DATA SOVEREIGNTY RIGHTS: The Cardinal Need for Legislative Action

This is my Op-Ed piece published in the "February 2, 2020" issue of ORGANISER 

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A report prepared by the cyber-security company, Innefu Labs, reveals that around 1,079 Twitter accounts were created in Pakistan to spread hate and propagate violence in India over the Citizenship Amendment Act, 2019. The report showed that Pakistan is the hotspot for disseminating fake content and anti-national sentiment aimed at creating internal conflict, disrupting social harmony and destabilizing government.

So, questions that beg answers:

1. Can inherent fault-lines and vulnerabilities in our socio-political edifice be permitted to be easily leveraged for hijacking the narrative; and, waging a proxy war against India using social media?
2. Should bots, handles, hashtags and influencers overseas be recklessly allowed to derail the destiny of our nation founded after centuries of trials and tribulations?

No. Never!

This sets the context for examining the need for “data sovereignty” laws in India.

Enduring Concept of Sovereignty

“Sovereignty” refers to the exercise by any State of its supreme power and authority over a distinct polity and territory. The legal tenets governing sovereignty owe their origin to the Peace of Westphalia treaties signed in the 17^th Century and are applied when a new political order emerges in some part of the world and an independent State is established. Thus, notion of “sovereignty” of the State extends over people and property; agents and authorities within its territories.

The supreme authority that imbues “sovereignty” is always derived from a widely acknowledged source of legitimacy― be it Divinity; conquest; hereditary succession; customary laws; act of the comity of nations; or, a drafted Constitution. Regardless, sovereignty is asserted as a legitimate claim to authority and the ideal exercise of power for affording opportunity to all people to achieve optimal good within the collective.

Sovereignty and the Republic of India

In post-colonial India, sovereignty is robustly manifested in our Constitution, which has a potent framework for resisting hegemonic forms of colonialism and imperialism. Our visionary founding fathers were wary of diversity and divisiveness destroying the fabric of the nation. Hence, they strove to subtly coalesce a pluralistic society and unite its disparate populace without erasing the syncretic character therein.

Our nuanced Constitution vests sovereignty in the people, who have transferred some of their powers to the Republic created with the fervent hope and firm desire that a strong State would better protect their individual rights and safeguard national interests. Therefore, any legislative initiative, policy measure or regulatory formula has to be viewed from the prism of balancing societal needs with personal goals of citizenry.

Against the backdrop of national imperatives being accorded paramountcy over individual aspirations within our constitutional schema, the concept of “sovereignty” is witnessing renewed relevance in today's information age.

What is data sovereignty?

There is no singular articulation of the emerging concept of “data sovereignty”, which refers to not only the right of natural persons and juristic entities to manage the creation, storage, ownership and application of their own data; but, also the power of sovereign nations to govern and regulate the residency, collection and transmission of such data.

The term broadly denotes forms of independence, control and autonomy over data creation, content sharing, information usage and electronic transactions in a connected, border-less world and with ubiquitous computing environments. Most crucially, it is about the jurisdiction where data resides; the legal, regulatory, and tax rules to be adhered therein for compliance purposes; and, the challenges thereof.

The Internet revolution has afforded “anytime-anywhere-anyhow” data access and information availability over secure networks and heterogeneous computing resources. It has enabled the real-time access, sharing and processing of data even across borders and over mobile platforms. Data-driven insights can be generated 'on-the-cloud' with greater flexibility and scalability than with 'exclusively on-premises' computing environments.

Thus, several business needs, computing trends and emerging technologies have brought the concept of 'data sovereignty' into sharp focus.

Data Sovereignty in contra-distinction to Data Colonialisation

In on-premises computing, data hosting in centralised repositories is the norm; so, data gravity ensures residency (of data). It suffices to protect the perimeter in situ— through the imposition of physical and virtual access controls, restrictions and privileges to maintain secrecy, privacy and confidentiality of data and information.

Per contra in cloud-based, network computing, data is stored in different places and accessed globally; it navigates seamlessly across national borders and geo-political boundaries and created border-less workflows.

Territorial sovereignty plays a dominant role in the conceptualization of data sovereignty. The underlying assumption is that data, like tangible assets and intangible properties, has a local or national 'home'. Hence, data sovereignty has evolved to mean the laws and governance structures that apply to data collected and stored within; or, owned and transferred by a country's citizens, regardless of where the data resides, either within national borders or on servers elsewhere around the world.

Overseas Data Sovereignty Regulations

Several countries and regions have data regulatory mechanisms in place― examples include USA's Patriot Act; EU's General Data Protection Regulation (GDPR); China's Cyber-security Law; Brazil's General Data Privacy Law; Japan's Personal Information Protection Act; Chile's Law for the Protection of Private Life; and, so on.

Data sovereignty laws are often difficult to interpret. For instance, Chinese laws require localization of 'important data', which is defined nebulously and often interpreted loosely. Other countries, such as Germany, France and Russia, too have 'safe harbour' provisions that mandatorily require data to be housed in servers within their borders.

Many nations, including the USA, have expanded the scope of evidence discovery methods― writ summons; subpoena processes; surveillance procedures; etc. Despite concerns over 'ex parte orders' and 'gag restrictions' prohibiting public announcement of official demand for disclosure of private data, these enactments are vital for intelligence acquisition, criminal investigations, anti-terror operations and counter-insurgency action.

Nevertheless, such provisions affect the legislative landscape of data sovereignty significantly. They introduce new legal complications, business challenges and compliance constraints for those wanting to share content across locations and borders.

Regulatory Regimes and Data Compliance Requirements

Privacy and data-hosting laws and stringency thereof vary by country. The need for adherence to ever-evolving compliance rules and real-world regulations on the way data is stored, shared and managed across geographically dispersed data centers is mandatory. Anyone infringing rules, wittingly or unwittingly, faces penal action in most jurisdictions.

Therefore, navigation through the “international legal maze” is daunting and time-consuming. Further, benefits are often tempered by the fear, uncertainty and doubt (FUD) of complex and changing nature of data sovereignty. National data protection laws act as roadblocks to adoption of cloud computing and cross-border data storage.

Several challenges are posed to managing the potpourri of data sovereignty requirements for: (a) protecting data; (b) providing regulatory access; (c) certifying data residency; (d) securing and safeguarding data assets; (e) blocking malicious attacks; and, (f) complying with current and emerging data privacy needs.

Compliance frameworks must enable verification of how and where data is: (a) stored, located and protected; and, (b) used, shared, accessed, processed and consumed at any point. Law enforcement measures must encompass data creators, custodians and consumers for employing good governance to control data loss, erosion and corruption.

Data Protection Laws in India

No express, comprehensive legislation exists in India to deal with data privacy and protection. Further, policy mandates do not cover all stages in the data lifecycle— data at rest; in use and transit; during creation, transport and processing; and, on delivery. To prove compliance and meet evolving regulatory demands, ability to demonstrate control over data at all points in the content lifecycle is a sine qua non.

Legal concepts and normative constructs are entangled with the vision treating data as a resource. Notions of data ownership and its visualisation as property dominates public discourse. Data privacy and autonomy of citizens too find mention in policy documents. The government vision, as enshrined in policy drafts, imagines the State as the sentinel of data sovereignty within India.

Industry observers and watchdogs though allege that individual rights are not fleshed out effectively in law and are often envisaged as subservient to larger collective agendas like economic enrichment from data mining and user profiling. Further, activists are also apprehensive of laws that afford authorities with unfettered data access.

Thus, the myth of data sovereignty curtailing freedoms of people in India is perpetuated. On top, it is fallaciously believed that people must control the data they generate, if personal liberties, autonomy and empowerment are to be genuinely facilitated.

No doubt “red herrings” that must be assailed resoundingly.

Concluding Remarks

Hostile and inimical forces are eagerly conspiring to weaken and destabilize the Indian Republic through covert means. Risk exists of political exploitation of insights gained from data, specifically to manipulate the outcome of elections. The monolithic, perhaps archaic Information Technology Act, 2000 needs urgent revamping to deal with risks posed by social data, viral media and transnational content.

Therefore, India is well-advised to enact elaborate laws and adopting comprehensive procedures to regulate the digital world and ubiquitous data therein. Territorial integrity and national interests must serve as guiding beacons for legislation on the subject, pretty much like what the USA, Russia and China have done.

It behooves legal activists and judicial luminaries among us to remember that in the seesaw constituent-versus-community battle, personal privacy and individual liberties cannot transcend above or subordinate public good, societal needs and national interests.

Article 21 of the Constitution surely has a flip side. It casts a duty on the State― that of protecting and securing the rights to life and liberty conferred on all constituents.

That duty entails restricting mala fide acts and restraining malicious forces within and without!

Providing homeland security and preserving our nationhood...are indeed paramount!

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The Pre-Independence History and Geography of Jammu and Kashmir - A Legal Perspective

Despite seeming farfetched, the history and geography of Jammu and Kashmir are intricately intertwined in the lead-up to the Instrument of Accession. Hence, a clear understanding of the 'geo-historical' backdrop is a conditio sine qua non for any meaningful dialogue on the legality, and the morality too if you like, or otherwise of Article 370.

In this piece, I analyze the legal issues surrounding the geopolitical landscape of the State of Jammu and Kashmir, if only to debunk the absurd, unfounded claims and notions of some about the validity of its accession to India. Questions are often posed on even the terms of transfer of sovereignty to the ruler of the State during the British Raj.

'Confuse, if you cannot convince' is seemingly the modus operandi of some of these intellectuals and thought leaders. Nevertheless, they have sullied and muddied the waters so much that many wrongly believe that the accession of Jammu and Kashmir is somehow faulty and flawed.

So then, for starters, let me begin with a description of the geographic region subjected to the exposition herein. The erstwhile princely State of Jammu and Kashmir, which existed in India from 1846 to 1947 during British rule, consisted of the present-day Indian State of Jammu and Kashmir (inclusive of the Ladakh region); the territories of Azad Kashmir and Gilgit-Baltistan under Pakistani control currently; and, Aksai Chin, a part of the Xinjiang Autonomous Region, which is under Chinese administration now.

Brief History of the Region

Till 1846, the Jammu, Kashmir and Ladakh regions, of the modern-day Indian State of Jammu and Kashmir, were separate and distinct areas under different rulers.

Most historians trace the history of Kashmir to the third Century BC. During the second and third century BC, it was part of Emperors Asoka (of the Mauryan dynasty) and Kanishka's (of the Kushan dynasty) empires. Later, Kashmir became the target of several attacks and invasions. So, it was under the rule of several kings and dynastic rulers, including the White Huns (Hephtalite Empire), Karkotas, Utpalas, etc.

In the 14^th century AD, Shah Mir ascended the throne of Kashmir as its first Muslim Ruler. The Shah Mir dynasty ruled the region for a couple of centuries followed by the Chak dynasty.

Then in 1586 AD, the Mughal potentate, Emperor Akbar invaded and conquered the valley. Mughal rule of Kashmir lasted for over a century and half. The Nadir Shah invasion of India in 1738 AD weakened Mughal control over Kashmir.

Then in 1753 AD, a general of Ahmed Shah Abdali’s army conquered Kashmir, including the Gilgit-Baltistan region. This brought it under the rule of Afghan / Pathan governors, whom the Durranis of Kabul appointed. Finally in 1819 AD, Maharaja Ranjit Singh of Punjab invaded Kashmir and wrested it from the Pathans. For the next couple of decades, Governors appointed by the Sikh Durbar at Lahore ruled Kashmir.

Jammu: Around the time of the Afghan / Pathan rule of Kashmir, the Jammu region was under Ranjit Deo, a Dogra chief of Rajput descent. Ranjit Deo’s death in 1780 AD sparked a succession dispute among his three grand-nephews. The Sikh Durbar of Lahore exploited the situation by annexing Jammu and turning it into a dependency in 1808 AD.

Thus, the three grand-nephews of Ranjit Deo served under Maharaja Ranjit Singh of Lahore till about 1820 AD. Pleased with the services rendered, the Sikh Durbar conferred the hereditary title of Raja on the eldest brother, Gulab Singh. Many principalities within the Jammu region were awarded to the three brothers. Eventually, whole of Jammu fell into the hands of Raja Gulab Singh.

Ladakh: The Ladakh region, on the contrary, had been a part of Tibet for centuries. Suzerainty over the province frequently changed hands between Chinese and Tibetan rulers. Then in the 17^th century AD, King Bhagan reunited Ladakh and founded the Namgyal dynasty. Despite suffering a defeat at the hands of the Mughals, Ladakh retained its independence, albeit severely restricted.

Later, in 1834 AD, Raja Gulab Singh, the ruler of Jammu conquered all of the Ladakh and Baltistan regions. The map above shows the territories under Maharaja Ranjit Singh in 1838 AD. The Jammu, Kashmir and Ladakh regions, as can be seen, were a part of the Sikh empire at that time.

Creation of the Princely State of Jammu and Kashmir

In 1845, the First Anglo-Sikh war broke out between the Sikhs and the British at Sobraon in Taran-Taran District. Despite owing allegiance to the Sikhs and being asked to extend help, Raja Gulab Singh remained aloof. He avoided attacking the British under one pretext or the other. This earned him the gratitude of British diplomats.

The British eventually routed the Sikh Durbar. Raja Gulab Singh negotiated the terms for surrender of the Maharaja of Lahore. By the Treaty of Lahore of 1846, concluded between the British and Maharaja Dhuleep Singh of Lahore, the Sikhs transferred Kashmir besides the payment of a war indemnity to the British. 

Thus, the Sikh Durbar ceded (vide Article 4 of the said Treaty), to the “Honourable Company, in perpetual sovereignty, as equivalent of Rs.10 million, all its forts, territories, rights and interests in the hilly regions situated between Rivers Beas and Indus....”

The map below shows the Sikh territories after the Lahore Treaty and cession of Kashmir in 1946. 

By dint of Article 12 of the Treaty of Lahore, the Maharaja of Lahore also agreed to “...recognize independent sovereignty of Raja Gulab Singh, in such territories...as made over to the said Raja Gulab Singh, by separate Agreement between himself and the British Government...”

A week after the conclusion of the Treaty of Lahore, the British concluded the Treaty of Amritsar with Maharaja Gulab Singh. By Article I of that treaty, the British Government transferred and made over “for ever in independent possession to Maharaja Gulab Singh and the heirs male of his body...” all of Kashmir (as defined in Article IV of the Treaty of Lahore).

Thus, the princely State of Jammu and Kashmir attained sovereignty in 1846. The 1919 AD map of the State above shows the territories that belonged to the monarchic State.

The Acquisition of Sovereignty

Before examining the legal and moral issues encompassing Raja Gulab Singh’s ascent to the throne― and their impact on the accession of the erstwhile State of Jammu and Kashmir in 1948 to the Union of India― it is pertinent to summarize the international laws related to the acquisition of territorial sovereignty.

Many methods of acquisition of sovereignty are presently recognised under international law. Some were deemed lawful in the past. These methods include:

1. Accretion: it is the physical expansion of an existing territory through geological and other natural processes, such as alluvion (the deposit of sediment) or volcanism (i.e., eruption of a volcano).
2. Cession: The acquisition of sovereignty over territory through a transfer to it by another state is cession. Typically, cession is brought into effect through treaties (of cession or accession). Examples include the transfer of Hong Kong Island to United Kingdom under the Treaty of Nanking, 1842; the United States’ purchases of Alaska and the Louisiana territory through treaties with Russia (1867) and France (1803) respectively. Another example is the Convention of 1917 between the United States and Denmark for cession by transfer (i.e., sale / purchase) of the Danish West Indies (i.e., Virgin Islands). 
3. Conquest: It refers to acquisition of territory by way of force or through armed aggression. If such military intervention entails territorial cession, then there is often a peace treaty or settlement. However, on occasion, wars end in an armistice without any formal peace treaty covering it, e.g., the Korean War. Title to territory by conquest specifically involves: (a) possession of territory by force; (b) display of intention to hold; and (c) ability to retain the territory as its sovereign power. A most recent example of conquest is Israel’s capture and annexation of the Golan Heights in 1967. 
4. Occupation: It is the acquisition (or attribution) of territory either in defiance of or due to the absence of a proper sovereign. Effective occupation is the control of free, newly-discovered territory. The occupying power has typically no sovereign title or right to such land. E.g., Spain’s colonization of the Americas. Undoubtedly, by immemorial usage having the force of law, besides the animus occupandi, the actual (and not the nominal) taking of possession is a necessary condition of occupation. It usually requires that there be an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis. 
5. Prescription: It connotes the effective control of territory of another acquiescing state. Similar to occupation, it refers to the acquisition of sovereignty by way of the actual exercise of sovereign functions, over the territory in question, for a reasonably prolonged period of time. It involves the open encroachment by the new sovereign upon a territory, without either protest or other contest by the original sovereign or objection from other states. This doctrine legalizes de jure the de facto transfer of sovereignty caused by the original sovereign's extended negligence and/or neglect of the area in question. E.g., In Grisbadarna Case (1909), both Sweden and Norway based their claims on maritime territories on prescription. 
6. Adjudication: Sometimes, sovereignty over a territory is determined through legal or quasi-legal proceedings. Such adjudication is, at times, judicial. For instance, in 1908 AD the International Court of Justice transferred the Bakassi peninsula to Cameroon (from Nigeria). Other times, such adjudication is made through arbitration. For e.g., an arbitral award was made in 1899 to settle the boundary dispute between British Guyana and Venezuela.

Principles of International Law for Treatment of Territory

Roman property regime and its equitable principles of uti possidetis juris (Latin for ‘as you possess under law’) and terra nullius (again Latin for ‘land belonging to no one’) have been applied in so many different contexts that they have truly become the bedrocks of modern international law for the treatment of territory.

In the past only unoccupied territory could be legally acquired. Yet, the Americas were colonized in contravention of this prevailing principle. So, the ‘Rule of Inter-temporal Law’ was conceived to prevent judging of past actions with contemporary standards. This rule of prospective application is vital since it deems that all actions need to be judged in the strict temporal context in which they occurred. The prime aim is to prevent the finding of past injustices (e.g., colonization) against the vagaries of legal evolution. Thus, retrospective application of more modem and progressive ideas, to acts and deeds that occurred before such ideas developed, is proscribed.

Further, the doctrine of uti possidetis, which solidifies the sanctity of boundaries, does allow territorial adjustment due to consent. Yet, this consent is required between existing sovereign states. Non-state actors have no explicit right to demand territorial change even though the right to self-determination is enshrined in the two international covenants of 1966 that are the blueprint for the human rights regime.

Therefore, existing states have sought to minimize the impact of the right of self-determination by declaring it as a right that only exists in an 'internal' guise. So, in bid to access the right to self-determination, groups (of unrepresented people) often seek secession by attempting to pierce the veil of domestic sovereignty and internationalizing their conflicts with their respective state governments.

In view of the foregoing, it is clear that sovereignty over the territory of Kashmir was acquired, first by the British, through conquest and then, by Raja Gulab Singh, through a purchase. By virtue of Article 12 of the Treaty of Lahore, Raja Gulab Singh also acquired absolute sovereignty over the dependencies of Jammu, Baltistan and Ladakh too, which he already possessed.   

Critics of the Kashmir Transfer

KM Panikkar, in his 1953 book “The Founding of the Kashmir State”, says (as Justice AS Anand quotes in his book), "in discussing this question of the transfer of Kashmir, it is... important to remember (that) there was no sale of Kashmir at all." Thus, he implies that the transfer of Kashmir to Maharaja Gulab Singh was null and void because of the anomaly, to quote him, of ‘...no sale of Kashmir...’ simply because ‘no consideration’ was offered by the British (to the Lahore Durbar).

That is a preposterous argument. The Lahore Durbar relinquished its sovereignty over Kashmir in the Treaty of Lahore, thus, paving the way for the British to negotiate the terms of sale of Kashmir to Raja Gulab Singh. Hence, the transfer of sovereignty over Kashmir can be deemed to consist of two phases: (a) the cession of Kashmir to the British (as reparation for the First Anglo-Sikh War); and, (b) the sale of Kashmir to Raja Gulab Singh.

The Treaty of Lahore left it to the British Government to enter into a separate arrangement with Raja Gulab Singh for the Kashmir sale. In effect, the purchase of Kashmir (by Raja Gulab Singh) was a tripartite arrangement that was executed through two bipartite agreements, viz., the Treaty of Lahore and the Treaty of Amritsar.

Indeed Justice AS Anand submits rightly (in his book, "The Constitution of Jammu and Kashmir - Its Development & Comments")... “When you accept money in consideration for a transfer of a material thing, the transaction is nothing but ‘sale’. Undisputedly, a person cannot purchase something unless it has been sold to him and if it is sold...the transaction is a sale...”

However, Justice Anand goes on to allege that, “...at the time of the ‘sale of Kashmir’ no consideration was given to the moral effects of the deed. Millions of people were sold like sheep and cattle and the whole transaction was made behind their backs... The Treaty of Amritsar consisting of 10 articles made no mention whatsoever, of the rights, interests or the future of the people of the State. Unlimited power was transferred to a Dogra Hindu Ruler to rule over the Muslim majority population.”

With due respect to the former Chief Justice of India, this argument is untenable too. It is a red herring in toto. The Hon’ble Justice perhaps missed the forest for the trees. Indeed, from a “contracts law” perspective, the sale being of territory, the argument has some validity. However, we are talking acquisition of sovereignty over territory, not just title over property here.

The Hon’ble Justice adds, “Since, in the Indian Native States, absolute autocracy was the principal characteristic of the political life at that time; no voice was raised against this transaction in the State...but outside the State sympathy was shown towards the masses in Jammu and Kashmir.”

Again, the rationale does not hold water, if one were to go by the many examples (the Virgin Islands purchase; Alaskan purchase, etc.) cited above for acquisition of sovereignty over territory.

Concluding Remarks

It is abundantly clear that Raja Gulab Singh’s acquisition of sovereignty over Jammu and Kashmir was absolute once the Treaty of Amritsar was signed and the territory ceded to him by the British.

Thus, as the monarch of the erstwhile kingdom, he wielded supreme power and authority over the territories, resources and people of the State. As can be seen from the text of the Treaty of Amritsar, that inheritable right was passed on to Raja Hari Singh by succession (i.e., through “...the heirs male of his body...,” as specified in Article 1 of the Treaty of Amritsar).

Once Maharaja Hari Singh ascended the throne and became the sovereign head of the State, he had all powers and authority, legally, morally or otherwise, to sign the Instrument of Accession on October 26, 1947, acceding the whole of his princely state (including Jammu, Kashmir, Northern Areas, Ladakh, Trans-Karakoram Tract and Aksai Chin) to the Dominion of India.

A careful reading of The Jammu and Kashmir Constitution Act, 1934 (in particular, Article 4), will further show that the aforementioned Act did not cut, limit or curtail any of the Maharaja Hari Singh’s rights or powers over the State.

So, I pose: “Why do some thought leaders present vague, convoluted logic to question the validity of the Kashmir purchase and subsequent accession?”

Counter-arguments welcome, please!