Policy Analyst, New Delhi-based think tank. Alumnus of National University of Juridical Sciences (NUJS), Kolkata.
Affiliate Institute: Citizens’ Foundation for Policy Solutions (CFPS).
The draft Unmanned Aircraft System Rules, 2020 (‘Draft Rules’) released in June 2020 have attracted widespread criticism for their inadequacy in addressing privacy concerns. Since the use of drones has increased dramatically inside the country, the rules of their governance call for increased introspection and thorough premeditation so as to limit the consequential liabilities that emerge from their governed use.
A basic search for the keyword ‘privacy’ in the Draft Rules, generates only two results. This is the most startling inference pertaining to its deficiency. One of the searches is in Rule 35(1) which states that ‘an imagery can be captured by an unmanned aircraft except in the non-permissible area after ensuring the privacy of the individual and his property’. This is a vague supposition on two accounts. First, there is no advance in the statute to define the procedural tenets on how to ‘ensure’ the stated privacy. The ramifications emerging out of procedural incongruity are the grounds which often give rise to litigation. Secondly, while referring to an individual’s property, more legislative enunciation is warranted which includes intellectual property and consequently the protection in data privacy.
The only other mention of ‘privacy’ in the Draft Rules occurs under Schedule VI (Rule 29) where a similar obligation to ensure privacy of individuals is enumerated as one of the conditions for the issuance or renewal of Unmanned Aircraft System (UAS) permits. This is devoid of substantive procedural latitude as well, emphasising the inadequacy of its construct.
There is a provision for exempting any ‘Central Government, State Government or agency’ from the obligation stated under Rule 29 of the Draft Rules which outline the processes to obtain permits. The exemption, however, is to be allowed in the interest of ‘security of India or national interests’. Rule 57 goes a step further and gives power to the Central Government to exempt any entity from the application of these Rules, subject to such considerations as might be determined for the said exemption.
The common thread in the exempting provisions is the visible ambiguity in the determining part of their structure. Words like ‘security of India’ and ‘national interests’ are too broad and amenable to a host of interpretations that can potentially extrapolate the implication of national interest and security to a litany of executive orders. This is seemingly detrimental to the right to privacy guaranteed under Article 21 of the Constitution that squarely prohibits unreasonable acts and government excesses into private life fashioned under the garb of national interest.
Adding to this ignominy, Rule 57 devolves the power of complete exemption in the hands of the Central Government that could be granted upon any single UAS, a group of UAS or an individual/group of persons operating a single or a class of UAS. This is an exercise in immoderation especially considering a lack of specificity that is supposed to determine such action. It also fails to pass the test of constitutionality as stated in the ruling under Justice K.S. Puttaswamy (Retd.) v Union of India and Ors. (2017) 10 SCC 1, which mandates that the infringement of the right to privacy must be achieved by a law that is ‘fair, just and reasonable’. Vesting the power to overcome this right upon an uncategorised entity without legally demarcated boundaries to prevent their overreach essentially fails the test of proportionality.
There is a pattern of consequential deferment in the legal provisions of the Draft Rules in contrast to the technical provisions. The rules pertaining to safety standards and manufacture of drones are seen to be more elaborate with an input-based approach, meaning that the legislation is instructive in the technical aspects of drone governance. However, the legal aspects are heavily redundant of such legislative input and the important provisions on
privacy, transparency, accountability, exemption, etc. are largely governed by post-dated determination of key phrases like ‘national interest’ and ‘security’, giving the impression of an outcome-based approach. This is an area that must be reviewed comprehensively by according it to expert juristic scrutiny.
Penalty provisions should be made commensurate with those under the current legislations. For instance, in the events where criminal misapprehension of a drone results in levelling a charge of voyeurism, a three-year sentence as provided under Section 354C of the Indian Penal Code, 1860 is untenable with the maximum two-year sentence prescribed for offences under the Draft Rules. The need is thus, to amend these issues and update the Draft Rules in tandem with existing jurisprudence.