This post has been self-published on Youth Ki Awaaz by Raghav Ahooja. Just like them, anyone can publish on Youth Ki Awaaz.

The Curious Case Of Parallel Legislature: How Privacy Became Optional

mobile phone with aarogya setu app
Aarogya Setu app was to be downloaded by everyone in Red and Orange zones and employees, and by all employers, whether private or public, in Green Zones.

The Government had released guidelines for lockdown 3.0 under the Disaster Management Act, 2005 directing public officials such as District Magistrates to ensure that Aarogya Setu app was downloaded by everyone in Red and Orange zones and employees, and by all employers, whether private or public, in Green Zones.

These guidelines were released by the National Executive Committee, which is the executive arm of the National Disaster Management Authority (NDMA) — the PM headed the national body formulated under the Act for the management of disasters.

While we may be in a public health emergency, it is important to note that India does not have a legislation that enables the Government to collect and use data of a personal nature (such as health information), which is what the app is currently doing — moreover, forcefully so, i.e. without the consent of the person. The Personal Data Protection Bill does have such an enabling provision, but it is pending before the Parliament.

Notwithstanding, the Government has mandated the collection and usage of personal data through the app using a wide power given under Section 10 of the Act which has no in-built restriction.

Moreover, the collection and usage of data by the Ministry of Health and Family Affairs for the purpose of surveillance using physical contact tracing has also been legitimised under the same provision.

The dangers of defining such delegated powers to legislate so loosely, so that the delegated legislation can cover all areas with no restriction, have been observed by the Supreme Court in the landmark case of In Re: The Delhi Laws Act 1912.

The Legislature constituted the NDMA through the Act, which constituted the National Executive Committee that mandated the app. It then further constituted an ‘Empowered Group’ to prospectively legitimise data collection and usage by the Aarogya Setu app by incorporating some of the principles of data protection.

This ‘Empowered Group’ was constituted by the National Executive Committee under Section 10 to partially and prospectively fill the gap of a data protection framework by releasing a sub-delegated legislation called the ‘Aarogya Setu Data Access and Knowledge Sharing Protocol’.

In the absence of a data protection legislation that grants rights to every person whose data is being collected and used and protects their interests in case of a breach, while maintaining accountability and observing the principles of data protection held out by the Hon’ble Supreme Court, can provisions on data collection and use be legislated upon under such a section that delegates legislative functions to the National Executive Committee that too with no in-built restrictions?

The Supreme Court, in the above mentioned case, also ruled that if the delegation is of an indefinite character, such delegation may amount to “abdication of essential legislative functions of the legislature.” Such essential legislative functions consist of declaring a policy and making it a binding rule of conduct.

However, such a policy shall not be unrestricted or indefinite so as to allow the delegate to perform the functions of the legislature itself. In such a case, wherein “no policy is discernible at all or the delegation is of such an indefinite character as to amount to abdication,” the Court may interfere, considering the clear abuse of delegation.

Thus, the vague nature of the Section, and its virtually indefinite exercise by the Government, enables the Government to use it to legislate on any matter.

It is important to note that the Personal Data Protection Bill is pending before the Parliament. And as per the Seventh Schedule of the Constitution of India, a legislation on data collection and usage would not be covered in either the State list or the Concurrent List, and would only be covered by the Union list, and only the Parliament has the constitutional authority to legislate on such a subject matter.

It would certainly amount to abdication when in respect of a subject of legislative list (Entry no. 97) that Parliament does not legislate on that subject, but leaves it to somebody else to legislate on it, as observed by the Court.

Aarogya Setu on phone
Moreover, the app was firstly released to be used on a voluntary basis, after which it was made mandatory and the protocol legitimising the data collection and usage was released.

Therefore, by delegating a whole body of law (i.e. personal data regulation) to a body formed by a delegate in the form of a protocol released under an executive order of the National Executive Committee, the NEC is doing the functions of the Legislature, and in doing so, the Legislature is virtually abdicating its functions as such a provision allows the delegate to legislate on any matter. It was also observed by the Supreme Court that this abdication may be absolute or partial.

Moreover, the app was firstly released to be used on a voluntary basis, after which it was made mandatory and the protocol legitimising the data collection and usage was released — when a Bill on the same is pending before the Parliament.

The essential functions (of policy making and delineation of such policy) of the Legislature cannot be delegated to an authority created by a statutory body that is a delegate. The Bill cannot be substituted by such a protocol in the form of delegated legislation.

The two-pronged test laid down by the Hon’ble Supreme Court to check whether a law enacted by the Indian Legislature conferring legislative power on a subordinate authority is valid or not is:

  • Firstly, whether the law is within the legislative competency fixed by the instrument creating the legislature and
  • Secondly, whether the legislature has abdicated its own legislative power.

In this case, the first part of the test is satisfied as the Constitution empowers the Parliament to legislate on Disaster Management.

The question boils down to the second part — in this case, the Legislature has virtually given up its law making power which it is entitled to, on the particular body of law, and has delegated the whole task of formulating policy and making it a binding rule of law to the delegate, who has further sub-delegated the task to muddy the waters — transgressing the limits of permissible delegation.

The Court also observed, “The legislature cannot abdicate its legislative functions, and it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted.

Thus by abdicating its legislative functions, the Legislature has created a “parallel legislature” in the form of the NEC which has the “one ring to rule them all”.

With unhindered powers to legislate, the NEC is thus playing the role of a parallel legislature that can, in the name of disaster management, legislate on any issue. This can prove to be dangerous as, in times of a pandemic, the efforts and priority of a citizen should go towards looking after oneself and those around them, and not questioning a potentially dictatorial law that allows anything in name of disaster management. The efforts should definitely not be spent in challenging the steps taken by the Government which fall short of protecting our rights, and making it a trade off between privacy and health.

Moreover, one cannot be too reliant on the Government — what we’ve learnt from the history of democracies. The citizen should have the choice to decide what is good for them and what is not, and it should not be forced down one’s throat.

What is also not constitutionally sound is that given the circumstances and the fact that the Parliament is adjourned, the Government could have at least brought an ordinance on the same subject to protect the rights of the citizens and the sanctity of the principles of data regulation held out by the Supreme Court in Puttaswamy II while protecting their health. Instead the government used a mere section as a one ring to rule them all and later justified it by releasing a “protocol”, and in the process, simply jeopardized the rights of the citizens, instead of protecting and balancing them.

Fundamental rights such as right to privacy must be balanced, not traded off. Even though privacy is an abstract concept, it’s as real as you and me, and cannot be seen as a first-world luxury which can go on a holiday because there is a public health emergency. The right to choose to give personal data is an important aspect of one’s privacy, while making it mandatory seems like a contradiction between the order of the NEC and the consent requirement of the user agreement, as observed by a senior MEITY official. Given the developments, can there be a thing such as mandatory consent? I believe not.

You must be to comment.

More from Raghav Ahooja

Similar Posts

By Vanita Ganesh

By Deepak Kumar

By Anshu Banga

Wondering what to write about?

Here are some topics to get you started

Share your details to download the report.

We promise not to spam or send irrelevant information.

Share your details to download the report.

We promise not to spam or send irrelevant information.

An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

Share your details to download the report.

We promise not to spam or send irrelevant information.

A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

Sign up for the Youth Ki Awaaz Prime Ministerial Brief below