The Union government informed the Supreme Court on April 11, 2023 that a new law, namely the Digital Personal Data Protection Bill 2022, to enforce individual privacy in online space is “ready”.
“The new Bill will be tabled in the Monsoon Session of the Parliament in July,” Attorney-General R. Venkataramani, appearing for the Union, informed a Constitution Bench led by Justice KM Joseph.
The new Bill, if passed by the Parliament, would replace the current Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, which was notified in 2011. The Supreme Court had recognised privacy as a fundamental right in 2017 and highlighted the need to protect online personal data from prying eyes.
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In January, the government had, in an affidavit filed in court, said the Information Technology Ministry had initiated a stakeholder consultation exercise on the draft Bill, inviting comments from the public on November 18, 2022, the last date for receipt of which was January 2, 2023.
It had then briefed the court that the Ministry was in the process of “collating and analysing the feedback and suggestions received, with a view to take the draft Bill forward”. It had assured the court that the Bill would be presented in the Parliament at the earliest.
The purpose of the 2022 Bill is to “provide for the processing of digital personal data in a manner that recognises both the right of individuals to protect their personal data and the need to process personal data for lawful purposes”.
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‘Data’ under the new Bill is defined as a “representation of information, facts, concepts, opinions or instructions in a manner suitable for communication, interpretation or processing by humans or by automated means”.
The Bill separately defines data fiduciary as persons who determined the purpose and means of processing of personal data; data principal as the individual to whom the personal data related to; data processor as any person who processes personal data on behalf of a data fiduciary.
Mr. Venkataramani’s submission came during the Constitution Bench hearing of petitions, represented by senior advocate Shyam Divan, challenging WhatsApp’s policy to share users’ data with Facebook group of companies.
Mr. Divan sounded skeptical about the enactment of the Bill, saying that the government had been giving assurances for months.
“Please do not link our court hearings with the legislative process. The legislative process is complex. It (the Bill) may go to some committee or other. Our petitions have been pending since 2017…” Mr. Divan said.
“The Bill had to go through a qualified consultative process. You have to do that if you want a good law,” Mr. Venkataramani countered.
Justice Joseph said two judges on the Constitution Bench, himself and Justice Ajay Rastogi, were retiring in June 2023.
The court referred the petitions back to the Chief Justice of India to constitute a fresh Bench while listing the case again preferably in the first week of August 2023, after the proposed tabling of the new Bill during the Monsoon Session.
It recorded in an order the submission of the Attorney General that the new Bill would “address all the concerns” raised in the petitions.
In the previous hearing in February, WhatsApp had agreed to undertake that it would not limit the access of users who have not agreed to its 2021 privacy policy.
The Constitution Bench had directed WhatsApp, appearing through senior advocate Kapil Sibal, to publish its undertaking in full-page advertisements on two occasions in five national newspapers.
The court had agreed with WhatsApp’s submission that it would abide by an undertaking given in a letter to the government on May 22, 2021.
WhatsApp, in the letter, had said it would “not limit the functionality of how WhatsApp works in the coming weeks as previously planned. We will continue to display our update from time to time to people who have not yet accepted. In addition we will display the update whenever a user chooses relevant option features….We hope this approach reinforces the choice that people have in how they use WhatsApp. We will maintain this approach till the forthcoming Data Protection Bill comes into existence.”
The court had said the interim directions in February would be complied without any prejudice to the contentions of either parties.
