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1st August 2018 The Hindu Editorial Analysis
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Data protection law and right to privacy; Role of public and private sector in Healthcare; South Korea-India relations

Shobana Shermeelee
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  1. 1st Aug 2018 THE HINDU Editorial Analysis ha ii


  2. A fundamental error August 24 will mark the first anniversary of the unanimous affirmation of the right to privacy by a nine-judge Bench of the Supreme Court. The court imposed upon the government a clear obligation to make a law safeguarding a person's informational privacy, commonly referred to as data protection The right to privacy judgment, which had six separate opinions that converge into a unanimous decision, noted in the words of Justice D.Y. Chandrachud and Justice S.K. Kaul that the Union government had tasked a committee headed by Justice B.N. Srikrishna to formulate such a law in July last year This committee has produced a set of recommendations that run into 213..


  3. ...pages, and a draft law titled the "The Personal Data Protection Bill, 2018" running into 112 sections. Despite being formed within the ambit of, the Right to Privacy judgment, the recommendations do not only undermine the legal principles within it but also re-interpret them The privacy judgment expressly stated the primacy of the individual as the beneficiary of fundamental rights and it rejected the argument that the right to privacy dissolves in the face of unclear collective notions of economic development The Srikrishna committee's report is titled "A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians". The report runs into tremendous difficulties as it attempts to put together a regulatory agenda that reconciles the expansion of the digital economy and state control with the principles of the right to privacy judgment


  4. These are made all the more difficult to follow by the heavy use of jargon and a reliance on foreign and academic authorities, which are often cited without proper context. The trouble begins with the report's conception of the state . According to the report, the state's purpose under the Constitution is "based on two planks". First and foremost, "the state is a facilitator of human progress" and is "commanded" by the Directive Principles of State Policy "to serve the common good" . Here, Fundamental Rights, which help protect against a state "prone to excess", come "second". This ignores the very structure of the Constitution in which the chapter guaranteeing enforceable Fundamental Rights stands on its own, preceding Directive Principles of State Policy


  5. Enabling the government's convenience is not an objective laid out by the right to privacy judgment. Constitutional guarantees of rights do not automatically bend even to the pursuit of constitutionally legitimate aims Instead, a rigorous three-part test set out in the right to privacy judgment makes clear that it is for the government to measure and justify its actions at every point that it seeks to make inroads into our privacy . The report says that "to see the individual as an atomised unit, standing apart from the collective, neither flows from our constitutional framework nor accurately grasps the true nature of rights litigations e Rights (of which the right to privacy is an example) are not deontological categories that protect interests of atomised individuals." Then, it proceeds to conclude, "Thus the construction of a right itself is not.


  6. ....because it translates into an individual good, be it autonomy, speech, etc. but because such good creates a collective culture where certain reasons for state action are unacceptable." To the extent that its import can be made out, the argument seems to be a strained, convoluted and ultimately unconvincing attempt to re-litigate the case of the government in the right to privacy issue. To the report's view that the individual ought not to be the spotlighted while making a law, the right to privacy judgment is in stark contrast e In Justice S.A. Bobde's words, "Constitutions like our own are means by which individuals -the Preambular 'people of India' create 'the state', a new entity to serve their interests and be accountable to them." Moreover, in Justice Chandrachud's words: "The individual is the focal point of the Constitution because it is in the realisation of individual rights that the


  7. ..collective well being of the community is determined." o Its statement that rights are not "deontological categories" is both unnecessarily complicated in its wording and patently untrue in its content. By using language like this, the report, already a technical document published only in English, alienates ordinary Indians from engaging with a subject of real significance to each of us This is why the right to privacy judgment was celebrated last year. It signified hope that things could get better, that values of freedom, autonomy and dignity would be realised. However, the Srikrishna Report shows that the danger to a high constitutional principle may more often be that it is disregarded, rather than that it is disobeyed e By re-framing and re-interpreting the right to privacy, the report


  8. ....entrenches the positions of the two entities which already wield the most power over ordinary Indians: corporations and the government


  9. The public-private gap in health care . The recent controversy about transparency in the working of the cadaver transplant programme in Tamil Nadu has provided an opportunity to revisit the vexed question of medical rationing in India e The gap between what is technologically possible and what government hospitals generally provide widened appreciably after the technological leaps in medical care began, starting in the 1980s o The NITI Aayog's document, 'Three Year Action Agenda, 2017-18 to recommendatio 2019-20', has a section on health care. One of the recommendations is for the government to prioritise preventive care rather than provide curative care caenment to prioritise prevertivs


  10. The document also advises the government to pay attention to stewardship of the health sector in its entirety rather than focussing on provision of health care. Therefore, the system of private health care for those who can afford it and government care for those who cannot will continue in the foreseeable future o The new Ayushman Bharat health scheme to provide secondary and tertiary care to those who are socio-economically deprived has a cap of Rs. 5 lakh per family per year. It is quite obvious that many interventions canno transplants t be accessed for this amount, certainly not human organ Transplanting a human organ is nof a single event, but a life-long process. The actual act of transplantation itself needs expensive infrastructure and trained human resources. For the continuing success of the transplanted.


  11. ...investors. In short, taxpayers' money is being used to ensure profits for foreigners The Ayushman Bharat scheme is a further step in this process. The benefit to patients is questionable but private players will see a large jump in profits. It will further institutionalise medical rationing by explicitly denying certain interventionsa "negative list" presumably of procedures which will not be covered, which is not yet in the publ c domain Besides being inequitable, medical rationing has other detrimental effects One is a distrust of the public in government hospitals. The por expect to get from them what the rich get in private hospitals. With present policies, this is simply not possible


  12. Friends or Seoul-mates? It was evident when South Korea's President Mr. Moon launched a foreign initiative called New Southern Policy last year that he had decided to step up Seoul's engagement with India and the ASEAN countries. That this new engagement had a strategic element was seen when he sent a special envoy to India immediately after assuming office Additionally, this year, South Korea set up a state-run research centre on India and ASEAN under the Korea National Diplomacy Academy, which is tasked with establishing a theoretical foundation for the Moon administration's vision to diversify strategic partnerships across the Asian region In recent times, South Korea has been heavily impacted by power politics...