31 JULY 2018
A Good Beginning
The data protection bill drafted by the Srikrishna panel ticks many boxes
Given the vast amounts of personal data being collected by private companies and state agencies, and their flow across national jurisdictions, the absence of a data protection legal framework in India has been a cause for deep concern. This is even more so because in many cases individuals whose data have been used and processed by agencies, both private firms and state entities, are oblivious to the purpose for which they are being harnessed. The need for legislation was also underlined last year with the landmark judgment in Justice K.S Puttaswamy v. Union of India that held the right to privacy to be a fundamental right. Against this backdrop, the draft legislation on data protection submitted by a committee of experts chaired by Justice B.N. Srikrishna to the Ministry of Electronics and Information Technology after year-long public consultations provides a sound foundation on which to speedily build India’s legal framework. It seeks to codify the relationship between individuals and firms/state institutions as one between “data principals” (whose information is collected) and “data fiduciaries” (those processing the data) so that privacy is safeguarded by design. This is akin to a contractual relationship that places obligations on the entities entrusted with data and who are obligated to seek the consent of the “principal” for the use of personal information. The draft legislation puts the onus on the “data fiduciary” to seek clear, informed, specific and free consent, with the possibility of withdrawal of data of the “principal” to allow for the use and processing of “sensitive personal data”.
In many ways, the draft legislation mirrors the General Data Protection Regulation, the framework on data protection implemented in the European Union this May, in providing for “data principals” the rights to confirmation, correction of data, portability and “to be forgotten”, subject to procedure. It envisages the creation of a regulatory Data Protection Authority of India to protect the interests of “principals” and to monitor the implementation of the provisions of the enabling data protection legislation. Taken together, the draft bill and the report mark a welcome step forward, but there are some grey areas. The exemptions granted to state institutions from acquiring informed consent from principals or processing personal data in many cases appear to be too blanket, such as those pertaining to the “security of the state”. These are hold-all phrases, and checks are vital. The report recommends a law to provide for “parliamentary oversight and judicial approval of non-consensual access to personal data“. Without such an enabling law, the exemptions provided in the bill will fall short of securing accountability from the state for activities such as dragnet surveillance. The grey areas must spark public and parliamentary debate before a final legislation comes to fruition.
A Result Foretold
Hun Sen returns to power in Cambodia after the Opposition was effectively disbarred
The outcome had been ensured long before Cambodia went to the polls on Sunday, with Prime Minister Hun Sen ensuring his return by keeping key Opposition leaders out of the fray and muzzling the media. The next morning, a spokesperson for his Cambodian People’s Party was smugly claiming it had won all 125 parliamentary seats, renewing its mandate for another five years. Despite official estimates of turnout in excess of 80%, the CPP’s victory is hollow. Mr. Hun Sen, who has been at the helm since 1985, left nothing to chance to see that his party was effectively uncontested. Voters were threatened with punishment if they responded to calls for an election boycott. A number of dummy parties joined what international observers called a sham election. Since Cambodia’s first free elections in 1993, the CPP’s single-party dominance had been largely enabled by a fragmented Opposition. But things changed before the 2013 elections with the merger of two big Opposition parties to form the Cambodia National Rescue Party. The CNRP came within striking distance of the ruling party in those polls, and its impressive showing in the June 2017 polls to local bodies underscored its potential further. Within months, the courts ordered its dissolution on allegations of a plot to overthrow the regime. Its leader, Kem Sokha, was arrested on treason charges; several CNRP veterans are in exile. The closure of a reputed newspaper last year exposed official intolerance of media freedom. Some voluntary organisations have been forced to wind up because of a perceived western bias.
The climate of fear and intimidation has drawn criticism from regional and global rights groups. New York-based Human Rights Watch recently released an investigation on Mr. Hun Sen’s inner circle, made up mostly of top security personnel linked to the brutal Khmer Rouge massacres of the 1970s. Closer home, ASEAN has traditionally been averse to commenting on the internal affairs of member-countries. Meanwhile, the massive Chinese investments in infrastructure projects in Cambodia come with no overt political strings attached, and Mr. Hun Sen continues to capitalise on his close ties with Beijing to counter domestic and overseas criticism of his human rights record. The U.S. House of Representatives last week approved legislation to sanction top Cambodian officials implicated in the violation of the rule of law. The measure will be taken up by the Senate soon. Whether Mr. Hun Sen will adopt a more conciliatory approach in his new term is a matter of speculation. But Cambodians clearly need some respite, as they struggle to rebuild their nation after the widespread destruction during the genocide under the Khmer Rouge and the civil war that followed.