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Circulated at the Raisina Dialogue 2017, this essay explains the basics of how encryption works; provides a high-level account of the American crypto-wars and how they manifest in India; looks at how mass surveillance fears have fuelled a new phase of the crypto-wars; and demonstrates the futility of the Indian government’s nationalism-laced approach to encryption, particularly in relation to data localisation, Internet sovereignty and the withdrawn National Encryption Policy of 2015. Looking ahead, this essay argues that encryption cannot be stopped; cybersecurity depends on strong encryption; and India’s security and prosperity depend on the widespread use of unbreakable encryption.
Because privacy enjoys an abundance of meanings, it is claimed in diverse situations every day by everyone against other people, society, and the state. Traditionally traced to classical liberalism’s public/private divide, there are now several theoretical conceptions of privacy that collaborate and sometimes contend. Indian privacy law is evolving in response to four types of privacy claims: against the press, against state surveillance, for decisional autonomy, and in relation to personal information. The Indian Supreme Court has selectively borrowed competing foreign privacy norms, primarily American, to create an unconvincing pastiche of privacy law in India. These developments are undermined by a lack of theoretical clarity and the continuing tension between individual freedoms and communitarian values.
[This comment was for the Delhi Law Review in 2005]
India has attracted and hosted refugees from South Asia and beyond. Despite a long history of sheltering refugees that pre-dates the establishment of the modern state, India has not acceded to the 1951 Refugee Convention nor enacted national refugee protection legislation. India applies the Foreigners Act, 1946, a strict wartime law that grants vast deportation powers, against foreigners and refugees in India. Indian refugee policy is inconsistent and depends on New Delhi’s foreign relations with the country of origin. Indian courts have preferred to remain silent on refugee law while upholding the executive’s untrammeled powers of deportation. The need to carve out refugee protection from the general body of immigration law is developing and must, in the future, yield an enforceable principle of asylum.
In 2006, the Public Interest Legal Support and Research Centre (PILSARC), a UNHCR implementing partner in India, proposed the Refugees and Asylum Seekers (Protection) Bill, 2006 to build on the Model Law for Refugees drafted by the Eminent Persons Group chaired by former Chief Justice P.N. Bhagwati. The first draft of the EPG’s Model Law was presented at the 1997 SAARCLAW Seminar in New Delhi, modified and then adopted by the Fourth Annual Meeting of the Regional Consultation at Dhaka in 1997. The 2006 bill proposed by PILSARC was born out of this regional consultative process to provide statutory protection to refugees in the diverse South Asian region.