Shri Ashwini Vaishnaw
Minister of Electronics and Information Technology

Dear Shri Vaishnaw,

Subject: Concerns regarding non-compliance with established principles of pre-legislative consultation for the Digital Personal Data Protection Bill, 2022

We are writing to express our concern regarding the lack of adherence to established principles of pre-legislative consultation related to the proposed draft Digital Personal Data Protection Bill, 2022.

On November 18, 2022, MEITY published the draft Bill inviting comments and suggestions. An earlier bill on a similar subject was referred to the Joint Parliamentary Committee which made extensive recommendations. In August 2022, the government withdrew the said bill and has now put out a new scheme for processing people’s digital personal data in the Digital Personal Data Protection Bill, 2022. The bill also seeks to amend key provisions of the Right to Information Act, 2005 which will impact millions of citizens who employ it every year to seek greater transparency and accountability from public authorities.

Given the wide ramifications of the draft Bill, it is crucial that it be put through a more rigorous and extensive process of public consultation. While MEITY has invited feedback on the draft Bill, the manner and procedure of inviting public feedback does not do justice to the established principles of pre-legislative consultation.

The Pre-legislative Consultation Policy adopted by the Union Government in 2014 mandates that all draft legislation be placed in the public domain for at least 30 days, inviting public comments and a summary of feedback/comments received be made available on the concerned ministry’s website prior to sending it for Cabinet approval. It also requires that wide publicity be given to the consultation process and the draft legislation through print and electronic media, or in such other manner considered necessary to reach the affected people.

Contrary to these minimum standards for public consultation on draft legislations, the note by MEITY states that “submissions will not be disclosed and held in fiduciary capacity, to enable persons submitting feedback to provide the same freely. No public disclosure of the submissions will be made.” The very purpose of public consultation - to encourage free exchange of ideas and concerns – is defeated by this kind of secrecy. Further, information held by public authorities is subject to disclosure as per the provisions of the RTI Act and therefore, no arbitrary pre-conditions of confidentiality can be imposed.

We are also very concerned about the limited nature of the consultation around the draft Bill for two reasons. First, it is currently available only in English and none of the languages included in the Eighth Schedule of our Constitution. Second, the Ministry has sought feedback only through the MyGov website and that too chapter-wise, with little scope for providing comments on matters that have been left out of the draft Bill.

Given that the proposed legislation will affect people across the country, at the very minimum, the text and the accompanying notes must be made available in Hindi and other regional languages. Further, providing only an online mode to give feedback completely excludes hundreds of millions of people in the country who would not have the necessary digital know how and resources to engage with the process. As per the government’s own surveys, less than half the population of India has ever accessed the internet. Rather than create impediments by insisting on only an online mode of consultation, the Government must open up offline mechanisms including via post or courier for people to submit their comments on the draft Bill.

We urge your Ministry to adopt an extensive and rigorous pre-legislative consultation process which meets the established principles of meaningful public consultation. The government must also ensure dissemination of the draft bill through various modes, and in multiples languages and put in place multiple online and offline options for providing feedback. Any arbitrary pre-conditions of secrecy around the consultation process must be done away with. Further, we urge your Ministry to hold consultations at the state-level to facilitate more widespread and deeper people’s engagement with the proposed legislation. Transparency and openness in the consultation process is key to ensuring peoples’ trust in the process and the institutional framework for protecting digital personal data that is proposed to be set up.

Thank you.