Data protection bill: Five MPs file dissent notes in final report

The Congress’s Jairam Ramesh, Manish Tewari and Gaurav Gogoi, and the TMC’s Derek O’Brien and Mahua Moitra filed the dissent notes with committee chairperson PP Chaudhury on Monday after the 30-member panel adopted the report's final version ahead of Parliament’s Winter Session.
Congress MP Jairam Ramesh filed his note contesting the exemptions to the government under Section 35 of the data protection bill. (Agencies)
Congress MP Jairam Ramesh filed his note contesting the exemptions to the government under Section 35 of the data protection bill. (Agencies)
Updated on Nov 23, 2021 12:39 AM IST
Copy Link
ByDeeksha Bhardwaj, Hindustan Times, New Delhi

Five Opposition members of the parliamentary committee reviewing the data protection bill have filed dissent notes citing a lack of oversight, failure to quantify penalties, absence of state-level data protection authorities (DPAs), and “unbridled” exemptions for the government as cause for concern in the panel’s final report. The Congress’s Jairam Ramesh, Manish Tewari and Gaurav Gogoi, and the TMC’s Derek O’Brien and Mahua Moitra filed the dissent notes with committee chairperson PP Chaudhury on Monday after the 30-member panel adopted the final version of the report on Monday ahead of Parliament’s Winter Session beginning next week, people aware of the matter said.

The report will be tabled before Parliament in the upcoming session for discussion.

Tewari has objected to the entirety of the Bill in its present form. In a 10-page dissent note, reviewed by HT, he stated that there is an “inherent design flaw” in the very construction of the Bill.

“The bill as it stands creates two parallel universes – one for the private sector where it would apply with full rigor and one for government where it is riddled with exemptions, carve outs and escape clauses. In my limited experience of three decades as a litigator, I have always been taught and made to appreciate that a Fundamental Right is principally enforceable against the state. A bill that seeks therefore 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 9-judge bench of the Supreme Court of India in Re Puttuswamy (2017) 10 SCC 1,” the MP argued. He also opposed age-gating of child-friendly online resources and asked for social media firms to mandatorily verify all its users/ subscribers, failing which they should be fined between 3-5% of their global turn over. He has added that critical personal data should be decided by the DPA, and not the government.

Congress MP Jairam Ramesh has also opposed the exemptions granted to the government and its agencies. “Today (Monday), the Joint Parliamentary Committee on Personal Data Protection Bill 2019 will adopt its report. I’m compelled to submit a detailed dissent note. But that should not detract from the democratic manner in which the Committee has functioned. Now, for the debate in Parliament,” Ramesh tweeted hours before the panel’s meeting was set to begin.

Ramesh filed his note contesting the exemptions to the government under Section 35 of the bill. He has argued the section provides unbridled power to exempt any of the government agencies from the proposed law. Ramesh added that Section 12, which covers non-consensual processing of data by the government, should have been made “less sweeping”.

Gogoi cited a “lack of attention” paid to “harms arising from surveillance” and said a “modern surveillance framework” may be created. He also flagged concerns against Sections 35 and 12, along with a lack of “parliamentary oversight and engagement”. HT has seen a copy of Gogoi’s note. Gogoi noted the report has failed to “quantify penalties under the framework”.

O’Brien and Mitra have highlighted that the process of consensus building on the report has been “rushed”, slamming the final draft for a “lack of adequate safeguards for the protection of the privacy of the data principal”. They also raised concerns regarding the selection of the DPA chairperson, and said it has a “heavy involvement of the central government”. HT has reviewed a copy of the note.

The people familiar with the matter said that Biju Janata Dal MP Amar Patnaik is also likely to object to a lack of inclusion of state-level DPAs in the bill. The governments of Karnataka and Maharashtra sought this during the meetings of their representatives with the committee. In an interview with HT in September, Patnaik argued that the lack of state DPAs would raise issues of federal override. Patnaik is likely to file the note before November 24, the people mentioned above added.

Patnaik said the additional suggestions are being reviewed and the final decision on whether or not file a dissent note will be taken accordingly.

The panel has been looking into the draft law since 2019. It has been given several extensions. The latest was due to changes in the panel after several of its members, including chairperson Meenakshi Lekhi, were inducted into the Union council of ministers in July.

The people said that the report has proposed treating social media platforms as publishers, which will make them liable for content posted by users. It has recommended adding back the condition of “just, fair, reasonable and proportionate” to Section 35, which deals with exemptions the government can claim in accessing personal data, one of the people added. This was of particular concern for the dissenters because the bill cleared by the government allowed it to claim an exemption as long as it felt it was “necessary or expedient” to do so in a particular set of circumstances such as those relating to national security. The “just, fair, reasonable and proportionate” portion was part of the first version of the bill, which was presented as per the recommendations of the Srikrishna Committee set up to recommend a legislative framework for data privacy in 2017.

SHARE THIS ARTICLE ON
Close Story
SHARE
Story Saved
×
Saved Articles
Following
My Reads
Sign out
New Delhi 0C
Wednesday, January 19, 2022