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An Accessible Law : A step closer to protecting privacy rights

INDIAN POLITY
20 Dec, 2022

NEWS HIGHLIGHT

Theme : Right to privacy, Personal Data Protection Bill, Joint Committee of Parliament (JCP) on the Bill etc

Paper:GS - 2 and GS - 3

In August 2022, the government withdrew the bill and on November 18th released the fourth iteration of the data privacy legislation: The Digital Personal Data Protection Bill, 2022 (Bill).

TABLE OF CONTENT

  1. Context
  2. Background of the Data Privacy Law & Justice BN Srikrishna Committee Data Protection Report
  3. New Data Protection Bill
  4. Significant aspects of the Bill
  5. Why is Data Protection needed ?
  6. Road Ahead

Context : In August 2022, the government withdrew the bill and on November 18th released the fourth iteration of the data privacy legislation: The Digital Personal Data Protection Bill, 2022 (Bill).

Background of the Data Privacy Law & Justice BN Srikrishna Committee Data Protection Report

  • Started in 2010 with the constitution of the Justice Srikrishna Committee

Justice BN Srikrishna Committee Data Protection Report:

  • The Committee was constituted by the union government in July 2017, to deliberate on a data protection framework.
  • The Supreme Court in its Puttaswamy judgment, 2017: It declared privacy a fundamental right.
  • Interests of citizens: The report has emphasized that interests of the citizens and the responsibilities of the state have to be protected, but not at the cost of trade and industry.
  • It proposed a draft Personal Data Protection Bill.

New Data Protection Bill : 

  • Inclusion of the word “digital” in the Bill’s title speaks to India’s long standing goal of being a digitally forward society.
  • Bill has two major stakeholders:
  • Data Principal
  • Data Fiduciary.
  • Data Principal: It refers to the subject whose data is being processed
  • Data Fiduciary: It is an entity that processes this data.
  • Data Fiduciary: It is responsible for safeguarding the interests of Data Principals.
  • Bill describes:
  • the obligations of the Data Fiduciaries towards Data Principals
  • the rights and duties of the latter
  • regulatory framework through which data will be processed.
  • Bill lists the “duties” of the Data Principals: these have no bearing on the realization of the rights provided by the Bill.

Significant aspects of the Bill : 

  • In addition to the general obligations to prevent the misuse of the personal data of individuals
  • The Bill has outlined a category of Significant Data Fiduciaries entities: that are required to comply with additional measures to safeguard the personal data of individuals.
  • Only companies that process vast amounts of data or have a potential impact on the country’s sovereignty and integrity need to take such stringent measures.
  • Such measures reduce the compliance cost of companies that are at a nascent stage.
  • Data localisation” in the previous versions of the Bill, have been omitted: The reworked Bill permits the government to notify countries to which data transfers may be permitted.

Why is Data Protection needed ?

  • Large internet coverage: India currently has over 750 million Internet users, with the number only expected to increase in the future.
  • Digital India: The Government is also making a strong push for a ‘Digital India’, with increased focus on digitisation of access to health, ration, banking, insurance, especially after the COVID-19 pandemic.
  • Inter-linking of data: There is a greater focus on the inter-linking of data, whether through facial recognition, Aadhaar, or the Criminal Procedure (Identification) Act, 2022.
  • Highest data breaches: India has among the highest data breaches in the world.Around 18 of every 100 Indians have been affected by data breaches since 2004.
  • Risk of data: Without a data protection law in place, the data of millions of Indians continues to be at risk of being exploited, sold, and misused without their consent.
  • Non-enforcement of FR against private non-state entities: Unlike state action, corporate action or misconduct is not subject to writ proceedings in India.

Road Ahead : 

  • Govt to notify countries for data transfer: It is a major respite for several tech companies, who have long talked about the infeasibility of the data localisation provisions.
  • A balance has now been struck between the legitimate concerns of businesses and the protection of personal data of individuals.
  • Penalties imposed: The Bill must ensure that the penalties imposed are proportionate to the size and operations of a company – to be effective, fines must not drive companies into economic loss.
  • European Union’s General Data Protection Regulation (GDPR): amongst other similar regulations, which levies penalties in accordance with the total turnover of companies.
  • The Bill safeguards individual data, whilst also promoting cooperation between data fiduciaries and the government.
  • It draws upon the best practices of foreign jurisdictions: such as Europe and Australia
  • It has been drafted as per India’s requirements.
  • The exemptions granted to the Centre are extremely restrictive and in sync with past judicial precedents and Article 19(2) of the Constitution.

FAQs : 

  1. When was Justice Srikrishna Committee constituted?

ANS. 2017

  1. What was drafted by this Committee?

ANS. It proposed a draft Personal Data Protection Bill.