Yesterday Economic Times carried a report quoting anonymous sources within the Government of India that the Government may shelve the current version of the Bill and go for a fresh legislation.
Today some of the other publications such as the Quint and The Print have picked up the story and re-published the same.
As a result of these reports there is a sudden feeling in the Industry that the Government of India may withdraw the Bill just like they withdrew the Farm Bills. In many professional circles, it is considered that the Government has no commitment to pass the law.
It is difficult for us to vouch for the Government since the Government is always a combination of good intentioned persons with commitment and others who for their own reasons support some “Special Interests”.
It is our considered opinion that the Economic Times article under the by-line of Surabhi Agarwal is a fake planted story .
We may however discuss some of the objections to the Bill that were prevailing earlier when the JPC presented its report and whether the objections cited in the ET article were present at that time.
When the JPC presented its final recommendations there were a few opposition members of the JPC who submitted dissent notes. Some of the comments made by them are briefly given below.
1.Manish Tiwari:
The Bill suffers from a design flaw in that it creates two parallel universes, one for the private sector where it would apply with full rigor and one for the Government where it is riddled with exemptions. I reject the bill in the current form in its entirety.
2.Derek Obrien and Mahua Moitra
We oppose the inclusion of the non personal data within the legislation. The Bill provides overbroad exemptions to the Government of India without proper safeguards. We propose amendments …
3. Gaurav Gogoi
I am in broad agreement with most of the conclusions …However I hold certain reservations …on lack of attention paid to harms arising out of surveillance, Exemption to the Central Government, regulation of non personal data, setting up of state level DPAs etc.
4.Ritesh Pandey
I am in complete agreement with the recommendations, barring three sections..Section 3(8) (Definition of Child), Section 35 and Section 42(2) (Composition of the DPA selection Committee).
5.Jairam Ramesh
I am in unqualified agreement with all but two recommendations…. Section 35 and Section 12 (a)(i) …suggested removal of “Public Order” under Section 35 and addition of the word “Proportionate” in the clause that exempts consent for Government functions.
6.Vivek K Tankha
Though I am in broad agreement with the recommendations of the JCP, deeper contemplation puts me in doubt in respect of two recommendations…. Section 12 and Section 35.
7.Dr Amar Patnaik
The Bill does not address the concerns on narrowing down the applicability of the provisions of Section 35 , separate DPA for States, abolishing of Section 87(new) on the power of the Government to issue directions to the DPA
As could be seen from the above, except Mr Manish Tiwari who recommended the scrapping of the Bill all others suggested only a few amendments. Most of the concerns expressed by the members were on the powers of the Government under Section 35. The concerns on the constitution of the DPA and independence of DPA was also related to the dilution of the power of the Government in the administration of the Act.
The views of the political opponents of the Government can be understood since the Act also covers the Government agencies, if an opposition friendly DPA is formed, the DPA would be a great instrument to question the Government from time to time. It would be politically imprudent and foolish for any Government to provide such a power to an authority outside the Government. Hence we should also appreciate the right of the Government to reject such an extreme suggestion.
The Government has adopted a conciliatory position regarding expanding the DPA selection committee and adding the concept of “Proportionality” under Section 35. Also it is a common practice across the Globe to provide such exemptions to the Government and the Courts in the respective countries lay down the boundaries of “Proportionality”. The objections on Section 35 therefore can be set aside as the necessary political rhetoric.
Leaving these politically motivated suggestions, there are some good suggestions including the delinking of the “Non Personal Data” some of which can still be accommodated during the clause by clause discussion of the amendments.
The ET report however brings out a new theory that the Act is detrimental to the industry and more particularly the Start Ups.
There is no doubt that any new law requiring compliance of the industry result in some compliance efforts including additional cost. Cyber Security itself is a burden on the companies. However, it is the duty of the Government to enact laws that mandate security and this “Personal Data Protection law” is one such.
As regards the importance of “Right to Privacy”, it is for the Human Rights Activists to determine whether India needs to protect this right or not. If some are suggesting scrapping of the current draft, they are people who donot want the law to be effective for a few more years.
We may remember that JPC has recommended 2 years for introduction, and provided 3 more years for Start Ups using the Sand Box scheme to adopt to the law. If 5 years is not sufficient for a Start Up to adopt, then they donot deserve any sympathy. I am sure that ET is firing this salvo on the shoulders of the Start Ups and no genuine start up would like to admit that 5 years is too short a time to adopt to the new law that too after the world has transformed in 2018 itself when GDPR became a law.
The objection raised by ET is therefore unsustainable and must be considered as a conspiracy along with the Print and Quint to destabilize the introduction of the law.
I would appreciate if people come out openly that they donot want Privacy because they want to continue the present practice of exploiting the personal data without accountability.
Instead of being honest and directly expressing their wish to be in a “NO PRIVACY PROTECTION REGIME”, raising fake objections on the provisions of the Bill is to be condemned.
I would also like to re-iterate that there is nothing such as “Perfect Bill” and when a Bill tries to address conflicting interests of Privacy, Security and Business promotion, there has to be give and take by each of the stake holders. Law cannot be made one sided even if it is on the side of the individual.
Lest we forget, all fundamental rights exist if the nation exists and hence reasonable exemptions are an integral part of the fundamental rights whether it is article 19 or 21 or even 25.
We therefore should condemn the attempt of motivated journalists to plant false stories not withstanding the support they may get from NASSCOM which is an industry association.
Behind this conspiracy there could be a larger conspiracy that if the Government withdraws the Bill, certain activists will approach the Supreme Court with a “Contempt of Court” petition stating that Government is not honouring the direction of the Supreme Court and has to be dismissed. The Government should be alert to such a possibility.
Naavi
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