Legislative Brief on Digital Rights for Budget Session 2022

tl;dr

As the Budget Session of the Parliament commences, we have prepared our third legislative brief on digital rights to highlight some of the focus areas within the larger issues of technology policies and digital rights that call for the extensive deliberation in the houses of the Parliament.

Introduction

As per bulletins by the Lok Sabha and Rajya Sabha secretariats, the Budget Session of the Parliament commenced on 31 January, 2022. The annual Union Budget for the fiscal year 2022-2023 was released on 1 February, 2022. The session will be held in two parts – the first part concludes on February 11, while the second part begins on 14 March and concludes on 8 April. As per COVID-19 protocols, the two houses of Parliament will convene in two different shifts, with the Rajya Sabha scheduled to convene in the morning and the Lok Sabha in the afternoon.

The Winter Session of the 17th Lok Sabha saw frequent disruptions over the suspension of 12 members of Rajya Sabha, the Lakhimpur Kheri incident and later the Election Laws (Amendment) Act, 2021. Upon the completion of “essential government business” with the passing of the Election Laws (Amendment) Bill, 2021, the house was adjourned sine die a day ahead of schedule.

Though the Government reiterated the need for a smooth-functioning and productive debate, this session is also expected to run into some roadblocks over issues such as the Pegasus spyware, data protection legislation, rising inflation and unemployment, farmers' protest and political violence.

Analysis Of Union Budget Performance Since 2014

Budget 2021-22 has cumulatively allotted Rs. 80,149.33 crore to the Ministry of Electronics and Information Technology (MeitY), the Department of Telecommunications (DoT), the Ministry of Information and Broadcasting (MIB) and the Ministry of Home Affairs (MHA). This was an increase of 48% from the previous year’s total revised expenditure (Rs. 54,324.6 crore). Should the estimated budget for the year 2021-2022 hold, an analysis of the budgets would imply a compound annual growth rate (CAGR) of 24.51% per annum since 2014-2015. Moreover, the 2021-2022 budget estimates saw a 65% increase in expenditure on IT and Telecom (Rs. 53,108 crore) as compared to previous year’s total revised expenditure (Rs. 32,178 crore).

Potential Areas Of Parliamentary Deliberation

1. The Data Protection Bill, 2021: India is likely to finally have data protection legislation enacted as the JPC Report on the PDPB 2019 was tabled in Parliament last Winter Session. As is evident from the dissent notes filed by 8 Members of Parliament against the final recommendations of the committee, problems of overbroad government exemptions and the independence of the DPA are key issues that emerge from the report of the JPC (for elaboration on the dissent notes, see this explainer).
   
2. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have been notified. As it wasn’t tabled in the Winter Session of the 17th Lok Sabha, it is upto the government to bring it up in the upcoming Budget Session of 2022. Manifestly, the 2021 Intermediary Rules not only lack any clear rationale but also go beyond the scope of the parent statute. This especially undermines the observations of the Supreme Court of India in Shreya Singhal v. Union of India which upheld that it is not under the constitutional scheme for the State to curtail freedom of speech beyond the scope of Article 19(2). The current Rules, which are mired in imprecise language, impose arbitrary obligations of content regulation, traceability and decryption upon intermediaries which in turn jeopardise the freedom of speech and expression as well as the right to privacy of the users.
   
3. Tek-Fog App: A two-year long investigation by the Wire, revealed the use of an application called “Tek Fog” allegedly by the  Bharatiya Janata Party's (BJP's) Information Technology Cell (IT Cell). The Wire claims that the app was used to ‘amplify’ right-wing narratives by ‘auto-tweeting’ and ‘auto-sharing’ tweets along with posts on twitter as well as facebook using accounts controlled by the app. The Wire also claims that the app was used to ‘hijack’ inactive whatsapp accounts to send targeted messages to ‘frequently contacted’ contacts. In response to a letter by Hon’ble Member of Parliament, Mr. Derek O’Brien, the Standing Committee on Home Affairs has taken cognizance of the concerns that emerge from this application, and had asked the Home Secretary to prepare a response to these concerns by 20 January, 2022.
   
4. “Bulli Bai”: The recent “Bulli Bai” and “Sulli Deals” incidents, a fake online auction of almost 100 Muslim women, was a blatant violation of their data security and privacy rights (for an elaborate background, see this explainer). It severely impacted their constitutional right to life and free speech by displaying sensitive information without consent. The abuse also increases against politically articulate women, as seen in the “Bulli Bai” and “Sulli Deals” incidents that targeted journalists and human rights activists. Further, the lack of an overarching data protection legislation also leaves a gaping hole in the legal measures to be taken in case of personal data usage violation. There is no clarity on the obligation and governance terms to be followed by technology platforms for the data collected. This exacerbates security and privacy threats as well as fails to safeguard against data breaches (for a timeline on the issue and actions taken, see this explainer).

Telecom Data and Digital Divide

There has been a decline in the number of telecom subscribers between August and September 2021, and a slow-down in growth in the number of internet subscribers with the growth rate being 0.07%, which is the lowest quarter-on-quarter growth rate since March 2020 (for an in-depth detail, see the second edition of our Connectivity Tracker). The digital divide in internet access has deepened with the advent of online learning brought on by the COVID-19 pandemic. The School Children’s Online and Offline Learning (“SCHOOL”) survey sampled around 1,400 households in 15 states and Union Territories (UTs). 60% of the surveyed households reside in rural areas, while close to 60% of the surveyed households belong to Dalit & Adivasi communities. The survey presents a very worrying picture of the state of online access to education in India. The survey reveals that only 24% of children in urban areas and an abysmal 8% of children in rural areas were studying online “regularly”. This was due to various reasons, chief among them was the reason that 36% of children in rural areas lacked access to a smartphone as compared to 30% children in urban areas.  Further, in the case of 43% of rural children, no online material was being sent by the school (see Table 2 on page 6 of the survey) .

Trends from the 17th Lok Sabha

1. Decreased engagement on digital rights: In comparison to the previous monsoon session, a significant decline was registered in the number of questions our public representatives asked around issues concerning online content regulation, internet access and connectivity, and surveillance. No questions were asked regarding internet shutdowns and only two questions were raised regarding Aadhaar in the winter session. Questions around data protection, privacy, cybersecurity along with digital welfare and development saw a substantial jump in the number of questions asked in the Winter Session as compared to the Monsoon Session. A total of 108, 57 and 71 questions around digital rights issues were asked in the Budget, Monsoon and Winter Session respectively.
   
2. Political Party Differentiation: Though the Bharatiya Janata Party (BJP) had raised the most number of questions during the Winter Session (66 questions), representing 53.2% of the total number of questions asked, it was largely due to the high share of BJP MPs in Lok Sabha. In comparison, the percentage of MPs per political party who asked questions is 25.25% for the BJP and 39.62% for the Indian National Congress. The Telugu Desam Party and Communist Party of India (Marxist) had the highest percentage (66.67%) of MPs who asked questions related to digital rights.

This is just a sneak peak at some of the issues we have covered in-depth in our brief. For more analysis, statistics, and insight into future legislative developments related to digital rights, see here!

Important documents

1. IFF’s Legislative Brief on Digital Rights - Budget Session 2022 (link)
2. Harmonised Union Budget Data (link)
3. Prior legislative briefs (click here)

We acknowledge this brief is far from perfect and is our third attempt (the first two being in the Monsoon and Winter session of 2021) towards the preparation of a legislative brief. This Legislative Brief is structured towards putting forward an analysis of the past Union Budgets, providing background information as well as updates on priority issues, government schemes and projects, and on developments in parliamentary bodies such as standing committees, which have emerged over the past few months. The drafting of this brief was informed and indeed inspired by our conversations with various stakeholders and civil society organisations principally inspired by the work of PRS India. We ask legislators, politicians, and public policy practitioners, as well as the citizens of India, to provide us with inputs and feedback about how we can improve this brief here.

Note: This post drafted by Tejasi Panjiar, Capstone fellow hosted at IFF, and reviewed by Anushka Jain, Associate Counsel at IFF. The legislative brief itself has a broader range of staffers and collaborators.