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.

Comparison of the provisions of the 2018 Draft Bill with the 2019 Bill

Definition of personal data (Old bill) Personal data pertains to characteristics, traits or attributes of identity, which can be used to identify an individual. (New bill) 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 (Old bill) 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. (New bill) 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) (Old bill) 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. (New bill) 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 (Old bill) 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. (New bill) 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 (Old bill) The draft Bill did not contain this term. (New bill) 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 (Old bill) 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. (New bill) 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 (Old bill) 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. (New bill) 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 (Old bill) One serving copy of all personal data should be stored in India. (New bill) 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 (Old bill) 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. (New bill) 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 (Old bill) 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. (New bill) 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 (Old bill) No provision of the Bill would apply to non-personal data used by government for formulation of policies for digital economy, growth or security. (New bill) 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.

What is “irretrievable breakdown of marriage”? The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.

Currently, Hindu marriage law does not include “irretrievable breakdown of marriage” as a ground for divorce. However, the apex court in a number of cases has provided the said relief using its extraordinary powers that allow it to do “complete justice”.

What are the grounds for divorce under Hindu Law? The Hindu Marriage Act, 1955, lays down the law for divorce, which applies to Hindus, Buddhists, Jains, and Sikhs. Under Section 13 of the Act, the grounds for divorce include: “voluntary sexual intercourse with any person other than his or her spouse”; “cruelty”; desertion “for a continuous period of not less than two years immediately preceding the presentation of the petition”; “ceas(ing) to be a Hindu by conversion to another religion”; and being “incurably of unsound mind”.

In addition, Section 13B provides for “divorce by mutual consent”. Section 27 of The Special Marriage Act, 1954 provides the grounds for grant of divorce in the case of marriages solemnised under that Act. However, neither of the two Acts provide for “irretrievable breakdown of marriage” as a ground for divorce.

What’s the case now? Recently, divorce was granted on the ground of irretrievable breakdown of marriage by the Supreme Court (Under Article 142), after examining various judicial pronouncements. It has been noted that such powers are exercised in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably.

In the present case, the court said that it believed that “not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties”, and “the sooner this comes to an end, the better it would be, for both the parties”.

Article 142: Article 142 “provide(s) a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case.

Suggestions made by the Law Commission: The Law Commission of India has twice recommended that “irretrievable breakdown” of marriage be included as a new ground for granting divorce to Hindus under the provisions of the Hindu Marriage Act and the Special Marriage Act.

What is ‘Eat Right India’ movement? Launched by the Food Safety and Standards Authority of India (FSSAI). Aim: to usher in a ‘new food culture’ by nudging businesses and consumers to adopt safe, healthy and sustainable food practices and habits.

What is Eat Right Mela? As part of the Eat Right India movement, the ‘Eat Right Mela’ was conceived to engage, excite and enable citizens to eat right through an info-tainment model. Eat Right Melas have been envisioned for massive outreach to build awareness on safe food and healthy diets through an interactive and informative model.

Measures in place: FSSAI has put in place robust regulatory measures under three major pillars: Eat Safe, Eat Health and Eat Sustainably for the programme. FSSAI has prescribed a limit for Total Polar Compounds (TPC) at 25% in cooking oil to avoid the harmful effects of reused cooking oil.

Significance of the campaign: The country is in need of a movement on preventive health for all in the backdrop of the increasing burden of non-communicable diseases including diabetes, hypertension and heart diseases, widespread deficiencies of vitamins and minerals and rampant food-borne illnesses.

The Eat Right India movement acts as a crucial preventive healthcare measure to trigger social and behavioural change through a judicious mix of regulatory measures, combined with soft interventions for ensuring awareness and capacity building of food businesses and citizens alike.

What’s the issue? The Frequently Asked Questions or FAQ document had claimed that “only small and marginal farmers involved in subsistence farming” are eligible to claim rights under the Protection of Plant Varieties and Farmers Rights (PPV&FR) Act, 2001. The FAQ also said these rights are not for “commercial farmers” and are only meant for “small scale” use.

PepsiCo has used the same argument in an ongoing case at the Authority over its registered potato variety used for Lays chips. The company has also cited the FAQ document to justify dragging more than nine farmers to court in 2018 for growing and selling its registered variety.

The companyfaced product boycotts and major protests across the political spectrum for slapping a ₹4.2 crore lawsuit against four farmers, and ultimately withdrew all cases after government intervention just before Lok Sabha elections in May 2019.

The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001: Enacted by India in 2001 adopting sui generis system. It is in conformity with International Union for the Protection of New Varieties of Plants (UPOV), 1978.

The legislation recognizes the contributions of both commercial plant breeders and farmers in plant breeding activity and also provides to implement TRIPs in a way that supports the specific socio-economic interests of all the stakeholders including private, public sectors and research institutions, as well as resource-constrained farmers.

Objectives of the PPV & FR Act, 2001: To establish an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants.

To recognize and protect the rights of farmers in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties.

To accelerate agricultural development in the country, protect plant breeders’ rights; stimulate investment for research and development both in public & private sector for the development new of plant varieties. Facilitate the growth of seed industry in the country which will ensure the availability of high-quality seeds and planting material to the farmers.

Rights under the Act: Breeders’ Rights: Breeders will have exclusive rights to produce, sell, market, distribute, import or export the protected variety. Breeder can appoint agent/ licensee and may exercise for civil remedy in case of infringement of rights.

Researchers’ Rights: Researcher can use any of the registered variety under the Act for conducting experiment or research. This includes the use of a variety as an initial source of variety for the purpose of developing another variety but repeated use needs prior permission of the registered breeder.

Farmers’ Rights: A farmer who has evolved or developed a new variety is entitled for registration and protection in like manner as a breeder of a variety; Farmers variety can also be registered as an extant variety;

A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under the PPV&FR Act, 2001 in the same manner as he was entitled before the coming into force of this Act provided farmer shall not be entitled to sell branded seed of a variety protected under the PPV&FR Act, 2001;

Farmers are eligible for recognition and rewards for the conservation of Plant Genetic Resources of land races and wild relatives of economic plants;

There is also a provision for compensation to the farmers for non-performance of variety under Section 39 (2) of the Act, 2001 and Farmer shall not be liable to pay any fee in any proceeding before the Authority or Registrar or the Tribunal or the High Court under the Act.

Also known as the Goa (Procapra picticaudata). A species of antelope that inhabits the Tibetan plateau. IUCN Status- Near Threatened.

Their fur lacks an undercoat, consisting of long guard hairs only, and is notably thicker in winter.

They are almost restricted to the Chinese provinces of Gansu, Xinjiang, Tibet, Qinghai, and Sichuan, with tiny populations in the Ladakh and Sikkim regions of India.

It is a typhoon that lashed the central Philippines recently. It is known as Ursula in the local language in the Philippines.

A typhoon is a mature tropical cyclone that develops between 180° and 100°E in the Northern Hemisphere. This region is referred to as the Northwestern Pacific Basin, and is the most active tropical cyclone basin on Earth, accounting for almost one-third of the world’s annual tropical cyclones.

To acknowledge Women’s achievements, the Government of India confers Nari Shakti Puraskars on eminent women and institutions in recognition of their service towards the cause of women empowerment. The Awards were initiated in the year 1999.

The Ministry of Women and Child Development announces these national level awards for eminent women, organisations and institutions. The Nari Shakti Puraskar carries a cash award of Rs.1 Lakh and a certificate for individuals and institutions.

Note: The remaining articles of today’s current events will be covered tomorrow.