Manish Tewari: ‘The personal data bill designed by those who know little about the digital world’

The Joint Parliamentary Committee on Personal data protection bill, formed in 2019, tabled his report on Thursday, as well as seven dissidence notes signed by eight opposition members. Committee member Manish Tewari also wrote a detailed dissent note on the issues he has with the bill as it stands. He explains them in an interview with Krishn Kaushik. Extracts:

Do you agree with the committee’s final report?

No I do not. In fact, if you read my dissent, which is the most comprehensive dissenting note ever tabled, (she) rejects the bill in its entirety. For the simple reason that there is an inherent design flaw in the bill. It was designed with a pre-Puttaswamy mindset (the Supreme Court verdict declaring privacy a fundamental right). It divides the universe of personal data into two halves. The bill will be imposed with all its rigor in the private space while the government space is riddled with exemptions, derogation clauses and escape clauses.

Therefore, when privacy was seen as a fundamental right, my limited understanding, having now practiced law for over three decades, is that a fundamental right is primarily enforceable against the state.

This bill is quite an oxymoron. It completely exonerates the government and it seeks to ensure respect for all the provisions of the bill qua private space.

Unfortunately, this bill makes a distinction between physical data and digital data. Which is a wrong distinction, because it is a bill on the protection of personal data. For example, even today, most hospital medical records, which will be considered critical personal data, are in physical format. Most are handwritten by doctors. If the bill exempts non-digital data, how does it protect individual privacy?

What were the main points of disagreement?

Essentially, a major starting point was section 35, which provides a blanket exemption from the rigors of data protection law for the government.

The second inflection point was article 11. Every function of the state is authorized by one statute or another. Essentially, this means that it exempts all government space from the application of this law.

The third starting point was that I argued for a much more robust architecture when it comes to social media intermediaries, which find an accidental mention in the law on the protection of personal data.

My repeated assertions in committee were that you can’t have a situation where anonymity masquerades as privacy, and bots, trolls, and perverts actually rule the digital media space. Therefore, I argued that every account in the digital universe or in cyber civilization should be an identified account. So tomorrow, if someone is a provider of hate speech, or of libelous or slanderous content, he or she can be identified and prosecuted according to the law.

This bill will absolutely kill the start-up ecosystem in the country, because the penalties that have been prescribed are so onerous that anyone or any entrepreneur, who reads the bill, will venture within a mile of a start-up.

On what points was there unanimity within the committee?

Basically, the unanimity was that you demand a law on the protection of personal data. It was the minimum incentive that was there. In terms of the approach to data protection law, I think fundamentally the bill that was introduced in Parliament and referred to committee, was actually designed and conceptualized by people who have no understanding or very limited understanding of the digital universe.

Do you think the bill they have proposed is sound?

Absolutely not. I have a feeling that because there is a design flaw, which I pointed out earlier, I do not think this bill will stand the constitutional test. All the more so since the right to privacy has been considered a fundamental right within the meaning of Article 21.

I think this bill violates these fundamental protections, which were transposed into law by the Supreme Court’s 9-0 verdict.

What will be your next step, because you are not convinced by the invoice?

The government has a raw majority on the floor of the House. Therefore, they will cross it by rail. They also had a majority on the committee. This is why the legitimate objections of a large number of opposition MPs were discussed but ultimately not accepted. I think at some point when the constitutionality of this bill is challenged, I would love to put on my legal hat, since I rejected the bill in its entirety.

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