The Print: New Delhi: Sunday, August 12, 2018.
The retired
judge admits the committee faced pressure from business and trade, tries to
allay fears over proposed amendments to the RTI Act.
Justice B.N.
Srikrishna (retd), chairman of the committee that drafted the controversial
Personal Data Protection Bill, has acknowledged that certain differences in
opinion “may have” existed among its members.
The
committee’s draft bill and an accompanying report have drawn intense criticism,
at times even from its own members, for the observations and recommendations
made on data localisation, Aadhaar, and proposed amendments to the RTI Act.
However, in
an email interview to ThePrint, Srikrishna played down these differences of
opinion, saying: “In any committee that is run democratically, each member may
have a different view, but ultimately the decision is a collective one with
which everyone concurs. As with any collective decision, it eschews extremes
and takes a middle path with which everyone can identify. Our committee was no
exception. Two members, however, had reservations as they wanted to put forth
their views uncompromisingly.”
He also
admitted that there was “intense lobbying by business and trade”, and played
down fears over the proposed changes to the RTI Act, saying media reports on
the topic are “overreaction based on misunderstanding the proposed amendment”.
Discordant
notes
The report
accompanying the bill features an email a member of the committee, Prof.
Rishikesha T. Krishnan, director of IIM Indore, sent to Srikrishna.
Citing his
reservations, he wrote: “The requirement that every data fiduciary should store
one live, serving copy of personal data in India is against the basic
philosophy of the internet, and imposes additional costs on data fiduciaries
without a proportional benefit in advancing the cause of data protection.”
Another point
Krishnan made was: “The observations and recommendations regarding the Aadhaar
Act are outside the scope of the committee’s work.”
Even before
the bill was officially announced, there were reports of industry bodies
threatening a note of dissent. The threat was made good in the form of a note
from the Data Security Council of India, an initiative of NASSCOM, which is
also included in the report.
In the note,
Rama Vedashree, CEO of DSCI, another member of the data protection committee,
says the proposed restrictions to cross-border flow of personal data are “not
only regressive, but against the fundamental tenets of our liberal economy”.
However, in
response to NASSCOM’s unhappiness, an unmoved Srikrishna said: “Even vested
interest always tries to protect its turf and there is always intense lobbying
by business and trade to lessen the impact of any law on their interests. I
suppose this act would be no exception to the general pattern.”
The
Aadhaar question
Srikrishna
said he is not willing to comment on the Aadhaar case pending in the Supreme
Court, as it is “still sub judice”. Asked what he hoped the outcome of the case
would be, he said: “Any comment made by me would depend on the constitutional
validity of that act that is pending decision.”
However, the
committee has already made its recommendations on the Aadhaar Act, which falls
outside the purview of its assignment. The data protection report says on page
101: “…First, the UIDAI must be autonomous in its decision-making, functioning
independently of the user agencies in the government and outside it, that make
use of Aadhaar; second, the UIDAI must be equipped with powers akin to a
traditional regulator for enforcement actions.”
If the
Aadhaar judgment is in dissonance with the data protection recommendations,
Justice Srikrishna said the latter would override any other law.
“The data
protection act is an overarching act and its provisions would override the
provision in any other law to the extent of inconsistency. If there is no
inconsistency or conflict, its provisions have to be read in addition to other
laws,” he said.
RTI
amendments
On proposed
amendments to the RTI Act, media reports have claimed they could be used by crooked
public officials to deny access to information (“personal data”), citing “harm”
as defined in the data protection bill. Harm, as per the committee
recommendations, can mean anything from “bodily or mental injury”, to
“humiliation”, to “any observation or surveillance that is not reasonably
expected by the data principal”.
However,
Srikrishna called these reports an “overreaction”.
“The Supreme
Court has declared the right to information under RTI as a fundamental right
founded in free speech; it has also declared in the Puttaswamy judgment that
privacy is a fundamental right founded in the right to life,” Srikrishna said.
“When there
is a tension between two fundamental rights, both of which are important, a
necessary compromise has to be worked out keeping the objectives of both in
mind. It would be futile to over-emphasise one to the detriment of the other.
“The proposed
amendment to RTI Act reflects that compromising balance in the clash of the
titans,” he said.
Personal
experience
Srikrishna
seems to be every government’s favourite retired judge he has headed seven
committees since he retired from the Supreme Court in 2006.
Asked how the
experience of chairing this committee was compared to his previous experiences,
he said: “Each one presented a different challenge as it was on a different
subject. I have enjoyed every one of them. The present one was perhaps most challenging
for the sheer novelty of the issue.”
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