“We express our dissent to the final report of the Committee not only because of the Orwellian nature of the provisions contained in the Bill but also the improper functioning of the Committee itself,” Rajya Sabha MP Derek O’Brien and Lok Sabha MP Mahua Moitra wrote in their joint dissent note on the joint parliamentary committee (JPC) report on the Personal Data Protection Bill, 2019.
The landmark JPC report along with Data Protection Bill 2021 was tabled in both houses of the Parliament on December 16 after two years of deliberations, bringing us one step closer to India’s first data protection law.
The two MPs criticised the excessive powers given to the government on various aspects and the inclusion of non-personal data in the Bill, among other things, and recommended the following changes.
What changes have the two MPs recommended?
- Non-personal data should be excluded from the provisions of the bill: The Bill, through clauses 2, 92 and 94, brings the regulations of non-personal data under the Data Protection Act and allows the Government to make rules or issue directions regarding non-personal data under this Act. The MPs have asked for this to be removed. “There is a need for a detailed study and a separate framework for the regulation of non-personal data,” the MPs wrote.
- Exclude “credit scoring” from reasonable purposes: Clause 14 of the Bill allows the processing of personal data for “reasonable purposes” and “credit scoring” is listed as a reasonable purpose. The MPs have asked to remove credit scoring from this list.
- Remove fee charged for requests made by data principals: The MPs have asked for the removal of the provision in Clause 21 that allows a data fiduciary to charge a fee for requests made by the data principals based on the rights conferred to them.
- Bill should cover all personal data, not just digital: The JPC had modified the preamble to mention that Bill provides “for protection of the digital privacy of individuals.” The MPs have recommended not adding the word “digital” before “privacy of individuals” because the Bill should cover all personal data not just in digital form.
- Shift emphasis from economic interests to data protection: The MPs have suggested modifying the Preamble to shift the emphasis of the Bill from economic interests to data protection.
- DPA must publish reports of inspections and inquiries: The MPs have asked for Clause 49 to be modified to include provision for preparation and publication of reports setting out the result of any inspection or inquiry carried out by the DPA.
- Include “proportionality” for the purpose of processing in certain clauses: Clauses 5, 6, and 13, all of which deal with the conditions for collecting and processing personal data, should include a reference to “proportionality,” the MPs recommended.
Recommended changes related to government power
- Remove government’s excessive power to define sensitive personal data: Clause 3 (41) and Clause 15 of the Bill gives the government the excessive powers of the Government to define a new category of data as sensitive personal data and to categorise data relating to “trade union or political affiliation” as sensitive personal data. These powers should be removed.
- Remove power given to the government to access data without consent: The MPs have recommended deleting Clause 12 because it gives excessive powers to the Government to access data without consent.
- Remove the power of government to exempt any agency from the Act: Clause 35 of the Bill grants sweeping powers to the government to exempt any of its agencies from the provisions of the Bill and Data Protection Act. The MPs have asked for the removal of this clause. “Not only has the Committee failéd to introduce proper safeguards in clause 35 to prevent its misuse, the Committee has made recommendations to empower Central Government with more unqualified powers,” the MPs noted.
- Remove government’s power over DPA: Clause 87 of the Bill says that the DPA should be bound by the directions of the Central Government under all cases and not just on questions of policy. “This would affect the independent functioning of the DPA. We strongly oppose these recommendations,” the MPs noted.
- Restore composition of the Selection Committee to earlier draft version: The MPs have asked for Clause 42 to be modified to restore the composition of the Selection Committee to that contained in the draft Personal Data Protection Bill 2018. “The selection process for members and chairperson on the Data Protection Authority (DPA) has heavy involvement of the Central Government under Clause 42,” the MPs noted.
JPC rushed through its mandate
Commenting on the functioning of the JPC, MPs Derek O’Brien and Mahua Moitra said:
“The Committee rushed through its mandate, not providing sufficient time and opportunity for stakeholder’s consultations. The proceedings of the Committee were held multiple times per week, during an ongoing pandemic, making it difficult to attend for MPs residing outside Delhi.”