Personal Data Protection Bill must examine data collection practices that emerged during pandemic

The article by Shweta Mohandas and Anamika Kundu was originally published by news nine on November 29, 2021.

The Personal Data Protection Bill (PDP) is speculated to be introduced during the winter session of the parliament soon, and the report of the Joint Parliamentary Committee (JPC) has already been adopted by the committee on Monday. The Report of the JPC comes after almost two years of deliberation and secrecy over how the final version of the Personal Data Protection Bill will be. Since the publication of the 2019 version of the PDP Bill, the Covid 19 pandemic and the public safety measures have opened the way for a number of new organisations and reasons to collect personal data that was non-existent in 2019. Hence along with changes that have been suggested by multiple civil society organisations, the dissent notes submitted by the members of the JPC, the new version of the PDP Bill must also look at how data processing has changed over the span of two years.

Concerns with the bill

At the outset there are certain parts of the PDP Bill which need to be revised in order to uphold the spirit of privacy and individual autonomy laid out in the Puttaswamy judgement. The two sections that need to be in line with the privacy judgement are the ones that allow for non consensual processing of data by the government, and by employers. The PDP Bill in its current form provides wide-ranging exemptions which allow government agencies to process citizen's data in order to fulfil its responsibilities.

In the 2018 version of bill, drafted by the Justice Srikrishna Committee exemptions granted to the State with regard to processing of data was subject to a four pronged test which required the processing to be (i) authorised by law; (ii) in accordance with the procedure laid down by the law; (iii) necessary; and (iv) proportionate to the interests being achieved. This four pronged test was in line with the principles laid down by the Supreme Court in the Puttaswamy judgement. The 2019 version of the PDP Bill has diluted this principle by merely retaining the 'necessity principle' and removing the other requirements which is not in consonance with the test laid down by the Supreme Court in Puttaswamy.

Section 35 was also widely discussed in the panel meetings where members had argued the removal of 'public order' as a ground for exemption. The panel also insisted for 'judicial or parliamentary oversight' to grant such exemptions. The final report did not accept these suggestions stating a need to balance national security, liberty and privacy of an individual. There ought to be prior judicial review of the written order exempting the governmental agency from any provisions of the bill. Allowing the government to claim an exemption if it is satisfied to be "necessary or expedient" can be misused.

Another clause which gives the data principal a wide berth is with respect to employee data Section 13 of the current version of the bill provides the employer with a leeway into processing employee data (other than sensitive personal data) without consent based on two grounds: when consent is not appropriate, or when obtaining consent would involve disproportionate effort on the part of the employer.

The personal data so collected can only be collected for recruitment, termination, attendance, provision of any service or benefit, and assessing performance. This covers almost all of the activities that require data of the employee. Although the 2019 version of the bill excludes non-consensual collection of sensitive personal data (a provision that was missing in the 2018 version of the bill), there is still a lot of scope to improve this provision and provide employees further right to their data. At the outset the bill does not define employee and employer, which could result in confusion as there is no one definition of these terms across Indian Labour Laws.

Additionally, the bill distinguishes between employee and consumer, where the consumer of the same company or service has a greater right to their data than an employee. In the sense that the consumer as a data principal has the option to use any other product or service and also has the right to withdraw consent at any time, in the case of an employee the consequence of refusing consent or withdrawing consent would be being terminated from the employment. It is understood that there is a requirement for employee data to be collected, and that consent does not work the same way as it does in the case of a consumer.

The bill could ensure that employers have some responsibility towards the data they collect from the employees, such as ensuring that they are only used for the purpose for which they were collected, the employee knows how long their data will be retained, and know if the data is being processed by third parties. It is also worth mentioning that the Indian government is India's largest employer spanning a variety of agencies and public enterprises.

Concerns highlighted by JPC Members

Going back to the few members of the JPC who have moved dissent notes, specifically with regard to governmental exemptions. Jairam Ramesh filed a dissent note, to which many other opposition members followed suit. While Jairam Ramesh praised the JPC's functioning, he disagreed with certain aspects of the Report. According to him, the 2019 bill is designed in a manner where the right to privacy is given importance only in cases of private activities. He raised concerns regarding the unbridled powers given to the government to exempt itself from any of the provisions.

The amendment suggested by him would require parliamentary approval before exemption would take place. He also added that Section 12 of the bill which provided certain scenarios where consent was not needed for processing of personal data should have been made 'less sweeping'. Similarly, Gaurav Gogoi's note stated that the exemptions would create a surveillance state and similarly criticised Section 12 and 35 of the bill. He also mentioned that there ought to be parliamentary oversight for the exemptions provided in the bill.

On the same issue, Congress leader Manish Tiwari noted that the bill creates 'parallel universes' - one for the private sector which needs to be compliant and the other for the State which can exempt itself. He has opposed the entire bill stating there exists an "inherent design flaw". He has raised specific objections to 37 clauses and stated that any blanket exemptions to the state goes against the Puttaswamy Judgement.

In their joint dissent note, Derek O'Brien and Mahua Mitra have said that there is a lack of adequate safeguards to protect the data principals' privacy and the lack of time and opportunity for stakeholder consultations. They have also pointed out that the independence of the DPA will cease to exist with the present provision of allowing the government powers to choose members and the chairman. Amar Patnaik is to object to the lack of inclusion of state level authorities in the bill. Without such bodies, he says, there would be federal override.

Conclusion

While a number of issues were highlighted by civil society, the members of the JPC, and the media, the new version of the bill should also need to take into account the shifts that have taken place in view of the pandemic. The new version of the data protection bill should take into consideration the changes and new data collection practices that have emerged during the pandemic, be comprehensive and leave very little provisions to be decided later by the Rules.