January 15, 2020

Appointing the DPA: A Problem of Efficiency

In India, the legislation for data protection is in the making. Prakhar Misra comments on the challenges for defining the terms of the Data Protection Bill. 

There has been a fair bit of commentary on the various ways in which the Personal Data Protection (PDP) Bill, 2019 has been stripped of adequate checks and balances. Justice BN Srikrishna called out the exemptions for the government and government agencies from the Bill’s safeguards. Carnegie India’s Suyash Rai has noted that the proposed Digital Protection Authority’s selection committee won’t have any independent members. There’s another angle here too. Complaining about the lack of efficiency in the DPA’s setup isn’t quite arresting as calling the Bill the way to an Orwellian state (J. Srikrishna, blunt as ever), but bear with me. 


The Indian administrative state is overburdened. Massively so. The popular notion of a bloated bureaucracy simply doesn’t hold true for the movers and shakers at the highest echelons — the IAS. They number less than 5,000. This is miniscule for a country as large as India. And Milan Vaishnav and Saksham Khosla, in their deep dive into the IAS, paint a clear picture of the IAS’ various inefficiencies. Put it all together and it becomes cleared why the bureaucracy has a mixed record when it comes to policymaking and governance. Why, then, emphasise these weaknesses while setting up the DPA?


Currently, the PDP Bill provisions for a Chairperson and a maximum of six full-time members for the DPA. The problem: they will all be appointed on the recommendation of a selection committee which will be formed for this reason. The members of this selection committee, as stated in Sec. 42(2), will be secretaries of the Ministry/Department of Legal Affairs, and Ministry/Department dealing with Electronics and Information Technology. The Cabinet Secretary will chair the committee. In contrast, the 2018 draft bill version of the selection committee had the Chief Justice of India or her nominee, Cabinet Secretary and an expert. 


This is a very bad idea. Secretaries at this level are burdened with numerous responsibilities. Serving on the Selection Committee and all that comes with it — the meetings, deliberation, etc — will be a substantial addition to the burden. Will it be realistic to expect them to be efficient  appointing the Chairman and the other members of the Data Protection Authority of India?


This is not the first time such concerns have been raised. In the recent past, doubts being cast on other selection committees and their efficacy. An RTI request showed that the Selection Committee responsible for establishing the Lokpal did not meet once in almost four years — and it was chaired by the Prime Minister himself. In a paper titled ‘Political Economy of Bureaucratic Overload: Evidence from Rural Development Officers in India’, Aditya Dasgupta and Devesh Kapur conduct a survey of Block Development officers and show that among other factors like resource scarcities and absence of electoral incentives, time-rationing plays a major role in reducing effectiveness and underpins the idea of weak state capacity at a very fundamental level. Officers have to multitask excessively and that takes away from the quality of the time they can allocate to one task.


The overburdening of IAS officers and Secretaries has been reported time and again. For instance, in Bihar 118 out of 327 sanctioned posts for IAS officers remained vacant and thus the incumbent ones were burdened with charges of additional ministries. Similarly, in Rajasthan it was reported that almost 15% of the senior IAS officers were overburdened with Additional Charges due to various reasons from deputation to Centre to application for leaves for holidays.


Here’s more evidence of just how much is on IAS officers’ plates: a District Administration Finding noted that “the district collector (DC) was the chairperson of a startling 75 committees in total, and member or member secretary of another six, a whopping total of 82. These committees, spread across 23 departments, were formed as per central and state government directives. They addressed a sweeping array of subjects: planning, law and order, price fixation, staff recruitment, tribal welfare, promotion of industry etc.” 


The DPA will not be a garden variety regulatory body. It will be a horizontal regulator that cuts across all sectors of the economy, conventional and digital. Its powers and responsibilities will be vast. So will the consequences of its decisions for citizens, the economy and technology policy. It deserves better than to be another item on a Secretary’s checklist. There are many reasons for the Joint Parliamentary Committee to reconsider the makeup of the selection committee when it deliberates on the Bill later this month. This is one of them.


























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