Data Protection Bill: Justice Srikrishna expresses fear of Orwellian state

Questioning the legal viability of the proposed Personal Data Protection (PDP) Bill, Justice BN Srikrishna, who chaired the high-level panel that drafted the original Bill, said the government-introduced provision of state being exempted for certain obligations of the proposed law can be challenged in the Supreme Court on the grounds of violating right to privacy. He said that the proposed law won’t be constitutionally valid because it does not adhere to Supreme Court’s Puttuswamy judgment on privacy.

“There are bound to be challenges. There are grounds on which it can be challenged. It has given the government a blank cheque,” Srikrishna told Economic Times on the sidelines of the ITechLaw conference in Bengaluru on Thursday.

He said the proposed government exemptions could turn the country into an Orwellian state as the proposed structure of the Data Protection Authority (DPA) puts the control of the body in the hands of the government.

“The new Bill has weakened the independence of the Data Protection Authority. The ideal thing would be that DPA become a constitutional authority like the Election Commission. There is a probability of it becoming a government stooge,” he said.

Speaking to CNBC-TV18 on the sidelines of the same event, he said processing of personal data is also exempted from provisions of the Bill for certain other purposes such as prevention, investigation, or prosecution of any offence, among others.

“Any Babu by a stroke of the pen can see the law doesn’t apply to his department and get access to all your data. In our report, we had hemmed the government’s powers under a parliamentary legislation,” he added.

Justice Srikrishna also added that inclusion of non-personal data in the PDP Bill is dangerous. “Non personal data needs a separate law. The government has sneaked it in this Bill. In the universe of data, there is personal data, and then everything else is non-personal data,” he added.

The former Supreme Court judge said he has shared his reservations with the government on the same. “I saw the public notice (by the Joint Parliamentary Committee called for public feedback) and in response to that I have sent my comments and have also sent a clause by clause comparison between the original Bill and the new Bill and why it should not be accepted in the current form,” he added.

The PDP Bill, 2019 was introduced in Lok Sabha by IT minister Ravi Shankar Prasad on December 11 last year. It seeks to provide for protection of personal data of individuals, and establishes a Data Protection Authority.

It has been referred to a joint parliamentary committee (JPC) of both Rajya Sabha and Lok Sabha.

Under the Bill, the central government can exempt any of its agencies from the provisions of the Act in the interest of security of state, public order, sovereignty and integrity of India and friendly relations with foreign states.

The exemptions will also apply for preventing incitement to commission of any cognisable offence (arrest without warrant).

The processing of personal data is also exempted for the state from provisions of the Bill for certain purposes like prevention, investigation or prosecution of any offence and personal, domestic or journalistic purposes.

However, such processing must be for a specific, clear and lawful purpose, with certain security safeguards.

The blanket provision being given to government agencies has been questioned by legal experts as they vests the government with unbridled access to a user’s personal data.

Source: Financial Express