Legislative Brief on Digital Rights for Winter Session 2022
We have prepared our legislative brief on digital rights for the Winter Session 2022 of the Indian Parliament. In our brief, we highlight some of the focus areas within the larger issues of digital rights, surveillance, platform governance and free speech, data protection, and other concerns that call for extensive deliberation in the Houses of Parliament.
The Winter Session of the Indian Parliament will commence on December 7, 2022, as per bulletins by the Lok Sabha and Rajya Sabha secretariats. It is expected to conclude on December 29, 2022.
The Monsoon session, which commenced on July 18, 2022, was adjourned sine die on August 8, 2022, four days before schedule. Thus, instead of 18 scheduled sittings, the Parliament had 16, spread over 22 days. The productivity of the Lok Sabha and Rajya Sabha was approximately 48% and 44% respectively. While six Bills were introduced in the Lok Sabha, seven Bills were passed by the Lok Sabha and five by the Rajya Sabha. None of the five Bills ultimately passed by Parliament have relevance to the digital rights or the tech policy landscape. However a significant and unanticipated development in the Monsoon Session was the withdrawal of the Personal Data Protection Bill, 2019 in the Lok Sabha on August 03, 2022.
In the upcoming winter session, over 1,500 outdated and obsolete laws are expected to be repealed. Additionally, the Government might move for the tabling and passing of the newly introduced draft Digital Personal Data Protection Bill, 2022 (“DPDPB, 2022”). The Digital India Bill, which aims to upgrade and replace the Information Technology Act, 2000, might also be presented in the winter session. Many Bills pertaining to digital rights such as the The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021, The Cinematograph (Amendment) Bill, 2019, and The DNA Technology (Use and Application) Regulation Bill, 2019 are pending for consideration or yet to be introduced and it may be interesting to note how they progress in the upcoming winter session.
Potential Issues to be taken up in the upcoming session
- India’s data privacy bill fails to protect citizen’s fundamental right to privacy: On November 18, 2022, the Ministry of Electronics and Information Technology (“MeitY”) released the DPDPB, 2022 for public consultation. Feedback may be submitted on MyGov website by December 17, 2022. Overarching concerns related to the Bill include its lack of first principles, wide and ambiguous exemptions to the Executive with scope for enabling mass surveillance, and newly introduced provisions on deemed consent, duties and penalties for the data principal, and a reduction of the data fiduciaries’ obligations.
- Legislative framework to govern the digital ecosystem yet to be published: The MeitY has proposed a draft Digital India Bill, and its legislative framework is slated to be ready by early 2023. This Bill is supposed to be a replacement of the Information Technology Act, 2000 (“IT Act, 2000”). Additionally, the Bill is also expected to include data regulation provisions. In order to achieve forward-looking legislation that moves with the times, it is essential that the provisions of the IT Act be scrutinized more carefully, from multiple lenses and using a multi-dimensional perspective. The provisions of the new Bill must also be rooted in constitutional principles.
- India still lacks a cyber security policy: As India continues to meet its ambitious goals to digitalise nearly every aspect of public governance, it still lacks a comprehensive national cyber security policy for safeguarding its digital assets and infrastructure. The outdated National Cyber Security Policy (NCSP), 2013 prescribes strategies and measures to combat cybersecurity threats. It was supposed to be succeeded by a National Cyber Security Strategy, but this has been delayed since 2019.
- Draft law governing the telecommunication sector replicates the colonial Telegraph Act: The draft Indian Telecommunication Bill, 2022 enshrines laws pertaining to the provision, development, expansion, and operation of telecom services, networks, and infrastructure. It also applies to spectrum assignment. The Telecom Bill, 2022 in its present form is a reminder of colonial control, and poses significant concerns such as expansive definitions, onerous KYC process, increased chances of state surveillance, and excessive penalties.
- Persistent concerns around freedom of speech and expression of online users: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“IT Amendment Rules, 2022”) were issued by the MeitY on October 28, 2022, and are reminiscent of the problematic provisions of the draft Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 in the sense that they endanger freedom of speech and expression of online users. One of the most critical aspects of the IT Amendment Rules, 2022 is the establishment of a government-appointed Grievance Redressal Committee(s) which would be empowered to moderate content, thereby injuring the digital rights of Indians on social media.
- Efforts to regulate digital news media raise concerns around online free speech: The Registration of Press and Periodicals Bill, 2019 was expected to be introduced in Parliament during the recently concluded monsoon session, as a replacement of the colonial Press and Registration of Books Act, 1867. This Bill was purported to introduce a mandatory registration requirement for digital media houses, thus paving the way for state action against publications houses, such as suspensions or cancellations, along with an imposition of penalties. However, as per latest news coverage, the Ministry of Information and Broadcasting (“MIB”) will now come out with a new law to regulate digital media.
- Concerns around India’s freedom on the net: Freedom House’s ‘Freedom on the net’ report, 2022 classifies India as ‘partially free’, flagging that India restricts network access, blocks social media and other websites, arrests users for social media posts, and has ‘pro-government commentators’.
- 5G and challenges to net neutrality: Net neutrality simply means that all internet service providers must provide access to all websites at the same conditions and without any preferential treatment to any content. Concerns surrounding the upcoming adoption of 5G technology indicate that it might affect net neutrality, along with innovation and consumer experience, leading to a violation of net neutrality laws.
The above-mentioned pointers are just a sneak peek to more relevant issues and updates that we touch upon in-depth in our brief. Some of these pieces of information include data on connectivity; statistics on implementation of schemes; details on key areas of digital governance such as public consultations, privacy and data protection, free speech, access to internet, and surveillance; and social justice and public welfare. For more analysis, statistics, and insight into future legislative developments related to digital rights, see here!