By K Raveendran
The Joint Parliamentary Committee that studied the personal data protection bill, introduced two years ago, has for all practical purposes endorsed the bill’s draconian features, while shedding copious tears about the sanctity of privacy. The bill in a way takes away the fundamental right of the citizen to privacy and puts it in the hands of the government. As such, there will be two orders with regard to privacy, one which is applicable to everything other than the domain of the government and the other for the government. And in the process, puts the onus of enforcing the fundamental right to privacy with the government which is often the violator rather than the protector of fundamental rights.
It is a pity that the JPC has failed to see beyond its nose while dealing with such an important issue like privacy and has submitted a report that is broadly aligning with the party affiliations of its members. With the constitution of the committee itself being what it is, it has prepared a report that reflects the concepts and approaches of the ruling party, the credentials of which in upholding individual liberty are highly suspect.
On the face of it, the bill aims to provide for the protection of the privacy of individuals relating to their personal data, specify the flow and usage of personal data, create a relationship of trust between persons and entities processing the personal data, protect the rights of individuals whose personal data are processed, to create a framework for organisational and technical measures in the processing of data, laying down norms for social media intermediary, cross-border transfer, accountability of entities processing personal data, remedies for unauthorised and harmful processing, and to establish a Data Protection Authority of India.
But when it comes to the government, all this is overridden by the government’s, and more importantly the ruling party’s, approach towards personal liberties. BJP’s policies have been built around the concept of nationalism, which unfortunately does not necessarily correspond to national interests. In many instances, there have been serious conflict between the two. The saffron party has consistently used nationalism as a tool to further its agendas, which are no secret, and often lead to division rather than unity.
The recommendations of the committee along with the dissenting notes submitted by some members, including Manish Tewari of Congress, should take us back to whether the system of constituting joint parliamentary committees has really served the purpose that they were originally intended to do. If the deliberations cannot transcend the contours of political affiliations, which has been the case with most JPCs, there is little justification for the time, money and other resources spent on these bodies.
In that sense, the report of every JPC has been more or less on predictable lines, depending on the nature of the committee’s composition. But in at least in the case of data protection, which involves several complications and technicalities that are not easily understood by politicians, the JPC should have risen beyond narrow political considerations.
There are several aspects of the bill that may be challenged in due course of time, including legal questions. The Orwellian exemptions granted to the state, in fact, run counter to well-considered and long established norms, such as the ones laid down by the constitutional bench of the Supreme Court in the Puttuswamy case, which declared the right to privacy as a fundamental right of the citizen and therefore unbreachable.
The JPC report claims that there are enough safeguards against the violation of privacy, but when it comes national security, everything becomes subservient to that. Given how national security has been interpreted, rather misinterpreted, under the Modi government, it creates a lot of uncertainty in terms of individual liberties. With a highly intolerant dispensation in charge of the country’s affairs, even criticism of the government’s policies has been interpreted as an act against national security and it is not difficult to imagine how the bill will be used to suppress dissent and criticism.
As Manish Tewari rightly pointed out in his dissenting note, there is an ‘inherent design flaw in the very construction’ of the bill as it creates two parallel universes: ‘one for the private sector where it would apply with full rigour and one for government where it is riddled with exemptions, carve-outs and escape clauses.’ (IPA Service)