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New Delhi: The Narendra Modi government is set to introduce the Personal Data Protection Bill, 2019, in the Lok Sabha Wednesday. But questions could be raised about its legality and constitutionality since the new draft allows the government to exempt any of its agencies from the purview of the proposed act.

The government also wants to vest in itself the power to direct any data fiduciary or data processor to share citizens’ personal or non-personal data with itself or any of its agencies, according to the bill, accessed by ThePrint.

The clause says it would enable the government to target better “delivery of service or formulation of evidence-based policies”.

However, sources told ThePrint that in view of the possibility of several clauses not finding favour with MPs, the government may agree to refer it to a select committee of both Houses.

The introduction of the bill comes at a time when the WhatsApp snooping controversy is still fresh in memory, and the government has left several questions unanswered.

Also read: Facebook wary of new Data Protection Bill that asks it to give non-personal info to govt

Going against the privacy judgment

Some clauses in the bill could also fly in the face of the judgment of the nine-judge Constitution bench of the Supreme Court in the landmark Justice K.S. Puttaswamy versus Union of India (Right to Privacy) case. The bench had unanimously ruled that an individual’s privacy is a constitutionally-protected right.

For example, Section 35 of the bill, which was cleared by the union cabinet last week, allows the government to exempt any agency from the purview of the proposed law through an executive order.

Such an exemption, the bill says, can be granted in the “interest of sovereignty and integrity of the country, security of the state, friendly relations with foreign states, public order” and/or to “prevent incitement to the commission of any cognisable offence relating to the sovereignty and integrity of India, security of the state”.

This clause is not in consonance with the draft Data Protection Bill finalised by the Justice B.N. Srikrishna committee, which had recommended against any sharing of personal data of citizens unless as provided under law, and that too through a proper procedure provided in the law.

The bill may also be seen as an attempt to bring back the contentious Section 57 of the Aadhaar Act, which was struck down by the Supreme Court in its judgment.

Section 57 dealt with the sharing of data with private entities. The Supreme Court ruled that bodies like e-commerce firms, private banks and telecom companies could not ask for biometric and other data from consumers.

Questions may also be raised about the government’s liability, or the lack of it, in protecting citizens’ data.

Also read: Data protection is part of national security, it’s the new influence, says Jaishankar


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