Rajya Sabha MP and member of the Joint Parliamentary Committee (JPC) on the Personal Data Protection Bill (PDP) Jairam Ramesh filed a detailed dissent note criticising the wide range of exemptions given to the Union government from the provisions of the PDP Bill, according to a tweet he posted.
The note was filed on the same day that the JPC met and decided to adopt its draft report on the PDP bill which has been under deliberation for the past two years. The report will now be tabled in the Parliament in the upcoming Winter Session.
The dissent note addressed to JPC chairman PP Chaudhary is publicly available in the form of a tweet by Ramesh.
Today, the Joint Parliamentary Committee on Personal Data Protection Bill 2019 will adopt its report. I’m compelled to submit a detailed dissent note. But that should not detract from the democratic manner in which the Committee has functioned. Now, for the debate in Parliament. pic.twitter.com/tavBnF9y5B
— Jairam Ramesh (@Jairam_Ramesh) November 22, 2021
The much-delayed report of the bill was expected to be tabled during the previous session of the parliament. However, after a change in committee leadership and memberships, the JPC asked for an extension till the winter session. Under a newly-appointed chairperson, the JPC revisited the bill to reportedly discuss new recommendations to the bill.
A look at the dissent note
In brief, Ramesh pointed Chaudhary’s attention to two clauses of the draft PDP Bill —
- Section 35 of the PDP Bill: Ramesh told Chaudhary that he had suggested amendments to Section 35 of PDP Bill, the section that deals with exemption from the law for government agencies. Ramesh had suggested “Central Government will have to get Parliamentary approval for exempting any of its agencies from the purview of the law.” Ramesh also said that he was “ready to compromise” if the “Reasons for exemption that would be recorded in writing as provided for in the Bill would be tabled in both Houses of Parliament”.
I had suggested amendments to Section 35 which is the most crucial provision of the Bill as well as to Section 12. The JCP gave me a patient hearing but I was unable to convince it of the merits of my arguments. The general consensus in the JCP appeared to be in favour of not accepting my amendments and I did not want to force the issue beyond a point. But I had requested you to permit me to record my dissent — Ramesh in the dissent note
- Section 12(a)(i) of the PDP Bill: Ramesh had suggested some changes to the Section 12(a)(i) which creates certain exceptions for governments and government agencies from the provisions of consent.
While fully understanding the logic for such exemptions in a number of circumstances, I had suggested some changes to make this exemption less sweeping and less automatic. The JCP’s report allows a period of two years for private companies to migrate to the new data protection regime but governments and government agencies have no such stipulation — Ramesh in the dissent note
Exemptions to govt should be narrowly tailored to protect law from constitutional challenge: Ramesh
Ramesh in his attachments to the letter, provided detailed reasons behind calling for the amendments, along with the text of the current form of the clauses that he has issues with.
Paraphrased current text of Section 35 (as provided by Ramesh in the note):
- The current form of the bill says that, if the Union government finds it necessary then it can accord exemptions to any government agencies from any provisions of the PDP Bill. These are the grounds under which exemptions can be granted —
- “in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order” (Section 35(i)); or
- “for preventing incitement to the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order,” the current form of the bill says. (Section 35(ii))
- The Bill says that the reasons for exemptions have to be recorded in writing.
Ramesh’s proposed amendment to Section 35:
- Ramesh proposed removing the mention of “public order” from Section 35 (i) and (ii) of the current draft. “Public order” is one of the grounds under which the current form of the PDP Bill can grant exemptions to government agencies.
- Ramesh supported exemptions for all the provisions of the draft bill, except from Section 5 and 24 of the Act, and Chapters VIII-XV of the PDP Bill.
- The Rajya Sabha MP also provided a few explanatory notes to his proposed amendments. For instance
- Cognizable offence: The term “cognizable offence” which is one of the grounds under which the Union government can give exemptions to government agencies was defined by Ramesh as “offence as defined in clause (c) of section 2 of the Code of Criminal Procedure, 1973”.
- He also said that if exemption is granted to any government agencies on the ground of “interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order”, then the order has to be issued which can be passed only if its in accordance with law.
Reasons for the amendment
- Ground of “public order” should be deleted: Ramesh said that despite the Supreme Court distinguishing between “law and order”, “public order” and “security of State”, these were often “conflated in practice”. He added, “Hence to ensure a narrow tailoring of the exemption and limiting its scope, the term of “public order” should be deleted from Section 35 (i) and (ii) of the Bill.”
- Exemptions from all but Section 5 and 24 of the Bill: The Rajya Sabha MP said that even if a government agency is processing data for national security reasons then it should be processed “fairly and reasonably” as under Section 5, and should not be misused (as under Section 24).
To ensure compliance with these two limited provisions, the role of the DPA and other penalties and offences must continue to apply — Ramesh in the dissent note
- All restrictions on fundamental law should be backed by law: Ramesh said that the bill should be made complaint with the August 2017 Puttaswamy judgement of the Supreme Court. The judgement requires that “all restrictions on fundamental right be backed by law with a legitimate aim; must be necessary and proportionate and have sufficient procedural guarantees to safeguard against misuse”.
Amendment to Section 12 introduced to prevent misuse of section: Ramesh
Paraphrased current text of Section 12 (as provided by Ramesh in the note):
The current form of the bill which deals with non-consensual processing by the State, says that, personal data may be processed in these particular cases:
- For providing any service or benefit to the data principal from the State
- To issue any certificate, license or permit for any activity of the data principal of the State
Ramesh’s proposed amendment to Section 12:
Data may be processed in these particular cases:
- For providing any service or benefit to the data principal from the State through its Consolidated Fund
- To issue any certificate, license or permit for any activity of the data principal of the State
Reasons for the amendment:
The Rajya Sabha MP said that the Bill creates an exception for the conditions under which the State can collect personal data of individuals without their consent.
“A requirement of “proportionality should be introduced in Section 12 to better safeguard the interests of the individual in case of any non-consensual processing of data. The insertion of Consolidated Fund in Section 12(a)(i) is in line with Section 7 of the Aadhaar Act, 2016 and the observations of the Supreme Court in its 2019 Aadhaar judgement is intended to prevent misuse of the exception,” the dissent note said.
Other MPs too filing dissent note
Apart from Ramesh, Manish Tewari also announced on November 22 that he has filed a dissent note. He also claimed that the bill will not stand the “test of law”.
While thanking Hon’ble @OfficeofPPC for his leadership of Joint Committee of Parliament on Data Protection I have been constrained to submit a very detailed note of dissent since I do not agree with the Fundamental design of proposed legislation. It will not stand the TEST OF LAW
— Manish Tewari (@ManishTewari) November 22, 2021
According to the Hindustan Times, the Trinamool Congress’s Derek O’Brien and the Biju Janata Dal’s Amar Patnaik are also likely to follow suit.
Also read:
- Joint Parliamentary Committee on PDP Bill adopts its draft report
- PDP Bill: Committee report expected in coming Parliament session
- #PrivacyNama2021: The chasm between passing and implementing a data protection law
- JPC given extension till winter session for presenting report on Personal Data Protection (PDP) Bill, new Chair appointed
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