By Arpan Chaturvedi
A draft privacy bill proposes sweeping reforms to the way personal data is collected, processed and stored in India.
Titled Indian Privacy Code, 2018, the draft proposes that “all data collected, processed and stored by data controllers and data processors prior to the date on which this Act comes into force shall be destroyed within a period of two years from the date on which this Act comes into force”.
The draft has been put together by a group of lawyers and policy analysts and uploaded on the website of ‘Save our Privacy’ — a public initiative to put forth a model law on data protection. The initiative is backed by the India Privacy Foundation.
No person, including a data controller and data processor, shall collect any personal data without obtaining the consent of the data subject to whom it pertains, the draft bill says. Collection of personal data without consent can happen only when:
1. It’s necessary for the provision of an emergency medical service.
2. Prevent, investigate or prosecute a cognizable offence.
3. Exempted by a privacy commission that the draft seeks to institute
Also, the draft bill proposes that no person shall store any personal data for a period longer than is necessary to achieve the purpose for which it was collected or received. The same applies to the processing of personal data.
The draft bill has been submitted to the Justice Sri Krishna Committee — which will deliberate on a data-protection framework for the country. The committee’s first draft is likely to be submitted this month.
The bill prescribes punishment for offenses related to interception of communication, surveillance, abetment, repeat offenders and offenses by companies.
The bill, according to information on the website, is based on seven principles, foremost of which is the importance of individual rights. The others are:
1. A data protection law must be based on privacy principles and guidelines discussed in the report of Justice AP Shah Committee of Experts; the Supreme Court judgement on Right to Privacy and European Union’s General Data Protection Regulation.
2. A strong privacy commission must be created to enforce privacy principles. The commission should be granted wide powers of investigation, adjudication, rule-making and enforcement. The privacy commission must have jurisdiction over the government as well as private bodies.
3. The government must respect user privacy. The government cannot deny essential services to citizens if they choose not to share data with it. The draft says government withholding services on pretext of collection of information effectively amounts to “extortion of consent”.
4. A complete privacy code must come with surveillance reform. Even when individual interception and surveillance is carried out this should be severely limited in substance and practiced through procedural safeguards.
5. Strengthen the Right To Information Act and exempt information commissioners from interference or control by the privacy commissioner.
6. International protection and harmonisation is a must to protect the open internet. The group suggests the law must have extraterritorial effect and apply to web services and platforms which are accessible in India and gather personal data of Indians.
The bill takes inspiration from the Privacy (Protection) Bill, 2013 which was drafted over a series of roundtable discussions and inputs conducted by the Centre for Internet and Society, Bengaluru.
The individuals who were involved in the drafting of the model law are Raman Jit Singh Cheema, Apar Gupta, Gautam Bhatia, Kritika Bhardwaj, Maansi Verma, Naman N Aggarwal, Praavita Kashyap, Prasanna S, Ujjwala Uppaluri, Vrinda Bhandari.
Arpan Chaturvedi is a Senior Correspondent at Bloomberg Quint, covering law and policy.
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