When multiple celebrity lawyers argue before the Supreme Court that DPDPA is unconstituional and should be scrapped and quote multiple Supreme Court judgements of the past and the Indian Constitution, it cannot be taken lightly.
In the past cases such as Shreya Singhal case, or the Bitcoin case, decisions have been carried through on wrong premises since the petitioners were aggressive in their argument and the Government was not able to defend its own laws. (Refer here on Shreya Singhal fiasco).
Now the “Scrap DPDPA Brigade” is claiming that DPDPA 2023 is unconsituional due to a variety of reasons including dilution of RTI Act, Unfettered surveillance powers to Government, High penalty etc.
In the first hearing, the case Supreme Court refused to grant Stay but fixed a new date for hearing.
Is there any guarantee that the Supreme Court will not grant a stay next time? Or
Is there any guarantee that the Supreme Court will not scrap DPDPA?
There is no such guarantee. It all depends on the force of the arguments.
But all professionals who want the benefits of the Act such as position as DPOs, Business as Data Auditors are silently wantching the fun. Even when prompted with a request to sign a petition, most ignore it since they consider themselves to be too elite to participate in such activities.
It is a tragedy with which India has to live with. But Naavi will continue this crusade even if only handful of people are behind…
Look at the following riduculous claim made in the petition.
“.. even though the DPDP Act has created a provision under Section 17(5) for exempting certain “data fiduciaries or class of data fiduciaries” from the provisions of the DPDP Act within five years from the date of commencement of the statute, the Central Government does not have the power to exempt obligations of data fiduciaries in respect of a specific purpose, such as for public purposes, including for journalistic purposes.“
It is difficult to understand how this can be considered as a valid ground as presented in the petition to demand scrapping of the Act.
But if learned counsels can put such grounds in the written affidavits, it means that they are confident of convincing the Court on such grounds.
In another place the petition says that
Section 36 of the DPDP Act states that the Central Government may require the Data Protection Board, any data fiduciary, or intermediary to provide information that it may call for…
The purposes for which such information may be called for (Rule 23) are
a) Use, by the State or any of its instrumentalities, of personal data of a Data Principal in the interest of sovereignty and integrity of India or security of the State
b) Use, by the State or any of its instrumentalities, of personal data of a Data Principal for the following purposes, namely: —(i) performance of any function under any law for the time being in force in India; or
(ii) disclosure of any information for fulfilling any obligation under any law for the time being in force in India
c) Carrying out assessment for notifying any Data Fiduciary or class of Data Fiduciaries as Significant Data Fiduciary.
The petition says that this facilitates unreasonable digital searches of personal data available with every data fiduciary or intermediary, contrary to Article 21 of the Constitution of India. It continues to state The purposes for which the Central Government may call for information are overbroad and vague, giving rise to the potential for abuse.
Under what figment of imagination do they think that the Government should not even ask a Data Fiduciary any information about the entity or its activities?
The petition says that BECAUSE Section 36 of the DPDP Act read with Rule 23 of the DPDP Rules empowers the Central Government to call for information in the “interest of
sovereignty and integrity of India or security of the State”,a phrase that is both overbroad and vague, and is for that reason alone unconstitutional.
This phrase is from the Article 19(2) of the constitution and is found in many laws including ITA 2000 and BNS.
But the petitioners consider these as sufficient grounds for scrapping the law passed by the Parliament.
It is surprising that the advocates who are the “Officers of the Court” are trying to mislead the Court with speculative possibilities which they only can imagine.
Looking at some of these grounds presented, it appears that the petitioners are either naive themselves or consider that the Judges can be made to toe their line whether it is logical or otherwise.
Even admission of this petition should be rejected and the petitioners should be asked to come back with a better petition.
Hope Supreme Court under the current CJI is different from the earlier Courts which could be swayed by the celebrity advocates.
Let us wait and watch.
Naavi
