Data Protection Bill: How the Govt Gives Itself Unbridled Power

Despite heavy opposition, the report adopted by the Standing Committee on Monday retains problematic causes.

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The Joint Parliamentary Committee on Personal Data Protection on Monday adopted its report, on which it had been deliberating since 2019. But the committee chose to retain some highly controversial clauses, which provide the government with unbridled and sweeping powers.

As many as seven of the 30 members of the panel, including All India Trinamool Congress Lok Sabha MP Mahua Moitra and I, expressed formal dissent for the overreaching nature of the provisions contained in the Bill. But more than the provisions themselves, it’s the functioning of the Committee that’s concerning. The Committee steamrolled through the provisions, holding consultations during a pandemic year, making it difficult for those outside Delhi to attend panel meetings.

Only 11% Of Bills Referred to House Panels Under BJP

Should this be surprising anymore? The ruling dispensation’s sheer disregard for Parliamentary democracy is concerning. The BJP government has made a mockery of the House panels’ functioning, with their roles increasingly being undermined since the party came to power in 2014. Each year, the share of legislation being referred to Parliamentary committees has steadily declined. Under the 14th Lok Sabha (2004-2009) with the UPA government at its helm, 60% of the Bills were referred to Parliamentary committees. This practice was further enhanced in the UPA’s second term – as many as 71 per cent of the Bills were scrutinised by Parliament.

In contrast, the NDA government has, in its last two terms, heavily diluted the role of committees. While only 25% of Bills were referred to Standing Committees in its first term, this number dropped further in its ongoing second term. Barely 11% of Bills were scrutinised by Parliament till December 2020. The trends are worrying.

The Data Protection Bill provides overboard exemptions to the Union government without proper safeguards. Clause 35 of the Bill allows any agency under the Union Government exemption from all or any provisions of the law, in the name of “sovereignty”, “friendly relations with foreign states” and “security of the state”.

National Security Over Individual Privacy?

We moved an amendment to the Clause to prevent its misuse, but the Joint Parliamentary committee chose to retain it in its final report on Monday, stating that there is precedent for such exemptions since the fundamental rights enshrined in our Constitution are also subject to reasonable restrictions. Further, some NDA members contended that national security ought to be given more importance than individual privacy.

The Clause is broadly worded and goes against the tenets of the Puttuswamy judgment, which had called for adequate checks and balances and a three-fold test of legality, “legitimate State interest”, and “proportionality” when it comes to state access to personal data.

But that’s just subverting the argument. The committee, far from introducing any safeguards against Clause 35, in fact further seeks to empower the government with unqualified powers.

For example, Clause 42 of the Bill enables the Central government to become the decision-maker in the selection of the Chairperson and members of the Data Protection Authority (DPA). The panel has recommended that the DPA should be bound by directions of the Central government under all cases – not just policy matters.

In fact, the Draft Data Protection Bill 2018 enabled the constitution of a Selection Committee, which should be restored.

Clause 12 of the Bill again provides sweeping powers to the government. It allows the state to access personal data without an individual’s consent on a number of grounds. The clause should be deleted altogether.

The committee has also made several recommendations to include non-personal data protection under the Bill’s ambit. This can be a risky exercise. Non-personal data needs a separate, detailed framework for regulation.

Importantly, in the Preamble, the focus should be on data protection, not economic interests.

Though since 22 July, under the Chairmanship of PP Chaudhary, the Committee has worked in a more inclusive manner, the final report adopted on Monday lacks the clear consensus of committee members. The problematic sections listed above are an assault on individual privacy and a classic case of state overreach. The Bill supports a framework that fails to protect the digital rights of the people of this country.

(The author is All India Trinamool Congress’s Rajya Sabha leader. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)