Academics, Researchers & International Organisations

Organisations all over the world will now need to develop a data protection/management and Artificial Intelligence strategy, especially given the pace with which these technologies and our reliance on them are growing-Dinkar Kalra, Solicitor, Senior Courts of England & Wales and Advocate On Record, Supreme Court of India

This interview has been published by  Priyanka Karwa and The SuperLawyer Team

Can you tell us about your journey and how you ended up pursuing a career in law, specifically as a Dual Qualified Solicitor (England & Wales) and Advocate on Record?

My mother was a Civil servant who served both at the Parliament and the Ministry of Home Affairs. It was through her that I was introduced to the world of Legislation and law enforcement and the important role that they play in society. I also had the opportunity to interact with the then Attorney General, Senior Advocate Shri Soli Jehangir Sorabjee. That really sparked my interest in law and I decided to pursue it as a career.

After completing my studies and enrolling in the Bar I started my practice in the Supreme Court. As is the rule, all filings were done through an Advocate on Record and I had the opportunity to work with several very talented and inspiring advocates. This strengthened my resolve to appear for the AoR examination as soon as I was qualified and I was lucky enough to qualify in my first attempt.

As an AoR I represented certain clients who had business interests in the UK and occasionally had to deal with English Solicitors. I was fascinated by how far the English law had come since our independence and decided to qualify in their Jurisdiction so as to get a better understanding of it.

You have extensive experience in Privacy Laws, including GDPR and CCPA, as well as expertise in Crypto Currencies and Artificial Intelligence. How did you develop an interest in these areas of law, and what drew you to specialize in them?

I have always had a keen interest in technology. Through my education and practice I have been a witness to how and why technology outpaces legal developments and what the lack of effective guardrails can mean. These last couple of decades have redefined how we socialize, communicate, share/absorb information and take decisions. The more I engaged with technology the more I realized that a convergence of scientific developments, ethical considerations and legal boundaries are necessary to ensure that these developments are a boon for society and not its bane. The connections and sometimes, the tensions between Technology and law have not only become my profession, but my passion as well.

Could you share some of the notable cases you have handled, particularly those where you appeared and argued before the Supreme Court of India? How did those experiences shape your career?

One of the most impactful cases where I got the opportunity to argue before the Hon’ble Supreme Court was in the batch petitions challenging Aadhar linkage with various schemes and benefits. The manner and speed with which Aadhar was being linked with every facet of live for Indian citizens raised serious fears about the creation of a surveillance state. On 24th August 2017, the Hon’ble Supreme Court delivered a landmark judgement that declared privacy to be a fundamental right under Article 21, overruling verdicts given in the M.P. Sharma case in 1958 and the Kharak Singh case in 1961.

Another very interesting and impactful case that I was fortunate enough to act as an intervenor in a batch of petitions that sought legislation for the regulation of Crypto currencies and challenged an R.B.I. Notification which barred regulated entities (Banks and other regulated Non-Banking Financial Entities) from dealing with Crypto Currency entities before the Hon’ble Supreme Court.  The R.B.I. had not taken any regulatory stance on Crypto Currencies and yet it effectively sought to scuttle the Crypto Currency industry by denying them access to banks. The Hon’ble Supreme Court was pleased to hold that the circular was a disproportionate restriction on fundamental rights, as RBI needed to show at least some semblance of any damage suffered by its regulated entities and there was none. The Court also held that there was no law that made dealing in Virtual currencies illegal.

In both these cases, I was blessed enough to appear alongside Industry stalwarts and the decisions of the Court renewed my faith in law and the independence of the Judiciary.

As a legal professional, you have advised companies, web/application developers on compliance with various data protection laws and regulation of Artificial Intelligence. What are some of the key challenges faced by organizations in navigating these complex legal landscapes?

Organisations all over the world will now need to develop a data protection/management and Artificial Intelligence strategy, especially given the pace with which these technologies and our reliance on them are growing. A lot of concerns arise from the lack of understanding about what shape regulation will take and how it will impact the development of these technologies. The fact is that there are no Internationally accepted rules for their regulation, there are certain laws such as the G.D.P.R and guidelines issued by the O.E.C.D but the fact is that legal regimes everywhere are adopting different and sometimes conflicting standards. Organisations also need to be wary of the fact that any mistakes involving the use of these technologies can substantially damage their brand value. It is time to start making substantial investments in R&D to address the issues of data protection, bias, accountability and transparency.

You have also provided guidance on data subject rights, reporting of data breaches, and dealing with regulators. What are some of the best practices you recommend for companies to ensure they handle data responsibly and maintain compliance?

The O.E.C.D. had in 1980 issued its “Recommendations of the Council Concerning Guidelines Governing the Protection of Privacy and Trans-Border Flows of Personal Data” containing the following 7 principles for protection of personal data:

  1. Provide notice—data subjects should be given notice when their data is being collected;
  2. Disclose Purpose—data should only be used for the purpose stated and not for any other purposes;
  3. Obtain free and fair consent—data should not be disclosed without the data subject’s consent;
  4. Maintain system and data security—collected data should be kept secure from any potential abuses;
  5. Honour the data subjects right of disclosure—data subjects should be informed as to who is collecting their data;
  6. Provide data subjects with access—data subjects should be allowed to access their data and make corrections to any inaccurate data
  7. Be accountable —data subjects should have a method available to them to hold data collectors accountable for not following the above principles

These 7 principles have formed the bedrock of many international treaties such as the Convention 108 and national laws such as the G.D.P.R. There are, of course, many national rules such as those concerning Children’s data and other special categories of data such as Financial, Health and sexual orientation that must be complied with.

With your expertise in cryptocurrency and blockchain, you wrote a paper about the introduction of a Central Bank Digital Currency in India. Could you elaborate on some of the issues raised by such a digital currency and its impact?

A CBDC is the legal tender issued in digital form and is exchangeable one-to-one with government-issued money. In theory a CBDC could offer multiple benefits to users such as lower transaction costs and faster settlement times. However, there are several concerns that have not been addressed so far. The primary concern is that since the digital rupee would be programmable money, it could encompass features that were never really meant for a central bank. Some examples would include retail operations, surveillance over the citizenry and the power to introduce negative interest rates on accounts maintained with it. All this merits legislative and judicial oversight, not to mention the fact that a CBDC creates a centralised point of failure that could cripple the entire financial infrastructure in case of a hack, or even a simple system outage. The provisions of present laws were simply not drafted keeping in view these considerations.

Throughout your career, you have worked as both an in-house counsel and a litigator. What are some of the unique perspectives and skills you gained from these different roles?

In my experience acting as an in-house counsel makes one more focused on compliance and timely resolution of issues, preferably through means of alternative dispute resolution. It helps that you access to have better resources and more man power. You also learn to be quite proactive, identifying problems before they arise and resolving them and adopt a business focussed approach.

Litigation instils a strong sense of public service and gives you a more straightforward and cost-effective approach. It gives you more independence but also makes you more accountable. It can be quite daunting, but quite rewarding as well.

As a successful legal professional with a diverse background, what advice would you give to fresh graduates who are aspiring to pursue a career in law? What key skills or experiences should they focus on developing?

The most important advice I can give to any aspiring lawyers is to hone their research skills. This is an important and often overlooked part of legal education and initial years of practice. They must learn not to be limited to their text books, but must also read through judgments, legal journals and periodicals. This will empower them and give them enough confidence to conduct original research and write papers themselves, thus giving them invaluable domain knowledge.

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