Skip to main content

Govt of India's draft data protection bill "undermines" RTI, gives unique powers to UIDAI to adjudicate: Report

By A Representative
The Government of India's new data protection Bill a year after it constituted a committee of experts chaired by former Supreme Court judge BN Srikrishna to prepare a draft on it, may mire into controversy. Reason: It's proposed amendments to the Aadhaar Act, 2016, and the Right to Information Act, 2005, seek to empower the bureaucracy even more than what it is today.
Called Protection of Personal Data Bill, 2018, the view has gone strong that its amendments. could "upend" the "fragile balance" between transparency and privacy in the exemption for personal information, allowing public officials to withhold details, making them less accountable in proving information under the Right to Information (RTI) Act, 2005.
Simultaneously, the proposed amendments to the Aadhaar Act would create a new adjudication process for disputes arising out of the Act that would only strengthen the Unique Identity Authority of India's (UIDAI’s) iron grip over Aadhaar-related legal action. Interestingly, the draft goes so far as to propose an “offline verification” system, which, it is pointed out, raises more questions than it answers.
A recent report, seeking to analyse the draft bill, recalls that the RTI Act is known to restrict the right to privacy under Section 8(1)(j), which notes that any to personal information, which has no relation to any public activity or interest is exempt from disclosure, unless the “larger public interest justifies the disclosure.
This section is known to have been routinely invoked by information officers to deny RTI requests, particularly those pertaining to the functioning of public officials, such as the case of the RTI applications seeking Prime Minister Narendra Modi’s college degree. As a result, RTI activists have demanded clear definitions of key terms such as “public interest” and “public activity.”
While the draft bill seeks to drop Section 8(1)(j) altogether, in its place, the new provision, says the report, published in "Caravan", puts an exponentially higher burden for disclosure of personal information by placing new conditions in order to ensure that any "personal" data is disclosed.
Thus, the proposed amendment defines personal data as those related "a function, action or any other activity of the public authority in which transparency is required to be maintained having regard to larger public interest in the accountability of the working of the public authority."
Even as insisting that any RTI disclosure would need to be seen in the context "larger public interest", the amendment goes so far as to "avoid" any harm that may possibly be caused to data by an RTI disclosure. This way, it craves to outweigh by the interest of the citizen in obtaining such personal data, the report, by scribe Arshu John, a former lawyer, says.
The amendment, it is felt, is likely to have the effect of protecting public officials from having to disclose any remotely personal information. "In its enthusiasm to raise the standards of data protection in India, the Srikrishna committee appears to have failed in its obligation to account for the competing rights of public accountability", says the report.
As for the amendments to the Aadhaar Act, there is a proposal is to establish a new adjudication and appeals process for disputes arising from the Act, increasing or creating civil and criminal penalties for contraventions of the Act, and introducing an offline verification system for Aadhaar authentication.
Introducing a new position of adjudicating officer, not below the rank of joint secretary to the Union government, with the power to inquire into any contravention of the Aadhaar Act, it proposes the addition of a new chapter on civil penalties, under which any such violation could invite a penalty of up to Rs 1 crore.
Says the report, these amendments have been made, apparently, as over the past year, the aadhaar programme has suffered leaks and data breaches, reaching a point where a Tribune reported the largest breach so far: Gaining access to a portal with the data of every aadhaar card holder by paying a middleman a paltry sum of Rs 500.
The amendment also includes penalties for the failure to seek the consent of an individual before obtaining their identity information, the unauthorised use of biometric information and the unauthorised publication of an Aadhaar number or photograph.
The report, however, underlines, "These provisions would have held considerably more weight if not for one fundamental shortcoming -- the draft bill states that only UIDAI would be empowered to make a complaint to the adjudicating authority."
The report says, ironically, this amendment comes at a time when UIDAI is under criticism for the misuse of this provision abounds—for both the UIDAI’s dogged pursuit of legal action against reports identifying grave breaches of aadhaar data, and its failure to identify and prevent these breaches themselves.
"The exclusive power to initiate criminal proceedings for any violation of the Act, as proposed under the draft data-protection bill, would only serve to reinforce the UIDAI’s control over legal action arising from the Aadhaar Act", the report says.
Worse, it is pointed out that to seal this monopoly of the UIDAI, the amendment also seeks to bar the jurisdiction of any civil court over cases arising out of the Act -- "simply put, only the UIDAI can initiate cases, and only the adjudicating authority can pursue them."
Further, the draft bill proposes a series of amendments that would create a new system of offline verification of an Aadhaar number. The analysis points out, this new system should be understood in the context of the ongoing national discourse on privacy and data protection, though adding, it does not suggest how to go about it.
Accrding to the report, it appears likely that the offline-verification system will rely on QR code scanning of e-Aadhaar or Aadhaar letters. Citing a recent UIDAI a tender seeking an Expression of Interest (EoI) for Participating in QR Code Scanner for Aadhaar, it says, the question which is being asked is: Where is the data of the aadhaar card holders stored for the offline verification to work?

Comments

TRENDING

Defeat of martial law: Has the decisive moment for change come in South Korea?

By Steven Lee  Late at night on December 3, soldiers stormed into South Korea’s National Assembly in armored vehicles and combat helicopters. Assembly staff desperately blocked their assault with fire extinguishers and barricades. South Korea’s President Yoon Suk Yeol had just declared martial law to “ eliminate ‘anti-state’ forces .”

70,000 migrants, sold on Canadian dream, face uncertain future: Canada reinvents the xenophobic wheel

By Saurav Sarkar*  Bikram Singh is running out of time on his post-study work visa in Canada. Singh is one of about 70,000 migrants who were sold on the Canadian dream of eventually making the country their home but now face an uncertain future with their work permits set to expire by December 2024. They came from places like India, China, and the Philippines, and sold their land and belongings in their home countries, took out loans, or made other enormous commitments to get themselves to Canada.

EVMs: Govt must prove beyond reasonable doubt it's upholding mandate for free, fair polls

By Jerald D’souza  With the growth of India’s population, concerns about electoral fraud associated with ballot papers, also began to escalate. In 1989, the People’s Representation Act was amended to enable EVMs to prevent electoral fraud. In 1998, EVMs made their debut during legislative assembly elections and for the first time for general elections in 2004. However, criticisms against the EVMs and questions about their integrity have been raised by political parties, civil society and the general population. On 2 February 2024, there was a noteworthy demonstration of dissent where numerous individuals, including Ambedkarite advocates, legal professionals, and other members of civil society  convened at Delhi’s Jantar Mantar demanding the prohibition of EVMs. In 2024, the Supreme court had slapped down a petition to return to paper ballots on the basis that machines give “absolutely accurate results” unless human bias maligns them. The court stated that it was open to testi...

This Indian British Marxist blamed USSR's collapse in 1991 on Khrushchev's 'revisionism'

By Harsh Thakor*  Harpal Singh Brar, British Indian Marxist scholar and communist leader, has passed away in Chandigarh. He was 85. He was a lifelong supporter of socialism, Marxism, and the working class. He will be remembered among British Communists.

Chalapathi's death in encounter suggests Maoists' inability to establish broader mass support

By Harsh Thakor* The Maoist movement experienced a significant loss during the Ramagudem encounter on January 21, with the death of Chalapathi (Pratap), a Central Committee member of the CPI (Maoist). His death, along with 15 others, marks a major setback for the movement. Reports suggest that his location was revealed to security forces through a selfie with his wife.

A groundbreaking non-violent approach: Maharishi’s invincible defense technology

By MajGen (R) Kulwant Singh, Col (R) SP Bakshi, Col (R) Jitendra Jung Karki, LtCol (R) Gunter Chassé & Dr David Leffler*  In today’s turbulent world, achieving lasting peace and ensuring national security are more urgent than ever. Traditional defense methods focus on advanced weapons, military strategies, and tactics, but a groundbreaking approach offers a new non-violent and holistic solution: Maharishi’s Invincible Defense Technology (IDT). 

Operation Kagar represents Indian state's intensified attempt to extinguish Maoism: Resistance continues

By Harsh Thakor Operation Kagar represents the Indian state's intensified attempt to extinguish Maoism, which claims to embody the struggles and aspirations of Adivasis. Criminalized by the state, the Maoists have been portrayed as a threat, with Operation Kagar deploying strategies that jeopardize their activities. This operation weaves together economic, cultural, and political motives, allegedly with drone attacks on Adivasi homes.

Why do we mostly resist and refrain from communicating on sanitation topic?

By Nikhil Kumar, Mansee Bal Bhargava* According to UN SDG Progress report (2022), at the present moment no targets for SDG 6 are expected to be met by 2030. In 2022, 2.2 billion people had no access to safe drinking water and 3.5 million lacked safe sanitation. Approximately 50% of the world’s population was reported to have been under resourced in enough water for part of the year and a quarter of that population was living under “extremely high” water stress. Add to it, droughts have affected over 1.4 billion people between 2002 and 2021.

CCG raises concerns over Indian State of Forest Report 2023 in open letter to environment minister

By A Representative  The Constitutional Conduct Group (CCG), a collective of former civil servants, has expressed serious concerns over the Indian State of Forest Report (ISFR) 2023 in an open letter to the Union Minister for Environment, Forests & Climate Change. The group has criticized the report's delayed release, flawed methodology, and misleading claims regarding the state of India's forests.

अल्पसंख्यक कार्य मंत्रालय का बजट निराशाजनक: 19.3% अल्पसंख्यकों के लिए मात्र 0.0661% ठोस आवंटन

- मुजाहिद नफ़ीस*   1-2-2025 को भारत सरकार द्वारा संसद में वर्ष 2025-26 का बजट वित्त मंत्री निर्मला सीतारमण जी ने पेश किया| इस वर्ष का बजट 5065345 करोड़ है जो कि पिछले साल के संशोधित अनुमान से लगभग 7.39% की बढ़ोतरी हुई है| वहीं अल्पसंख्यक कार्य मंत्रालय का बजट मात्र 3350.00 करोड़ है जो कि कुल बजट का 0.0661% लगभग है|  पिछले साल 2024-25 में 3183.24 करोड़ था|