A billion people and a Privacy law that is not about Privacy

Data Privacy Insights > Posts > Data Privacy Laws and Regulations > Personal Data Protection Bill, 2019 - India > A billion people and a Privacy law that is not about Privacy
PDPB - 2019
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In the year 2017 Despite the resistance from the Government, Honorable Supreme Court of India held the Right to Privacy as a Fundamental right in India.

Fast forward to 2019, when a bill called the Personal Data Protection Bill,2019 was introduced in the Lok Sabha of Parliament of India. There was a new energy and strength in privacy advocates and supporters as the bill seemed well-intentioned with some (rather serious) lapses which were to be creased out.

In November 2021, Joint Parliamentary Committee reviewing the bill presented its recommendations to the Council of Ministers.

Now there are concerns over the recommendations suggested by the JPC.

As per reports JPC do not appear to have resolved the concerns raised about the 2019 bill, including the exemptions granted to the government.

Earlier, commenting on the original draft of the bill, Justice (Retd) B N Srikrishna, a renowned jurist who chaired the expert committee that submitted a report and draft of the Personal Data Protection Bill to the government, said his “fundamental problem” with the current version of the Bill is whether “it is sufficient” for the State to have unfettered access to personal data of individuals in the name of security and sovereignty.

Right to Privacy has been a very critically analyzed topic lately across the globe.  India as a nation which is fast digitalizing, with a thriving ecosystems of tech startups, a global power in Information Technology.

 As per a report in the Quint Key Recommendations by JPC are as under:

  • No significant changes to Section 35 of the 2019 bill (state use exemption), which allows the Union government to exempt its agencies from complying with the requirements under the law, including that any processing of data has to be for a limited purpose, done with consent and after providing notice. The exemption can be applied if the government thinks that it is “necessary or expedient” in the interest of the sovereignty and integrity of India, security of the state, friendly relations with other states, or public order.
  • It is being suggested that the bill be amended to state that the procedure for applying the exemption needs to be “just, fair and proportionate,” according to Hindustan Times.
  • No changes to Section 12 of the 2019 bill, which allows the processing of personal data without a person’s consent if this is necessary, among other things, for provision of services or benefits from the government, or issue of licences/certifications/permits from the government for any action or activity.
  • Social media platforms should be treated as publishers (that is, not as intermediaries) unless they mandatorily verify users. This would make them responsible for content posted by users.
  • Any data fiduciary which passes on information to a third party will need to mandatorily disclose this information to the person whose data has been passed on. However, this will not apply to information passed on for the purposes of state use.
  • Senior management personnel of companies have to be appointed to the position of data protection officers.
  • Non-personal data should also be included within the ambit of the law.
  • Data breaches will need to be reported within 72 hours by companies.
  • Data collection by electronic hardware (telecom equipment like 5G and home devices like Alexa) should also be specifically addressed by the data protection law.
  • Data localisation requirements need to be complied with for all sensitive and critical personal data – even for data already collected by foreign entities operating in India (like Visa, Mastercard, etc). Copies of such data will now need to be retained in India as well.
  • The Data Protection Authority, which is to be set up under the law to regulate how data is to be managed and processed, should be bound by directions of the Union government in all cases – not just questions of policy.

Reading these recommendations with the draft of the bill, it becomes evident that the government is more concerned about legitimizing its monitoring and censoring rights and authority over the privacy rights of individuals which outrightly goes against the Right to Privacy of Individuals.

While national security is important, it cannot be taken as a blanket means to suppress the fundamental rights of individuals. In fact, a nation is the sum total of its constituents enjoying various fundamental and other human rights bestowed upon them as citizens, residents, and humans, and Privacy right is one of them.

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