Rajya Sabha MP Vivek Tankha dissented clauses 12 and 35 of the Data Protection Bill, 2021, which allow for the government to process personal data without consent from users in certain cases and give the government the power to exempt any of its agencies from any or all provisions of the Bill.
“Though I am in broad agreement with the recommendations of the JPC [joint parliamentary committee], deeper contemplation puts me in doubt in respect of [these] two recommendations,” Tankha wrote in his dissent note. Amendments to these provisions “are necessary to prevent abuse of the power of exception so liberally granted to the state,” Tankha added.
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.
Inconsistent with Puttaswamy judgement
MP Vivek Tankha noted that the Bill “finds itself based on an incorrect architecture/assumption that the right to privacy arise only for protection against breach of private and the state is virtually exempted from these constitutional responsibilities.”
Referring to the landmark Puttaswamy judgement from 2017, which was the impetus for the Data Protection Bill, Tankha noted that giving the government special status is inconsistent with the spirit of this judgement as the Supreme Court made the following observation:
“Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds its origin in the notion that there are certain rights which are natural to inherent in human being. The human element in life is impossible to conceive without the existence of natural rights. Natural rights are not bestowed by the state. They inhere in human being because they are human. They exist equally in the, individual irrespective of class or strata, gender or orientation.” — K.S. Puttaswamy vs Union of India (2017) case
“It is the duty of the state to protect the breach of privacy of its citizens, be it in the form of private, government or foreign agencies,” Tankha said.
When can the government get an exception?
Tankha noted that there is a necessity to put a check on sharing of personal data and to safeguard the privacy of the citizens unless:
“it is inconsistent with national security, sovereignty, foreign relations or for prevention/detection of any crime/cognizable offence. These exceptions may be allowed only in exceptional cases and by a reasoned order for posterity and constitutional courts to judge the level of personal intrusion.” (emphasis ours)
Tankha also cast doubts on the “open-ended phrase of ‘public order’ as an exception” as “it will be susceptible to gross misuse.”
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