create a situation where the ability of citizens and residents to partake of public service as consumers also becomes dependent upon implied waiver of their privacy rights otherwise guaranteed by law.
Given that professional legal advice may not be easily available to state governments in general, proper public consultations at the time of programme design could perhaps have better informed the decision-making process. In fact, early this year, the Committee of Secretaries in the Government of India made a recommendation for mandatory public consultations prior to policy formulation by default—an important feature of most national and state/ provincial governments in almost all developed countries, but one that is yet to be fully embedded and integrated into public policy-making processes in most states of India.
In that sense, the Chardham case highlights the imperative need for full public disclosure and prior meaningful discussions on proposed schemes and policies by state governments before their adoption, so that public interest and legal rights of citizens remain fully protected while rolling out innovative or ambitious programmes for public services’ delivery that could end up with adverse unintended consequences for citizens as consumers of such public services.
NOTE: Views contained in this short academic note are purely personal; and do not reflect the official position or policy of the Government of India or any of her departments or agencies.
(Sandeep Verma is a civil servant and holds an LLM with highest honours, having specialised in Government Procurement Law from The George Washington University Law School, Washington DC.)