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2021-11-23

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Developmental Issues
www.thehindu.com

A secure nation alone provides the atmosphere which ensures personal liberty and privacy of an individual, the Joint Parliamentary Committee (JPC) on the Personal Data Protection (PDP) Bill, 2019, has argued in its report defending the controversial exemption clause that allows the Government to keep any of its agencies outside the purview of the law. The committee has retained the clause with a minor change.

The report on the PDP Bill was adopted on Monday at the committee meeting in Delhi. The committee has been deliberating on the report since 2019.

Clause 35, in the name of “public order”, “sovereignty”, “friendly relations with foreign states” and “security of the state”, allowed any agency under the Union Government exemption from all or any provisions of the law. Six of the 30 members of the committee have filed dissent notes against the exemption clause. Sources said two more members would be filing a dissent note in the next few days.

Widely debated

This was one of the widely debated clauses in the panel meetings, where the members had argued that “public order” should be removed as a ground for exemption. They had also pressed for “judicial or parliamentary oversight” for granting such exemptions. The members had also suggested that “there should be an order in writing with reasons for exempting a certain agency from the ambit of the Bill”. Some of them had asked that only partial exemption should be given to the agency if needed.

The final report that The Hindu has accessed did not accept any of these suggestions, arguing that there was a need to balance the concerns regarding national security, liberty and privacy of an individual. Conceding that there could be no easy choice between these concerns, the report said, “A secure nation alone provides the atmosphere which ensures personal liberty and privacy of an individual whereas multiple examples exist where without individual liberty and privacy, national security itself gives rise to autocratic regimes.”

The report noted that this clause was for “certain legitimate purposes” and also said there was precedent in the form of the reasonable restrictions imposed upon the liberty of an individual, as guaranteed under Article 19 of the Constitution and the Puttaswamy judgment. At the same time, the committee expressed concerns with possible misuse. The committee, therefore, said though the State had rightly been empowered to exempt itself from the application of this Act, this power may, however, be used only under exceptional circumstances and subject to conditions as laid out in the Act, the report said.

In one of the longest dissent notes, Congress leader Manish Tiwari rejected the Bill in its present form in entirety for its design flaw. He raised specific objections to 37 clauses. This included an objection to the Government exemption clause of 35. He said the Bill created two parallel universes — one for the private sector where it would apply with full rigour and one for the Government where it was riddled with exemption, carve outs and escape clauses. “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 the nine-judge Bench of the Supreme Court of India in Puttaswamy (2017) judgment,” he said.

‘No adequate safeguards’

In a joint dissent note, Trinamool Congress leaders Derek O’Brien and Mahua Moitra said the Bill did not provide adequate safeguards to protect the right to privacy and gave an overboard exemption to the Government. Clause 35 was open to misuse since it gave unqualified powers to the Government.

Among its key recommendations, the committee pitched for stricter regulations for social media platforms. It recommended that all social media platforms, which did not act as intermediaries, should be treated as publishers and be held accountable for the content they host, and should be held responsible for the content from unverified accounts on their platforms.

It said no social media platform should be allowed to operate unless the parent company handling the technology sets up an office in India and that a statutory media regulatory authority, on the lines of the Press Council of India, may be set up for the regulation of the contents on all such platforms irrespective of the platform where their content is published.

Some of the other recommendations of the committee included development of an alternative indigenous financial system for cross-border payments on the lines of Ripple (U.S.) and INSTEX (European Union).


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