The News Editorial Analysis 23rd November 2021

SC to hear Mullaperiyar dam case on Dec. 10

Safety issues to be looked into

The Supreme Court on Monday agreed to expeditiously and comprehensively hear questions on the safety and maintenance of the 126-year-old Mullaperiyar dam, especially during heavy rain.

A Bench led by Justice A.M. Khanwilkar fixed a hearing of the case on December 10 for directions, immediately after the conclusion of two ongoing cases before it. The Bench said the Registry would put up the Mullaperiyar case even earlier than December 10 if the two part-heard matters concluded sooner than expected. Justice Khanwilkar said the diverse petitions filed on the various aspects of safety, maintenance of the dam and security of the people living near it should be heard comprehensively.

The Tamil Nadu Government has so far stood firm by its position in the court that the dam is “hydrologically, structurally and seismically safe”. A “social media campaign” was on in Kerala against the dam, it had said.

Falling short

JPC Bill gives much leeway to Govt. to exempt its agencies from data protection provisos

It has been more than three years since a draft Bill on personal data protection was crafted by the Justice Srikrishna Committee of experts and submitted to the Ministry of Electronics and Information Technology in 2018. Two years since a Joint Parliamentary Committee was set up to scrutinise another version — the Personal Data Protection Bill (PDPB), 2019 — it was finally adopted by it on Monday. But as dissent notes submitted by some panel members from the Opposition point out, the draft falls short of the standards set by the Justice Srikrishna Committee to build a legal framework based on the landmark judgment, Justice K.S. Puttaswamy vs Union of India, on privacy. The key divergences from the Justice Srikrishna Committee’s draft Bill are in the selection of the chairperson and members of the Data Protection Authority (DPA) which shall protect the interests of data principals and the leeway provided to the Union government to exempt its agencies from the application of the Act. While the 2018 draft Bill allowed for judicial oversight, the 2019 Bill relies entirely on members of the executive government in the selection process for the DPA. In contrast to the 2018 Bill that allowed for exemptions to be granted to state institutions from acquiring informed consent from data principals or to process data in the case of matters relating only to the “security of the state” and also called for a law to provide for “parliamentary oversight and judicial approval of non-consensual access to personal data”, the 2019 Bill adds “public order” as a reason to exempt an agency of the Government from the Act, besides only providing for those reasons to be recorded in writing.

As JPC member from the Rajya Sabha, the Congress’s Jairam Ramesh, rightly mentions in his dissent note, the “government must always comply with the Bill’s requirement of fair and reasonable processing and implementing the necessary safeguards”, which requires that the exemptions granted in writing should at least be tabled in both Houses of Parliament; but that was not accepted by the JPC. His note also points out to the dangers of exemption on the grounds of “public order” as it is susceptible to misuse and not limited to “security of the state” which is recognised by other data regulations such as Europe’s General Data Protection Regulation as a viable reason for exemption. In October 2021, the Global Privacy Assembly, featuring Privacy Commissioners from over 19 countries including those from the European Union, Japan and the U.K., came up with a clear resolution on principles for government access to personal data. In its resolution, the Assembly asked for a set of principles on legal basis, the need for clear and precise rules, proportionality and transparency, data subject rights, independent oversight, and effective remedies and redress to the individuals affected. As the JPC’s adoption of the draft Bill and the dissent notes appended to it suggest, it has fallen short of standards protecting privacy rights of individuals against blanket misuse by the state. It is now the task of Parliament to tighten the provisions further and bring them in conformance with the 2018 Bill.

Reversing follies in a haunted battleground

Institutionalised neutrality is a remedy that can stop Afghanistan from becoming a geopolitical pivot and a terror source

Geography dictates geopolitics but is often interpreted varyingly. This has been true of Afghanistan in modern times. Before 1880, its boundaries were demographic rather than territorial, and as a political entity it began to emerge when the empires of the Safavids in the west and Moghuls in the east declined rapidly. Till then it was nominally a monarchy, but in reality a military aristocracy and the death of a ruler was always followed by civil wars.

March of history

In the 1880s ‘Amir’ Abdur Rahman Khan cautioned his country against Tsarist inroads. In the Anglo-Russian Convention of 1907, the two imperial powers committed themselves not to undertake change in the political status of Afghanistan. In 1953, the Joint Chiefs of Staff in Washington concluded that ‘Afghanistan is of little or no strategic importance to the United States’ and that ‘it would be desirable to remain neutral because otherwise it might be overrun as an avenue to the Indian subcontinent’. In 1954, Secretary of State J.F. Dulles told a high-ranking Afghan emissary that ‘instead of asking for arms, Afghanistan should settle the Pushtunistan dispute with Pakistan.’

A quarter of a century later, and following the establishment of a Soviet-backed government in Kabul, National Security Adviser Zbigniew Brzezinski advised President Jimmy Carter to choose between punitive, coercive or deterrent courses of retaliatory action ‘to maintain credibility in Moscow’. A decision was then taken in June 1979 to establish ties with Afghan dissident leaders in Pakistan and offer aid to them. This, in turn, led to Moscow’s direct armed intervention on December 27, 1979. In response, a trilateral alliance of the United States, Pakistan and Saudi Arabia emerged to render assistance to the Mujahideen groups through an ‘arms pipeline’ controlled by the Afghan Bureau of the Inter-Services Intelligence (ISI). The latter also decided on the allocation of funds made available principally by Saudi Arabia to different groups and coordinated with the Central Intelligence Agency (CIA) and the Saudi intelligence organisation headed by Prince Turki al-Faisal who has recently given a candid account of it.

Carter’s goal

Mr. Carter’s aim, according to Prince Turki, ‘was to embarrass the Soviet Union and make the cost of occupation of Afghanistan as high as possible… the war in Afghanistan was more a political and military failure than a conventional military defeat for the Soviet Union… In a military sense it failed to subdue the Mujahideen but it never suffered a defeat in battle’. More details of the process was given many years earlier in Artyom Borovik’s The Hidden War that shed much light on the Soviet conduct of the war and on the morale of its armed forces.

In 1982, Soviet President Leonid Brezhnev posed a question to Prime Minister Indira Gandhi: ‘Show me a way to get out of Afghanistan’; her response was laconic: ‘The way out is the same as the way in.’ A face-saving formula however took time to emerge since Washington showed no haste and the Soviet withdrawal was thus completed only in February 1989.

In August 1919, the Treaty of Rawalpindi recognised Afghanistan as a fully sovereign state and the Amir in turn recognised the Durand Line and agreed to forego the British subsidy. In July 1931, King Nadir Shah announced a policy of neutrality. In July 1949, the Afghan National Assembly passed a resolution repudiating all previous treaties and agreements with the British before the birth of Pakistan and rejected the Durand Line as the international frontier.

Decades later, Pakistan’s perceptions changed after the collapse of the People’s Democratic Party of Afghanistan (PDPA) regime in the wake of the Soviet withdrawal and the seven-party Mujahideen government was installed and recognised by many western states. New Delhi then took the view that India’s diplomatic mission in Kabul should continue and so should its economic assistance and help in the area of public health. It was also decided that it ‘should contact with leaders of all groups and remain in touch with them so that eventually India could deal with whosoever came to power’.

An idea to pursue

Then and later, the idea of an externally guaranteed institutionalised neutrality was aired but not welcomed by the Mujahideen; and, even later, President Hamid Karzai was not receptive when the word was ‘used carelessly’ by the Special Representative of the Secretary-General for Afghanistan, Kai Eide, in the context of Afghanistan’s future international status. On the other hand, and in more recent times, the idea has been aired from time to time (including by two from India) as a possible remedy for minimising or unending competition between competing powers and to prevent Afghanistan lapsing into being a geopolitical pivot of competing powers and a source of extremism and terrorism.

An American scholar Audrey K. Cronin studied in 2016 recent cases of ‘Neutralization as a Sustainable Approach’ and, in relation to Afghanistan, opined that such an approach can be negotiated by the United States, China, Iran, Russia, Saudi Arabia, the Central Asian republics and the North Atlantic Treaty Organization (NATO), adding that the question of the Durand Line would need to be addressed during negotiations.

In December 2003, two Indian commentators opined that the way out of the morass would be to re-place Afghanistan in its traditional mode of neutrality for which two requirements were essential: the Afghans themselves must declare unequivocally that they would follow strict neutrality in their relations with external powers; and the outside powers must commit themselves to respect Afghanistan’s neutrality. In other words, external powers must subscribe to a multilateral declaration not to interfere in the internal affairs of Afghanistan together with an obligation on Afghanistan not to seek outside intervention in its internal situation.

A suggestion of ‘Neutralization’ as a concept and as a realisable goal has to be thought through on grounds of principle and of practicality. In the first place, would there be an ideological constraint from the view point of the present-day Taliban? None has been mentioned and should not be presumed. Available accounts of the Doha talks suggest that both former Afghanistan President Ashraf Ghani and the Special Representative for Afghanistan Reconciliation, Zalmay Khalilzad, mentioned ‘neutral and non-aligned post-peace settlement Afghanistan’ in the discussions and were not contradicted in terms of Islamic ideology as viewed by the Taliban. It is on record that Afghan governments practised neutralism (military non-alignment) since King Nadir Shah’s pronouncement in 1931 — in the Second World War and in the India-Pakistan 1965, 1971 and the Kargil wars. In the foreseeable future and given domestic cohesion, the likelihood of the Taliban leadership departing from it on ideological or practical grounds does not seem to arise.

Practicality

This leaves the factor of practicality that is to be tested on the regime’s immediate and foreseeable future requirements — recognition, defreezing of assets, immediate food aid, and longer term bilateral and multilateral economic assistance to replace what was given bilaterally for other considerations.

The essential ingredients of such neutralisation would be: a formal Afghan declaration in constitutional terms; a legally binding declaration by each and every immediate and proximate neighbour; a United Nations Security Council declaration calling on the P5 and interested powers to refrain from any form of power politics in Afghanistan, and; a United Nations General Assembly resolution recognising Afghanistan as a neutral state.

As a border

On the Durand Line — and while nothing has been formally proposed — the solution would seem to lie in a creative approach with some form of a formal but soft border that would accommodate the area’s history, geography and demography. In this context, an observation by the former Pakistan Foreign Secretary, Riaz Mohammad Khan, is of relevance: ‘It would be as futile for Pakistan to push Kabul for formal recognition of the Durand Line as it is for Kabul to reopen this issue whose parameters it has never been able to define. Kabul should continue to respect the Durand Line as the functional border, which for Pakistan remains the historical and legal border.’

Given the ground situation today, and Afghanistan’s dire need for accommodation with the external powers, aid-givers and economic assistance, the situation is ripe for political adjustment of its basic perceptions more so because it can benefit (not harm) the country and allow friendly countries to render assistance without constraints of competition and power politics.

In futile efforts, the great Powers have tried and failed to dominate the world through Afghanistan and left death and misery in its wake. Sanity would suggest a wiser approach.

Hamid Ansari is the former Vice-President of India, 2007-2017

Dynamism in India-U.S. ties

Interactions between Indian MPs and members of the U.S. Congress are significant and should be institutionalised

The trajectory of India-U.S. bilateral ties continues to go up. While there are regular interactions among officials at various levels and across sectors, as well as people-to-people engagement, there are no formal interactions between Members of Parliament in India and members of the U.S. Congress.

Visit to India

In November, a congressional delegation (CODEL) led by U.S. Senator John Cornyn travelled to the Indo-Pacific Command countries, including the Philippines, Taiwan and India. In New Delhi, the six-member delegation interacted with Prime Minister Narendra Modi, External Affairs Minister S. Jaishankar, and representatives of the Dalai Lama. Senator Cornyn is a senior member of the Republican Party and co-founder and co-Chair of the Senate Caucus on India and Indian Americans. Mr. Modi and the members of the delegation noted the “increasing convergence of strategic interests” between India and the U.S. and said they would like to “further enhance cooperation… to promote global peace and stability”.

After the trip, Senator Cornyn said, “The Indo-Pacific is the largest military theater in the world, and our allies there are invaluable to ensuring we can counter China’s overreach. Our delegation was able to see firsthand the issues facing countries from mainland India to island partners in the Pacific…”. The China overhang was visible in the backdrop. Mr. Modi appreciated the consistent support and constructive role of the U.S. Congress in deepening the India-U.S. comprehensive global strategic partnership. Mr. Modi and CODEL exchanged views on enhancing the bilateral relationship and strengthening cooperation on contemporary global issues such as terrorism, climate change and reliable chains for critical technologies.

Last month, Senator Cornyn and Democrat colleague Mark Warner urged President Joe Biden to grant a waiver to India which faces the prospect of sanctions for procuring S-400 missiles from Russia. Two days after returning from his trip to India, CODEL member Senator Tommy Tuberville favoured India getting the presidential waiver under the Countering America’s Adversaries Through Sanctions Act. More on the issue is in the works on Capitol Hill.

The significance of the CODEL visit is not lost in the U.S. as members of the U.S. Congress play an important role in determining foreign policy, which at times is dictated by the demands of constituents. But despite the robustness in India-U.S. relations, there is no institutional communication or interaction between MPs in India and members of the U.S. Congress. Noting that there is popular and political support in both countries for a robust India-U.S. partnership, the joint statement at the end of the 2+2 Dialogue in 2019 stated: “The Ministers looked forward to the establishment of India-US Parliamentary Exchange to facilitate reciprocal visits by Parliamentarians of the two countries”. With the next edition of the 2+2 Dialogue due to be held soon, the Ministers could examine progress on this aspect. India can take it forward through the Indian Parliamentary Group, which acts as a link between the Indian Parliament and the various Parliaments of the world. In 1953, the Group had first invited then U.S. Vice President Richard Nixon to address MPs in the Central Hall of Parliament. Over the years, Presidents Dwight Eisenhower, Jimmy Carter, Bill Clinton and Barack Obama also addressed MPs at Central Hall.

Shaping foreign relations

At present, there are eight Parliamentary Friendship Groups of India’s including Japan, Russia, China and the European Union. The U.S. is absent from this list. It is important to note what former Congressman and veteran Democrat Jim McDermott, a former co-Chair and pioneer of the India Caucus on the House side, said: legislative interactions inject dynamism in bilateral relations. Dr. McDermott was part of the CODEL led by John Lewis to commemorate the 50th anniversary of Martin Luther King Jr’s historic journey to India. CODEL travels across the world during the periods when Congress takes a break from legislative work. Interactions during these travels are important in shaping relations with foreign countries.

India’s connection with the U.S. Congress goes back to November 17, 1954, when Vice President S. Radhakrishnan presented the Senate with a gavel to replace the hour-glass-shaped piece of ivory that had shattered during a heated debate when Nixon had used it. Radhakrishnan hoped that the gavel would inspire senators to debate “with freedom from passion and prejudice”. In 2022, when Parliament celebrates its 70th year, a formal arrangement with Congress can institutionalise this unique relationship between representatives of the U.S. and India.

Prasad Kunduri is a journalist and former Fulbright-APSA Fellow with the U.S. Congress

‘Unpredictable norms key impediment to bilateral trade’

U.S. Trade Representative flags high tariffs and market access restrictions

U.S. Trade Representative Katherine Tai on Monday flagged India’s ‘unpredictable’ regulatory norms, high tariffs and market access restrictions as key impediments to bilateral trade, emphasised America’s continued interest in agriculture market access, and conveyed that “worker-centric” policies will be the pivot for the Joe Biden administration’s approach to trade policy.

On a maiden two-day visit to revive the U.S.-India Trade Policy Forum (TPF) after a four-year hiatus, Ms. Tai said the relationship is a top priority both for President Biden and for her, but highlighted that bilateral trade “never seems to quite live up to its significant potential”.

“At the USTR’s office, we hear very frequently from our stakeholders, who are not shy, on issues that will be familiar to those of you involved in moving goods and services between our two countries — market access restrictions, high tariffs, unpredictable regulatory requirements, restrictive trade measures… These are issues where we intend to make progress on and they will be on the top of my list while I am here,” Ms. Tai said.

Signalling a major switch to a “worker-centric” focus in the U.S. policy, Ms. Tai said: “President Biden is convinced that the U.S. policy needs a fundamental shift to ensure that our policies and actions focus on the impact that trade and trade agreements have on the lives of real working people.”

She said she will work closely with the Indian Government ‘colleagues’ including Labour and Employment Minister Bhupendra Yadav on connecting trade “more directly with working people”.

“There is a huge potential for growth in our two countries, in areas like the digital economy, services, health-related trade and yes, even agriculture. I believe that a revive TPF can help our trade relationship keep pace with our other areas of engagement,” she said after a meeting with Commerce and Industry Minister Piyush Goyal.

“India and the U.S. also face shared challenges like climate change and sustainability, vulnerable supply chains and promoting market-oriented principles and structures. These are areas that are ripe for closer collaboration now,” Ms. Tai said, underlining that the U.S. is committed to ensuring a robust and sustainable trade partnership.

“Delivering results and further integrating our two economies will require concerted efforts from our Governments, businesses, civil society, our people as both workers and consumers,” she said on the eve of the TPF meeting on Tuesday.

Mr. Goyal said he was pleased that the trade policy forum is being rejuvenated after “languishing for four years” and expressed confidence that the two sides will be able to resolve issues in an amicable manner and send a message to the world that the U.S. and India are strong partners. “Citizens from both our countries look towards India-U.S. partnerships with great optimism and hope. The U.S. and India share a partnership that can not only help each other but the entire world to recover, if we were to work together,” he said.

Reforming the fertilizer sector

In order to address the multiple goals of fertilizer policy, India needs to work on four key areas

Since 1991, when economic reforms began in India, several attempts have been made to reform the fertilizer sector to keep a check on the rising fertilizer subsidy bill, promote the efficient use of fertilizers, achieve balanced use of N, P and K (nitrogen, phosphorus and potassium), and reduce water and air pollution caused by fertilizers like urea.

Increase in subsidy

The Economic Survey of 1991-92 noted that fertilizer prices remained almost unchanged from July 1981 to July 1991. The Union Budget of July 1991 raised the issue prices of fertilizers by 40% on average. But from August that year, this was reduced to 30%, and small and marginal farmers were exempted from the price increase. The Economic Survey further noted that even with this 30% increase, fertilizer subsidy remained substantial and needed to be reduced further. Due to opposition to increase fertilizer prices, the increase in the price of urea was rolled back to 17% a year later over the pre-reform price.

This change disturbed the relative prices of various fertilizers and resulted in a big shift in the composition of fertilizers used in the country in favour of urea and thus N. The ratio of use of N:P:K increased from 5.9:2.4:1 in 1991-92 to 9.7:2.9:1 in 1993-94. Farmers tended to move towards balanced use, but policy and price changes reversed the favourable trend a couple of times in the last three decades. Thus, little success has been achieved on any of the three fronts. Rather, there has been an uncontrolled increase in subsidies on urea, due both to almost freezing the MRP of urea in different time periods and its rising sale leading to an increase in indiscriminate and imbalanced use of fertilizers.

Concerned with the adverse environmental impact of certain chemical fertilizers, some sections of society suggest the use of organic fertilizers and biofertilizers instead. There is a growing demand to provide subsidies and other incentives for organic fertilizers and biofertilizers to match those provided for chemical fertilizers.

Fertilizer subsidy has doubled in a short period of three years. For 2021-22, the Union Budget has estimated fertilizer subsidy at ₹79,530 crore (from ₹66,468 crore in 2017-18) but it is likely to reach a much higher level due to the recent upsurge in the prices of energy, the international prices of urea and other fertilizers, and India’s dependence on imports.

In 2019-20, fertilizer use per hectare of cultivated area varied from 70 kg of NPK in Rajasthan to 250 kg in Telangana. This gap was much wider at the district level. Further, composition of total plant nutrients in terms of the N,P,K ratio deviated considerably from the recommended or optimal NPK mix. It was 33.7:8.0:1 in Punjab and 1.3:0.7:1 in Kerala. This also has implications for inter-State disparities in fertilizer subsidy due to high variations in subsidy content, which is highly biased towards urea and thus nitrogen. As a result, the magnitude of fertilizer subsidy among the major States ranges in the ratio of 8:1.

The government introduced the Nutrient Based Subsidy (NBS) in 2010 to address the growing imbalance in fertilizer use in many States, which is skewed towards urea (N). However, only non-nitrogenous fertilizers (P and K) moved to NBS; urea was left out.

The total demand for urea in the country is about 34-35 million tonnes (mln t) whereas the domestic production is about 25 mln t. The requirement of Diammonium Phosphate (DAP) is about 12 mln t and domestic production is just 5 mln t. This leaves the gap of nearly 9-10 mln t for urea and 7 mln t for DAP, which is met through imports. The use of Muriate of Potash is about 3 mln t. This is entirely imported. In addition, consumption of complex fertilizers (NPK) is about 12-13 mln t, which is largely produced within the country and so the import requirement is only 1 mln t.

The international prices of fertilizers are volatile and almost directly proportional to energy prices. Besides, cartels of major global producers have a strong influence on prices. Of late, there has been a surge in international prices with urea prices rising to a record level of over $900 per metric tonne (mt) in November 2021 from nearly $270 per mt in September 2020. Likewise, the international prices of DAP have risen from about $360 per mt in September 2020 to about $825 per mt in November 2021. These extraordinary price rises are on account of a sharp upsurge in international energy prices and supply constraints in major producing countries due to robust domestic demand, production cuts and export restrictions. This also coincides with the peak demand for the Rabi season. In order to minimise the impact of rise in prices on farmers, the bulk of the price rise is absorbed by the government through enhanced fertilizer subsidy. This is likely to create serious fiscal challenges.

In the last 20 years, the price of urea has increased to ₹5.36 per kg in 2021 from ₹4.60 in 2001. In the same period, the Minimum Support Price of paddy increased by 280% and that of wheat by 230%. In other words, in 2001, 37.7 kg of wheat was required to buy one bag of urea (50 kg), which has now reduced to 13.3 kg. At current prices, farmers pay about ₹268 per bag of urea and the Government of India pays an average subsidy of about ₹930 per bag. Thus, taxpayers bear 78% of the cost of urea and farmers pay only 22%. This is expected to increase and is not sustainable.

The way forward

In order to address the multiple goals of fertilizer policy, we need to simultaneously work on four key policy areas. One, we need to be self-reliant and not depend on import of fertilizers. In this way, we can escape the vagaries of high volatility in international prices. In this direction, five urea plants at Gorakhpur, Sindri, Barauni, Talcher and Ramagundam are being revived in the public sector.

Two, we need to extend the NBS model to urea and allow for price rationalisation of urea compared to non-nitrogenous fertilizers and prices of crops. The present system of keeping the price of urea fixed and absorbing all the price increases in subsidy needs to be replaced by distribution of price change over both price as well as subsidy based on some rational formula.

Three, we need to develop alternative sources of nutrition for plants. Discussions with farmers and consumers reveal a strong desire to shift towards the use of non-chemical fertilizers as well as a demand for bringing parity in prices and subsidy given to chemical fertilizers with organic and biofertilizers. This also provides the scope to use a large biomass of crop that goes waste and enhance the value of livestock byproducts. We need to scale up and improve innovations to develop alternative fertilizers. Though compost contains low amounts of nitrogen, technologies are now available to enrich this.

Finally, India should pay attention to improving fertilizer efficiency through need-based use rather than broadcasting fertilizer in the field. The recently developed Nano urea by IFFCO shows promising results in reducing the usage of urea. Such products need to be promoted expeditiously after testing.

These changes will go a long way in enhancing the productivity of agriculture, mitigating climate change, providing an alternative to chemical fertilizers and balancing the fiscal impact of fertilizer subsidy on the Union Budgets in the years to come.

Ramesh Chand is Member and Yogesh Suri is Senior Adviser with NITI Aayog. Views are personal

JPC retains exemption clause, adopts personal data Bill

Six of the 30 committee members file dissent notes; Manish Tiwari says it creates parallel universes for private sector and the Government

A secure nation alone provides the atmosphere which ensures personal liberty and privacy of an individual, the Joint Parliamentary Committee (JPC) on the Personal Data Protection (PDP) Bill, 2019, has argued in its report defending the controversial exemption clause that allows the Government to keep any of its agencies outside the purview of the law. The committee has retained the clause with a minor change.

The report on the PDP Bill was adopted on Monday at the committee meeting in Delhi. The committee has been deliberating on the report since 2019.

Clause 35, in the name of “public order”, “sovereignty”, “friendly relations with foreign states” and “security of the state”, allowed any agency under the Union Government exemption from all or any provisions of the law. Six of the 30 members of the committee have filed dissent notes against the exemption clause. Sources said two more members would be filing a dissent note in the next few days.

Widely debated

This was one of the widely debated clauses in the panel meetings, where the members had argued that “public order” should be removed as a ground for exemption. They had also pressed for “judicial or parliamentary oversight” for granting such exemptions. The members had also suggested that “there should be an order in writing with reasons for exempting a certain agency from the ambit of the Bill”. Some of them had asked that only partial exemption should be given to the agency if needed.

The final report that The Hindu has accessed did not accept any of these suggestions, arguing that there was a need to balance the concerns regarding national security, liberty and privacy of an individual. Conceding that there could be no easy choice between these concerns, the report said, “A secure nation alone provides the atmosphere which ensures personal liberty and privacy of an individual whereas multiple examples exist where without individual liberty and privacy, national security itself gives rise to autocratic regimes.”

The report noted that this clause was for “certain legitimate purposes” and also said there was precedent in the form of the reasonable restrictions imposed upon the liberty of an individual, as guaranteed under Article 19 of the Constitution and the Puttaswamy judgment. At the same time, the committee expressed concerns with possible misuse. The committee, therefore, said though the State had rightly been empowered to exempt itself from the application of this Act, this power may, however, be used only under exceptional circumstances and subject to conditions as laid out in the Act, the report said.

In one of the longest dissent notes, Congress leader Manish Tiwari rejected the Bill in its present form in entirety for its design flaw. He raised specific objections to 37 clauses. This included an objection to the Government exemption clause of 35. He said the Bill created two parallel universes — one for the private sector where it would apply with full rigour and one for the Government where it was riddled with exemption, carve outs and escape clauses. “A Bill that seeks, therefore, to provide blanket exemptions either in perpetuity or even for a limited period to the ‘state’ and its instrumentalities, in my estimation is ultra vires of the Fundamental Right to privacy as laid down by the nine-judge Bench of the Supreme Court of India in Puttaswamy (2017) judgment,” he said.

‘No adequate safeguards’

In a joint dissent note, Trinamool Congress leaders Derek O’Brien and Mahua Moitra said the Bill did not provide adequate safeguards to protect the right to privacy and gave an overboard exemption to the Government. Clause 35 was open to misuse since it gave unqualified powers to the Government.

Among its key recommendations, the committee pitched for stricter regulations for social media platforms. It recommended that all social media platforms, which did not act as intermediaries, should be treated as publishers and be held accountable for the content they host, and should be held responsible for the content from unverified accounts on their platforms.

It said no social media platform should be allowed to operate unless the parent company handling the technology sets up an office in India and that a statutory media regulatory authority, on the lines of the Press Council of India, may be set up for the regulation of the contents on all such platforms irrespective of the platform where their content is published.

Some of the other recommendations of the committee included development of an alternative indigenous financial system for cross-border payments on the lines of Ripple (U.S.) and INSTEX (European Union).

The News Editorial Analysis 22nd November 2021

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