Four MPs from the Congress, two from the TMC and one from the BJD opposed certain provisions of the Parliamentary panel's recommendations on the Personal Data Protection Bill.

Parliament panel adopts report on data protection amid dissent by several MPsImage for representation
news Law Monday, November 22, 2021 - 18:16

The Joint Committee of Parliament examining the Personal Data Protection Bill, 2019 has adopted its report on the Bill with several opposition MPs, including those from the Congress, Trinamool Congress (TMC) and Biju Janata Dal (BJD), submitting their dissent notes. Sources said the report was adopted after almost two years of setting up of the joint panel, when the Bill was referred to for further scrutiny and making recommendations.

The sources said that four MPs from the Congress, two from the TMC and one from the BJD opposed certain provisions of the panel's recommendations. Congress leader and chief whip of the party in Rajya Sabha Jairam Ramesh gave his dissent note to the committee on the Bill after the panel adopted its report at its meeting in Delhi. The former Union minister also lauded the democratic manner in which the panel functioned under PP Chaudhary's chairmanship for the past four months.

Besides Ramesh, Congress MPs Manish Tewari, Gaurav Gogoi and Vivek Tankha also submitted their dissent notes, along with TMC's Derek O'Brien and Mohua Moitra and BJD's Amar Patnaik. The report was delayed by the panel as its former chairperson Meenakshi Lekhi was elevated a minister and Chaudhary was appointed as its new chairperson.

The Bill was referred to the JCP for scrutiny before being taken up by Parliament for consideration and passage. Ramesh shared the information that the report has been adopted by the panel. "Finally, it is done... There are dissent notes but that is in the best spirit of parliamentary democracy. Sadly, such examples are few and far between under the Modi regime," he said.

He said he was compelled to submit a detailed dissent note on the Bill as his suggestions were not accepted and he was unable to convince the members. "But that should not detract from the democratic manner in which the committee has functioned. Now, for the debate in Parliament," Ramesh tweeted.

Tewari and Gogoi also said they had submitted their dissent notes to the Secretariat of the committee after the final meeting of the Joint Committee on Data Protection. "We started in December 2019 and finished in November 2021," Tewari said. "I have been constrained to submit a very detailed note of dissent since I do not agree with the fundamental design of proposed legislation. It will not stand the test of law," he said. The Anandpur Sahib MP said his fundamental objection was that there is an inherent design flaw in the Bill's very construction.

“A Bill that seeks to provide blanket exemptions, either in perpetuity or even for a limited period, to the 'state' and its instrumentalities is ultra vires of the Fundamental Right to Privacy as laid down by a nine-judge bench of the Supreme Court,” he said.

Tewari said he did not think the Bill in its present form, especially most of its exception and exemption clauses, including carve outs for governments that exempt the Union government-run bodies from the ambit of this legislation would stand the test of 'vires' in a court of law. "I, therefore, am constrained to holistically reject the Bill in its present form in entirety for this design flaw," he said.

On his reservations about the Bill that were part of his dissent note, Gogoi said there was a lack of attention being paid to harms arising from surveillance and effort to establish a modern surveillance framework .

Ramesh in his dissent note said he had suggested amendments to Section 35, the Bill's most crucial provision, as well as to Section 12. He has argued that Section 35 gives almost unbridled powers to the Union to exempt any government agency from the entire act itself. "Under the amendment I had suggested, the Union government will have to get parliamentary approval for exempting any of its agencies from the purview of law. Even then, the government must always comply with the Bill's requirement of fair and reasonable processing and implementing the necessary security safeguards," Ramesh said.

"This would bring about greater accountability and transparency, but even that was not found acceptable. Section 12(a)(i) creates certain exceptions for governments and its agencies from the provisions of consent," he said.

The TMC MPs described the Bill as "Orwellian" in nature and raised questions on the panel's functioning. They alleged it rushed through its mandate and did not provide sufficient time and opportunity for stakeholder consultations, the sources said.

They also said they opposed the Bill for lack of adequate safeguards to protect the right to privacy of data principles, the sources said.

In the note, they have also opposed the recommendations for inclusion of non-personal data in the legislation, they said. The TMC MPs said the Bill provides overboard exemptions to the government of India, without proper safeguards in place.

The MPs moved an amendment to Clause 35 which gives powers to the Union government to exempt any of its agencies from the act's application, sources said. But in the notice, the two said not only has the panel failed to introduce proper safeguards to prevent misuse of the provision, it has made recommendations to empower the government with more unqualified powers.

Ramesh, in his dissent note, said the JCP's report allows a period of two years for private companies to migrate to the new data protection regime but governments and their agencies have no such stipulation.

He argued the Bill's design assumes that the constitutional right to privacy arises only where operations and activities of private companies are concerned.

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