Winter Session 2021: A Digital Rights Review

tl;dr

The Winter session of Parliament saw frequent disruptions over the suspension of 12 members of Rajya Sabha, demanding the resignation of the Minister over the Lakhimpur Kheri incident and later the Election Laws (Amendment) Bill, 2021. In this post, we take a look at these disruptions and analyse how the Parliament fared with respect to digital rights.

A look back

The winter session of the Indian Parliament this year was quite extraordinary. Once again, we saw several days washed out, as the protests about the suspension of 12 Rajya Sabha members over their misconduct on the last day of the monsoon session and the Lakhimpur Kheri incident where 8 farmers lost their lives led to multiple adjournments of both the houses.

The Winter Session saw 12 Bills, including the Farm Laws Repeal Bill, 2021 and the Election Laws (Amendment) Bill, 2021. The Farm Laws Repeal Bill, 2021 was passed on the first day itself in both Houses in less than 10 minutes without discussion. The Election Laws (Amendment) Bill, 2021 was passed within three hours of its introduction in Lok Sabha and within two hours of its introduction in Rajya Sabha. Further disruptions continued, however, with 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.

Data compiled by PRS Legislative Research shows that Parliament functioned for less than a quarter of the scheduled time. During the course of the session, the average time spent discussing a Bill before passing it was two and a half hours for the Lok Sabha and two hours for the Rajya Sabha. The data show that the Lok Sabha worked merely for 77% of its scheduled time, while Rajya Sabha fared even lower at 43%. This session has been very unproductive compared with the average working of the house. In the 17th Lok Sabha so far, Lok Sabha has worked for 99% of the scheduled time, while Rajya Sabha has worked for 76% of the scheduled time.

Bills and Legislations

Last month, when we released our Legislative Brief on Digital Rights, we had looked at a couple of key issues and pieces of legislation that might have been taken up by Parliament. We had identified 3 pieces of legislation that would be up for debate, and while the Joint Parliamentary Committee (JPC) on the Personal Data Protection Bill, 2019 (2019 Bill) finally tabled its report, the other two pieces of legislation were not taken up for discussion:

1. The DNA Technology (Use and Application) Regulation Bill, 2019: One of the most crucial issues to be taken up by the Parliament during the Monsoon Session is the DNA Technology ( Use and Application) Regulation Bill, 2019. Centred around the use of DNA technology in the justice delivery system, this bill raises concerns about privacy and surveillance norms. However, no significant discussion, either on the Bill or the report of the Standing Committee, took place, and so the Bill is still pending.
2. The Cinematograph (Amendment) Bill, 2019:  The Cinematograph (Amendment) Bill, 2019 is scheduled to be tabled in the ongoing session of the Parliament. This Bill revolves around proposed amendments like subcategories of certification for films, stringent penal provisions for the menace of privacy as well as the changes to the power of the Central Board of Film Certification. This Bill too did not witness any significant discussion and is pending.

Election Laws (Amendment) Bill, 2021:

The Election Laws (Amendment) Bill, 2021, passed in the Lok Sabha on December 20, 2021, and in Rajya Sabha on December 21, 2021, seeks to amend the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to implement certain electoral reforms.

The Amendment Bill provides for:

1. Linking electoral roll data with Aadhaar: The Bill adds that the electoral registration officer may require a person to furnish their Aadhaar number for establishing their identity. This, referred to as ‘Aadhaar Voter ID linking’ is problematic and can have several ramifications.
2. The qualifying date for enrolment in electoral roll: The Bill provides for four qualifying dates in a calendar year, which will be January 1, April 1, July 1, and October 1 - i.e., the dates after which a person, of 18 years of age, can enrol in the electoral roll.
3. Requisitioning of premises for election purposes: The Bill expands the purposes for which premises can be requisitioned from “premises needed or likely to be needed for being used as polling stations, or for storing ballot boxes” to include using “the premises for counting, storage of voting machines and poll-related material, and accommodation of security forces and polling personnel”.
4. Gender-neutral provisions: The 1951 Act enables the wife of a person holding a service qualification to vote either in person or by postal ballot.  The Bill replaces the term ‘wife’ with ‘spouse’.

IFF welcomes the move of the Ministry to amend the Election Laws to provide for additional qualifying dates and for making it gender-neutral, however, the provision to link Aadhaar numbers and Voter cards is unconstitutional and goes against the established legal precedents.

Although the proposal is being pushed on the behest that any linking will be ‘voluntary’ in nature, there are concerns that it will almost certainly lead to mass disenfranchisement, could increase voter fraud, and could violate people’s right to privacy by enabling voter-profiling through the linkage of data sets, as well as impede the guarantee of secrecy of the ballot.

IFF has co-endorsed a statement condemning the Aadhaar-Voter ID linkage, along with several other prominent organizations.

The JPC finally tables its report!

After two years and several extensions, the JPC finally tabled its report in both the houses of the Parliament. The JPC has now proposed a Data Protection Bill, 2021 (2021 Bill) which is supposed to be the overarching legislation for personal as well as non-personal data in India.  We have looked at the key takeaways from the JPC Report, in which we have highlighted how the Report has deliberated upon user consent, user rights, the nature of the proposed Data Protection Authority, and exemptions granted to governments. We also conducted a detailed comparison of the 2021 Bill with the Bill proposed by the Srikrishna Committee Report in 2018 and the 2019 Bill, highlighting the crucial differences (such as with respect to the independence of the proposed Data Protection Authority) between the different versions.

Eight members of the JPC also moved dissent notes against the final version of the Bill, with problems of overbroad government exemptions and the structure of the Data Protection Authority emerging as common points of contention. IFF has also pointed out how the JPC Report and the draft Data Protection Bill fail to account for India’s surveillance regime, ignoring the crucial need for surveillance reform.

Internet shutdowns and the Standing Committee on IT

The Standing Committee on Communication and Information Technology published its Report on ‘Suspension of telecom services/internet and its impact’. The report has been published when governments across the country continue to frequently suspend internet services. Here, it must be noted that the Committee is a cross-party committee and it had selected the subject for a detailed examination in 2019-20. In 2021, the Committee posed questions on Whether the Union Government maintains data of internet shutdown orders?; Whether provisions of Section 144 Code of Criminal Procedure, 1973 could be used to suspend internet services?; Whether ‘independent voice’ should feature in the review committees which examine whether internet suspension orders comply with the law?; Whether states have constituted review committees, and Whether it is feasible to selectively suspend services instead of ordering a shutdown? to the representatives from the Department of Telecommunications (DoT), Ministry of Home Affairs (MHA), State Government of Bihar and Union Territory of NCT of Delhi.

In this background, the Committee has made a range of recommendations including a review of the legal regime for suspension of internet services and establishing a database of internet shutdown orders:

1. Amendment: DoT in coordination with MHA and the Ministry of Law and Justice must review and amend the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
2. Database: The DoT and the MHA must develop a centralized database of all internet shutdowns in the country, mentioning details such as the duration and the reason for which internet shutdown was ordered, and must also provide the underlying order which directed the suspension of the internet.
3. Study for impact: A thorough study must be commissioned by the Union Government to assess the impact of internet shutdowns on the Indian economy as well their effectiveness in dealing with public emergencies.
4. Review Committees: Review Committees must be constituted in all states to ensure adequate checks and balances.
5. SOP and guidelines: The DoT and MHA must issue uniform guidelines for the issuance of telecom suspension orders. These guidelines must include the safeguards laid down by the Supreme Court in Anuradha Bhasin and lay down a clear principle of proportionality as well as the procedure for lifting internet shutdowns.

Incidentally, the Committee also noted the submissions made by IFF on 4th August 2020 highlighting the ill effects of internet shutdowns. In our submissions, IFF had questioned whether internet shutdowns lead to better law and order outcomes, and had pointed out that research had demonstrated that internet shutdowns were ineffective in pacifying protests and have the unintended consequence of incentivising violent forms of collective actions which require less communication.

Significant Responses

Throughout the Winter Session, IFF also tracked the answers to parliamentary questions placed in both the Houses by various Ministers. A few key responses received:

• On a question of FRT being used in airports and the safeguards taken by the Government to prevent the leakage of passenger data, the Minister of State in the Ministry of Civil Aviation noted that the Airports Authority of India is working on a project of Facial Recognition Technology based Biometric Boarding System as part of 1st phase of Digi Yatra Implementation at 04 Airports and the proposed Digi Yatra Central Ecosystem is planned to go live in March 2022. (link)
• On a question of the National Automated Facial Recognition System (NAFRS), The MHA informed the House that “...facial recognition is regulated by the IT act, 2000...”. This is inaccurate as neither the IT act nor any other law regulates facial recognition. Using AFRS in the absence of law will lead to violations of our right to privacy. (link)
• On a question of blocked accounts of Twitter, the Minister of Electronics and Information Technology refused to provide reasons and appropriately explain the due process followed in the blocking of accounts. (link)
• On a question of a Digital Health Card under the Ayushman Bharat-Pradhan Mantri Jan Arogya Yojana, the Minister of Health and Family Welfare placed a statement in the house. (link)
• On a question of Unique ID for Farmers, the Minister laid a statement on the table in the house. (link)

For a more comprehensive view of the questions pertaining to the digital rights of citizens, we have charted them in this table.

What’s next

Despite the disruptions, this was a momentous session for digital rights: the Election Laws (Amendment) Bill, 2021 has also caused a significant furore, while on a more positive note the Standing Committee on IT has made welcome recommendations on internet shutdowns. The most notable happening is, of course, that the report of the JPC on the Personal Data Protection Bill, 2019 has finally been tabled. The recommendations of the JPC will set the tone for India’s data protection regulatory regime and so it is important that the final Bill embodies key constitutional values. Thus,, we hope that when the government finally presents the modified Bill, it conducts comprehensive discussions on the Bill in Parliament and provides its rationale for either accepting or rejecting each of the recommendations of the JPC.

Important Documents

1. IFF’s Legislative Brief on Digital Rights for Winter Session 2021. (link)
2. The report of the Joint Parliamentary Committee on the Personal Data Protection Bill, 2019 tabled on December 16, 2021. (link)
3. Key Takeaways: The JPC Report and the Data Protection Bill, 2021 #SaveOurPrivacy dated December 16, 2021. (link)
4. Comparing the Draft. Data Protection Bill, 2021 with its predecessors dated December 17, 2021. (link)
5. Need for surveillance reform stronger than ever in light of the Draft Data Protection Bill, 2021 #SaveOurPrivacy dated December 21, 2021. (link)
6. Dissent is democratic: Looking at the dissent notes in the report of the JPC #SaveOurPrivacy dated December 23, 2021. (link)
7. IFF wrote to the MHA and the DOT seeking implementation of the recommendations made on internet shutdowns by the Standing Committee on Communication and Information Technology dated December 22, 2021. (link)

The post was drafted with the assistance of Gyan Tripathi, a fourth-year law student from Symbiosis International (Deemed University), Pune, and reviewed by IFF staffer Rohin Garg.