Kerala High Court
Jyothikumar Chamakkala vs State Of Kerala on 24 February, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
W.P.(C).No.35069/19
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941
WP(C).No.35069 OF 2019(G)
PETITIONER:
JYOTHIKUMAR CHAMAKKALA,
AGED 47 YEARS
S/O LATE G. BHARGAVA KURUP, CHAMAKKALA HOUSE,
PANAYANCHERY, ANCHAL, KOLLAM, DISTRICT - 691
306.
BY ADVS.
SRI.GEORGE POONTHOTTAM (SR.)
SMT.NISHA GEORGE
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 SECRETARY TO GOVERNMENT,
DEPARTMENT OF HOME AFFAIRS, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3 THE STATE POLICE CHIEF,
KERALA, POLICE HEAD QUARTERS,
THIRUVANANTHAPURAM - 695 001.
4 THE NODAL OFFICER,
CRIME AND CRIMINAL TRACKING NETWORK AND
SYSTEMS, (CCTNS) PROJECT KERALA, A.P. BATTALION
HEAD QUARTERS, THIRUVANANTHAPURAM - 695 005.
W.P.(C).No.35069/19
2
5 THE DIRECTOR,
BLOCK CHAIN ACADEMY, DEPARTMENT OF INFORMATION
AND TECHNOLOGY, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM - 695 001.
6 THE INSPECTOR GENERAL AND COMMISSIONER OF
POLICE,
KOCHI CITY, ABDUL KALAM MARG, MARINE DRIVE,
ERNAKULAM - 682 011.
7 THE ADDITIONAL COMMISSIONER OF POLICE
KOCHI CITY, ABDUL KALAM MATG, MRINE DIRVE,
ERNAKULAM, 6822011.
8 THE URALUNGAL LABOUR CONTRACT CO-OPERATIVE
SOCIETY,
MADAPPALLY COLLEGE ROAD POST, MADAPPALLY,
VADAKARA, KOZHIKODE - 673 102, REP. BY ITS
SECRETARY.
R1-7 BY SRI.K.V.SOHAN, STATE ATTORNEY
R8 BY ADV. M.SASINDRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2020, THE COURT ON 24.02.2020 DELIVERED THE FOLLOWING:
W.P.(C).No.35069/19
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JUDGMENT
Dated this the 24th day of February 2020
1. This writ petition is filed seeking the following prayers :-
i. Issue a writ of certiorari calling for the records leading to Exhibits-Pl and P2 and to quash the same;
ii.Issue a writ declaring that the decision as contained in Exhibit-Pl and P2 are impinging the constitutional rights of the petitioner and the citizen residing in the State of Kerala and therefore unconstitutional.
iii. Issue a writ declaring that the decision to entrust the data in possession of the State Police and conferring the right to access as contained in Exhibit-Pl and P2 to a private entity is the surrender of the constitutional obligations which are otherwise to be performed by the State;
iv. issue a writ declaring that the decision to transfer funds as' contained in Exhibit-P2 without any form of deliberation at any level is an illegal action, which is impermissible in law;
2. Heard the learned Senior Counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for the 8th respondent society.
3. The petitioner, a resident of Kollam district, who is a social and political worker has approached this Court to protect his privacy, which according to him, is sought to be violated by the W.P.(C).No.35069/19 4 actions of the Sate and the Police. The contention in the writ petition is that the State Police has a fully developed computer centre with highly qualified Engineers and experts, which is responsible for maintaining the crime records under the State crime record wing. It is contended that the Department maintains details, known as crime data, which is in the possession of the police and are in the realm of privacy of the citizen. It is contended that vide letter issued on 23.01.2019 and order dated 29.10.2019, a decision had been taken to grant access to the Crime and Criminal Tracking Network & Systems (CCTNS for short) application to the team of the 8 th respondent which had been entrusted with the development of the application for processing of passport applications. It is contended that as a consequence, by Exhibit P1, the 8 th respondent will be enabled to have access to the entire criminal data available in the system preserved by the State, which amounts to sale of data and is therefore illegal. It is stated that Exhibit P2 order has been passed in November 2019 with regard to payment for Proof of Concept (PoC for short) application for speedy verification of passport W.P.(C).No.35069/19 5 applications by the 8th respondent for meeting the expenses for the cost of PoC development and deployment from the incentive claim received from the Ministry of External Affairs. Exhibit P3, which is purported to be the transcript of proceedings of the Legislature are also produced in support of the contention that the parting of data under the CCTNS would be a serious infringement on the right of privacy.
4. The learned Senior Counsel appearing for the petitioner would submit that the entire procedure for entrustment of a work of passport verification, which is a core function of the law enforcement agencies, to the 8 th respondent and the procedure adopted for the purpose are dubious and that there has been no proper decision taken at the appropriate level. No call for expression of interest from any quarters and no competitive tender was invited before entrusting the work to the 8 th respondent, which is only a Labour Contract society involved in carrying out construction activity in the State. It is further submitted that the committee entrusted to consider the PoC submitted by the society had no expertise for a task of that W.P.(C).No.35069/19 6 nature and that the entire procedure is vitiated. It is further contended that the exercise was intended as a 'no cost' operation and the payment of amounts is therefore completely unauthorised.
5. The learned Senior Counsel places reliance on the decisions of the Apex Court in Mr.'X' v. Hosptial 'Z' [(1998) 8 SCC 296] R. Rajagopal alias R.R.Gopal and another v. State of T.N. and others [(1994) 6 SCC 632] and Kharak Singh v. State of UP and others [AIR 1963 SC 1295], M.P.Sharma and others v. Satish Chandra, District Magistrate, Delhi and others [AIR 1954 SC 300], Nagar Nigam, Meerut, v. Al Faheem, Meat Exports Pvt.Ltd and others [2007 KHC 3168] and a decision of the Larger Bench in Krishna Swami v. Union of India and others [AIR 1993 SC 1407].
6. A detailed counter affidavit has been placed on record by the 6th respondent on behalf of respondents 3 and 4 as well. It is submitted that the writ petition was filed challenging Exhibits P1 and P2 on the assumption that the data available with the W.P.(C).No.35069/19 7 police in CCTNS is being shared with the 8 th respondent society, who is entrusted with the duty of development of a software for processing of passport application verification on a more secure Block Chain platform. It is submitted that the existing software developed by the Thrissur City Police was subjected to vulnerability and penetration test (VAPT) and it was found that it had several vulnerabilities. Therefore, a decision was taken by the Government in the year 2018 by upgrading the software, including block chain technology and a committee was constituted for the said purpose. It is stated that the Kerala Development and Innovation Strategic Council had been required to develop a proposal for a block chain based application for passport verification and had been reminded by letters dated 14.2.2019 and 4.7.2019, but no proposals were submitted. It is stated that M/s.Uralungal Labour Technology Solutions (hereinafter referred to as ULTS), a division of the 8th respondent had submitted a proposal on 15.1.2019 to the State Police Chief, based on which M/s.ULTS was entrusted with task of developing PoC of the applications. It was stated that the PoC developed by the W.P.(C).No.35069/19 8 ULTS was evaluated by the committee headed by the Additional Police Commissioner, Kochi City on 7.8.2019. It is stated at paragraphs 10 to 12 of the affidavit as follows:-
"10. As it happens in all the software developed for the government organizations, ULCCS was instructed that after completing the development of the application it shall be transferred to Kerata Polioe and the application shall be accessed and used by the system administrator of Kerala Police and that ULCCS shall have no access to the software.
11. After the development of application was completed, it was sent for security audit to CERT
-IN (Computer Emergency Response Team -INDIA). CERT is an Agency designated under Sec. 70B of the Information Technology Act, 2000 as amended by Act 10 of 2009. CERT-IN found the application cyber safe. True copy of the Certificate of the Security Audit Report dated 03.10.2019 is produced herewith and marked as Exhibit R6(a).
12. After certification from CERT-IN was received, the State Police Chief had instructed the DIG, AP Battalion and the Nodal Officer to make available the access of production environment of CCTNS for the field trial of the application, to the block-chain based PoC application on 29.10.2019. Due to typographical error, instead of mentioning "the access of CCTNS to the PoC application of the ULCCS team", it mentioned "the access to ULCCS team".
7. It is further stated that there was never any intention to make the data under the CCTNS available to any personnel of the W.P.(C).No.35069/19 9 team entrusted with the development of the software and the wording in Exhibit P1 was only a typographical error. It is stated that Exhibit R6(b) had been issued on 10.01.2020, immediately on coming to know the mistakes which has crept into Exhibit. P1. It is stated that no data of any nature had ever been shared with any personnel outside the Police Department pursuant to Exhibit P1 which was properly understood by all concerned and that in view of Exhibit R6(b) there was no chance of any such data being shared with anybody. It is further submitted that the apprehension raised by the learned counsel for the petitioner is absolutely unfounded, in view of the judgment of the Apex Court in Youth Bar Association of India v.Union of India and another [(2016) 9 SCC 473] wherein a specific direction had been issued to the Police department to make available copies of all FIRs registered are to be uploaded on official websites of all States.
8. Having considered the contentions advanced and in view of the specific prayers raised in the writ petition, I am of the opinion that the issue which arises for consideration in the W.P.(C).No.35069/19 10 writ petition is whether the data that is available under CCNS is being shared with software developers engaged by the ULTS. In view of the specific averments in the counter affidavit filed on behalf of respondents 3, 4, and 6 and the statements in Exhibit R6(b) order, I am of the opinion that the apprehensions raised by the petitioner to that effect in the writ petition are completely unfounded. I find that no prayer is raised as against any decision taken for entrusting the work of development of software to the ULTS, which according to the respondents is a division of the 8 th respondent and that there are no pleadings in the writ petition to justify any such challenge.
9. In the above view of the matter, the contentions in the counter affidavit that enturstment to the ULTS is only for development of a software for processing of passport applications and verification thereof and not for the actual conduct of the verification itself is recorded. The fact that no data of private or sensitive nature is being shared with any personnel other than the authorised personnel of the Police Department W.P.(C).No.35069/19 11 pursuant to Exhibit P1 is also recorded. It is directed that the respondents shall comply with Exhibit R6(b). The further allegations raised in the writ petition and in the reply affidavit are left open to be decided in appropriate proceedings. The writ petition is ordered accordingly.
Sd/-
Anu Sivaraman, Judge sj APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER NO. S2- 127788/2018/PHQ DATED 29-10-2019 ISSUED BY THE STATE POLICE CHIEF.
EXHIBIT P2 TRUE COPY OF THE ORDER NO. S2- 127788/2018/PHQ DATED NOVEMBER 2019 ISSUED BY THE STATE POLICE CHIEF.
EXHIBIT P3 TRUE COPY OF THE REPLY GIVEN BY THE HON'BLE CHIEF MINISTER.
EXHIBIT P4 TRUE COPY OF THE ORDER NO. S2- 127788/2018/PHQ DATED NOVEMBER, 2019 ISSUED BY THE STATE POLICE CHIEF.
True copy PS to Judge