It’s been a few weeks since the Justice BN Srikrishna committee report released its draft Personal Data Protection Bill, 2018. The Bill has received mixed reviews—nothing unexpected there. Whatever be the criticisms levelled at the Bill, this author, for one, believes it is a great start for a country that has no parliamentary law on this subject.The committee did not have to reinvent the wheel in drafting the fundamental principles governing a privacy/data protection law, but one would have expected the committee to propose something workable—a system grounded in the Indian reality.
This author’s greatest criticism, unfortunately, lies herein. Implementing the entire Bill rests in the creation and efficient functioning of the proposed Data Protection Authority of India. Besides being entrusted with the overall implementation and working of the proposed law, this authority is to have a separate adjudication wing and this adjudication wing is vested with the power to impose penalties for violations by data fiduciaries (those who decide what to do with personal data) and data processors (those who actually process the personal data). It is this adjudication wing within the authority before whom an individual can seek compensation from data fiduciaries and data processors. Appeals from the adjudication wing lie to an appellate tribunal and from there, to the Supreme Court of India. The proposed Bill excludes the jurisdiction of civil courts and has overriding effects on all other laws for any inconsistency.
In this author’s view, the draft Bill will live, die or linger in a state between these extremes based on the formation, training, effectiveness and independence of the adjudication wing.
Creation of specialised adjudication bodies or tribunals has been a controversial topic for a long time, in India and elsewhere—it has its ardent supports and vociferous critics. While not (yet) a vociferous critic, this author is cynical about the introduction of a new regulatory adjudicatory body into the Indian ecosystem, which boasts no good track record.
Resources, infrastructure and the will to implement are one set of factors to consider. Appointment is another—the Bill vests the power with the central government to appoint members of the authority, though the selection committee comprises the Chief Justice of India (or his/her nominee) that would ‘recommend’ names. The central government also has the power to determine the number, qualification, jurisdiction and terms of appointment of the adjudicating officers and the appellate tribunal (no selection committee here, by the way). The Bill also gives the power to vest the jurisdiction of the appellate tribunal with any existing tribunal. Serious constitutional issues may arise in such situations, with the central government having absolute power to determine qualifications, and the appointing and removal of members. This is especially where the committee has fervently argued for subjecting the government and public bodies, including the UIDAI implementing the Aadhaar, to the proposed law.
From a practical perspective, there is also the matter of finding the right people and judicially trained mind-sets. The adjudication functions would typically require subject knowledge along with a judicially trained mind. If one were to go by experience, this is easier said than done. It may be easier for a dedicated judicially trained mind to learn the subject knowledge, but not the other way around (generally). A judicially trained mind is less likely to act arbitrarily (in procedure) and more likely to get the interpretation of the law right; such a mind will also be better trained to balancing equities and competing interests, which will likely be play a central role in implementing data protection laws.
To be fair, having a separate authority comprising of experts undoubtedly makes sense, considering the need to understand technology and the industry, as well as the need to create standards. Other jurisdictions have followed a similar route. As for adjudication, enough has been written about backlogs in Indian courts and as some would argue, the alternative of not creating a separate adjudication wing would anyway result in less effective solutions. The issue fits the proverbial situation of being stuck between a rock and a hard place. While this is a tough call to make, this author is not convinced that creating this parallel adjudicatory system would create effective solutions in the Indian ecosystem.
The alternative could be the creation of a fact-finding/investigation wing within the Authority, with regular courts (or even consumer protection courts) being vested with the adjudication function, to determine cases in a time bound manner. Courts would direct investigation when receiving complaints from individuals and this investigation wing may also have the power to initiate their own complaints before courts. This takes away the tedious task of initial fact-finding from courts, allowing the court to focus on legal issues and adjudication.
By Adarsh Ramanujan, Managing partner, AKR Law