The revised data protection Bill brought by the Government of
India is open for public consultation till December 17. It has 30
clauses compared to over 90 of the earlier version that was withdrawn three
months ago following objections. Cutting down the text gives a
positive resonance of clarity and decisiveness. An elaborate list
of directions on how to treat personal data has been chalked out for
data fiduciaries, or the entities which collect and manage it.
The Digital Personal Data Protection Bill 2022 proposes the right of a user to
know exactly what data is being collected, how it100 is managed and also processed. Companies can use the data only for the
precise purpose they obtained it. They also120 cannot store the data perpetually
by default. It has to be deleted when firms no longer need to hold
that140 data. The
revamped Bill will apply to businesses operating in the country and to
any entity processing the data of160 Indian citizens. The Bill is going to have an impact on how
technology giants process and transfer the data. After a 2019 Bill had alarmed
companies by proposing stringent restrictions on cross-border data flows, the
new regulation allows200 transfer with certain notified countries and territories. The
soft stand on data localization requirements is a major victory for technology
companies. The draft legislation also seeks to create a new layer of digital
governance through a regulator, mandating notification of240 data breach to it and each user.
The Bill proposes hefty penalties. There is penalty of up to Rs. 250 crore for
failing to take safeguards, and Rs. 200 crore for not notifying a breach. The Centre will280 have powers to
exempt state agencies from punitive action in the interests of national
security. There are duties prescribed for300 the users too. They must provide
authentic information while claiming the rights to erase or correct data, not
register a320 false complaint, nor give incorrect
information or impersonate. Fines can go up to Rs. 10,000. Given the complexities
involved, it is a draft that ticks many right boxes. However, the Bill lacks in
leaving out a number of crucial360 details, which may find a place in the
subsequent revision of the text of the rules.
The observations
of Chief Justice of India on trial courts being reluctant
to grant bail to accused are significant. The Chief Justice of India400 said the reason the higher
judiciary is flooded with bail cases is because of a certain reluctance from
trial courts420 to grant bail. The Chief Justice of India spoke about a sense
of fear in judges in district courts in granting bail, especially in cases
involving heinous crime. He said that we must confront this sense of
fear because unless we do that, we are going to render our district courts toothless
and our higher courts dysfunctional. When there are480 over four crore cases currently
pending in district courts and 76 per cent of the prisoners in jails are500 undertrials, the Chief Justice
of India’s assessment of the issue has great significance to
safeguarding personal liberty of individuals. The former Chief Justice
of India had acknowledged that trial courts have very little discretion
because laws are increasingly stacked against granting bail. Special laws such
as Prevention of Children from Sexual Offences Act, Scheduled Caste and
Scheduled Tribe Atrocities Act560 are designed to ensure that bail can be granted only when
strict statutory conditions are satisfied. The language of these laws
leaves trial judges with very little room to grant bail. The higher courts
often interpret bail provisions strictly. This600 puts pressure on trial courts. For
instance, when it comes to UAPA, a 2019 ruling of the Supreme Court states
that trial courts must accept the state’s case without examining its merits
while considering grant640 of bail. The pressure faced by courts when it comes to sensational
heinous crimes is not new. Since long, judicial reasoning has included
the collective conscience of the society in place of evidence-based
rational decision-making. Even when bail has been granted, ability to
afford bail bonds becomes an issue. Studies show that two in three undertrial inmates
belong to700 either Scheduled Caste, Scheduled Tribe or Other Backward
Classes. The Chief Justice of India spoke of instilling a sense of720 confidence in the district
courts, starting from doing away with the nomenclature of subordinate or
lower judiciary. While the acknowledgement of the judicial culture
driven by fear is an encouraging first step, the challenge is to find
solutions. It is not as if all district court judges are afraid of being
targeted. Backing the radical orders of trial courts will inspire confidence in
standing up to pressures of the day. The onus is on the judiciary.
A sense of drift800 in the Association of South East
Asian Nations was discernible in Cambodia last week during the 55th
summit of the group. The summit itself went off smoothly enough. Compared to
the last time when Cambodia held the chair in840 2012, there was a welcome
absence of hostility. In 2012, it was a very different picture as Cambodia,
despite being the chair, had prevented a consensus on the group’s position on
the South China Sea because it was critical of Beijing’s policies at the time.
However, a decade later, there was no such controversy. But, on900 the flip side, the outcome of
the group’s policy-making meeting in Cambodia was, at best, underwhelming.
While togetherness was reiterated as the group’s first principle, it
remains to be seen how this will be achieved if the 10 member-states of the
group are to act together in dealing with regional challenges while maintaining
their unity as a family is960 not so clear. A former Indian envoy to the group, in a recent
article correctly identifies three core issues which980 the group must address to stay
relevant. First, Chinese aggression in the South China Sea and the varying
threat perceptions1000 of member-states have not been reconciled. The group’s
inability to promote confidence-building in the region brings its centrality
into1020 question. Contradictions
are also apparent in the fact that while China remains the group’s biggest
economic partner, seven of the members have signed up for the Indo-Pacific
Economic Framework backed by the United States. But perhaps the more
pressing issue for the group to prove its effectiveness and conflict resolution
capability is Myanmar. The Five Point Consensus arrived at in1080 2021 seems to be dead in
the water as the military leadership of Myanmar has backed out1100 on its commitments. Cambodia has
tried but failed to engage the pro-democracy forces in Myanmar, and its efforts
to get1120 the military
leadership to keep to the promises it made in the Five Point Consensus have
also fallen flat. In fact, Cambodian efforts to bring back Myanmar to the group
summits have been resisted by Indonesia, Malaysia and Singapore. The group’s
position is that it will accept only non-political representation from
Myanmar, which is not forthcoming. Last but not least, the second order
effects of the conflict in Europe are playing out in South East Asia. The
Association of South1200 East Asian Nations has been unable to formulate a common
position on the Ukraine war, and its focus is almost entirely on the conflict’s
effect on energy and food prices. The group’s balancing act between its Western
partners and the Sino-Russian alliance has resulted in fragmented
voting patterns on the Ukraine issue by its member-states in the United
Nations.1260 Its lack of coherence as a grouping is becoming stark.
Last week, the Enforcement Directorate saw an expansion of1280 its powers under the Prevention of
Money Laundering Act. The Centre has amended a 2006 notification to include1300 15 organisations on the list of
institutions with which the Enforcement Directorate may share information
regarding cases. Among these are the NIA, the CCI, the SFIO, and State Police
Divisions. This expands the ambit of the Enforcement Directorate’s
information-sharing brief, which was1350 previously limited to such bodies as the Central Bureau of
Investigation’s economic offences wing, the banking and stock market
regulators, the RAW of the Cabinet Secretariat, and the Intelligence Bureau,
apart from the chief secretaries in states. With the latest list, several questions
arise. First, some of the1400 institutions that have been included in the list point to an impressive
expansion of the Enforcement Directorate’s sectoral expertise. Second, if
organisations such as the National Investigation Agency, the Serious Fraud Investigation
Office, and the Central Vigilance Commission are required1440 to share data, it leaves open the
question of the enforcement functions of these agencies. Third and most
problematic is the inclusion of the CCI within the Enforcement Directorate’s
information-sharing ambit. This has significant consequences for the corporate
sector since it lays open to agency scrutiny confidential data that
companies submit to the competition regulator. This is hardly1500 likely to add to corporations’
confidence in a key institution that governs mergers and acquisitions
and, at the very least, will seriously discourage consolidation and
acquisitions by foreign corporations. It is significant that this
expansion of the Enforcement Directorate’s ambit comes just four months after a
Supreme Court ruling that upheld the agency’s powers of arrest, property
attachment, and search and seizure with relative impunity. The court
went a step further and said the Enforcement Directorate was not bound to
produce the ECIR, the official document recorded before starting a criminal
investigation, to the person concerned.1600
