New Delhi: After nearly two years of deliberations, the Joint Committee of Parliament on the Personal Data Protection Bill, 2019 on Monday adopted the report on the Bill, which provided the government with powers to give exemptions to its probe agencies from the provisions of the Act, a move opposed by opposition MPs who filed their dissent notes.
Congress leader and chief whip of the party in Rajya Sabha Jairam Ramesh was among the four MPs from the Congress besides two MPs from the Trinamool Congress and one from the Biju Janata Dal who submitted their dissent notes on the report of the Committee, headed by P P Chaudhary.
The Bill, seeking to provide for the protection of personal data of individuals and establish a Data Protection Authority for the same, was brought in Parliament in 2019 and was referred to the Joint Committee for further scrutiny on the demand of opposition members.
As per the PDP Bill, the Central government can exempt its agencies from the provisions of the Act for protecting national interests and for protecting the security of the state, public order, sovereignty and integrity of India.
Exemption of certain provisions for processing of personal data in the interests of prevention, detection, investigation and prosecution of any offence or any other contravention of any law was also provided for in the Bill.
The main objection of opposition members was granting "unbridled powers" to the Central government to exempt any of its probe agencies, including the Enforcement Directorate and CBI from the purview of the entire Act.
Some of the opposing MPs suggested that the government should seek parliamentary approval for allowing exemptions to its agencies from the purview of the Act as a safeguard for ensuring greater accountability, but the same was not accepted.
Data protection and privacy of individuals have been a major cause of concern among opposition leaders who have been opposing certain provisions of the Bill, including giving unbridled powers to the state and its agencies for use of personal data.
The PDP Bill and this report are likely to become a fresh trigger for another faceoff between the government and the opposition in the upcoming Winter session of Parliament starting November 29.
The Monsoon session of Parliament was washed out over the Pegasus snooping issue with opposition parties demanding a discussion and a court-monitored probe along with a JPC.
Opposition members are once again expected to raise the issue in the upcoming session, even after the Supreme Court ordered an independent probe into the allegations of unauthorised surveillance using the Pegasus spyware and set up a three-member technical committee.
The JCP has made a total of 93 recommendations, sources said, adding that it seeks to maintain a fine balance between the functioning of government by processing data for the benefit of individuals and equally protecting the privacy of the individual.
Chaudhary said the government and its agencies have been exempted from processing the data of individuals if used for the benefit of individuals and no consent is required in case the matter also relates to national security.
He said the report is the outcome of extensive deliberations by all members and stakeholders.
"This law will have a global impact and will set international standards in data protection," Chaudhary told PTI.
While registering his dissent, Ramesh, however, lauded the democratic manner in which the panel functioned under 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.
Tweeting on the issue, Ramesh said, "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" and posted his dissent note on Twitter.
"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 added.
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.
Tewari and Gogoi also said they had submitted their dissent notes to the Secretariat of the Committee after the final meeting of the JCP on PDP Bill.
"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.
Claiming that there is an inherent design flaw in the bill's construction, Tewari said 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".
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 these behemoths from the ambit of this legislation would stand the test in court.
"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, Gogoi said there was a lack of attention being paid to harms arising from surveillance and an effort to establish a modern surveillance framework.
Ramesh in his dissent note said he has argued that Section 35 gives almost unbridled powers to the Centre to exempt any government agency from the entire act itself.
"Under the amendment, I had suggested, the Centre 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," Ramesh said.
Describing the bill as "Orwellian" in nature, the TMC MPs raised questions on the panel's functioning and alleged that it rushed through its mandate and did not provide sufficient time and opportunity for stakeholder consultations, sources said.
The MPs also opposed the bill for lack of adequate safeguards to protect the right to privacy of data principles, sources added.
In the note, they have also opposed the recommendations for the 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.
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 the government 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.
The committee report has also maintained a penalty clause while fixing the upper limit, sources said.
In case of minor delinquencies, the penalty on data fiduciary will not exceed Rs five crore or two per cent of total worldwide turnover. For major delinquencies, a penalty shall also be laid down by the Central government but it will not exceed Rs 15 crore or four per cent of its total worldwide turnover of the data fiduciary, sources said.