Experts have highlighted several concerns in the draft of the Digital Personal Data Protection (DPDP) Bill, 2022, but one major problem lies outside of it – in the consultation process. Along with the bill, the Ministry of Electronics and Information Technology (MeitY) published a notice inviting feedback from the public. It says that the public feedback that the ministry receives will not be disclosed to the public. The ministry says this is being done to “enable persons submitting feedback to provide the same freely. No public disclosure of the submissions will be made”.
But why should public feedback be disclosed?
Disclosing public feedback not only ensures transparency from the government’s end but also helps in holding them accountable for the laws and rules they bring in. One can gauge whether the general public or the stakeholders are in favour of or against a law or a set of rules (or certain provisions within them) by looking at the feedback. Medianama spoke to experts from different fields to understand why disclosing public feedback is important.
- Essential for Right To Information (RTI): RTI activist Saurav Das said “I believe, the government should proactively disclose what comments it has received on any bill for that matter”. He said any comments or feedback that the government receives are a part of the ‘file’. “Any deliberations or internal discussions between officers based on the comments they receive are part of the file, and when anyone requests for the information, suppose (they) ask for the entire file of the DPDP, that information should be provided to the public”. Withholding feedback public is a “huge hit on transparency,” he added.
- It helps analyse how the government frames laws: In the context of the DPDP Bill, Das said, “sometimes stakeholders like big-tech companies would send their comments about certain provisions which are not really in the interest of the public and would perhaps weaken the very need for a data protection law. (If the feedback is not made public) we would not get to know on whose demands the government has brought in or removed certain provisions in the bill.”
- Participatory democracy helps people: Arun PS, a policy researcher told Medianama, “I’m a vocal supporter of the idea of participatory democracy. Your participation does not end at the polling booth. The engagement between different actors in democracy should be at different levels – 24×7, 365 days. This can only happen when there is communication between the legislature and the public. I personally believe that through participatory democracy, the law-making process can be improved”.
- Transparency, not secrecy should be the norm: Vrinda Bhandari, a lawyer who specialises in data protection-related matters told Medianama, “It is the government’s prerogative of course to frame a law that they deem fit, but in the interest of transparency it is important to release the comments. We’ve seen TRAI do this all the time – TRAI would release the feedback on public consultations. So, there’s no reason for secrecy. I think it’s more like – the norm should be transparency and if there’s some exceptional reason, you can ask for secrecy, but here, there’s no reason at all that they’ve justified for secrecy”.
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Why it matters: Even though this is the fourth iteration of the bill, experts continue to flag concerns, like:
- There’s not enough legislative guidance on how the government should frame the rules
- The ambit of deemed consent is very broad and vague
- Government and law enforcement can exempt themselves more easily than before
- Why are penalties being levied on users?
These are just some of the 12 concerns that Medianama has highlighted in its piece. Now, disclosing public feedback will help in understanding if the general public and stakeholders are satisfied with these provisions of the DPDP Bill or not. It will also help in understanding if the government is actually listening to the people (who have actually voted them to power) by comparing the draft bill with the feedback sent by the people. Such information is also an important source of reporting for journalists and it helps in getting deeper insights into the government’s discussions and its reasonings. For instance, an RTI filed by a journalist at Entrackr revealed over 500-pages of comments received on a consultation paper regarding the Telecom Bill. Such documents can help the reader understand the demands of different stakeholders and if they were taken into account while framing the bill.
Even the public feedback received on the draft telecommunication bill has not been made public yet, and Medianama has filed an RTI asking for the same.
Is it mandatory to disclose public feedback on draft bills?
In India, the current guiding framework on public consultation is the Pre-Legislative Consultation Policy (PLCP) of 2014, said Arun PS, a policy researcher. However, this is not a law, he added. “If an Act is not implemented, you can approach the court, this (policy) is not really enforceable, which comes into the executive purview”.
According to the PLCP, public comments received on the draft bills should be disclosed to the public.
“The summary of feedback/comments received from the public/other stakeholders should also be placed on the website of the Department/Ministry concerned”. – PLCP, 2014
However, the practice of not disclosing public feedback is common with other bills too and is not just limited to the DPDP Bill. “There have been over 200 consultations since the 2014 PLCP policy and I can say no more than 5 instances have been there where the department has uploaded feedback,” Arun said.
He tracks these bills on his website (which you can visit here) to see if the relevant ministries/departments are following the process outlined by the PLCP. It was last updated on November 2, 2021. All this data is sourced from multiple publicly available sources.
So, despite the PLCP stating that the government should disclose public feedback, this is not being done. And this time, the MeitY has gone a step further to clearly state that such feedback will “not be disclosed”.
What else does the PLCP say?
The Pre-Legislative Consultation Policy was formulated in 2014 taking into consideration the recommendations of the National Advisory Council, the National Commission to Review the Working of the Constitution and the practices followed by other countries.
Why PLCP is important:
“While following this (PLCP) process, the government sets out clearly the policy problem that is to be addressed through the provision of supportive evidence and analysis, the options that it has considered and the reasons for the choices the government has made in bringing forward the legislation. The process also involves the study of social and financial costs, benefits and the key challenges required to be settled before undertaking the legislation. Looking into all these aspects facilitate formation of perfect policy objectives which a Bill intents to achieve and improve the efficacy of any act in its implementation,” a document issued by the Department of Law and Justice Legislative Department reads.
Here are some other provisions of the policy that the government followed:
- Proactively publish legislations on the internet: Yes, the DPDP Bill was published on MeitY’s website. The policy says, “Every Department/Ministry shall proactively publish the proposed legislations both on the internet as also through other means; the detailed modalities of such publication may be worked out by the Department/Ministry concerned.”
- Provide 30 days for public consultation: The analysis by Arun found that of the 115 Bills introduced in the parliament since June 2019, only 14 bills provided a 30-days time to the public for submitting feedback. This time period has been provided in the case of the DPDP Bill. Referring to the PLCP 2014, PRS Legislative Research told Medianama, “A 2014 government order requires all Ministries to publish draft versions of the Bill for public consultation for 30 days before they are introduced in Parliament.” The policy says, “The Department/Ministry concerned should publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such manner as may be specified by the Department/Ministry concerned”.
- Issue an explanatory note along with the bill: Yes, an explanatory note was issued along with the Bill. The policy says, “Every draft legislation or rules, placed in public domain through pre- legislative process should be accompanied by an explanatory note explaining key legal provisions in a simple language.”
Some provisions for MeitY to follow when moving forward with the draft bill:
- Although not mandatory, stakeholder consultations may be held: The Internet Freedom Foundation had asked the MeitY “to publish in advance the public consultation timelines for all the components of the comprehensive legal framework” in its letter, before the release of the DPDP Bill. It had also asked the government to hold a consultation process about the draft Digital India Bill, in which a significant amount of work has already been done.
PLCP says “The Department/Ministry concerned might, in addition to placing the proposal in public domain, also hold consultations with all stakeholders. However, the degree of participation and mode of consultations may be decided by the Department/Ministry concerned and may vary according to the nature of the subject and the potential impact on those who will be affected by such legislation. - All draft laws, rules should be examined for PLCP compliance: Arun PS and Sushmita Patel had said that an RTI filed by them revealed that the legislative department does not maintain any database on PLCP compliance, in an article published on Medianama. The response they received said that such information “MAYBE available/SCATTERED with the concerned Ministries/Departments”. This is in non-compliance with the policy, which asks the Law Ministry to examine draft legislations and rules. “The Bill should be referred to the Ministry of Law and Justice for vetting after the pre-legislative consultation as well as inter-ministerial consultations are over. The Ministry of Law and Justice shall also, at the time of examination of the draft legislation or rules, ensure that the concerned Department/Ministry has complied with the process of pre-legislative consultation,” the PLCP states. We aren’t sure if such vetting has been done in the case of the DPDP Bill.
- Submit a summary of the feedback to the cabinet: The policy says that “The Department/Ministry concerned should include a brief summary of the feedback received from stakeholders (including Government Departments and the public) along with its response in the note for the Cabinet along with the draft legislation.”
- Submit the summary to the Parliamentary standing committee: “The summary of pre-legislative process should also be placed before the Department Related Parliamentary Standing Committee by the Department/Ministry concerned when the proposed legislation is brought to the Parliament and is referred to the Standing Committee,” the policy states.
It is important to note that this is another part of the lawmaking process where the public and stakeholders may get a chance to engage in submitting feedback on the bill. PRS Legislative Research said, “Since the time on the floor of the House is limited, Bills are sent to Parliamentary Committees for MPs to deliberate on the Bill in greater detail. Committees invite comments from stakeholders and subject experts to present their views before the Committee.” - State reasons for not following the policy: The policy states, “If the Department/Ministry concerned is of the view that it is not feasible or desirable to hold pre-legislative consultation as detailed above, it may record the reasons in the note for the Cabinet”.
Constant problems with the consultation process
- Lack of transparency extends to other laws as well: Das said “it’s not just the DPDP where the government doesn’t want to disclose how the provisions are being incorporated in the law, it is the case with many many other laws that we’re seeing in today’s time. Be it the UAPA amendment 2019, the NIA amendment 2019, the CAA (and) many other laws. Whenever you file an RTI seeking what deliberations went on in order to make this law (like the entire file notings etc), the government is adamant about not disclosing anything related to the making of the bill. Now they’re brazenly saying, we’ll not disclose public comments to the public, so it’s just what has been happening, it’s now being conveyed in a written format.”
Das cited an example of his RTI about the Unlawful Activities (Prevention) Act Amendment 2019. “I asked them to furnish the file notings, the internal communications with stakeholders and other inputs that the government received. This RTI was denied under section 8(1)(a) which relates to national security, national interest etc because apparently there were inputs of security and intelligence agencies” he said. - MeitY’s past consultations: In letter to the MeitY, the Internet Freedom Foundation (IFF) said, the “requirement to stress on the need for a truly open and public consultation process moving forward was felt due to past instances wherein MeitY has failed to adopt consistent and transparent practices for public consultations. For instance, MeitY recently issued multiple documents only to withdraw them later. This inconsistent practice was witnessed in the case of a notice dated June 01, 2022, seeking comments on the proposed draft amendments to the IT Rules, 2021, and draft Guidelines for the Anonymisation of Data released for public consultation in August, 2022. In February 2022, MeitY published the “Draft India Data Accessibility & Use Policy, 2022” to which substantial changes were made during the consultation period without any public acknowledgement. Such errors and recalls during the consultation process significantly reduce the quality and sanctity of the consultation process.”
Improving the consultation process
- Need a law mandating public consultation: The 2014 PLCP should be a law, Arun said. “The right of citizens to participate in the law-making process should be a law.” He explained this by giving an example of South Africa. “Public participation is a right of the citizen in South Africa. Some laws have been struck down because public consultation was not adequate.”
- Can look up to TRAI: Certain organisations are governed by their own acts, Arun said. For example, TRAI is governed by the TRAI Act, SEBI has its own rules. “TRAI uploads all the submissions it receives for consultation, it also has a provision for counter comments.” Counter comments mean that for example, if Reliance has commented on a policy, someone from the public can comment on Reliance’s comments as well, Arun said. “Then they organise open house events as well. TRAI is an exceptional regulator, they are on a different scale,” he added.
- A law like US Administrative Procedures Act: Arun said, in Cellular Operators Association vs Union of India, the Supreme Court said that India should consider making a law like US Administrative Procedure Act, which says that all the rulemaking should undergo public consultation and that all draft rules should be uploaded.
“Since it is beyond the scope of this judgment to deal with subordinate legislation generally, and in particular with statutes which provide for rule making and regulation making without any added requirement of transparency, we would exhort Parliament to take up this issue and frame a legislation along the lines of the U.S. Administrative Procedure” Cellular Operators Association vs Union of India judgement
- Make the white papers, minutes of meetings publicly available: The IFF had said in its letter, the “Ministry must proactively publish information on all its working groups on draft legislations, including any position papers/ white papers and internal minutes of meetings of all inter-departmental groups, in line with the public authority’s obligations under Sections 4(1)(b) and 4(1)(c) of the Right to Information Act, 2005.”
- Make the documents more accessible: Arun said, “There should be a conscious effort from the department to make documents more accessible”. For example, the government should stop uploading scanned copies of printed documents, and upload the files directly, to make it easier for people to search documents, he added. Moreover, he said that the government can start introducing bills in languages other than English as well.
The headline was updated on 30th November 2022 (11:12 am) for brevity.
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Also read:
- Twelve Major Concerns With India’s Data Protection Bill, 2022
- Summary: India’s Digital Personal Data Protection Bill, 2022
- DPDP Bill, 2022: Government Once Again Given Broad Powers To Exempt Itself From Provisions Of Law
- DPDP Bill, 2022: Personal Data Processing Now Primed With ‘Deemed Consent’, And Other Changes
