The Personal Data Protection Bill, 2019: How it differs from the draft Bill

The Personal Data Protection Bill, 2019 was recently introduced in Parliament.  The Bill has been referred to a Joint Parliamentary Committee for detailed examination, and the Committee is expected to submit its report by the last week of Budget Session, 2020.  The Bill seeks to provide for the protection of personal data of individuals (known as data principals), and creates a framework for processing such personal data by other entities (known as data fiduciaries).  It provides the data principal with certain rights with respect to their data, such as seeking correction, completion or transfer of their data to other fiduciaries.   Similarly, it sets out certain obligations, and other transparency and accountability measures to be undertaken by the data fiduciary, such as instituting grievance redressal mechanisms to address complaints of individuals.  Processing of personal data is exempted from the provisions of the Bill in certain cases, such as security of state, public order, or for prevention, investigation, or prosecution of any offence.  The Bill also establishes a Data Protection Authority to ensure compliance with the provisions of the Bill and provide for further regulations. 

 

As per the Statement of Objects and Reasons of the 2019 Bill, the provisions of the Bill are based on the recommendations of the report of the Expert Committee (Chair: Justice B. N. Srikrishna) which examined issues related to protection of personal data and proposed a Draft Personal Data Protection Bill, 2018.  

 

In a previous blog, we provided a brief background to the 2019 Bill, explained why a Bill was brought for personal data protection and what are some of the key provisions of the Bill.  In this blog, we look at how the 2019 Bill differs from the 2018 Draft Bill.

Table 1: Comparison of the provisions of the 2018 Draft Bill with the 2019 Bill

Provision

Draft Personal Data Protection Bill, 2018

Personal Data Protection Bill, 2019

Definition of personal data 

  • Personal data pertains to characteristics, traits or attributes of identity, which can be used to identify an individual.
  • The Bill retains the definition and adds that such characteristics or traits will also include any inference drawn from such data for the purpose of profiling.

Sensitive personal data

  • Sensitive personal data includes personal data related to health, sex life, sexual orientation, financial data, passwords, among others.  
  • The Data Protection Authority can categorise any other personal data as sensitive personal data. 
  • The Bill removes passwords from the category of sensitive personal data.  
  • The power to further categorise personal data as sensitive personal data will lie with the central government (in consultation with Data Protection Authority and the sector regulator concerned).

Rights of individual (data principal)

  • The data principal has certain rights with respect to their data such as obtaining confirmation on whether their data has been processed, seeking correction, transfer, or restriction on continuing disclosure of their data.
  • The Bill provides the right to erasure of personal data which is no longer necessary for the purpose for which it was processed, as an additional right for the data principal.

Non-consensual processing of personal data

  • Personal data may be processed without obtaining the consent of the individual on certain grounds.  These include: (i) any function of Parliament or state legislature, (ii) if required by the State for providing benefits to the individual, and (iii) for reasonable purposes specified by the Authority, such as fraud detection, debt recovery, and whistle blowing.   
  • The Bill removes the provision on any function of Parliament or state legislature as a ground for non-consensual processing of personal data. 
  • The Bill adds ‘operation of search engines’ as a reasonable purpose for which non-consensual processing of personal data may be allowed by the Authority.

Social media intermediaries

  • The draft Bill did not contain this term.
  • The Bill defines a social media intermediary as an intermediary which enables online interaction between users and allows for sharing of information.  
  • All social media intermediaries which are classified as significant data fiduciaries (fiduciaries with users above a notified threshold whose actions can impact electoral democracy or public order) must provide a voluntary user verification mechanism for all users in India. 

Exemptions for the government for processing of personal data 

  • The State is exempted from the provisions of the Bill while processing personal data in the interest of national security.     However, such processing must be permitted by a law and must be proportionate to the interests being achieved.  Further, such processing must be done in a fair and reasonable manner. 
  • The government can exempt any of its agencies from any or all provisions of the Act, for processing of personal data in certain cases.     These include: (i) in interest of security of state, public order, sovereignty and integrity of India and friendly relations with foreign states, and (ii) for preventing incitement to commission of any cognisable offence relating to the above matters.

Exemptions for manual processing by small entities

  • Transparency and accountability measures and certain other obligations will not apply to small entities.  These are fiduciaries which: (i) have annual turnover below Rs 20 lakh (or such lower amount as prescribed), and (ii) did not process data of more than 100 individuals in any one day in the last year.
  • The Bill retains the exemption for small entities.     However, it does away with the prescribed limits and allows the Authority to classify fiduciaries as small entities based on the annual turnover of fiduciary and the volume of data processed by such fiduciary. 

Transfer of personal data outside country

 

  • One serving copy of all personal data should be stored in India. 
  • The Bill removes the provision for mandatory storage of all personal data in the country.  It provides that sensitive personal data must continue to be stored in India.  Such data can be transferred outside India if explicitly consented by the individual, and subject to certain additional conditions.

Composition of Data Protection Authority of India

  • The chairperson and members of the Authority will be appointed by the central government on the recommendations of a selection committee.  The selection committee will be comprised of: (i) Chief Justice of India or a Judge of Supreme Court as the chairperson, (ii) Cabinet Secretary, and (iii) an expert in field of data protection, information technology and related subjects.
  • The Bill provides that the selection committee will be comprised of: (i) Cabinet Secretary as the chairperson, (ii) Secretary, Department of Legal Affairs, and (iii) Secretary, Ministry of Electronics and Information Technology. 

Offences and penalties 

  • Under the Bill, offences such as: (i) obtaining, disclosing, transferring, or selling personal data in contravention of the Act, and (ii) re-identification and processing of de-identified personal data (data from which identifiers have been removed) without consent, are punishable with imprisonment. 
  • Under the Bill, re-identification and processing of de-identified personal without consent is the only offence punishable with imprisonment.  

Non-personal and anonymised personal data

  • No provision of the Bill would apply to non-personal data used by government for formulation of policies for digital economy, growth or security. 
  • The Bill retains the provision and further provides that the government can direct data fiduciaries to provide it any: (i) non-personal data and (ii) anonymised personal data (where it is not possible to identify data principal) for better targeting of services and formulation of evidence-based policy.

Sources: The Draft Personal Data Protection Bill, 2018; The Personal Data Protection Bill, 2019; PRS. 

The Personal Data Protection Bill, 2019: All you need to know

Recently, the  Personal Data Protection Bill, 2019 was introduced in Parliament.  The Bill has been referred to a Joint Parliamentary Committee for detailed examination, and the report is expected by the Budget Session, 2020.  The Bill seeks to provide for protection of personal data of individuals, create a framework for processing such personal data, and establishes a Data Protection Authority for the purpose.  In this blog, we provide a background to the 2019 Bill, and explain some of its key provisions.

What is personal data and data protection?

Data can be broadly classified into two types: personal and non-personal data.  Personal data pertains to characteristics, traits or attributes of identity, which can be used to identify an individual.   Non-personal data includes aggregated data through which individuals cannot be identified.  For example, while an individual’s own location would constitute personal data; information derived from multiple drivers’ location, which is often used to analyse traffic flow, is non-personal data.  Data protection refers to policies and procedures seeking to minimise intrusion into the privacy of an individual caused by collection and usage of their personal data.  

Why was a Bill brought for personal data protection?

In August 2017, the Supreme Court  held that privacy is a fundamental right, flowing from the right to life and personal liberty under Article 21 of the Constitution.  The Court also observed that privacy of personal data and facts is an essential aspect of the right to privacy.  In July 2017, a Committee of Experts, chaired by Justice B. N. Srikrishna, was set up to examine various issues related to data protection in India.  The Committee submitted its report, along with a Draft Personal Data Protection Bill, 2018 to the Ministry of Electronics and Information Technology in July 2018.  The Statement of Objects and Reasons of the Personal Data Protection Bill, 2019 states that the Bill is based on the recommendations of the report of the Expert Committee and the suggestions received from various stakeholders.

How is personal data regulated currently?

Currently, the usage and transfer of personal data of citizens is regulated by the  Information Technology (IT) Rules, 2011, under the IT Act, 2000.  The rules hold the companies using the data liable for compensating the individual, in case of any negligence in maintaining security standards while dealing with the data.  The Expert Committee in its report, held that while the IT rules were a novel attempt at data protection at the time they were introduced, the pace of development of digital economy has shown its shortcomings.3  For instance, (i) the definition of sensitive personal data under the rules is narrow, and (ii) some of the provisions can be overridden by a contract.  Further, the IT Act applies only to companies, not to the government.  

What does the Personal Data Protection Bill provide?

The Bill regulates personal data related to individuals, and the processing, collection and storage of such data.  Under the Bill, a data principal is an individual whose personal data is being processed.  The entity or individual who decides the means and purposes of data processing is known as data fiduciary.  The Bill governs the processing of personal data by both government and companies incorporated in India.  It also governs foreign companies, if they deal with personal data of individuals in India. 

Will individuals have rights over their data?

The Bill provides the data principal with certain rights with respect to their personal data.   These include seeking confirmation on whether their personal data has been processed, seeking correction, completion or erasure of their data, seeking transfer of data to other fiduciaries, and restricting continuing disclosure of their personal data, if it is no longer necessary or if consent is withdrawn.  Any processing of personal data can be done only on the basis of consent given by data principal. 

Are there any restrictions on processing of an individual’s data?

The Bill also provides for certain obligations of data fiduciaries with respect to processing of personal data.  Such processing should be subject to certain purpose, collection and storage limitations.   For instance, personal data can be processed only for specific, clear and lawful purpose.  Additionally, all data fiduciaries must undertake certain transparency and accountability measures such as implementing security safeguards and instituting grievance redressal mechanisms to address complaints of individuals.  Certain fiduciaries would be notified as significant data fiduciaries (based on certain criteria such as volume of data processed and turnover of fiduciary).  These fiduciaries must undertake additional accountability measures such as conducting a data protection impact assessment before conducting any processing of large scale sensitive personal data (includes financial data, biometric data, caste, religious or political beliefs). 

What is the grievance redressal mechanism if the above restrictions are not followed?

To ensure compliance with the provisions of the Bill, and provide for further regulations with respect to processing of personal data of individuals, the Bill sets up a Data Protection Authority.  The Authority will be comprised of members with expertise in fields such as data protection and information technology.  Any individual, who is not satisfied with the grievance redressal by the data fiduciary can file a complaint to the Authority.  Orders of the Authority can be appealed to an Appellate Tribunal. Appeals from the Tribunal will go to the Supreme Court.

Are there any exemptions to these safeguards for processing of personal data?

Processing of personal data is exempt from the provisions of the Bill in some cases.  For example, the central government can exempt any of its agencies in the interest of security of state, public order, sovereignty and integrity of India, and friendly relations with foreign states.  Processing of personal data is also exempted from provisions of the Bill for certain other purposes such as prevention, investigation, or prosecution of any offence, or research and journalistic purposes.  Further, personal data of individuals can be processed without their consent in certain circumstances such as: (i) if required by the State for providing benefits to the individual, (ii) legal proceedings, (iii) to respond to a medical emergency. 

Is the Bill different from the draft Bill suggested by the Expert Committee?

The Bill has made several changes from the draft Bill.  For instance, the Bill has added a new class of significant data fiduciaries, as social media intermediaries.  These will include intermediaries (with users above a notified threshold) which enable online interaction between users.  Further, the Bill has expanded the scope of exemptions for the government, and additionally provided that the government may direct data fiduciaries to provide it with any non-personal or anonymised data for better targeting of services. 

In a follow-up blog, we will provide a detailed comparison of the key provisions of this Bill with the Draft Personal Data Protection Bill 2018, released by the Justice B. N. Srikrishna Committee.

Explainer: The Citizenship (Amendment) Bill, 2019

The Minister of Home Affairs introduced the Citizenship (Amendment) Bill, 2019 today in Lok Sabha.   It is scheduled to be taken up for discussion and passing by the House later today.  The Bill amends the Citizenship Act, 1955, and seeks to make foreign illegal migrants of certain religious communities coming from Afghanistan, Bangladesh, and Pakistan eligible for Indian citizenship.  In this blog, we look at the criteria for determining citizenship in India, discuss how the Bill proposes to change the criteria, and highlight other key changes proposed by the Bill. 

How is citizenship acquired in India?

In India, citizenship is regulated by the Citizenship Act, 1955.  The Act specifies that citizenship may be acquired in India through five methods – by birth in India, by descent, through registration, by naturalisation (extended residence in India), and by incorporation of territory into India. [1]  

Can illegal migrants acquire citizenship?

An illegal migrant is prohibited from acquiring Indian citizenship.  An illegal immigrant is a foreigner who either enters India illegally, i.e., without valid travel documents, like a visa and passport, or enters India legally, but stays beyond the time period permitted in their travel documents.  An illegal migrant can be prosecuted in India, and deported or imprisoned.   

In September 2015 and July 2016, the central government exempted certain groups of illegal migrants from being imprisoned or deported. [2]  These are illegal migrants who came into India from Afghanistan, Bangladesh, or Pakistan on or before December 31, 2014, and belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities.  

How does the Bill seek to change the criteria for determining citizenship?

The Bill proposes that the specified class of illegal migrants from the three countries will not be treated as illegal migrants, making them eligible for citizenship.  On acquiring citizenship, such migrants shall be deemed to be Indian citizens from the date of their entry into India and all legal proceedings regarding their status as illegal migrants or their citizenship will be closed.

The Act allows a person to apply for citizenship by naturalisation, if the person meets certain qualifications.  One of the qualifications is that the person must have resided in India or been in central government service for the last 12 months and at least 11 years of the preceding 14 years.  For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years.  

Are the provisions of the Bill applicable across the country?

The Bill clarifies that the proposed amendments on citizenship to the specified class of illegal migrants will not apply to certain areas.  These are: (i) the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule to the Constitution, and (ii) the states regulated by the “Inner Line” permit under the Bengal Eastern Frontier Regulations 1873.  These Sixth Schedule tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District.   Further, the Inner Line Permit regulates visit of all persons, including Indian citizens, to Arunachal Pradesh, Mizoram, and Nagaland.

Is the differentiation among the specified class of illegal migrants and all other illegal migrants reasonable?

The Bill makes only certain illegal migrants eligible for citizenship.  These are persons belonging to the six specified religious communities, from the three specified countries, who entered India on or before December 31, 2014, and do not reside in the Sixth Schedule areas or in the states regulated by the Inner Line Permit states.  This implies that all other illegal migrants will not be able to claim the benefit of citizenship conferred by the Bill, and may continue to be prosecuted as illegal migrants.  Any provision which distinguishes between two groups may violate the standard of equality guaranteed under Article 14 of the Constitution, unless one can show a reasonable rationale for doing so. [3]   The Bill provides differential treatment to illegal migrants on the basis of (a) their country of origin, (b) religion, (c) date of entry into India, and (d) place of residence in India.   The question is whether these factors serve a reasonable purpose to justify the differential treatment.  We examine this below. 

The Bill classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh.  While the Statement of Objects and Reasons (SoR) in the Bill reasons that millions of citizens of undivided India were living in Pakistan and Bangladesh, no reason has been provided to explain the inclusion of Afghanistan.  The SoR also states that these countries have a state religion, which has resulted in religious persecution of minority groups.  However, there are other countries which may fit this qualification.   For instance, two of India’s neighboring countries, Sri Lanka (Buddhist state religion) [4] and Myanmar (primacy to Buddhism) [5], have had a history of persecution of Tamil Eelams (a linguistic minority in Sri Lanka), and the Rohingya Muslims, respectively.[6], [7], [8]   

Further, there are other religious minorities from Pakistan, Afghanistan and Bangladesh, such as the Ahmadiyya Muslims in Pakistan (considered non-Muslims in that country) [9], and atheists in Bangladesh [10] who have faced religious persecution and may have illegally migrated to India.  Given that the objective of the Bill is to provide citizenship to migrants escaping from religious persecution, it is not clear why illegal migrants belonging to other neighbouring countries, or belonging to religious minorities from these three specified countries, have been excluded from the Bill.  

The Bill also creates further differentiation between the specified class of illegal migrants based on when they entered India (before or after December 31, 2014), and where they live in India (provisions not applicable to Sixth Schedule and Inner Line Permit areas).  However, the reasons provided to explain the distinction is unclear.  Note that certain restrictions apply to persons (both citizens and foreigners) in the Sixth Schedule areas and in the states regulated by the Inner Line Permit.  Once an illegal migrant residing in these areas acquires citizenship, he would be subject to the same restrictions in these areas, as are applicable to other Indian citizens.  Therefore, it is unclear why the Bill excludes illegal migrants residing in these areas. 

How does the Bill change the regulations for Overseas Citizens of India?

The Bill also amends the provisions on registration of Overseas Citizens of India (OCI). OCI cardholders are foreigners who are persons of Indian origin. For example, they may have been former Indian citizens, or children of current Indian citizens. An OCI enjoys benefits such as the right to travel to India without a visa, or to work and study here.  At present, the government may cancel a person’s OCI registration on various grounds specified in the Act.  In case of a cancellation, an OCI residing in India may be required to leave the country. The Bill adds another ground for cancelling OCI registration — violation of any law notified by the central government.  However, the Bill does not provide any guidance on the nature of laws which the central government may notify.  The Supreme Court has noted that this guidance is necessary to set limits on the authority’s powers and to avoid any arbitrariness in exercise of powers. [11]    Therefore, the powers given to the government under the Bill may go beyond the permissible limits of valid delegation. 

Note:  The blog has been updated to remove the following issue: “Second, the Bill delegates the power to notify laws and not offences.  This may result in the cancellation of OCI for minor violations.  For instance, the government may want to cancel the registration of an OCI who is found guilty of sedition, under the Indian Penal Code, 1861.  However, since the government cannot notify one offence, it will need to notify the entire Indian Penal Code, which would include minor offences such as rash and negligent driving.” 

[1].  Section 2(1)(b) of the Citizenship Act, 1955.

[2].  State of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75.  

[3].  State of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75.  

[4].  Article 9 of the Constitution of the Democratic Socialist Republic of Sri Lanka states: “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).”

[5].  Articles 361 and 362 of the Constitution of the Republic of the Union of Myanmar state the following.  “361. The Union recognizes special position of Buddhism as the faith professed by the great majority of the citizens of the Union. 362. The Union also recognizes Christianity, Islam, Hinduism and Animism as the religions existing in the Union at the day of the coming into operation of this Constitution.”

[6]. It is estimated that there are over a lakh Sri Lankan refugees in India, two-thirds of them in government camps.  See https://timesofindia.indiatimes.com/city/chennai/why-lankan-refugees-are-reluctant-to-go-back-home/articleshow/65591130.cms

[7]. “Myanmar Rohingya: What you need to know about the crisis”, BBC News, April 24, 2018, https://www.bbc.com/news/world-asia-41566561.

[8]. “Why India is refusing refuge to Rohingyas”, Times of India, September 6, 2017, https://timesofindia.indiatimes.com/india/why-india-is-refusing-refuge-to-rohingyas/articleshow/60386974.cms.

[9].  The Second Amendment to the Constitution of Pakistan passed in 1974 effectively declared Ahmaddiyas as non-Muslims. 

[11].  Hamdard Dawakhana and Anr., v. The Union of India (UOI) and Ors., AIR1960SC554; Confederation of Indian Alcoholic Beverage Companies and Ors. vs. The State of Bihar and Ors., 2016(4) PLJR369. 

Understanding recent amendments to the Arms Act, 1959

The  Arms (Amendment) Bill, 2019 was introduced in Lok Sabha recently and is scheduled to be passed in this Winter Session.  The Bill amends the Arms Act, 1959 which deals with the regulation of arms in India.  The Act defines arms to include firearms, swords, and anti-aircraft missiles.  The Statement of Objects and Reasons of the Bill noted that law enforcement agencies have indicated a growing connection between the possession of illegal firearms and criminal activities.  In this context, the Bill seeks to reduce the number of firearms allowed per person, and increases punishments for certain offences under the Act.   The Bill also introduces new categories of offences.  In this post, we explain key provisions of the Bill.  

How many firearms are allowed per person?

The Arms Act, 1959 allows a person to have three licenced firearms.  The Bill proposes to reduce this to one firearm per person.  This would also include any firearms that may have been given as inheritance or as an heirloom.  Excess firearms must be deposited at the nearest police station or licensed arms dealer within one year of the passing of the Bill.  The Bill also extends the duration of a licence from three years to five years.

Note that in 2017, 63,219 firearms were seized from across India under the Arms Act, 1959.  Out of these, only 3,525 (5.5%) were licenced firearms.  Further, 36,292 cases involving firearms were registered under the Act in 2017, of which only 419 (1.1%) cases involved licenced firearms. [1]  This trend persisted even at the level of specific crimes, where only 8.5% of the murders committed using firearms involved licenced firearms. [2]

What changes are being made to existing offences?

Presently, the Act bans manufacture, sale, use, transfer, conversion, testing or proofing of firearms without license.  The Bill additionally prohibits obtaining or procuring un-licensed firearms, and the conversion of one category of firearms to another without a license.  The latter includes any modifications done to enhance the performance of a firearm.

The Bill also proposes increased punishments for several existing offences.   For example, the Act specifies the punishment for: (i) dealing in un-licensed firearms, including their manufacture, procurement, sale, transfer, conversion, (ii) the shortening or conversion of a firearm without a licence, and (iii) import or export of banned firearms.   The punishment for these offences currently is between three years and seven years, along with a fine.  The Bill increases the minimum punishment to seven years and the maximum to life imprisonment.

The Act also punishes dealing in prohibited firearms (such as automatic and semi-automatic assault rifles) without a license, with imprisonment between seven years and life imprisonment, along with fine.  The Bill increases the minimum punishment from seven years to 10 years.  Additionally, the punishment for cases in which the usage of prohibited arms results in the death of a person has been revised.  The punishment has been updated from the existing punishment of death penalty to allow for death penalty or life imprisonment, along with a fine.

Are there any new offences being introduced?

The Bill adds certain news offences.  For example, forcefully taking a firearm from police or armed forces has been made a crime under the Bill.  The punishment for doing so is imprisonment between 10 years and life imprisonment, along with a fine.  Additionally, the Bill punishes the negligent use of firearms, such as celebratory gunfire during weddings or religious ceremonies which endanger human life or personal safety of others.  The proposed punishment in this case is imprisonment of up to two years, or a fine of up to one lakh rupees, or both.

The Bill also adds a definition of ‘illicit trafficking’.  It is defined to include the trade, acquisition, sale of firearms or ammunitions into or out of India where the firearms are either not marked as per the Act or violate the provisions of the Act.  The Bill makes illicit trafficking punishable with imprisonment between 10 years and life, along with a fine.

Does the Bill address issues of organised crime?

The Bill also introduces a definition of ‘organised crime’.  ‘Organised crime’ has been defined as continued unlawful activity by a person, either as a member of a syndicate or on its behalf, by using unlawful means, such as violence or coercion, to gain economic or other benefits.  An organised crime syndicate refers to two or more persons committing organised crime.

The Bill introduces harsher punishments for members of an organised crime syndicate.  For example, for the possession of an unlicensed firearm, the minimum term for an individual would be seven years, extendable to life imprisonment and liable to a fine.  However, the possession of unlicensed firearms by a member of a syndicate will be punishable with imprisonment between 10 years and life, along with a fine.  This increased punishment also applies to non-members contravening provisions of the Act on behalf of a syndicate.

[1] Crime in India 2017, National Crime Records Bureau, October 21, 2019,  http://ncrb.gov.in/StatPublications/CII/CII2017/pdfs/CII2017-Full.pdf.

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Tenure and salaries of CIC and ICs under the Right to Information Rules, 2019

The Right to Information (Amendment) Act, 2019 amended the Right to Information Act, 2005.  The RTI Act, 2005 specified the tenure, terms of service and salaries of the Chief Information Commissioner (CIC) and Information Commissioners (ICs) at the central and state levels, in the parent law.  The RTI (Amendment) Act, 2019 removed these provisions and stated that the central government will notify the term and quantum of salary through rules.[1],[2]  

The Right to Information Rules, 2019 were notified on October 24, 2019.[3]  These rules set out the tenure, terms of service and salaries of the CIC and ICs at the state and central levels.  Table 1 compares the provisions related to the tenure and salary of the CIC and ICs under the Right to Information Act, 2005 and the Right to Information Rules, 2019

Table 1:  Comparison of the provisions of the Right to Information Act, 2005 and the Right to Information Rules, 2019

Provision

RTI Act, 2005

RTI Rules, 2019

Term

The CIC and ICs (at the central and state level) will hold office for a term of five years. 

The CIC and ICs (at the central and state level) will hold office for a term of three years. 

Salary

The salary of the CIC and ICs (at the central level) will be equivalent to the salary paid to the Chief Election Commissioner and Election Commissioners (Rs 2,50,000 per month)

Similarly, the salary of the CIC and ICs (at the state level) will be equivalent to the salary paid to the Election Commissioners (Rs 2,50,000 per month) and the Chief Secretary to the state government (Rs 2,25,000 per month), respectively. 

The CIC and ICs (at the central level) shall receive a pay of Rs. 2,50,000 and Rs. 2,25,000 per month, respectively.

 

 

 

 

CICs and ICs (at the state level) shall receive a pay of Rs. 2,25,000 per month.

Source: The Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019; The High Court and the Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2017; Indian Administrative Services (Pay) Rules, 2016; PRS.

 

[1] Right to Information Act, 2005, https://rti.gov.in/rti-act.pdf.

[2] Right to Information (Amendment Act), 2019, file:///C:/Users/Dell/Downloads/The%20Right%20to%20Information%20(Amendment)%20Bill,%202019%20Text.pdf.

[3] The Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019, http://egazette.nic.in/WriteReadData/2019/213438.pdf.

More Privatisation on the cards?

The core group of secretaries on disinvestment has recently  approved the disinvestment of five public sector undertakings (PSUs).  This includes the entire shareholding of the government in four PSUs: Bharat Petroleum Corporation (BPCL), Shipping Corporation of India (SCI), North Eastern Electric Power Corporation (NEEPCO) and THDC (operates and maintains the Tehri Hydro Power Complex), and 30% of the shareholding in Container Corporation of India Limited (Concor).  The government currently holds 54.8% of Concor, so the sale will reduce its stake below 25%.

Over the last few years, the government has removed legislative barriers towards privatisation of several other PSUs.  This raises the question whether the government plans to privatise them.

What was the Supreme Court’s order on privatisation of PSUs?

In 2003, a similar proposal had been raised by the government for the sale of its shareholding in HPCL and BPCL.  This proposal was challenged in the Supreme Court on the grounds that it would violate the provisions of the laws that transferred ownership of certain assets to the government (which later formed these PSUs).  For example, BPCL was formed by nationalising Burmah Shell in India through an Act of Parliament, and merging their refinery and marketing companies.   The  Court ruled that the central government cannot proceed with the privatisation of HPCL and BPCL (i.e., reduce its direct or indirect ownership below 51%) without amending the concerned laws.  So the government continues to hold majority stake directly in BPCL, and indirectly in HPCL ( through ONGC, another PSU).  

The five Companies approved for privatisation include BPCL and SCI (into which two nationalised companies, the Jayanti Shipping Company, and the Mogul Line Limited were merged).  The relevant nationalisation Acts have been repealed over the last five years.

How did the government remove the legislative barriers for privatisation?

Between 2014 and 2019, Parliament passed six Repealing and Amending Acts which repealed around 722 laws.  These included laws that had transferred the ownership of companies to the central government which later formed BPCL, HPCL, and OIL.  These also repealed the laws that had transferred ownership of the companies to the central government which were later merged with the SCI.  This implies that now the government can go ahead with the privatisation of these government companies as the conditions imposed by the Supreme Court’s order have been fulfilled.  These Repealing and Amending Acts also repealed several other nationalisation laws that were later formed into PSUs.  In the Table below, we have listed some of these companies.  Note that the  Law Commission of India (2014) had suggested the repeal of several of these laws (including the Esso Act, the Burmah Shell Act, the Burn Company Act) on the grounds that these laws do not serve any purpose with respect to the nationalised entity.   However, it had suggested that a study of all the nationalisation Acts should be done before repealing these Acts, and if necessary a savings clause should be provided in the repealing Act. 

Did Parliament scrutinise these Acts before passing them?

Many of these repeals were made through the Repealing and Amending Act, 2016.  These include the Acts relating to BPCL, HPCL, OIL, Coal India Limited, SCI, National Textiles Corporation, Hindustan Copper and Burn Standard Company Limited.   The Bill was not referred to a Parliamentary Standing Committee, and was passed after a cursory debate (50 minutes in Lok Sabha and 20 minutes in Rajya Sabha).  Similarly, the two Acts passed in 2017, that enable privatisation of SAIL, PowerGrid, and State Trading Corporation were not examined by a Standing Committee.

So what comes next?

The repeal of these Acts have cleared the legislative hurdle for privatisation of these companies.   That is, the government does not need prior approval of Parliament to sell its shareholding.  Therefore, it is now up to the government to decide whether it wishes to privatise these entities. 

A version of this article was published by the Business Standard on October 20, 2019.

Table 1: Some Nationalisation Acts repealed since 2014 (list not exhaustive)

Company

Act being repealed

Repealing Act

Shipping Corporation Of India (SCI)

The Jayanti Shipping Company (Acquisition of Shares) Act, 1971

Repealing and Amending Act, 2016

The Mogul Line Limited (Acquisition of Shares) Act, 1984

Bharat Petroleum Corporation Limited (BPCL)

The Burmah Shell (Acquisition of Undertakings in India) Act, 1976

Repealing and Amending Act, 2016

Hindustan Petroleum Corporation Limited (HPCL)

The Esso (Acquisition of Undertakings in India) Act, 1974

Repealing and Amending Act, 2016

The Caltex [Acquisition of Shares of Caltex Oil Refining (India) Limited and of the Undertakings in India of Caltex (India) Limited] Act, 1977

The Kosangas Company (Acquisition of Undertaking) Act, 1979

Coal India Limited (CIL)

The Coking Coal Mines (Emergency Provisions) Act, 1971

Repealing and Amending Act, 2016

The Coal Mines (Taking Over of Management) Act, 1973

The Coking Coal Mines (Nationalisation) Act, 1972.

Repealing and Amending (Second) Act, 2017

The Coal Mines (Nationalisation) Act, 1973.

Steel Authority of India Limited (SAIL)

The Bolani Ores Limited (Acquisition of Shares) and Miscellaneous Provisions Act, 1978

Repealing and Amending (Second) Act, 2017

The Indian Iron and Steel Company (Acquisition of Shares) Act, 1976

Power Grid Corporation of India Limited

The National Thermal Power Corporation Limited, the National Hydroelectric Power Corporation Limited and the North-Eastern Electric Power Corporation Limited (Acquisition and Transfer of Power Transmission Systems) Act, 1993.

Repealing and Amending (Second) Act, 2017

The Neyveli Lignite Corporation Limited (Acquisition and Transfer of Power Transmission System) Act, 1994.

Oil India Limited (OIL)

The Burmah Oil Company [Acquisition of Shares of Oil India Limited and of the Undertakings in India of Assam Oil Company Limited and the Burmah Oil Company (India Trading) Limited] Act, 1981

Repealing and Amending Act, 2016

State Trading Corporation of India Ltd. (STC)

The Tea Companies (Acquisition and Transfer of Sick Tea Units) Act, 1985

Repealing and Amending Act, 2017

National Textile Corporation Limited (NTC)

The Sick Textile Undertakings (Taking Over of Management) Act, 1972

Repealing and Amending Act, 2016

The Textile Undertakings (Taking Over of Management) Act, 1983

The Laxmirattan and Atherton West Cotton Mills (Taking Over of Management) Act, 1976

Hindustan Copper Limited

The Indian Copper Corporation (Acquisition of Undertaking) Act, 1972

Repealing and Amending Act, 2016

Burn Standard Co Ltd

The Burn Company and Indian Standard Wagon Company (Nationalisation) Act, 1976

Repealing and Amending Act, 2016

Indian Railways

The Futwah-Islampur Light Railway Line (Nationalisation) Act, 1985

Repealing and Amending Act, 2016

Braithwaite & Co Limited, Ministry of Railways

The Braithwaite and Company (India) Limited (Acquisition and Transfer of Undertakings) Act, 1976.

Repealing and Amending (Second) Act, 2017

The Gresham and Craven of India (Private) Limited (Acquisition and Transfer of Undertakings) Act, 1977

Andrew Yule & Co. Ltd.

The Brentford Electric (India) Limited (Acquisition and Transfer of Undertakings) Act, 1987

Repealing and Amending (Second) Act, 2017

The Transformers and Switchgear Limited (Acquisition and Transfer of Undertakings) Act, 1983

Repealing and Amending Act, 2019

Alcock Ashdown (Guj) Limited, Government of Gujarat Undertaking

The Alcock Ashdown Company Limited (Acquisition of Undertakings) Act, 1973.

Repealing and Amending Act, 2019

Bengal Chemicals & Pharmaceuticals Ltd. (BCPL)

The Bengal Chemical and Pharmaceutical Works Limited (Acquisition and Transfer of Undertakings) Act, 1980

Repealing and Amending (Second) Act, 2017

Organisations under Department of Pharmaceuticals

The Smith, Stainstreet and Company Limited (Acquisition and Transfer of Undertakings) Act, 1977

Repealing and Amending (Second) Act, 2017

The Bengal Immunity Company Limited (Acquisition and Transfer of Undertakings) Act, 1984.

Sources: Repealing and Amending Act, 2015; Repealing and Amending (Second) Act, 2015; Repealing and Amending Act, 2016; Repealing and Amending Act, 2017; Repealing and Amending (Second) Act, 2017; Repealing and Amending Act, 2019. 

Explaining the recent ban on e-cigarettes

On Wednesday, the government promulgated an Ordinance to ban electronic cigarettes in India.  In this context, we look at what are electronic cigarettes, what are the current regulations in place, and what the Ordinance seeks to do.

What are electronic cigarettes?

The Ordinance defines electronic cigarettes (e-cigarettes) as battery-operated devices that heat a substance, which may or may not contain nicotine, to create vapour for inhalation.  These e-cigarettes can also contain different flavours such as menthol, mango, watermelon, and cucumber.  Usually, e-cigarettes are shaped like conventional tobacco products (such as cigarettes, cigars, or hookahs), but they also take the form of everyday items such as pens and USB memory sticks.

Unlike traditional cigarettes, e-cigarettes do not contain tobacco and therefore are not regulated under the Cigarettes and Other Tobacco Products Act, 2003.  This Act regulates the sale, production, and distribution of cigarettes and other tobacco products in India, and prohibits advertisement of cigarettes. 

What are the international regulations for e-cigarettes?

India is a signatory to the WHO Framework Convention on Tobacco Control (WHO FCTC) which was developed in response to the globalisation of the tobacco epidemic.  In 2014, the WHO FCTC invited all its signatories to consider prohibiting or regulating e-cigarettes in their countries.  This was suggested due to emerging evidence on the negative health impact of these products which could result in lung cancer, cardiovascular diseases, and other illnesses associated with smoking.

Since then, several countries such as Brazil, Mexico, Singapore, and Thailand have banned the production, manufacture, and sale of e-cigarettes.  Recently, the states of New York and Michigan in USA banned the sale of flavoured e-cigarettes.  Whereas, in UK, the manufacture and sale of e-cigarettes has been allowed based on certain conditions.  Further, the advertisement and promotion, and the levels of nicotine in e-cigarettes is also regulated.

Prior to the Ordinance, were e-cigarettes regulated in India?

In August 2018, the Ministry of Health and Family Welfare had released an advisory to all states requiring them to not approve any new e-cigarettes and restrict the sale and advertisements of e-cigarettes.  Based on this advisory, 15 states including Delhi, Maharashtra, and Uttar Pradesh have since banned e-cigarettes.  However, this advisory was challenged in the Delhi High Court in March 2019, which subsequently imposed a stay on the ban.

What does the Ordinance do?

The Ordinance prohibits the production, manufacture, import, export, transport, sale, distribution and advertisement of e-cigarettes in India.  Any person who contravenes this provision will be punishable with imprisonment of up to one year, or a fine of one lakh rupees, or both.  For any subsequent offence, the person will be punishable with an imprisonment of up to three years, along with a fine of up to five lakh rupees.

Additionally, storage of e-cigarettes will be punishable with an imprisonment of up to six months, or a fine of Rs 50,000 or both.  Once the Ordinance comes into force (i.e., on September 18, 2019), the owners of existing stocks of e-cigarettes will have to declare and deposit these stocks at the nearest office of an authorised officer.  Such an authorised officer may be a police officer (at least at the level of a sub-inspector), or any other officer as notified by the central or state government. 

Note that, the Ordinance does not contain any provisions regarding possession or use of e-cigarettes.  The Ordinance will be in force for the next six months, and must be approved by Parliament within six weeks of the commencement of the next session of Parliament.  If it is not passed within this time frame, it will cease to be in force. 

The Importance of Parliamentary Committees

Last week, the Departmentally Related Standing Committees were reconstituted for the first year of the 17th Lok Sabha.  In this context, we discuss the functioning and role of Standing Committees.

The visible part of Parliament’s work takes place on the floor of the House.  Parliament meets for three sessions a year i.e., the Budget, Monsoon, and Winter Sessions.  This part of Parliament’s work is televised and closely watched.  However, Parliament has another forum through which a considerable amount of its work gets done.  These are known as Parliamentary Committees.  These Committees are smaller units of MPs from both Houses, across political parties and they function throughout the year.  These smaller groups of MPs study and deliberate on a range of subject matters, Bills, and budgets of all the ministries.

During the recently concluded first Session of the 17th Lok Sabha, Parliament sat for 37 days.  In the last 10 years, Parliament met for 67 days per year, on average.  This is a short of amount of time for MPs to be able to get into the depth of matters being discussed in the House.  Since Committees meet throughout the year, they help make up for this lack of time available on the floor of the House. 

Parliament deliberates on matters that are complex, and therefore needs technical expertise to understand such matters better.  Committees help with this by providing a forum where Members can engage with domain experts and government officials during the course of their study.  For example, the Committee on Health and Family Welfare studied the Surrogacy (Regulation) Bill, 2016 which prohibits commercial surrogacy, but allows altruistic surrogacy.  As MPs come from varying backgrounds, they may not have had the expertise to understand the details around surrogacy such as fertility issues, abortion, and regulation of surrogacy clinics, among others.  The Committee called upon a range of stakeholders including the National Commission for Women, doctors, and government officials to better their understanding of the issues, before finalising their report. 

Committees also provide a forum for building consensus across political parties.  The proceedings of the House during sessions are televised, and MPs are likely to stick to their party positions on most matters.  Committees have closed door meetings, which allows them to freely question and discuss issues and arrive at a consensus. 

After a Committee completes its study, it publishes its report which is laid in Parliament.  These recommendations are not binding, however, they hold a lot of weight.  For example, the Standing Committee on Health made several recommendations to the National Medical Commission Bill in 2017.  Many of these were incorporated in the recently passed 2019 Bill, including removing the provision for allowing a bridge course for AYUSH practitioners. 

There are 24 such Departmentally Related Standing Committees (DRSCs), each of which oversees a set of Ministries.  DRSCs were set up first in 1993, to ensure Parliament could keep with the growing complexity of governance.  These are permanent Committees that are reconstituted every year.  They consist of 21 Members from Lok Sabha, and 10 Members from Rajya Sabha, and are headed by a Chairperson.  The DRSCs primarily look at three things: (i) Bills, (ii) budgets, and (iii) subject specific issues for examination.  Other types of Standing Committees include Financial Committees which facilitate Parliament’s scrutiny over government expenditure.  Besides these, Parliament can also form ad hoc Committees for a specific purpose such as addressing administrative issues, examining a Bill, or examining an issue. 

To ensure that a Bill is scrutinised properly before it is passed, our law making procedure has a provision for Bills to be referred to a DRSC for detailed examination.  Any Bill introduced in Lok Sabha or Rajya Sabha can be referred to a DRSC by either the Speaker of the Lok Sabha or Chairman of the Rajya Sabha.  Over the years, the Committees have immensely contributed to strengthen the laws passed by Parliament.  For example, the Consumer Protection Act, 2019, overhauling the 1986 law, was recently passed during the Budget Session.  An earlier version of the Bill had been examined by the Committee on Food and Consumer Affairs, which suggested several amendments such as increasing penalties for misleading advertisements, making certain definitions clearer.   The government accepted most of these recommendations and incorporated them in the 2019 Act.

Besides Bills, the DRSCs also examine the budget.  The detailed estimates of expenditure of all ministries, called Demand for Grants are sent for examination to the DRCSs.  They study the demands to examine the trends in allocations, spending by the ministries, utilisation levels, and the policy priorities of each ministry.  However, only a limited proportion of the budget is usually discussed on the floor of the House.  In the recently dissolved16th Lok Sabha, 17% of the budget was discussed in the House. 

Committees also examine policy issues in their respective Ministries, and make suggestions to the government. The government has to report back on whether these recommendations have been accepted or not.  Based on this, the Committees then table an Action Taken Report, which shows status of the government’s action on each recommendation. 

While Committees have substantially impacted Parliament’s efficacy in discharging its roles, there is still scope for strengthening the Committee system.  In the 16th Lok Sabha, DRSCs examined 41 Bills, 331 Demands for Grants, 197 issues, and published 503 Action Taken Reports. 

However, the rules do not require that all Bills be examined by a Committee.  This leads to some Bills being passed without the advantage of a Committee scrutinising its technical details.  Recently, there has been a declining trend in the percentage of Bills being referred to a Committee.  In the 15th LS, 71% of the Bills introduced were referred to Committees for examination, as compared to 27% in the 16th Lok Sabha.

With the DRSCs now constituted for the first year of the 17th Lok Sabha, they will soon begin their meetings to select the subjects they are going to examine.  Some Committees already have Bills to examine that were referred to them during the 16th Lok Sabha.  Some of these Bills are: (i) the Cinematograph (Amendment) Bill, 2019, (ii) the Allied and Healthcare Professions Bill, 2018, and (iii) the Registration of Marriage of Non- Resident Indian Bill, 2019So far in the 17th Lok Sabha no Bill has been referred to a Committee yet.