PDPB 2019: taking India towards a surveillance state?

The Personal Data Protection Bill, 2019 (“PDPB of 2019”) differed substantially from the Personal Data Protection Bill, 2018 (“PDPB of 2018”). One of the striking features of PDPB of 2019 is the introduction of grounds in Sections 35 and 36 (collectively referred to as the “Surveillance provisions”) through which the Central government has the power to exempt any government agency  from the provisions of this Bill.

Under Section 35, the Central government may direct that all or any of the provisions of the Act shall not apply to any agency of the government in respect of processing of specified personal data, when the Central government is satisfied that it is necessary or expedient as follows:

  • in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order; or
  • for preventing incitement to the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order

Under Section 36, the Central government also has the power of exemption of following critical provisions (“Critical provisions”)

  • obligations of data fiduciary (GDPR equivalent of data controller);
  • grounds for processing of personal data without consent;
  • personal data and sensitive personal data of children;
  • rights of data principal (GDPR equivalent of data subject);
  • transparency and accountability measures; and
  • restriction of transfer of personal data outside India

when the personal data is processed in the interests of prevention, detection, investigation and prosecution of any offence or any other contravention of any existing law.

While the Bill permits invocation of Surveillance provisions in specified matters, the language of these provisions suggests that the exemption of  government agencies from any or all provisions under extensive grounds like national security, sovereignty and integrity of the nation, friendly relations with foreign states and public order is far reaching and excessive.  Moreover, the basis of such exemption is a reasoned order, that is to say an executive order rather than a legislative mandate, leaving an open field for the Central government.

Separately, the specific exemption of Critical provisions in cases of prevention, detection, investigation and prosecution of any offence may also be a cause for concern.

While the intent of the legislation with respect to Surveillance provisions may be noble and appropriate, it may result in giving unbridled powers to the Central government and its agencies. Hence, the Central government will have to demonstrate that these Surveillance provisions are going to come into play only for national security, sovereignty and integrity of the nation, friendly relations with foreign states and public order in true spirit.

Currently, the PDPB of 2019 stands referred to a Joint Parliamentary Committee (“JPC”) of both houses of the Parliament. The JPC will be submitting its report on the PDPB of 2019 in the second week of the monsoon session of the Parliament in 2020, after due consultation with stakeholders. It is expected that the JPC will provide clarity on these Surveillance provisions.

By Tripti Dhar, Partner, Reina Legal LLP, India


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