People should be top priority in data protection law: Justice Srikrishna

Justice B N Srikrishna

Retired Supreme Court judge BN Srikrishna, who led the committee that drafted the Personal Data Protection Bill in July 2018, said data protection laws must accord top priority to the people.

With the government withdrawing the bill last week and going back to the drawing board, Srikrishna said “we are back to square one” and the first priority should be the people.

“It is like the three sides of a triangle. The top vertex should be the citizens and residents – the people. People should be the first priority, state security should be the second priority, third priority should be trade and business. You can’t invert it and start with trade and business first. That should be the order in which you should tailor the law,” Srikrishna told Moneycontrol.

The Srikrishna Committee’s objective was to systematise the law with the Supreme Court’s directions in the judgment that recognised the right to privacy as a fundamental right.

The data protection bill has been through various iterations over the past few years and a Joint Parliamentary Committee was given several extensions before it submitted its report late last year.

Srikrishna said it’s understandable that the government wants to come up with a better law as the various iterations were a “hotchpotch that led to nowhere.”

Concerns over delay

However, some experts expressed concerns over the even longer delay in formulating data protection laws in India.

The version of the bill that was withdrawn included personal and non-personal data under its ambit, which would be dealt with by a Data Protection Authority. There was criticism from several quarters about the bill giving the government sweeping rights.

The bill’s previous mandate was limited to personal data and the move to bring non-personal data under its ambit was widely criticised.

“They mixed up the two unnecessarily. Fundamental rights are available only to personal data… the idea should be to protect the fundamental rights of the citizens and the residents of India,” Srikrishna added.

It was also previously proposed that non-personal and anonymised personal data be monetised, which raised questions in the absence of a data protection law.

“It was short-term thinking and it would have created more confusion,” Srikrishna added. “The government has realised that and they want to take a step backwards and work it out properly. Good luck to them.”

IT Minister Ashwini Vaishnaw, while withdrawing the bill, said after examining the Joint Parliamentary Committee’s report, there was a need for “a comprehensive redrawing of the laws and rules, taking into account some of the JPC's comments and the contemporary challenges and future opportunities that arise here.”

“Maybe they will have a separate committee to look into things. They have declared their intention behind withdrawing the bill… It's all only conjecture on my part. They have at least declared that they want to come up with the properly systematic law, so let's hope they will do it,” Srikrishna said.