No room for ambiguity

The Indian digital ecosystem is at a defining moment as the attempts to regulate it are accelerating. The efforts in this direction intensified in 2017 after the Supreme Court declared privacy as a fundamental right, leading to the drafting of the Personal Data Protection Bill. The bill aims to safeguard one of the most critical components of a flourishing digital economy — data, the new gold, as it is called. Handling or mishandling of data by agencies has a direct bearing on the lives and choices of the people — the way they maintain their privacy, as also their social positioning. The original draft of the bill around personal data protection was prepared by the Justice Srikrishna Committee in 2018. Further, a revised version was drafted in the form of the Personal Data Protection Bill, 2019, and was sent to the Joint Parliamentary Committee for scrutiny. The JPC has come with its final set of recommendations ahead of the winter session of the Parliament, which has attracted dissent from the panelists of the committee, and a certain degree of criticism outside. The key points of contention aren't new in form. The question revolves around the balance between state surveillance and fundamental right to privacy which, the dissenting panelists opine, is leaned more towards the state than the people. While the JPC recommendations have expanded the domain of data protection from personal to non-personal spheres, it has shied away from keeping government agencies under the purview of the legislation in a robust manner. The committee has recommended bringing industrial databases, software and hardware equipment under the purview of Data Protection Authority — entrusted with the prerogative of ensuring data protection. It has also tightened the strings on social media companies. The need for this wider incorporation cannot be ruled out as data gathered by these entities are so far uncontrolled and are known to interfere with the lives of people in multiple ways. Apart from tangible repercussions like influencing the choices of people, from what they buy to whom they vote for, reports have revealed that mishandling of data around vulnerable populations can lead to extremes like depression and suicidal thoughts. Impact of data use / misuse is all-pervasive in our lives. It is up to the merit of the Parliament to come out with a well-crafted and thoroughly debated legislation to safeguard people's privacy against these intrusions. Introduction of 'public order' — in addition to 'security of the state' — as a ground to exempt government agencies for processing data has drawn a lot of opposition from certain quarters. This is a major shift from what the Justice Srikrishna Committee had recommended in its 2018 draft. The addition of public order as a ground for exception may lead to a vague territory — susceptible to widespread misuse. Such ambiguities are already creating a lot of mess with respect to state-inclined legislations like sedition, UAPA etc. Going with a similar ambiguity while preparing a regulatory framework for something as critical as data protection could be detrimental to the interests of the people. The Srikrishna Committee had rightly emphasised on judicial / parliamentary oversight over the exemption matters. It has to be understood that data can be used or misused as a powerful tool, and it cannot be left to the whims of any single branch of the government. Going by the elemental principle of 'checks and balances' in a democracy, doing away with the oversight measure doesn't appear to be a good idea. The committee has, of course, defended the exemptions by saying that a 'secure nation alone provides the atmosphere which ensures personal liberty and privacy of an individual'. This approach may be partially flawed. Personal liberty and privacy of individuals must rather be conceived as natural rights that would build the foundation of a strong and secure nation. The Personal Data Protection Bill has no doubt the potential of affecting people in each walk of life; for good or bad, will be decided by the manner in which it will be chalked out in the Parliament. The bill is likely to face stiff opposition in the parliament, which is a healthy sign. The Parliament will certainly come out with a sound regulatory legislation after holding the required debates and deliberations. A balanced and unambiguous outcome should be hoped for.