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  • Aug. 12, 2023
  • Blog

DRAFT DIGITAL PERSONAL DATA PROTECTION BILL 2022

CONTEXT:
Recently, the latest draft of the data protection law, the Digital Personal Data Protection Bill, 2022 (DPDP Bill, 2022), has been made open for public comments.
HIGHLIGHTS:
The data protection Bill has been in the works since 2018 when a panel led by Justice B N Srikrishna had prepared a draft version of the Bill. It is India's first attempt to domestically legislate on the issue of data protection.
The government made revisions to this draft and introduced it as the Personal Data Protection Bill, 2019 (PDP Bill, 2019) in the Lok Sabha in 2019.
The report was accompanied by a new draft bill, namely, the Data Protection Bill, 2021 that incorporated the recommendations of the JPC.
However, in August 2022, citing the report of the JPC and the “extensive changes” that the JPC had made to the 2019 Bill, the government withdrew the PDP Bill.
OBJECTIVE:
Regulating online space including separate legislation on data privacy, the overall internet ecosystem, cyber security, telecom regulations, and harnessing non-personal data for boosting innovation in the country.
ISSUES:
Harm to privacy:
Constant interactions with digital devices have led to unprecedented amounts of personal data being generated round the clock by users (data principals).
Inadequate present laws:
The current legal framework for privacy enshrined in the Information Technology Rules, 2011 (IT Rules, 2011) is wholly inadequate to combat such harms to data principals, especially since the right to informational privacy has been upheld as a fundamental right by the Supreme Court (K.S. Puttaswamy vs Union of India [2017]).
MAJOR PROVISION OF THE REVAMPED BILL
High penalties:
Companies dealing in personal data of consumers that fail to take reasonable safeguards to prevent data breaches could end up facing penalties as high as around Rs 200 crore.
Companies failing to notify people impacted by a data breach could be fined around Rs 150 crore.Those failing to safeguard children’s personal data could be fined close to Rs 100 crore.
The Data Protection Board
It is an adjudicating body proposed to enforce the provisions of the Bill which is likely to be empowered to impose the fine after giving the companies an opportunity of being heard.
Personal data
The new Bill will only deal with safeguards around personal data and is learnt to have excluded non-personal data from its ambit. Non-personal data essentially means any data which cannot reveal the identity of an individual.
IMPORTANCE OF THE REVAMPED BILL
Strong safeguards: Fines for data misuse prescribed in the previous version of the Bill were not seen as an effective deterrent.
The higher penalties being proposed now will prompt entities to build strong safeguards to protect data and enforce fiduciary discipline.
Companies would face punitive actions in the nature of financial penalties in the event of misuse of data and data breaches.
The upcoming data protection Bill will put an end to misuse of customer data with companies facing financial consequences.
There will also be a strict or purpose limitation of data collected by companies and the time till which they can store it under the new Bill.
Data fiduciaries will be required to stop retaining personal data and delete previously collected data after the initial purpose for which it was collected was fulfilled.
WAY AHEAD
While protecting the rights of the data principal, data protection laws need to ensure that the compliances for data fiduciaries are not so onerous as to make even legitimate processing impractical.
The challenge lies in finding an adequate balance between the right to privacy of data principles and reasonable exceptions, especially where government processing of personal data is concerned.
The law needs to be designed for a framework of rights and remedies that is readily exercisable by data principals given their unequal bargaining power with respect to data fiduciaries.

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Blog
  • Aug. 12, 2023
  • Blog

VIOLENCE AGAINST WOMEN AND GIRLS AND INDIA’S PROGRESS

The International Day for the Elimination of Violence Against Women will mark the launch of the UNiTE campaign (Nov 25- Dec 10).
WHAT IS UNiTE CAMPAIGN?
UNiTE campaign is an initiative of 16 days of activism concluding on the day that commemorates the International Human Rights Day (10 December).
This campaign aims to prevent and eliminate violence against women and girls around the world, calling for global action to increase awareness, promote advocacy and create opportunities for discussion on challenges and solutions.
The UNiTE campaign utilizes the color orange to represent a brighter future, free from violence against women and girls.
About Violence Against Women and Girls
Violence against women and girls is defined as any act of gender-based violence that results in or is likely to result in, physical, sexual, or mental harm or suffering to women and girls, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.
It is one of the most widespread, persistent, and devastating human rights violations in our world today and remains largely unreported due to the impunity, silence, stigma, and shame surrounding it.
It is heightened by the COVID-19 pandemic and its prevalence is now being further increased by the intersecting crises of climate change, global conflict, and economic instability.

Impacts

The magnitude of its impact, both in the lives of individuals and families and society as a whole, is immeasurable.
It has serious short- and long-term physical, economic and psychological consequences on women and girls, preventing their full and equal participation in society.
Violence against women continues to be an obstacle to achieving equality, development, and peace as well as to the fulfillment of women and girls’ human rights.

India’s Progress in protecting women

Indian women received universal suffrage during India’s independence in 1947.
During the drafting of the Universal Declaration of Human Rights, India was instrumental in ensuring that gender-sensitive norms were respected by changing the language from ‘all men are created equal to ‘all human beings are.
India has also ratified key international conventions to end discrimination against women which include the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).
Women in India continue to make progress in all areas of human endeavors, including politics, science, business, medicine, sports, and agriculture.
Women have overcome “the glass ceiling” in the armed forces and can also serve as commanders since 2020.
Today, India has the most significant number of women in the United Nations peacekeeping forces, thus showcasing the equal role that women can play in conflict-emerging countries and territories.
The Central and State governments have launched new schemes, policies, and programs ranging from the welfare of the girl child to supporting aspiring female entrepreneurs, to empower both urban and rural women and promote gender equality.
Women’s protection has also been enhanced with far-reaching access to comprehensive services, regardless of legal status.
Marginalised populations, such as refugees, have access to these protection and assistance services.
The ‘Nari Shakti for New India’ campaign represents the aspirations of millions of women in India, who not only participate but lead development initiatives — clearly displaying that women are leading from the front.

Government's support for refugees

There is over 2,12,000 refugees in India including those supported by the Government of India, more than half of whom are women and girls.
India ensures that refugees can access protection services that are on a par with their fellow Indian hosts.
For those refugees registered directly by the Government such as those from Sri Lanka, they are entitled to Aadhaar cards and PAN cards to enable their economic and financial inclusion
They can have access to national welfare schemes and contribute effectively to the Indian economy.

Conclusion and Way Forward
All in all, the promise of the Sustainable Development Goals (SDGs) - to leave “no one behind” - cannot be fulfilled without putting an end to violence against women and girls.
Uniting to end violence against women and girls and empowering them to stand up for themselves and their communities, and supporting men to become agents of change, must remain the priority.
The global theme for this year’s 16 Days of Activism against Gender-Based Violence is “UNITE! Activism to end violence against women and girls”, a much-needed call to action that all of us must work towards, in order to ensure that we reverse gender and protection deficits.
Global community can learn from India in protecting her women since Independence.

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Blog
  • Aug. 12, 2023
  • Blog

THE CREDIBILITY OF THE ELECTION COMMISSION OF INDIA (ECI)

CONTEXT:
A vital issue of national importance dominating the headlines,PIL has been filed in the Supreme Court regarding the autonomy and neutrality of the Election Commission of India (ECI).

ABOUT THE ELECTION COMMISSION OF INDIA
It is an autonomous constitutional authority responsible for administering Union and State election processes in India.
It administers elections to the President and Vice President in the country, Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the Its responsibilities and powers are prescribed in the Constitution of India under Article 324.
Validity of Decisions: The decisions of the Commission can be challenged in the High Court and the Supreme Court of India by appropriate petitions.
Part XV of the constitution deals with elections, and establishes a commission for these matters.
Article 324 to 329: deals with powers, function, tenure, eligibility, etc of the commission and the members.
The commission: It consists of one Chief Election Commissioner (Currently Rajiv Kumar) and two Election Commissioners. (Currently Anup Chandra Pandey and Arun Goel)
The President appoints Chief Election Commissioner and Election Commissioners.
Tenure: They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
Status: They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge by Parliament.
PROGRESS
For much of Indian democracy’s history, the ECI has performed very well, earning accolades not only from the citizens of India but the world.
The track record of most CECs was exemplary in displaying independence and neutrality, with the courage to stand up to the government of the day and it was hoped that this trend would continue.

CONCERNS;
The root of the problem lies in the flawed system of appointment of the Election Commissioners.
Another systemic problem is uncertainty over the elevation of an Election Commissioner to the post of CEC, which makes them vulnerable to government pressure.
Since all three members have equal voting rights and all decisions in the commission are taken by the majority, the government can even control an independent-minded CEC through the majority voting power of the two Election Commissioners.
B R Ambedkar’s statement about appointment: “The tenure can’t be made a fixed and secure tenure if there is no provision in the Constitution to prevent a fool or a naive or a person who is likely to be under the thumb of the executive”.
DEMAND FOR THE APPOINTMENT OF EC’s
Appointments through a broad-based consultation: There has been a demand for appointments through a broad-based consultation, including parliamentary scrutiny.
The Proposed mechanism: A collegium consisting of the Prime Minister, leader of the Opposition (LOP) and the Chief Justice of India (CJI).This system is already in operation for the appointment of the Central Vigilance Commissioner, Chief Information Commissioner and Director of the Central Bureau of Investigation.
The probable benefit of this mechanism: This will obviate the possibility of allegations against the incumbent of being partisan to the government. Opposition parties would not be able to raise a finger against the incumbent since the LOP would be a party to the selection.
Collegium system for appointing Election Commissioners: In its 255th Report, the Law Commission of India also recommended a collegium system for appointing Election Commissioners. Political stalwarts and many former CECs including BB Tandon, N Gopalaswami, TS Krishnamurthy supported the idea.
Extending protection to Election Commissioners: At present, only the CEC is protected from being removed (except through impeachment). One has to remember that the Constitution enabled protection for the CEC as it was initially a one-man Commission. Logically, this should have been extended to the other two Commissioners, who were added in 1993, as they collectively represent the ECI.

WAY AHEAD
Questions raised about the ECI’s credibility are worrying: An ECI with the consent of both the government in power and the Opposition stands a far better chance of convincing the nation and all parties contesting elections of its neutrality and impartiality.
The Supreme Court should settle the issue for good as it has many other critical electoral reforms

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