By Anushree Jois
The government in July 2017, set up a ten-member expert committee (the Committee) to deliberate on data protection laws in India. The committee headed by former Supreme Court judge, Justice B. N. Srikrishna, recently released a White Paper (the Paper), inviting comments from stakeholders.
Formulation of data protection laws
In the recent past, there have been several instances of failure to protect personal and sensitive data of individuals by corporates such as Reliance Jio, Zomato, etc. Even government departments have failed in this endeavour. In a reply to a right to information (RTI) application, it was found that at least 210 websites of various government departments displayed personal information of persons along with their Aadhaar details. Such incidents confirmed the imminent need for formulation of laws on data protection in India. The Committee was thus formed to study various issues pertaining to data protection in India, underlying principles for such a bill and to draft it. The objective was to ensure the growth of the digital economy while protecting and securing personal data of citizens.
The Paper details
The Paper contains detailed information on rationale, history and issues of data protection laws in India. The Paper has now been presented by the Committee before all its stakeholders for comments by 31 December 2017. Several issues have been raised, including scope and applicability of law, the definition of personal data and sensitive personal data, usage of data and the adjudicating process. Upon receiving comments, the Committee will embark upon its final and herculean task of drafting the bill.
Data is a wide term and not all data of an individual is sensitive and results in an invasion of privacy. Data that can lead to the identification of an individual needs to be protected. It is not necessary that the data should be intimate. Also, there is a necessity to distinguish between personal and sensitive data, as the latter requires higher levels of protection. A person’s Aadhaar number may be personal data, but biometrics are highly sensitive. Misuse or breach of obligations by data controllers in processing, using and protecting such data, requires a zero-tolerance attitude.
Dealing with the problem
Irrespective of the nature of data, only such data as needed should be processed for use. Liability and accountability are fixed on data controllers for any violation of obligations under the proposed law. Data controllers, public and private alike, are responsible for the content and usage of data. Application of data protection laws may have to be exempted with respect to government or public data controllers in matters of national security, public security, defence and others.
One of the remedies available to individuals in case of violation of obligations by data controllers is the imposition of penalty. The penalty provided for in the present data protection laws, such as the Information Technology Act, 2000 was felt insufficient. The Paper proposes to impose such quantum penalty as would be adequately deterrent.
What can we expect?
Upon receiving the comments of stakeholders on the Paper, the Committee will proceed to formulate a bill on data protection. The Committee also has to keep in perspective, the recent decision of the Supreme Court in Justice K. S. Puttaswamy versus the Union of India, where the right to privacy was declared to be a fundamental right. Information privacy was also observed to be a facet of right to privacy.
Many people are seeing the Paper as a solace to not only address their concerns but to also deter private, government and public data controllers. Aadhaar has faced severe criticism, especially regarding its system of data protection. People fear that collection of personal and sensitive data, its usage and protection will go unaccounted, in spite of the Aadhaar Act and Regulations. The Committee is thus burdened with the enormous and vital task of framing the bill.
A sound framework is necessary to make the vision of leading India into a digital future committed to empowerment, experiment and equal access, a reality.
Featured Image Source: Visual Hunt
Stay updated with all the insights.
Navigate news, 1 email day.
Subscribe to Qrius