Pragya Sharma
in Constitutional Law
Asked April 28, 2016

Background Checks and Privacy

  • 2 Answers

Is asking potential employee confirm that they have no criminal record legally allowed in India? What if we are a private company based in India?

Answers 2

Answer by Apoorwa Iyer, Lawfarm Researcher:   Privacy laws of India are not very comprehensive. Background checks, including intimation regarding the criminal record of potential employee, are permitted in India. In June 2011, India passed a new privacy package that included various new rules that apply to companies and consumers. A key aspect of the new rules requires that any organization that processes personal information must obtain written consent from the data subjects before undertaking certain activities. Though this is a relatively new rule and is not completely applicable, but it is advisable that a consent form of the employee is attached along with the said employee application.   However, verification of the declared criminal record of any particular potential employee is an extremely difficult task in India;   1.     There is no central criminal database in India. Without digital records, crime logs are local and not accessible at city, state or national levels. 2.     It is a time consuming and tedious process. All police verification requests are filed personally by the candidate through the police commissioner’s office, and may require the candidate to make multiple visits to complete the check. The process may differ from one locality to another. 3.     There exists the risk of increased corruption.  Police verification through a local police station is inconsistent and often acquired through unethical or corrupt practices.   This may result in falsification of information and in turn, could defeat of the very purpose of disclosure of criminal record by the potential employee as it is easy for an individual to evade detection in India.   At present, Indian laws permit employers to ask for criminal records of potential employees. Moreover, companies can base their hiring process upon the criminal record, as long as it is connected with the field of work of the company. However, please note that if the application of an individual is refused based solely on the criminal record presented, which does not have any substantive relation with the needed job profile, it can lead to legal complications as it may amount to unequal job opportunity and unfair trade practice.     Note: The demand for criminal records of potential employees is criticised in many countries as it is considered that past criminal convictions of an individual should not become the judging criterion of professional qualification for the particular job. ‘Ban the Box’ is a campaign to remove questions about past criminal convictions from job applications and push background checks to a later point in the hiring process. However, at present there are only 19 countries that have some form of Ban the Box laws, of which India is not a part.
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Additional information: The Information Technology (Amendment) Act, 2008 made changes to the Information Technology Act, 2000 and added the following two sections relating to Privacy:
  • 43A,which deals with implementation of reasonable security practices for sensitive personal data or information and provides for the compensation of the person affected by wrongful loss or wrongful gain
  •  72A, which provides for imprisonment for a period up to 3 years and/or a fine up to Rs. 5,00,000 for a person who causes wrongful loss or wrongful gain by disclosing personal information of another person while providing services under the terms of lawful contract.
  • Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 regulate the collection, disclosure, transfer and storage of sensitive personal data, and widen the scope of the regulations in the Information Technology Act, 2000. The rules are based around a set of principles for protecting personal data. The most significant one of these is Rule 5 of Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011[1]. As per this rule it is the absolute requirement to obtain consent from individuals (by letter, fax, email or online) before collecting their information. Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 contains several rules regarding safeguarding the collected personal information of an individual. Though there is no explicit section stating that 'criminal records' can be asked for by employers in India, this silence implies that they aren't prohibited either. However, such an action is governed by the conditions put by the laws and rules mentioned above.   [1] Available at:
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