Parliamentary panel adopts data protection report; Jairam, Manish, Derek among 7 opposition MPs who dissent

Aditi Tandon

Tribune News Service

New Delhi, November 22

The Joint Committee of Parliament (JCP) examining the Personal Data Protection Bill, 2019, on Monday adopted its report with seven opposition MPs submitting dissent notes to various provisions of the draft law that seeks to regulate personal data processing.

Congress leaders and former ministers Jairam Ramesh and Manish Tewari, Trinamool Congress’ Derek O Brien and Mahua Moitra and BJD’s Amar Patnaik were among the MPs who dissented to the final report, with the majority objecting to provisions of the law that allows government and its agencies to exempt themselves from the application of the law under specific exceptions such as security of the state and public order.

Congress' Gaurav Gogoi and Vivek Tankha also gave dissent notes.

"I am in unqualified agreement with all but two of the recommendations of the joint committee of Parliament," Ramesh, Congress chief whip in Rajya Sabha said in his dissent note to panel chairperson, BJP's PP Chaudhuri.

He, along with TMC MPs, objected to Section 35 of the bill which allows the government to exempt itself and all of its agencies from the ambit of the law in the interest of "sovereignty and integrity of India, security of the state, friendly relations with foreign countries and public order".

The Section says that the government, in the interest of the above provisions, may by order, for reasons to be recorded in writing, direct that all or any of the provisions of the Act shall not apply to any agency of the government in respect of processing such personal data as may be specified in the order subject to such procedure, safeguards and oversight mechanism to be followed by the agency.

“Section 35 gives almost unbridled powers to the Central Government to exempt any government agency from the entire Act itself. Under the amendment I had suggested, the Central Government will have to get parliamentary approval for exempting any of its agencies from the purview of the law.  Even then, the Government must always comply with the Bill's requirement of fair and reasonable processing and implementing the necessary security safeguards.  I was willing to compromise provided the JCP had recommended that the reasons for exemption that would be recorded in writing as provided for in the Bill would be tabled in both Houses of Parliament. This would bring about greater accountability and transparency, but even that was not found acceptable," Jairam said asking for public order to be removed from the ambit of exceptions alongside security of the State.

Jairam recorded his second objection to Section 12(a)(i) of the PDP Bill, 2019, which creates certain exceptions for governments and government agencies from the provisions of consent. "I had suggested some changes to make this exemption less sweeping and less automatic. The JPC's report allows a period of two years for private companies to migrate to the new data protection regime but governments and government agencies have no such stipulation," Ramesh says.

Explaining the rationale for the amendment, Jairam said any exception created in the law for the conditions under which the state can collect personal data without a citizen’s consent should be narrowly tailored.

Congress MP from Anandpur Saheb Manish Tewari rejected the entire bill in his dissent note citing design flaws.

“A bill that seeks to provide blanket exemptions either in perpetuity or even for a limited period to the state and its instrumentalities, in my estimation is ultra vires of the Fundamental Right to Privacy as laid down by a nine-judge bench of the Supreme Court in the Puttuswamy judgment. I do not think that this bill in its present form, especially most of its exception and exemption clauses, including various carve-outs for governments both Centre and state that exempt these behemoths from the ambit of this legislation, would, therefore, stand the test of ‘vires’ in a Constitutional court of law as and when it would be so tested. I, therefore, am constrained to holistically reject the bill in its present form in entirety for this design flaw,” Tewari said.

TMC MPs Derek O Brien and Mahua Moitra in a joint note said they expressed their dissent to the final report not only because of the Orwellian nature of the provisions contained in the bill but also the improper functioning of the committee itself.

“We strongly oppose the bill for lack of adequate safeguards to protect the right to privacy of data principals. We oppose the recommendations of the committee for the inclusion of non-personal data within their legislation. The bill provides overboard exemptions to the government without proper safeguards in place. We had moved amendments to Clause 35 of the bill which gives power to the Centre to exempt any of its agencies from the application of the Act,” Derek and Moitra said.

The much awaited parliamentary panel report on the PDP Bill, 2019, was delayed after former chairperson Meenakshi Lekhi was inducted into the Union council of ministers, necessitating reconstitution of the panel.

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