1. A first look at the new data protection Bill
How different is the latest draft of the Digital Personal Data Protection Bill, 2022 from the previous Personal Data Protection Bill, 2019? Have the rights for data principals been enhanced? Has the concept of ‘sensitive personal data’ been removed from the current version of the Bill?
The latest draft of the data protection law — the Digital Personal Data Protection Bill, 2022 (DPDP Bill, 2022) — has now been made open for public comments and the government is expected to introduce the Bill in Parliament in the budget session of 2023.
Is this the first draft?
This is the fourth iteration of a data protection law in India. The first draft of the law — the Personal Data Protection Bill, 2018, was proposed by the Justice Srikrishna Committee set up by the Ministry of Electronics and Information Technology (MeitY) with the mandate of setting out a data protection law for India. The government made revisions to this draft and introduced it as the Personal Data Protection Bill, 2019 (PDP Bill, 2019) in the Lok Sabha in 2019. On the same day, the Lok Sabha passed a motion to refer the PDP Bill, 2019 to a joint committee of both the Houses of Parliament. Due to delays caused by the pandemic, the Joint Committee on the PDP Bill, 2019 (JPC) submitted its report on the Bill after two years in December, 2021. The report was accompanied by a new draft bill, namely, the Data Protection Bill, 2021 that incorporated the recommendations of the JPC. However, in August 2022, citing the report of the JPC and the “extensive changes” that the JPC had made to the 2019 Bill, the government withdrew the PDP Bill.
Why have there been so many revisions and changes?
Constant interactions with digital devices have led to unprecedented amounts of personal data being generated round the clock by users (data principals). When coupled with the computational power available today with companies (data fiduciaries), this data can be processed in ways that increasingly impair the autonomy, self-determination, freedom of choice and privacy of the data principal.
The current legal framework for privacy enshrined in the Information Technology Rules, 2011 (IT Rules, 2011) is wholly inadequate to combat such harms to data principals, especially since the right to informational privacy has been upheld as a fundamental right by the Supreme Court (K.S. Puttaswamy vs Union of India [2017]). It is inadequate on four levels; first, the extant framework is premised on privacy being a statutory right rather than a fundamental right and does not apply to processing of personal data by the government; second, it has a limited understanding of the kinds of data to be protected; third, it places scant obligations on the data fiduciaries which, moreover, can be overridden by contract and fourth, there are only minimal consequences for the data fiduciaries for the breach of these obligations.
While the need to have an effective personal data protection regime is undisputed, India like other jurisdictions has struggled to come up with an optimum formulation for several reasons. First, while protecting the rights of the data principal, data protection laws need to ensure that the compliances for data fiduciaries are not so onerous as to make even legitimate processing impractical. Second, the challenge lies in finding an adequate balance between the right to privacy of data principals and reasonable exceptions, especially where government processing of personal data is concerned. Third, given the rate at which technology evolves, an optimum data protection law design needs to be future proof — it should not be unduly detailed and centred on providing solutions to contemporary concerns while ignoring problems that may emerge going forward. Fourth, the law needs to be designed for a framework of rights and remedies that is readily exercisable by data principals given their unequal bargaining power with respect to data fiduciaries.
What is the scope of the present formulation of the Bill?
The DPDP Bill, 2022 applies to all processing of personal data that is carried out digitally. This would include both personal data collected online and personal data collected offline but is digitised for processing. In effect, by being completely inapplicable to data processed manually, this provides for a somewhat lower degree of protection as the earlier drafts only excluded data processed manually specifically by “small entities” and not generally.
Furthermore, as far as the territorial application of the law is concerned, the Bill covers processing of personal data which is collected by data fiduciaries within the territory of India and which is processed to offer goods and services within India. The current phrasing, inadvertently, seems to exclude data processing by Indian data fiduciaries that collect and process personal data outside India, of data principals who are not located in India. This would impact statutory protections available for clients of Indian start-ups operating overseas, thereby impacting their competitiveness. This position further seems to be emphasised with the DPDP Bill, 2022 exempting application of most of its protections to personal data processing of non-residents of India by data fiduciaries in India.
How well does the DPDP Bill, 2022 protect data principals?
The bulwark of most data protection legislations consists of allowing maximum control to the data principal over their personal data. This happens by mandating a comprehensive notice to the data principal on different aspects of data processing based on which the data principal can provide explicit consent to such processing. While limited circumstances for non-consent based processing of personal data exists, it still gives the data principal the right to access, correct, delete etc their data. Concomitantly, the data fiduciary is placed, inter alia, with the obligation of data minimisation, which is to collect only such personal data as is required to fulfil the purpose of processing (collection limitation); process it only for the purposes stated and no more (purpose limitation) and to retain it in its servers only for so long as is required to fulfil the stated purpose (storage limitation).
The current draft removes explicit reference to certain data protection principles such as collection limitation. This would allow a data fiduciary to collect any personal data consented to by the data principal. Making collection solely contingent on consent, ignores the fact that data principals often do not have the requisite know-how of what kind of personal data is relevant for a particular purpose. For example, a photo filter app may process data related to your location or information on your contacts even though it may not require such information to carry on its primary task of applying the filter. It also does away with the concept of “sensitive personal data”. Depending on the increased potential of harm that can result from unlawful processing of certain categories of personal data, most data protection legislations classify these categories as “sensitive personal data”. Illustratively, this includes biometric data, health data, genetic data etc. This personal data is afforded a higher degree of protection in terms of requiring explicit consent before processing and mandatory data protection impact assessments. By doing away with this distinction, the DPDP Bill, 2022 does away with these additional protections.
Additionally, the Bill also reduces the information that a data fiduciary is required to provide to the data principal. While the previous iterations required considerable information in terms of the rights of the data principals, grievance redressal mechanism, retention period of information, source of information collected etc to be provided for the data principal, the current draft reduces the scope of this information to the personal data sought to be collected and the purpose of processing the data.
Moreover, the DPDP Bill, 2022 seems to suppose that a notice is only to be provided to take consent of the data principal. This is a limited understanding of the purpose of notice. A notice is also important for the data principal to exercise data protection rights such as the right to know what personal data is being processed by whom, whether that data needs correction or updation and also to request deletion of data that may not be relevant for the purpose of processing. These rights exist even in cases of non-consent based processing of data. As such, limiting notice to only consent based personal data processing would limit the scope for the exercise of these rights.
The DPDP Bill, 2022 also introduces the concept of “deemed consent”. In effect, it bundles purposes of processing which were either exempt from consent based processing or were considered “reasonable purposes” for which personal data processing could be undertaken under the ground of “deemed consent”. However, there exist some concerns around this due to the vaguely worded grounds for processing such as “public interest” and the removal of additional safeguards for protection of data principals’ interests.
An important addition to the right of data principals is that it recognises the right to post mortem privacy which was missing from the PDP Bill, 2019 but had been recommended by the JPC. The right to post mortem privacy would allow the data principal to nominate another individual in case of death or incapacity.
2. Editorial-1: Charting the economic journey ahead
The big question before India is where its economy will be 25 years from now. By 2047, India will complete 100 years after Independence. By that time, will India achieve the status of a developed economy, which means achieving a minimum per capita income equivalent to $13,000? We also need to know what the global situation would be like because India cannot be decoupled from the rest of the world.
India’s economic journey started with Independence. It is not realised often that India’s economic progress in the first half of the 20th century under British rule was dismal. According to one estimate, during the five decades, India’s annual growth rate was just 0.89%. With the population growing at 0.83%, per capita income grew at 0.06%. It is not surprising that immediately after Independence, growth became the most urgent concern for policymakers.
Early strategy
In the early period, India’s strategy of development comprised four elements — raising the savings and investment rate; dominance of state intervention; import substitution, and domestic manufacture of capital goods. To some extent, policymakers in India in the 1950s and 1960s were handicapped. At that time, there was no clear model available for accelerating growth in developing countries. State intervention on an extensive scale seemed to be appropriate, even though there were some critics even at that time. However, by the end of 1970s, it was becoming clear that the model India had chosen was not delivering and that it needed modification. By that time, there were many more critics of the Indian strategy. But India’s policymakers refused to recognise this. It was around that time China made a big change.
It was the crisis of 1990-91 that compelled the policymakers to turn to an ‘idea whose time had come’. The break with the past came in three important directions: first, in dismantling the complex regime of licences and permits; second, in redefining the role of state; and third, in giving up the inward looking trade policy.
India’s average growth till the end of the 1970s remained modest, with the average growth rate being 3.6%. With a population growth of 2.2%, the per capita income growth rate was extremely modest at 1.4%. However, on certain health and social parameters, such as the literacy rate and life expectancy, there were noticeable improvements. While India had to rely on the heavy imports of foodgrains on a concessional basis, initially, there was a breakthrough in agriculture after the Green Revolution. The industrial base also widened. India became capable of producing a wide variety of goods including steel and machinery. While India’s post-Independence economic performance was reassuring when compared to the pre-Independence period, it is not that impressive when compared with that of several developing countries even in Asia. It was also less than India’s expectations. Plan after plan, actual growth was less than what was projected. The Indian economy did grow at 5.6% in the 1980s. But it was accompanied by a sharp deterioration in the fiscal and current account deficits, and the economy faced its worst crisis in 1991-92. It is extremely doubtful if, without a change in the strategy of development, growth would have picked up.
Between 1992-93 and 2000-01, GDP at factor cost grew annually by 6.20%. Between 2001-02 and 2012-13, it grew by 7.4% and the growth rate between 2013-14 and 2019-20 was 6.7%. The best performance was between 2005-06 and 2010-11 when GDP grew by 8.8%, showing clearly what the potential growth rate of India was. This is the highest growth experienced by India over a sustained period of five to six years. This was despite the fact that this period included the global crisis year of 2008-09. During this period, the investment rate reached a peak of 39.1% 2007-08. There was a corresponding increase in the savings rate. The current account deficit in the Balance of Payments (BOP) remained low at an average of 1.9%. However, the growth story suffered a setback after 2011-12. The growth rate fell to 4.5% in 2012-13 according to the 2004-05 series. The growth rate since then has seen ups and downs. The growth rate touched the 3.7% level in 2019-20.
Raise the growth rate
Post COVID-19 and the Russia-Ukraine war, there is a need to lay down a road map for India’s future development. The first and foremost task is to raise the growth rate. Calculations show that if India achieves a 7% rate of growth continuously over the next two decades and more, it will make a substantial change to the level of the economy. India may almost touch the status of a developed economy. This in turn requires that India needs to raise the Gross Fixed Capital Formation rate from the current level of 28% of GDP to 33% of GDP. If, at the same time, India maintains the incremental capital output ratio at 4, which is a reflection of the efficiency with which we use capital, India can comfortably achieve a 7% rate of growth.
Raising the investment rate depends on a number of factors. A proper investment climate must be created and sustained. While public investment should also rise, the major component of investment is private investment, both corporate and non-corporate. It is this which depends on a stable financial and fiscal system. The importance of price stability in this context cannot be ignored.
Strengthen social safety nets
India needs to absorb the new technologies that have emerged, and that will emerge. Its development strategy must be multidimensional. India needs a strong export sector. It is a test of efficiency. At the same time, India needs a strong manufacturing sector. The organised segment of this sector must also increase. As output and income increase, India must also strengthen the system of social safety nets. Growth without equity is not sustainable.
The rapid pace of globalisation which India saw since the beginning of 1990s will slow down for a variety of reasons. Some countries which were champions of globalisation are making a retreat. Some countries feel that dependence on other countries for certain key inputs such as crude oil or chips may land them in difficulties at times. The Russia-Ukraine war has exposed this problem starkly. An open economy with some limitations is still the best route to follow.
India today is the fifth largest economy. This is an impressive achievement. However, in relation to per capita income, it is a different story. In 2020, India’s rank was 142 out of 197 countries. This only shows the distance we have to travel. The external environment is not going to be conducive. The Organisation for Economic Co-operation and Development reports a secular decline in growth in developed countries. Environmental considerations may also act as a damper on growth. Some adjustment on the composition of growth may become necessary. All the same, we have no choice but to grow fast, given the present level of per capita income.
3. Editorial-2: A place for all refugees under India’s welfare umbrella
This month marks yet another annual “16 Days of Activism” against gender-based violence, even as the world is faced with a global increase in reported domestic violence, child marriage, trafficking, sexual exploitation and abuse. The coup in Myanmar, a Taliban takeover in Afghanistan, and Russia’s invasion of Ukraine — that have all occurred in the last 18 months — have each underscored the fact that women bear a disproportionate burden in conflict, especially those forced to flee their homes and seek refuge in other countries. Economic stressors resulting from COVID-19 exacerbate the situation. Important markers in gender equality and the protection of civilians have been reversed in many countries.
The global theme for this year’s 16 Days of Activism against Gender-Based Violence is “UNITE! Activism to end violence against women and girls”, a much-needed call to action that all of us must work towards, in order to ensure that we reverse gender and protection deficits. Uniting to end violence against women and girls and empowering them to stand up for themselves and their communities, and supporting men to become agents of change, must remain the priority. The 16 Days of Activism run annually from November 25, which is International Day Against Violence Against Women, to December 10, which is International Human Rights Day.
How India has fared
I anticipate invigorated actions by all of us to support the global peace and security agenda, especially for the marginalised such as refugees and other displaced persons. The thought that I am writing this in one of the largest economies in the world, which has championed programmes based on the rights and the development of women and girls, suggests that we can all learn from how far India has progressed in protecting her daughters since Independence 75 years ago.
Indian women received universal suffrage during India’s independence in 1947. During the drafting of the Universal Declaration of Human Rights, India was instrumental in ensuring that gender sensitive norms were respected by changing the language from ‘all men are created equal’ to ‘all human beings are…. ’ India has also ratified key international conventions to end discrimination against women which include the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).
Women in India continue to make progress in all areas of human endeavours, including politics, science, business, medicine, sports and agriculture. Women have overcome “the glass ceiling” in the armed forces and can also serve as commanders since 2020. Today, India has the largest number of women in the United Nations peacekeeping forces, thus showcasing the equal role that women can play in conflict-emerging countries and territories.
The central and State governments have launched new schemes, policies and programmes ranging from the welfare of the girl child to supporting aspiring female entrepreneurs, to empower both urban and rural women and promote gender equality. Women’s protection has also been enhanced with far-reaching access to comprehensive services, regardless of legal status. Marginalised populations, such as refugees, have access to these protection and assistance services. The ‘Nari Shakti for New India’ campaign represents the aspirations of millions of women in India, who not only participate but lead development initiatives — a clear display that women are leading from the front.
The case of refugees
What does this all mean for refugee women in India? There are over 2,12,000 refugees in India including those supported by the Government of India, more than half of whom are women and girls. India ensures that refugees can access protection services that are on a par with their fellow Indian hosts. For those refugees registered directly by the Government such as those from Sri Lanka, they are entitled to Aadhaar cards and PAN cards to enable their economic and financial inclusion; they can have access to national welfare schemes and contribute effectively to the Indian economy. However, for those registered with the UNHCR, such as refugees from Afghanistan, Myanmar and other countries, while they have access to protection and limited assistance services, they do not possess government-issued documentation. Thus, they are unable to open bank accounts, benefit from all government welfare schemes, and are thus inadvertently left behind.
Including all refugees in existing national welfare and economic schemes would ensure their effective inclusion in social protection systems aligned to India’s commitment to all women, their protection and empowerment, regardless of their legal status, and will ensure that no one is left behind.
A young refugee from Myanmar, whom I recently met, told me that she was the first lady in her entire community to enter a university in India. Like many other refugees who have benefited from national programmes, she is grateful to India and its people. Her determination and drive are catalysts to helping women overcome the hardest challenge. That is to influence and change attitudes, given that many barriers to women’s empowerment are attributed to patriarchal and patrilineal traditions that are deeply entrenched in many societies.
The commitment to prioritise gender equal programming by the Government of India is commendable and its resulting economic and social potential for women will build societal resilience to handle future shocks. As Prime Minister Narendra Modi recently observed: “The progress of humanity is incomplete without the empowerment of women”.
4. Editorial-3: Incremental win
COP-27 commits to compensation fund, but leaves important questions for later
The two-week long climate conference in Egypt has drawn to a close with a symbolic victory in the form of a fund that will compensate some of the countries bearing the brunt of climate change-linked natural disasters. However, progress on action to keep temperatures from rising beyond 1.5°C of pre-industrial levels was limited. The 27th edition of the United Nations Conference of the Parties was projected to be an ‘implementation’ COP that would have decisively resolved questions on how developed countries, responsible for the bulk of historical emissions, would make good on an old promise to provide developing countries $100 billion annually by 2020. And whether the world would commit to end all categories of fossil fuel, and not just coal. Despite hours of negotiations, these deadlocks remain. COP-27 will certainly be remembered as the COP of Loss and Damages (L&D). A nearly three-decade old movement, first initiated by the island nation of Vanuatu and the Alliance of Small Island States, has come to partial fruition. There will now be a dedicated fund to compensate the most vulnerable developing countries that are already bearing the brunt of climate change-linked natural disasters. L&D refers to impacts of climate change that cannot be avoided either by mitigation (cutting greenhouse gas emissions) or adaptation (modifying practices to buffer against climate change impacts). They also include not only economic damage to property but also loss of livelihoods, and the destruction of biodiversity and sites that have cultural importance. This broadens the scope for affected nations to claim compensation.
The text approved at Sharm el-Sheikh only commits to a fund being created and leaves discussions for how it is to be set up and, most importantly, who will pay how much to it, for future COP negotiations. While there have been nominal commitments by Scotland and Wallonia (Belgium) to donate to such a fund, the estimated L&D is already over $500 billion. During negotiations this year, the European Union pressed hard for China, the Arab states and “large, developing countries” — and this could include India — to contribute on the grounds that they were large emitters. This already opens up fresh occasion for acrimony in future COPs and given that barely a third of committed climate finance has made its way to developing countries, the L&D fund too might take years before it can meaningfully operate. While the gain is incremental, countries ought not to lose momentum and must work harder to ensure that COPs remain credible catalysts and are not occasions for pyrrhic victories.
5. Editorial-4: Threat to federalism in agricultural education
The Kerala High Court recently annulled the appointment of the Vice-Chancellor of the Kerala University of Fisheries and Ocean Studies (KUFOS). The court said that the appointment violated the University Grants Commission (UGC) Regulations of 2018. It listed two specific violations: (a) the search committee recommended a single name and not a panel; and (b) in the search committee, the State government included the Director-General of the Indian Council of Agricultural Research (ICAR) instead of a UGC nominee.
Given the history of agricultural education in India, the judgment is worrying. First, it weakens the principle of federalism by dismantling the role of State governments in the governance of agricultural universities. Second, it raises an existential threat for the facilitator and coordinator of agricultural education – the ICAR – by creating a false equivalence between the university system under the UGC and the agricultural university system under the State governments.
The constitutional position
The evolution of agricultural education has dovetailed the exclusive role bestowed by the Constitution to the States in managing agriculture. Agriculture was included as an occupied field in List II (State List) in the Seventh Schedule. Agricultural education was detached from other streams of higher education and attached to agriculture in List II itself. Entry 14 of List II reads: “Agriculture, including agricultural education and research…”.
Indeed, education is in List III (Concurrent List). Entry 25 of List III reads: “Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I…”. But there is no mention of agricultural education in Entry 25 of List III. If there was, agricultural education would not have found special mention in Entry 14 of List II. The legal implication is that agricultural education is not subject to Entries 63 to 66 of List I. Yet, the pivot of the KUFOS judgment is that Entry 66 of List I provides the basis for the applicability of UGC Regulations 2018, and the inapplicability of the First Statutes of the KUFOS Act, 2010, to the affairs of KUFOS. Entry 66 reads: “Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”.
The poor applicability of Entry 66 of List I is the reason why agricultural universities have been facilitated and coordinated by the ICAR, even when they were governed by State governments. In 2019, a teacher at the Kerala Agricultural University wrote to the UGC asking whether UGC Regulations apply to the university’s faculty appointments. The UGC’s official response read: “…Agricultural University does not come under the purview of UGC”. It cited the UGC Regulations of 2010, Para 1.1.1, which says: “For teachers in the Faculties of Agriculture and Veterinary Science, the norms/Regulations of Indian Council of Agricultural Research…shall apply”.
The authoritative role of States
The ICAR has had a unique legal status. It was established in 1929 as a department of the Government of India (GoI) though it was also a society registered under the Societies Registration Act. In 1973, the Department of Agricultural Research and Education (DARE) was set up under the Agriculture Ministry to facilitate agricultural research and education, coordinate between the Centre and States, and administrate the ICAR. The Secretary to the GoI in DARE was concurrently designated as the Director-General of ICAR. In 1983, the Supreme Court ruled that “ICAR is almost an inseparable adjunct of the GoI having an outward form of being a society; it could be styled as a society set up by the State and therefore, would be an instrumentality of the State”.
With this status, the ICAR has facilitated and coordinated agricultural education for about 50 years, as a national expert body and without overstepping into the constitutional jurisdiction of the State governments. For instance, when the ICAR desired to bring about some uniformity in the administration of agricultural universities, it did not take recourse to a one-size-fits-all parliamentary legislation. Instead, it chose to send a ‘Model Act for Agricultural Universities in India’ to the State governments and let them decide whether to accept or reject it.
The KUFOS judgment threatens to disrupt this constitutional equilibrium. It has sought to substitute the role of the ICAR with the UGC’s Regulations, which may be applicable solely to institutions listed in Entry 25 of List III. Despite the exclusion of agricultural education from Entry 25, the judgment has arbitrarily thrust the power of Entry 66 of List I on all agricultural/veterinary/fisheries universities. It also jeopardises the ICAR’s efforts to ensure a minimum level of uniformity in agricultural education. Till 2019, 28% of agricultural/veterinary universities had adopted the ICAR’s Model Act, and 48% had adopted some of its provisions. This Model Act stipulates three members in the search committee for Vice-Chancellors: the Director-General of ICAR; one nominee of the government; and one nominee of the Chancellor. But the KUFOS judgment makes the presence of the ICAR representative invalid. In short, all appointments of Vice-Chancellors of State agricultural, veterinary, fisheries universities made under the ICAR’s Model Act are likely to be rendered untenable.
The ICAR needs to implead itself in the KUFOS case at the appeal stage. It must state that agricultural education is a part of Entry 14 of List II and cannot be subjected to the powers of Entry 66 of List I. What is at stake is not just the spirit of federalism but also the unique status conferred to agricultural education by the Constitution.
