India: Privacy Bill will likely reflect EU Directive

The article was published in DataGuidance on March 3, 2014.

"In its eventual form, I expect [the Bill] will be modelled to a great extent on the European Data Protection Directive (95/46/EC)," Rodney Ryder, Partner at Scriboard, told DataGuidance. "The European Directive is an important model as India moves forward." Data protection in India is currently regulated by the Information Technology Act 2011, however, if enacted, the Bill would introduce the country's first comprehensive privacy regime. In 2013, the European Commission assessed India's data protection regime and decided not to award adequacy recognition at that time.

"If the Bill is introduced in the Winter Session, […] it is likely to […] come into effect either at the end of the year or early in the next year"

The draft Bill regulates collection, storage and processing of personal data, with both monetary and penal penalties yet to be determined for anyone who 'collects, receives, stores, processes or otherwise handles any personal data [except in conformity with the provisions of the Act].' It also establishes an Indian Data Protection Authority (DPA), with the power to investigate data processing and to 'give such directions or pass such orders as are necessary.'

"[Moving forward,] we expect more clarity on the role and functioning of the DPA," Ryder stated. "In the past, the Government of India has not been clear on the role of the DPA. Will this 'authority' have the independent powers and stature of the European Privacy Commissioners? [Additionally,] the complaint mechanism under the Bill requires greater clarity, precision and structure."

Divya Sharma, Legal Director at Bird and Bird LLP, commented, "Considering that India has parliamentary elections scheduled to take place in April 2014, this bill is unlikely to progress further until a new Government takes office in May 2014. […] Any legislation of this nature is unlikely to progress during this Government's tenure."

"If the Bill is introduced in the Winter Session, after due consideration, it is likely to be passed by the end of the Year and come into effect either at the end of the year or early in the next year," said Ryder.