We are all too familiar with the slogan “Jaago Graahak Jaao” – a virtual battle-cry prevalent since ages and vociferously pursued by active sections of the informed Indian citizenry and the government machinery to make the customers and consumers adequately aware of their rights and responsibilities vis-à-vis the sellers of various products in the existing market driven Indian economy, primarily dictated by profit motives, which sometimes leads to many unhealthy, unethical and illegal corrupt practices being adopted by the sellers at many forums in order to directly or indirectly deceive the customers/buyers and thus, it necessarily calls for a closer look at the current laws governing this relationship between the buyer and the seller.
Shopping/ buying/purchasing is a universal phenomenon and even a favorite time pass of many of us who like to look it up as a sort of leisure activity or often use it as a medium to innovatively beat or reduce the levels of undue stress, anxiety and frustrations of our mundane and hectic lifestyle. Let me share a recent experience with the readers wherein I went to shop for some sports apparel and equipment at the Decathlon store at Zirakpur ( Punjab ) and was quite shocked to witness the extent of their illegal malpractices. The case in point is that the sales staff at the billing counter refused to do the billing of the items unless I disclosed them my personal mobile number and email address. They refused to elaborate the valid reason behind asking for my sensitive personal data and just conveyed that it was their company’s internal policy. It’s not just about Decathlon anymore. When we go to a supermarket, they ask us for our phone number at checkout. When we go to a medical store, they ask us for our number for the bill. To get into an apartment complex, we need to give our number at the security gate. When we receive a government service, we need to share our phone number. Barring a few exceptions, none of these entities who collect our data, spell out what will happen to it, how long it will be stored, or who else it will be shared with. Informational privacy, or the right to control the collection and usage of our personal information, does not exist in India.
Disclosure of sensitive personal information requires the customer’s prior permission, unless either the disclosure has already been agreed to in the contract between the data subject (customer) and the data controller (seller); or such a disclosure is necessary for compliance with a legal obligation. Also, the consent obtained from the customers has to be informed consent given in a willful, voluntary and informed manner by the consumers and should not be shrouded in lengthy terms of agreements.
So, first and foremost, the question arises that what if a customer does not genuinely possesses a personal mobile phone number or an email address. Against this backdrop, will he or she be permitted or not be allowed to make a purchase of items at the big shopping stores or malls like Decathlon? Will denying such a lawful right to customers not amount to resorting to illegal, malicious corrupt practices? This is highly discriminatory in nature and thus, it is imperative to become aware that there exists no constitutional provision or legal framework under which the companies or shopping houses or sellers can compel the customers to disclose their personal details like mobile phone numbers or email addresses in return for making a purchase or buying. This is a clear-cut gross violation of the business ethics and corrodes the sensitive domain of the buyer and seller’s contractual-cum-commercial relationship of indulging in the fair and transparent act of buying and selling. In fact, it is a blatant assault and an invasion on the Right to Privacy of the customers which the Honorable Supreme Court of India has identified as an integral and non-negotiable part of the Fundamental Right to Life and Personal Liberty as enshrined in the Article 21 of the Indian Constitution. The apex court has recently even castigated and reprimanded the TRAI (Telecom Regulatory Authority of India) and the banking institutions of the country for forcing the consumers to link the AADHAR cards with their mobile numbers and bank details. So, under such a scenario, how can private stores like Decathlon forcefully coerce or arm-twist the customers towards disclosing their mobile phone numbers under the garb of veiled threats of not selling them items if they refuse to resign and submit to the illegal diktats of the company’s inexplicable and illogical so-called internal policy. Also, there exists no provision even under the Indian Telegraphic Act, 1885 or the Consumer Protection Act, 1986 which can be used by sellers to compel the customers into disclosing their personal details. Therefore, it can be safely construed and concluded that all such actions of the sellers like at Decathlon are a travesty of justice and lack any legal backing behind them. These are just arbitrary actions of profit-oriented business houses aimed at collecting, recording and maintaining the database of customer’s personal details where the long term intention and purpose is clearly opaque to say the least. It is to be noted that the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 provides protection to the personal information.
Also, what would happen if any such personal details of a customer get misused, leaked or compromised in the case of any company’s , ( here )let’s say Decathlon’s digital database/server getting hacked or stolen. Would not it put the personal and private information of hundreds of thousands of customers in the hands of the hackers who can either sell it off in the dark world of internet for millions of dollars or can reap effective dividends out of it through their criminal actions and commit unimaginable frauds by duplicating/impersonating the identity of the customer’s through the widely prevalent social engineering techniques on internet now-a-days. Under such circumstances, should not the customers have the option of pursuing legal cases against the sellers for having compromised their personal data and thus, sue them for legal compensatory damages in established courts of law or at the available legal Consumer Disputes Redressal forums at the Districts, States and National level. These are the various concerns which need to be ironed out in the proposed Data Privacy Bill aimed at the protection of sensitive personal data of the consumers. Also, the customers have inalienable rights with respect to the information they disclose. For instance, they must be given the option to know about the time period or duration for which these details are being sought and recorded by the sellers. Phone numbers have become the keys to unlocking an array of personal information. Hence, we must think twice before giving out our mobile number to the sales persons at the billing counters. It is time to become aware as informed consumers and take appropriate legal precautions and actions against the unscrupulous and malicious trading and business practices adopted by the sellers.
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