Retired Judge Justice BN Srikrishna. file. , Photo Credit: Mukesh Trivedi
in an interview given to hindu, Supreme Court Justice (retd) BN Srikrishna, who proposed the first draft Personal Data Protection Bill in 2018They say bill is fundamentally flawed because it would allow, and can encourage the executive to act infringe on the eccentric and the fundamental right to privacy of personal data. The so-called regulator will be a puppet of the government and will have no independence. Excerpts:
Why ,
What do you think of the new draft of the Data Protection Bill, the Digital Personal Data Protection Bill?
a ,
It picked up some good points from previous drafts but faltered on some issues.
Why ,
Can you please elaborate what are the good points of the previous drafts and how it is bad on some issues.
a ,
Simplicity of language and reduction in size are good things but clarity of legislation cannot be sacrificed for the sake of simplicity. many concepts are left unclear and undefined. The consent manager is a great idea and helpful for data principals. The data board is a creation of the executive, with no guidelines on its composition, establishment, qualifications of its chairman and members, etc., and will therefore be a captive of the government with little freedom, if it is a regulator; If not, there is no regulator at all. bill is in favor of the government. All important issues have been turned into delegated legislation which can be constitutionally valid only if there are legislative guidelines within which the executive can make subordinate legislation, otherwise, such legislation would be invalid as allowing the executive to act arbitrarily shall be unconstitutional and void. This is a huge danger looming in the background of the Bill.
Why ,
What would you say is needed in the current avatar?
a ,
There is a need for a strong and independent regulator like the Data Protection Authority as envisaged in the 2018 draft. The Board contemplated under the present Bill would be a captive of the Government. Qualification, tenure, process of appointment have all been changed in the delegated legislation. This is worse than the previous 2019 bill. If a blanket waiver is granted, it completely fails to address the problem. The so-called regulator will be a puppet of the government and will have no independence.
Why ,
Does the draft raise any concerns on the protection of the fundamental right to data privacy?
a ,
Has the power to exempt all government departments and government institutions from any or all of the provisions of the law. This is a dangerous situation and a clear invitation to the executive to act arbitrarily. There is excessive reliance on rules made by the government, without legislative guidance in law. It gives scope for arbitrariness and makes for constitutional invalidity of the law. The Bill is replete with such examples. Clauses 18 out of 30 leave the issue to the government “as may be prescribed”. In addition, the triple test prescribed by puttaswamy Holocaust (Supreme court Upheld the right to informational privacy as a fundamental right) has been completely abandoned. The need to reduce the individual’s right to privacy (a fundamental right as declared by the Supreme Court) to mere ‘necessity’, ‘reasonable’ and ‘proportionate’ has been completely ignored. It drives a coach and horses through the right of privacy of individuals. This is clearly contrary to the Supreme Court’s declaration of law puttaswamy, Therefore, the Bill is fundamentally flawed as it allows, rather encourages, the executive to act arbitrarily and violate the fundamental right to privacy of personal data.