It should be challenged, says the former judge of the Supreme Court.

The retired Supreme Court judge, B.N. Srikrishna, who led the committee that came with the draft of the Personal Data Protection Bill, said it is a unique legislation and it is in contrast with the draft, which mentions no data will be processed without the consent of the person.

He said the Bill gives autonomy to the government. “If this is passed in its current form, it should be challenged in the Supreme Court,” he said.

He said the committee was told to frame a law for data protection and privacy and digital empowerment of citizens. “At that time, there was no law at all, so we had to look at laws in Europe, South Africa, Singapore, Australia and come up with what is good for us.”

Safeguards suggested by panel left out: Srikrishna

Retired Judge Srikrishna said “We didn’t have to pick and follow everything there is in the General Data Protection Regulation. So we built upon it in less than 18 months and mentioned all the safeguards which are no longer part of the Bill.”

Commenting on the constitution of the Data Protection Authority of India, he said, “We had said in the draft that the DPA should comprise people who are independent, people who are representatives of the stakeholders and, maybe, some government nominee. However, now all we have is government nominees, so it will be like a government department. That’s another dangerous part, it defeats the purpose.”

He explained that the data could be misused by the government in several ways — which book do you read, how much money do you have in the bank, where are you getting the money from, where do you go for a walk, which restaurants do you visit... “All this information and much more can be accessed without your consent. It will lead to framing people and implicating them. That is exactly what I meant when I said Orwellian, it is the Big Brother looking at you.”

Here is the full text of the interview:

What was the mandate given to you for the draft on the Bill?

We were told to frame a law applicable to data protection and privacy and digital empowerment of citizens. At that time, there was no law at all, so we had to look at laws in Europe, South Africa, Singapore, Australia and then come with ideas on what is good for us. We didn’t have to pick and follow everything there is in the General Data Protection Regulation. So we built upon it and mentioned all the safeguards which are no longer a part of the Bill.

So our Bill is a unique legislation?

Yes, it is not close to any legislation is any country, it is a unique one. Europe, the U.S., Australia and others have their own way of doing. There is no other country that gives so much autonomy to the government because no government should be given absolute power — that is the first rule of democracy.

What are implications of the Centre exempting its agencies from accessing the data?

The way the Bill has been presented, it is in contrast with the draft that we had suggested. We had suggested in the draft that there will be no processing of data from anyone without the consent. If it is without consent or without a legislative warrant then it should comply with the three principles — an objective has to be achieved, proportionality and reasonability.

If Parliament lays down all this properly then the law will be constitutional. However, if the government itself it will at any time say I want my officer to certify data in the interest of sovereignty of India, he can take anything from anybody. Not just personal data, they have made it wider and said even non-personal data can be accessed by agencies in the Bill. This is what is dangerous.

Doesn’t this violate the basic premise of the Bill which was Right to Privacy?

Yes, it stems from the fundamental Right to Privacy and it has to be guarded as against the invasion by State authorities. For example, the bigger officer of the State will come and say I want something because of some criminal investigation, then that will be the end of the debate. The law should strictly write down the circumstances under which firstly, powers can be exercised, secondly, who can exercise the power and thirdly, what is the procedure under which it can be done. Nothing is there in the Act.

So the objective seems to be missing in the Bill.

Yes. It is vague. If you take the Food Security Act, the Act says this is intended so that it can be ensured that the poorest man gets his ration everyday. Without which if you just say, ‘in the interest of protecting benefits’ what does it mean? The objective is not defined. They have removed the safeguards, so now any babu can write and say ‘this is necessary’ and the matter ends there.

What do you have to say about the constitution of the Data Protection Authority of India (DPA).

The DPA’s constitution is absolutely the stooge of the government. We had said in the draft that the DPA should comprise of the people who are independent, people who are representatives of stakeholders and may be some government nominee. However, now all we have is government nominees so it will be like a government department. That’s another dangerous part, it defeats the purpose.

Why did you suggest this should be sent to the Select Committee?

In Parliament these days, there is no debate, you don’t see anybody seriously debating anything. As seen in the earlier days, there used to be a comment on each section of the Act, it was all debated, even a comma, a semicolon, a capital letter. Now they don’t do all this, they just raise their hand and say I have got 320 members and it is passed. They don’t realise they are playing with the Fundamental Rights of the citizens. So I suggested let it go to the Select Committee, at least there 10-15 people will discuss the matter and they will be given time to do so. It is not like Shashi Tharoor will only be given one and a half minute in Parliament.

So the Law Minister latched on to it and said let it go to the Select Committee but then again I don’t know the composition of the committee, who is going to be there, how are they going to divide it, are they are going to record evidence.

You had also suggested a Parliamentary enactment to control the discussion

Yes, but I am told the security agencies are against it, as it corrupts their powers.

Can you give some instances of how the data can be misused?

They (government) can profile you in ways — which book do you read, how much money do you have in the bank, where are you getting the money from, where do you go for a walk, which restaurants do you visit... all this information and much more can be accessed without your consent. It will lead to framing people and implicating them. That is exactly what I meant when I said Orwellian, it is the Big Brother looking at you.

What happens if the Bill is passed in its current form?

Somebody should challenge it before the Supreme Court on the grounds that it unconstitutional.