Non-personal data norms: Too much, too soon?

Author: Mayank Mishra
Published: February 01, 2021 in the Financial Express
The rationale for government intervention seems unclear and needs further debate. Even if there are positive externalities to some data, there seem to be significant potential costs for the whole digital economy under the NPD framework.

With the exponential rise in the use of data by businesses, several regulatory challenges have emerged. Issues pertaining to data sharing pose some of the biggest challenges. In July 2020, the MeitY released a report on non-personal data (NPD) governance framework with an aim to promote data sharing by businesses for public welfare. It intends to regulate data sharing so that the benefits accrue to India, its communities and businesses. While the purpose of data sharing for public welfare is commendable, the suggestions made to govern NPD were met with widespread disapproval from many stakeholders. It was noted that the framework was wide-ranging in its recommendations which could be misused against larger data businesses.

Taking into account the feedback from the first report, the government released a second version in December 2020. While it brings more clarity, there are still issues that need serious attention.

Analysing the government’s decision to intervene: Economic theory states that a government should only intervene in economy when there is market failure, i.e. when the forces of demand and supply do not lead to an efficient outcome. The market failure that the government envisages in the case of NPD is positive externalities associated with sharing of data. According to this rationale, the data collected by a firm can benefit firms and communities beyond the one that collected it. The committee has given many examples, such as road data collected by cab aggregators, which can be used by municipal bodies to improve road design, or cancer hospitals sharing their data for medical research. However, while there are benefits of sharing data with the community, there are also potential costs and risks.

Potential impact of the NPD framework on firms: Firms that invest in collecting data incur a significant cost in doing so. The cost is incurred in order to reap future revenue by providing innovative products and services, enhanced user experience or efficient operations of firms. The data collected, in effect, gives competitive advantage to a market player compared to its competitors. However, if the proposed NPD framework is implemented, a business can potentially lose its competitive advantage if its data could be accessed by its competitors through data trustees. This could disincentivise businesses to collect data in the future, thereby hampering the data economy. Unlike the popular adage ‘data is the new oil’, data doesn’t exist naturally. Datasets are built over time through conscious efforts of companies collecting data. Therefore, by destroying the incentive to collect data, we risk defeating the whole purpose of this framework.

The rationale for government intervention seems unclear and needs further debate. Even if there are positive externalities to some data, there seem to be significant potential costs for the whole digital economy under the NPD framework. The government, therefore, needs to do a thorough cost-benefit analysis of the framework and implement it only where it establishes that benefits outweigh the costs.

Finally, apart from distorting the market, the NPD framework could lead to negative externalities by compromising the privacy of the individuals. While the framework specifies that only anonymised, non-personal data can be shared through data trustees, there still remains a possibility that data is de-anonymised by an entity, thus revealing personal information. Further, under this framework, once the datasets are amalgamated in HVDs with different data trustees, it will be extremely difficult to track and control downstream usage of these datasets. Experts suggest that by triangulating different datasets, there is a high risk of identification of individuals and groups of individuals. Once a dataset is shared outside of the purpose for which it was originally collected, it is almost impossible for any regulator to control its end-usage. It can be argued that while Indian policymakers, on one side, are proposing purpose limitation and progressive rights for individuals under the PDP Bill, we are, in fact, risking diluting those protections through forced non-personal data sharing.

Owing to the myriads of issues with the NPD framework, the government should tread cautiously in regulating such a fast-moving and dynamic field. We risk stifling the digital economy by fighting too many battles together. Privacy and innovation should continue to be core goals for regulation of the digital economy, compulsory sharing of NPD is a potential affront to both.

In children we must trust

Authors: Nikhil Iyer and Aparajita Bharti
Published: March 08, 2021 in the Hindu Business Line

India’s privacy law must balance the rights of children with online safety

The Joint Parliamentary Committee on the Personal Data Protection (PDP) Bill, 2019, is expected to submit its report soon. Among other things, observers will keenly follow the Committee’s discussion around children’s personal data. Currently, the Bill imposes a blanket requirement for parental consent for processing the personal data of anyone below the age of 18. In effect, children’s access to online social media, ed-tech platforms, forums for personal interest and development, gaming and so on will be governed by this provision.

While the necessity to protect the interests of children online is a foregone conclusion, the challenge is to do so while respecting their autonomy. The blanket provision in the PDP Bill assumes similar maturity for all children under 18. The Bill inks them as incapable of understanding the risks, benefits and other consequences associated with their online activities.

In contrast, in the offline world, the law variously acknowledges that maturity changes over time. Under India’s criminal law, those below age 12 are deemed incapable of giving informed consent, whereas the maturity of those between ages 12 and 18 is decided by a court of law. Even the laws on child labour allow children under 14 to work autonomously in non-hazardous industries. However, according to the PDP Bill, the same children cannot sign up for online jobs without parental consent. Even a rigorous law such as the Juvenile Justice Act now recognises the difference in maturity among teenagers in different age groups.

This dichotomy between the offline and the online world is especially problematic given the number of Indian teenagers on the internet today. India has one of the largest numbers of active internet users anywhere in the world. Out of an estimated 504 million internet users, nearly one-third are aged under 19. As per the Annual Status on Education Report (ASER) 2020, more than one-third of all schoolchildren are pursuing digital education, either through online classes or recorded videos. Given the ubiquitous reliance on the internet through the pandemic for education, more students have likely come online in the past year.

The implications of these trends on the PDP Bill’s mandate are worth evaluating. To consent on behalf of the child, parents need to be aware of all online activities that the child engages in, even as the child may be digitally more literate and tech-savvy than them. This problem is exacerbated in families of children who are first-generation learners. There is also a huge risk of a chilling effect as the requirement of parental consent inhibits the ability of the child to use the internet as a medium of ‘self-expression, growth and education’. Children are likelier to worry about their right to privacy being infringed by their parents or peers, than by the State or commercial actors.

This is especially so as the child seeks to find an outlet for aspects of their personality that do not find an immediate audience due to social taboos. These may be on questions of sexual orientation, religion and other sensitive issues.

Further, the blanket provision may put Indian children at a comparative disadvantage as compared to their peers in other countries. In the UK and the US, parental consent is needed for those below age 13, while in China this threshold is at age 14. In the EU, this threshold is at age 16, with an option for member states to reduce it to age 13.

Adolescents in these countries will be freely able to use the internet to learn about opportunities, socialise, hone their skills and so on, while those in India will be singularly reliant on their parents to facilitate this. It is highly unlikely that all parents have the ability to fulfil this role proactively.

Instead of strict age-gating provisions, we must update our school curriculum to equip children to keep themselves safe online. One’s relationship with technology is one of themost inalienable aspects of our life today, therefore at every age, children, even those below the age of 13 must be exposed to the potential harms online. We should not only make them aware about the obvious harms on the internet such as phishing, identity or data theft, but also expose them to technology-enabled conundrums that we are dealing with as a society today, such as echo chambers, fake news and the risk of profiling for political gains. Just as we teach students good touch and bad touch to defend themselves in the physical world, we must equip them to make their decisions in the online space.

The question of how children’s maturity could be ascertained and parental consent be verified is gaining traction in other countries. In India, too, the blanket requirement for parental consent for those aged below 18 years must make way for a graded approach along with a comprehensive digital literacy curriculum. In adopting such an approach, we will bring India’s children on a parwith their global peers, and account for internet-based opportunities for their development.

In Budget 2021, youth deserve more

Author: Rohit Kumar
Published: December 09, 2020 in the Indian Express
India does not spend enough on its young people. It is their opportunities that have been constricted the most by the pandemic.

For an economy ravaged by the pandemic, the 2021 budget is going to be of critical importance. The spread of coronavirus and the uncertainty around its containment has affected the revival of economic activity and disrupted labour markets. Unemployment is at a high of 7.8 per cent in November with youth unemployment exceeding 20 per cent. Educational institutions have not convened physical classes in over 8 months and vocational education/skilling opportunities have gone defunct. No wonder then that these issues have taken centre stage in policy discourse and become key rallying points in elections — the mobilisation around jobs, skilling and social security in Bihar elections is a case in point. The youth, in particular, has been at the forefront of this mobilisation. It is their opportunities and life chances that have been constricted the most by this pandemic.

If anything, the pandemic has highlighted the need to build the resilience of the youth and to place their concerns at the centre stage of policy discussions.

While the government has taken several measures over the last year to address some of these challenges, a lot remains to be done. The pandemic is still far from over and India’s institutional focus on its youth has always been relatively weak. An analysis of the last five Union budgets shows that India spends less than 4 per cent of its annual budget on youth-focused schemes, and the proportion of funding allocated to these schemes has declined in recent years. This is despite the fact that India is home to one of the youngest populations in the world; more than a third of India’s population will be in the age group of 10-34 by the next year.

The spending on higher education has been concentrated in highly selective autonomous institutes, such as IITs and IISc, while that for skilling and vocational education has contracted over the last five years. This is odd given that the government has been focusing on bridging the skill gap in India. Only a small percentage of young people in India pursue degrees in higher education, and a minuscule number get to enrol in prestigious colleges and universities. Most either drop out and enter the labour market directly or look to pursue vocational education/skilling programmes to up-skill themselves for the job market. Government estimates suggest that we need to up-skill upwards of 300 million youngsters to make sure they are gainfully employed. Yet, India’s biggest skilling programme, PMKVY (Pradhan Mantri Kaushal Vikas Yojana) with an average annual budget of Rs 3,000 crore aims to skill only 10 million individuals over 2016-2020. The problem is compounded by an overall decline in the skilling budget across ministries. After PMKVY, DDUGKY (Deen Dayal Upadhyaya Grameen Kaushalya Yojana) under the National Rural Livelihood Mission is another flagship skilling scheme, but with a much smaller budget — the spending on this scheme has been below Rs 100 crore over the past few years.

While there is a focus on increasing job opportunities for young people by incentivising investments in industry and new enterprises, data suggests that the increase in jobs has not kept pace with the growth of the economy. The Union budget’s focus on employment programmes — specifically those that match young people to opportunities is also very narrow, and most programmes tasked with enabling employment have seen limited success.

Another concern with budgetary priorities is the lack of focus on other areas that affect young people. For instance, the focus on sports and sports infrastructure remains weak and despite the fact that mental health concerns continue to affect young adults in India, an issue that has gained greater prominence during the pandemic, there is no large-scale focused programme to address this problem. The only outlay towards mental health is in the form of disbursals to autonomous institutes such as the National Institute of Mental Health and Neuroscience, Bangalore. In fact, the total outlay towards such autonomous institutes in the 2020-21 budget is only Rs 488 crore. This too, and understandably so, is not focused on the youth.

If anything, the pandemic has highlighted the need to build the resilience of the youth and to place their concerns at the centre stage of policy discussions.

India is one of the youngest countries in the world and if we wish to leverage the power of this young population, and support it through the pressures of the pandemic, there needs to be a strong and concerted effort towards youth-focused interventions. Though there are a wide variety of schemes and initiatives in the government’s policy arsenal, a strong focus on the youth seems to be missing. The allocations specifically meant for youth are concentrated in areas of education and employment, with not enough focus on other critical areas such as mental health or leadership. But even where we do spend on youth, our allocations pale in comparison to the size of this demographic. The upcoming budget is a small window of opportunity to bring focus to this segment and to bridge the chasm that has crept in in terms of access to opportunity due to the pandemic.

Restoring the broken oversight mechanisms of Parliament

Authors: Rohit Kumar and Bhavani Pasumarthi
Published: March 26, 2021 in the Hindustan Times
India’s Parliament recently passed the National Capital Territory of Delhi (Amendment) Bill, 2021, which significantly increases the powers of the Lieutenant-Governor (L-G) of Delhi. The bill requires the elected Delhi government to seek the opinion of the L-G before taking executive action. This is a major amendment that significantly alters the way the government in Delhi functions. It also recasts India’s federal construct and makes the Centre even more powerful than it already is, while chipping away at the power from the duly elected government in Delhi.

Despite the nature of the sweeping changes this bill proposed, it was not sent to a parliamentary committee, and there was no formal consultation with stakeholders, civil society, or experts before it was quickly rushed through both Houses of Parliament. The bill, first reported by media early this month, was introduced in the Lok Sabha on March 15 and passed by both Houses by March 24. Even before citizens had any time to absorb its implications or make up their mind, the bill was already on its way to becoming law.

“Mandating scrutiny for every bill passed is not a big ask. It is necessary to uphold the quality of legislation, and by extension, the quality of governance. A strong committee system is probably the only way to ensure Parliament’s relevance in the law-making process.”

For a parliamentary democracy, this is unusual. Typically, bills of such significance are sent to parliamentary committees for closer scrutiny. Unfortunately, sidelining committees is increasingly becoming the norm in India. Over the last few years, Parliament has been sending fewer and fewer bills to committees. Data compiled by PRS Legislative Research shows that only 25% bills were referred to committees in the 16th Lok Sabha (2014-2019) as compared to 60% in the 14th (2004-2009) and 71% in the 15th Lok Sabha (2009-14).

This trend is worrying. In the constitutional scheme of things, Parliament is supposed to maintain oversight on the government and keep its power in check. By circumventing due diligence in Parliament, we run the risk of weakening democracy.

While fewer bills have been going to committees, data also shows that Parliament has been working more in recent years, discussing bills for longer durations and passing more bills than before. The 16th Lok Sabha (2014-19) for instance, worked for over 1,615 hours, 20% more than the previous Lok Sabha, and passed 133 bills, 15% more than the 15th Lok Sabha. Interestingly, even in the case of the NCT amendment, the Rajya Sabha stayed back till 9:30 pm to finish its deliberations and pass the bill before adjourning.

So, if Members of Parliament (MPs) are spending more time on direct deliberations on the floor of the House, why is bypassing committees a cause of worry?

Spending more time on direct discussions is not a substitute for committee deliberations. There is rarely enough time for a thorough analysis of any legislation on the floor of Parliament. Most MPs are also not subject matter experts on the topics being discussed — they are generalists who understand the pulse of the people but rely on advice from experts and stakeholders before taking decisions. What committees are meant to do is help MPs seek expertise and give them time to think about issues in detail. This is why the committee system was expanded in 1993.

Today, we have several committees in Parliament — each dealing with a different subject matter. All committees have MPs representing different parties, in roughly the same proportion as their strength in Parliament. When bills are referred to these committees, they are examined closely and inputs are sought from various external stakeholders, including the public. By virtue of being closed-door and away from the public eye, discussions in committee meetings are also more collaborative, with MPs feeling less pressured to posture for media galleries.

Although committee recommendations are not binding on the government, their reports create a public record of the consultations that took place and put pressure on the government to reconsider its stand on debatable provisions. The Companies Bill, 2009, is an example of a legislation that was withdrawn, and later reintroduced with significant changes, due to the issues flagged by the committee that examined it.

In the Indian system, unfortunately, it is not mandatory for bills to be sent to committees. It’s left to the discretion of the Chair — the Speaker in the Lok Sabha and Chairperson in the Rajya Sabha. In countries such as Sweden and Finland, all bills are sent to committees. In Australia, a selection of bills committee, which includes members from the Opposition, is tasked with identifying the bills that should go to committees.

It is perhaps time for India to mandate a similar requirement to avail the benefits of the committee system that we have taken for granted so far. By giving discretionary power to the Chair, the system has been especially rendered weak in a Lok Sabha where the ruling party has a brute majority.

Mandating scrutiny for every bill passed is not a big ask. It is necessary to uphold the quality of legislation, and by extension, the quality of governance in the country. A strong committee system is probably the only way to ensure Parliament’s relevance in the law-making process.

With design changes, Svamitva scheme can be a game changer

Author: Shivani Gupta
Published: April 21, 2021 in the Hindustan Times
The Survey of Villages Abadi and Mapping with Improvised Technology in Village Areas or Svamitva scheme, launched in April 2020, can play a key role in ensuring secure property rights for rural India. The scheme aims to provide an integrated property validation solution for rural India through the demarcation of inhabited areas using drones. By providing a Record of Rights (RoRs) to village household owners in inhabited rural areas, it attempts to create accurate land and property records, which can be pivotal in reducing property-related disputes and facilitating monetisation of rural residential assets for credit and other financial services. By providing clear records of land ownership, it also envisages improved tax collection through the gram panchayat institutions. As of March, drone survey has been completed in over 31,000 villages, and property cards distributed to about 230,000 property holders in 2,626 villages.

But the scheme’s legal, social and economic design needs more thought. One, property cards distributed under the scheme need legal validity in order to enable citizens to establish their title and to avail financial services. The Framework for Implementation of the Svamitva Scheme places the responsibility of carrying out appropriate amendments to the revenue laws for this purpose on the respective state revenue departments. As these departments make the required changes, a careful consideration of the laws will ensure that no legal loopholes impact its effectiveness.

For example, in Haryana, the Svamitva scheme has been implemented under section 26 of its Panchayati Raj Act. However, section 26 of the Act only empowers the panchayat to prepare the maps of the said area, not to create the associated RoRs. Panchayats, in this case, may not be the competent authority to complete this process of entrusting property titles to rural residents. Thus, there is a possibility of disputes if due legal process is not followed. To ensure such inconsistencies do not arise, a review of the state laws related to land and revenue impacting the legality of property cards should be undertaken. These experts could be tasked with drafting amendments to the existing laws or framing new laws to create legally admissible property cards.

Two, at 12%, single women form a significant share of the population but are often devoid of property ownership. The scheme presents an opportunity to enable recognition of women’s ownership rights as it issues property cards based on “possession” and not “inheritance”. To ensure this, states can also consider including details of more than one owner on the property cards, and recognising joint ownership of property by women.

Madhya Pradesh and Odisha have existing schemes that provide homestead land to weaker sections such as Dalits and single women. Svamitva can strive to include those in possession of these lands and also include low-income families and SC/ST communities who have been residing in village commons for generations. There is also scope to rope in civil society organisations for gender and caste-based sensitisation of field functionaries.

Third, the Fifteenth Finance Commission report has emphasised the importance of property tax as “the most effective instrument for revenue mobilisation by local bodies”, thereby encouraging the administration to “build a framework for property taxation with universal coverage.”

To ensure that Svamitva is able to achieve the objective of building financially resilient local governments, legal changes are needed to empower panchayats to both collect and utilise property tax. Gram panchayats may also be authorised to revise property tax records at the time of land record updates (registration, mutation) to ensure robust and consistent revenue collection. A Geographic Information System-based-based software may be provided to panchayats to manage property and taxation records. Such software is available for municipal corporations and urban local bodies. As more states gear up for the implementation of Svamitva, including these design principles could ensure the realisation of rural India’s aspirations.

Looking at social protection for gig workers through a gender lens

Authors: Aparajita Bharti and Soumya Kapoor Mehta
Published: October 30, 2020 in the Hindu Business Line

The Labour Codes’ provisions for gig workers are welcome. But more needs to be done to help women workers.

Among the labour code Bills passed in the just concluded Parliament session, the provisions regarding social protection for gig economy workers have been a topic of much discussion. The need for such provisions was felt acutely during the pandemic-induced lockdown.

As the country came to a grinding halt, gig workers were left without any economic cushion. Among them, women were further disadvantaged as a majority of them are engaged in occupations such as beauty and wellness that cannot be undertaken with social distancing. Many others also had to forego available work to take care of increased domestic chores.

India had recorded an exponential growth in its gig economy even before the pandemic hit the nation. It is now the 5th largest country offering flexi-staffing, according to a report by Invest India.


This sector is a big draw for semi-skilled and skilled labour, but especially for women. A recent report by IWWAGE supported by the Asia Foundation surveyed women working with a prominent gig platform in India and found that an overwhelming majority (nearly 85 per cent of the surveyed women) associate with the platform as it allows them flexibility in working hours.

In urban areas where there is a higher burden of unpaid care work and domestic responsibilities due to nuclear family structures, flexibility is a critical factor for women. The survey respondents also reported an average income of ₹1,552 per day, depending on the number of tasks performed.

This is significantly higher compared to a typical salon job (where average monthly income ranges between ₹8,000-10,000, with a relatively long average working day of 10 hours or so). Most of these salon jobs are also in the informal economy, operating outside of any formal social security net. Therefore, while 81 per cent workers surveyed were reportedly dissatisfied due to lack of maternity benefits, it is evident that for most women, platform work is a step better than their existing options.

Legislative space

In this backdrop of a growing gig economy, the new social security code has created legislative space for Central and State governments to announce schemes for platform workers. It proposes a National Social Security Board which will recommend suitable schemes relating to life and disability cover, accident insurance, health and maternity benefits, old age protection, crèche or any other benefits. Aggregators employing gig workers will have to contribute 1-2 per cent of their annual turnover, with the total contribution not exceeding 5 per cent of the amount payable to such workers.

Three models

These provisions are in line with regulatory developments across the world which can be categorised into three models.

First is a model proposed in California under which companies are legally obliged to classify gig workers as employees and provide the requisite benefits that go along with such classification. This has been met with a huge pushback from companies like Uber and Lyft, which threatened to shut down in response.

The second model is followed by the EU, which aims at ensuring basic rights in employment terms and conditions for gig workers without entering the independent contractor/employee debate.

The third model is more of a voluntary agreement on standards as envisaged by the Singapore government, wherein companies are nudged to provide facilities such as accident insurance and upskilling to gig workers.

Middle ground

As the government starts to mull over specific schemes under the social security code, it must find a middle ground between these three models and ensure an adequate level of social protection while allowing space for the growth of the platform economy.

Unlike developed countries, where platform work is more informal than the rest of their economy, in India, platform work is already a step towards formalisation and its flexibility is an attractive feature especially for women who may not be able to work otherwise.

A new report by the Fairwork Foundation suggests five principles using which social security and decent work standards may be designed for platform workers, including women. These include fair pay, fair work conditions (prevention from infection, and payment to workers if they fall ill), fair contracts, fair management (e.g. no loss of bonus or incentive levels despite temporary deactivation of workers), and fair representation (e.g. engagement with worker associations, including organisations representing women).

Building on these principles, the government needs to balance the obligations of aggregators and social protection offered by the state through other mechanisms. Schemes which put large onus on industry are likely to be met with pushback.

For a bigger state role

This is even more relevant for women; the ILO has noted that placing undue financial costs on women’s employers is unlikely to contribute to labour market equality. Therefore, the state must play a bigger role towards social security for women gig workers to create a level playing field. Apart from direct contributions towards insurance and skilling, the state should also consider building enabling infrastructure in cities such as crèches and childcare centres, the presence of which expands employment opportunities for women.

Often, a lack of a gender lens in policy design leads to unintended consequences. Gig economy is a sunrise sector presenting new opportunities for women; therefore, their welfare and opportunities should be central to the regulatory objectives in this context.

Soumya Kapoor Mehta is the Head of the Initiative for What Works to Advance Women and Girls in the Economy (IWWAGE), an initiative of LEAD at Krea University; and Aparajita Bharti is Founding Partner at The Quantum Hub (TQH), a policy research and communications firm.

Managing health data: A comparison of policy proposals

The Ministry of Health of Family Welfare, Government of India circulated the ‘Health Data Management Policy’ (Policy Proposal hereafter) for feedback and consultation on 26th August 2020. This Policy Proposal will serve as the fulcrum for the National Digital Health Blueprint through which the government aims to build a ‘federated’ digital architecture to further the goals of the National Health Policy. The proposed digital architecture is expected to be available to all healthcare providers and users, as well as entities such as pharmaceutical and insurance companies.

The Policy Proposal is a ‘guidance document’ to regulate the vast amounts of data that will be generated and processed under this architecture. Admittedly, the driving force for the proposal is the necessity of safeguarding privacy of confidential health data. It seeks to build on the Personal Data Protection Bill, 2019 (PDP Bill, 2019), which is currently under consideration in Parliament. The utility of building a digital health ecosystem has long been accepted. Its benefits include improved access to health records across primary, secondary and tertiary healthcare, improved decision making for service delivery and research for innovative solutions. Both the Policy Proposal and the PDP Bill, 2019 aim to set out a legal framework against which entities in the health ecosystem may undertake such exercises.

The consultation process for the Policy Proposal is underway till 21st September, 2020. In this note, we analyse the key points of departure between the Policy Proposal and the Personal Data Protection Bill, 2019, with regard to three aspects:

  • Key Definitions
  • Consent Framework
  • Obligations on Data Fiduciaries

The Policy Proposal clarifies at the outset that no entity shall be entitled to any rights greater than what are already available under other applicable laws, which will presumably include the PDP Bill, 2019 and rules and regulations formed under this legislation once it is passed by Parliament. Readers can find a clause-by-clause comparison of the Policy Proposal and the PDP Bill, 2019 in the annexure to this note.

Access the note here

Designing a new framework for paid period leaves

Authors: Aparajita Bharti and Mitali Nikore
Published: August 26, 2020 in Hindustan Times

The recent announcement of paid period leave for female employees by an Indian unicorn has once again thrust the issue of mandatory menstrual leave into the spotlight. Many activists feel that menstrual leave should be a paid leave granted by law, like maternity leave.

The support for period leave rests on a sound rights-based argument — that workplaces need to accommodate for biological differences between co-workers. Period leave allows women to rightfully rest during their menstrual cycle. It is well-documented that women experience a wide range of health complications during their monthly cycle — cramps, back and muscle pains, bloating, headaches, nausea, among others. These symptoms can assume greater severity for women suffering from chronic conditions like polycystic ovary syndrome (PCOS) and endometriosis.

While the experience of a period is different for different women, and certainly differs month-to-month for the same woman, period leave is thought to be a means to legitimise the physical toll of a painful monthly cycle, to be taken if required, a means to create equity at the workplace. It is also cited as a way of normalising conversations around menstruation.

However, to achieve the stated objectives, we cannot ignore the economics of a period leave. We need to be clear where the funding for menstrual leaves comes from. If menstrual leave is structured like maternity leave, it threatens to increase the cost of hiring women. This has implications in the long-run.

Teamlease Services found that 1.1-1.8 million women lost their jobs in 2018-19 across 10 major sectors owing to the Maternity Benefit (Amendment) Act 2016 which doubled paid maternity leave from three to six months. Similarly, there are other costs associated with hiring women that lead to unsaid but rampant discrimination.

It is well-known that many employers in India are hesitant to hire women for jobs that require frequent travel as they need to make special arrangements for their safety. Essentially, society’s failure to keep women reasonably safe leads to a public cost internalised by employers as a private cost.

Paid period leave can further exacerbate this situation. Even if this by itself does not keep women out of jobs, it can lead to discrimination in hiring and promotion and raise the barriers for women to enter and climb the corporate ladder. It also creates grounds for companies to offer lower in-hand salaries to women, justifying it on the basis that the cost to company for women and men should be equal.

Further, we need to be cognisant of who menstrual leave would benefit and who it could potentially keep out of the workforce. About 55% of urban working women were in regular, salaried employment in 2018-19. Of these, 71% had no written job contract, 51% were not eligible for paid leave, and 53% were not eligible for any social security benefit. Period leave will not touch the lives of millions of casual women workers in the informal economy in both urban and rural areas. By increasing the costs of hiring women, we, in fact, risk keeping them out of the workforce.

Now let’s examine the second assertion, i.e., normalising conversation around menstruation. Gender specialist and menstrual health educator Mayuri Bhattacharjee notes that, “Period leave does nothing to reduce the biases and taboos around menstruation.”

The explicit term “period leave” creates a demarcation, rather than allowing it to be a type of sick leave — thereby allowing a judgment to be passed on the severity of the “sickness” or as many women experience in domestic spaces, legitimate complaints getting passed off as “pre-menstrual syndrome”. Further, like any other health-related information, it should be a person’s right to decide how open they would like to be about their experience.

Given these apprehensions, we need to find a balance between creating space for women to seek period leave when required and ensuring that it doesn’t become another ground for employers to favour men over women.

A good solution might be to increase the number of paid sick leaves by law for both men and women (but keeping it equal). While it increases the overall cost of doing business in India, it treats men and women at par. Changing the goal from menstrual leave to increasing the number of sick leaves will also let women take charge of how much they’d like to disclose about their menstrual health. Paid sick leaves can be viewed as a form of social security.

In the interim, we can also experiment with other middle-path solutions. The pandemic has demonstrated the potential of remote working to many employers. In industries where remote working has proven to be effective, employers can be encouraged to institute work-from-home policies that allow employees to work remotely for a fixed number of days in a month. This flexibility will ensure that women can work from the comfort of their home, in case they find it inconvenient to travel or work from office during their period.

While the intentions of those campaigning for menstrual leave are laudable, we must be cognisant of the unintended consequences that may arise from such a policy. No amount of safeguards in the maternity law have been able to guard against the ex-ante discrimination against women when they are being considered for a job, for a promotion, for a salary raise.

We must learn from this experience and to improve working conditions of the 10% women who are in the formal workforce, we must not forget about the remaining 90% women workers who are in the informal sector for whom such policies threaten to become the gatekeepers.

Mitali Nikore is founder, Nikore Associates, a policy design think tank, and Aparajita Bharti is founding partner, The Quantum Hub, a public policy research and advocacy firm. The views expressed are personal.

Unpacking Non-Personal Data: Impact on the Indian Innovation Ecosystem

Summary by: Abhinav Saikia, Senior Research Analyst, TQH

In partnership with The Print and Network CapitalTQH organised a series of online discussions on ‘Unpacking Non-Personal Data’, bringing together lawyers, tech policy experts, investors and political voices to deliberate on the proposed framework for non-personal data (NPD) governance. The first discussion focused on defining non-personal data. The second looked at the impact of the proposed provisions on the innovation ecosystem in India and the third deliberated on the question – is data a national resource?

The second discussion took place on 7th August, 2020 and focused on the question “Will access to data level the playing field for Indian start-ups? How do we drive the Indian Innovation Ecosystem?” The panel included prominent stakeholders in the tech policy landscape: Nikhil Narendran (Partner, Trilegal), Aditi Agrawal (Senior Research Associate, Medianama), Ganesh Kollegal (AVP – Government Affairs, Swiggy) and Navjot Kaur (Vice President, Fireside Ventures). The session was moderated by Aparajita Bharti, Founding Partner at TQH.

In this session, we discussed how the proposed data sharing mechanism would affect data-led businesses in India and the Indian innovation ecosystem. One of the key reasons highlighted by the committee for instituting a non-personal data regulatory system is to create a level playing field for Indian startups. In this session, we questioned the key assumption underlying this reasoning i.e. the lack of access to data is the major differentiator between Indian startups and foreign tech companies. We also discussed whether there are other solutions to correct the problems created by the imbalance in access to data among tech companies.

This short note highlights some of the key points made during the discussion. For details on other discussions in the series, please follow the links below:

Defining Non-Personal Data
Is Non-Personal Data a National Resource?

Discussion 2: Impact of the proposed NPD framework on the Indian Innovation Ecosystem

1. Is access to data the key differentiator between Indian start-ups and big tech?

Navjot Kaur from Fireside Ventures acknowledged that data is a differentiator between startups and big tech but was of the opinion that it not a key differentiator. She said data is only one of the tools used by an enterprise. The ability of an enterprise to respond to market demand and to solve problems of the customers are the key aspects that set it apart from other players in the pool.

Aditi from Medianama also concurred with Navjot. She indicated that the key differentiating points that provide a competitive edge to any budding startup over other enterprises include product quality, distribution, marketing infrastructure and lastly, data. She stressed that data sharing is not a one-size-fits-all approach i.e. merely sharing data would not ensure a level playing field. A data produced by one company might not be useful for another company when shared. Sufficient re-working and processing on the received data is required for it to be useful for the recipient entity. Therefore, data cannot be the sole differentiator between two business entities.

Nikhil from Trilegal made a very interesting point where he said that the startup ecosystem in India is marred by a number of issues that hinder the effective growth of small enterprises. Indian startups have to spend considerable amount of time and investment in obtaining clearances, complying with multiple tax laws, setting up telecom connectivity etc. He believes that the Gopalakrishnan Committee Report, instead of acknowledging these deep-rooted problems, looks to shift the blame on to a section of the market, in this case, Big Tech. He acknowledged that there are long-standing problems with Big Tech, however, the report unfortunately does not arm its findings and conclusions with appropriate justifications.

Ganesh from Swiggy responded to this with a very interesting analogy. He agreed that data is not the most important differentiator. He said, “Data is like an engine and when you want to buy a car, you buy the whole car and not just the engine.” He took the example of the state of California in USA, where the GDP is almost equal to the whole of India. California has a bustling start-up culture mainly because the ecosystem is conducive for these enterprises to grow. Therefore, for a thriving market, presence of a healthy ecosystem is equally important than say, sharing of data.

2. What are the legal precedents surrounding the sharing of non-personal data to create a level playing field? Have we seen a proposal like this in any other industry where market power is concentrated?

Nikhil drew a parallel with the telecom industry. He said that in the telecom industry there is some level of voluntary sharing of networks and mandatory interconnections. Mandatory interconnections refer to commercial and technical arrangements under which the telecom service providers (TSP) interconnect their equipment, networks and services so that customers have access to services of other TSPs. He, however, was of the opinion that the comparison between network sharing and data sharing is inaccurate as the sharing of data is much more complex compared to sharing of network or spectrums. Also, data is not a natural or limited resource.

3. If non-personal data is mandated to be shared, what will be the legal constraints on the use of such data? For example: should there be a limitation on the kind of products that can be built with this data to maintain fairplay? What if the entity receiving the data duplicates the product of the entity sharing the data?

Nikhil provides two perspectives here: the IP perspective and the privacy perspective. From an IP perspective, the entity has an IP right over databases or datasets that it creates but not on the raw data, as it can be argued that raw data does not fall within the ambit of IPR. In this respect, the definition of non-personal data is very critical in determining what kind of data can be considered an IP. The definition provided in the Committee report i.e. any data that is not personal is non-personal data, is at best ambiguous. While the Committee has considered this aspect and specified that IP and proprietary information need not be shared, there is already a lack of clarity in the current IPR regime in India on what constitutes as proprietary information. In India, proprietary information is, in any case, not afforded the kind of protection that is provided in more developed economies. These types of information are protected by contractual obligations and confidentiality agreements. In the absence of a robust IP regime in India, the envisioned NPD Authority would have to conduct extensive consultations on a case-by-case basis to determine which non-personal data can be termed as proprietary information. This will lead to inadequate protection of the IP of businesses and create a sense of uncertainty in the regulatory environment.

From the privacy perspective, he said that while non-personal data itself cannot be used to re-identify an individual, in many cases there are layers of non-personal data in a dataset. Such datasets can be processed by AI/ML technologies and can be used to re-identify individuals. Further, if data sharing is mandated, in the absence of a liability framework, the shared data stands a chance of being misused by nefarious actors. This can impact  businesses as well as citizens. Therefore, if a legislation has to come in the future, the government needs to deliberate on what kind of protection and safe harbour it can provide to businesses so that there minimal or no chance of misuse of data.

Navjot was of the opinion that in addition to having a legal framework around data sharing provisions the question of incentives for the entity sharing data should also be looked into. She believes that an absence of an incentive-based data sharing mechanism distorts the free market and defeats the purpose of the report. She also presented a hypothetical scenario from an investor’s perspective. Say, that an investor is funding a business that is collecting car data. If under the proposed legislation, the business is mandated to share its data and the competitor uses this data, what is the benefit of actually putting resources behind collecting this data if the company does not get to use it to build a competitive edge?

4. If this proposal comes through, how will we make sure that data is not shared with shell companies who are later taken over by big companies for securing access to valuable data?

Nikhil stressed on the importance of having recommendations in the report on regulating future acquisitions and a framework to prevent misuse of this law. The report envisages an environment where a data business has to give the data to a startup. However, the report does not delve into what it means by a “startup”. There are many million-dollar valuation startups in the ecosystem. Moreover, if the law requires Big Tech companies to give data to such startups and if they later get acquired by competitor Big Tech companies, how will the law ensure that the data is not misused? How will the law ensure that the competitor does not come out with a product that is based on this data? It seems that the report is not really creating a level-playing field, rather it is distorting competitive mechanisms in the market. Nikhil felt that there should be wider consultations on this aspect of the report, and possibly a whitepaper should come out that takes into consideration all these intricacies associated with sharing of data and how it may impact competition.

Aditi deliberated on the definition of a data business. The definition of a data business is dependent on the volume of data processed; it does not have a monetary basis. The question here is how will that play out if the intended legislation is implemented. She took the example of two large companies, Naukri, an Indian job portal and Netflix, an international OTT platform. Naukri processes a lot of personal data as it goes through people’s resumes which may have phone numbers, addresses and other information related to the job that is being applied for. On the other hand, there is Netflix that hosts a lot of content-related data but when it comes to personal data, its portfolio is fairly limited. The repository of personal data may include the financial data and other basic information that is put in when an account is getting created as well as preferences of consumers. She posed a question on what should be the data sharing criteria for both these types of data enterprises. This is something that needs to be considered in the revised report or the legislation that comes out in the future. Secondly, as per the report, data will be assigned value on the basis of the value-add associated with it and the price of data will be determined by the market economy. This could inflate the value of certain datasets because of greater demand, set a dangerous precedent and harm the privacy of people in the longer run. This is something that the Committee should consider in its future deliberations.

Ganesh had a slightly different take on this. He said that every company collects or processes data based on their requirements, the services they offer, or how they want to enter the market. Just making datasets available is unlikely to yield a competitive edge to a player. The method of utilisation of datasets to roll out offerings in the market, the ability to innovate are much more critical factors than just access to raw/processed data.

5. What will be the impact of mandatory data sharing on foreign investment in the Indian market? Will it be healthy for the growth of domestic startups if foreign VCs reduce investments in the Indian market?

Ganesh said that an incentivised data sharing mechanism will fuel innovation and that can lead to a greater number of startups growing to become unicorns.

Navjot said that regardless of the fact that data sharing is mandatory or incentivised, every entity will have access to same type of customer/ intelligence. When its about raw data, how an entity performs depends on its capability and know-how, but if entities have access to a know-how or a process, it might lead to more competition. So, before answering the question on the impact on foreign investment, these critical aspects need to be addressed.

6. Do you think the competition law should be updated instead and that it is the right legislation to look at some of the market power issues identified in the report rather than having a separate legislation for NPD?

Aditi said that it’s the first time an attempt has been made to lay down a framework for regulating non-personal data, although some efforts resembling this have been made in the past. For instance, EU came out with a notification on data strategy in 2020 that talked about data sharing from government to private entities which is similar to the concept of public non-personal data that is envisaged under the report. However, for private-to-private sharing, the notification acknowledges that this falls under the realm of competition law and does not suggest a separate NPD Authority. The Gopalakrishnan report in comparison takes a huge leap of faith with respect to the fact that access to data gives a competitive edge to a business, the argument for which is not well-founded. She took the example of Alphabet Inc which has acquired around 200 companies since its inception. In most of these cases, the underlying technology and know-how of the companies, rather than data were the main USPs which led to them getting acquired by Alphabet. Hence, in the practical market environment and acquisition considerations, access to technology is the main factor that companies look for.

According to Nikhil, the report actually considers the state of dominance rather than the abuse of dominance as an issue. This sentiment is very anti-market. He concurred with Aditi and said that these issues should be best left to the prudent decision-making of the competition regulator (CCI) rather than having a separate legislation. The proposed framework does not create an incentive mechanism for all the players in the market and the model is mostly socialist in nature, where resources are taken from the haves and transferred to the have-nots.

He said that the government should set an example first and develop a use case by publishing government data. The government is the largest data processor in the country and all its institutions sit on large chunks of data. If this data is put out in the public, it will be greatly beneficial for the society. This exercise should be used as a learning experience to understand the legal, privacy and competition roadblocks before mandating data sharing by private entities.

7. Can the format in which non-personal data is shared also reveal information about the algorithm which is at the core of tech businesses?

Aditi said it would not reveal the algorithm but it might reveal the thinking process of the company. In terms of the legality of sharing of data, there is also an interesting contradiction between the NPD report – it says that source codes and algorithms are proprietary data and should not be shared – and the provisions of the latest version of the National Ecommerce Policy, which says that the government can ask for source codes and algorithms from business entities.

Ganesh said that when data is shared under the proposed law, it would be in an anonymized state and the shared datasets would have several attributes to them. Not all attributes are likely to be beneficial or relevant to all the receiving enterprises. While there might be a possibility of de-anonymization and reverse-engineering of data, this may not be worth the time and effort the company would be required to put in.

8. In the US, where most big tech companies are based, there are still a lot of startups which are founded and those that disrupt industries. How are they able to do it without access to non-personal data from big tech?

Ganesh pointed out that there is a lot of investment, funding and time that is given to research and innovation in the USA compared to a country like India. Going ahead, if there are more incentives that are provided to research and educational institutes, either by way of education policies or otherwise, it would have a significant positive effect on India’s innovation ecosystem.

Nikhil had a completely different view on this. He reiterated his previous point that the reason why startups are not flourishing in India is because of the various in-grained issues such as compliance hurdles, weak IPR regime, exit options and finally, the absence of robust listing mechanisms and criteria. These are some of the issues that need to be fixed first for the overall growth of the startup ecosystem.

Navjot, in addition to agreeing to both the views above, added a very unique and interesting perspective on the conversation. She said that the big question to address is if the enterprises have the technological capabilities to process and optimise data that we already possess. According to her, a lot of companies have huge amounts of data but have not been able to adapt the technology to process it fully.

9. Some startups are saying data is not the differentiator between big companies and them, but the ability to vertically integrate is, what is your view on this?

Aditi said that whenever we talk about digital industries, we have to acknowledge the fact that they have USPs that they can shape shift. For instance, an e-commerce platform can venture into fintech or OTT services etc. In that case, vertical integration can pose a challenge to the competitive market. However, she thinks that this is more of a competition question and should be dealt under the Competition Law.

10. If data is considered as a public good should the principle of rights of eminent domain extend over data, like it does with property?

Nikhil was of the view that data as a property is a very questionable proposition. He referred to Hon’ble Member of Parliament, Shashi Tharoor’s stance in the context of the Personal Data Protection Bill, that data should be treated as an asset and a property and every individual should have a right over that. However, the problem with data being treated as a property is that in India people don’t have a fundamental right to property. This right was taken away by the Kesavananda Bharati vs State of Kerala judgement. As per this, property can be taken away by the government after compensating the land holder. From a civil rights perspective and from a business perspective, it does not make sense to categorise a non-exhaustible resource, such as data, as property.

Nikhil acknowledged that the Committee has taken this into view while drafting the report and has delved into the subject of ownership of data.

11. Wouldn’t this create perverse incentives for orgs to remain small, below the threshold of data sharing? Even Indian startups might feel threatened that they may have to share data if they grow too big.

Navjot took cognizance of this concern and added that the concern is well-placed. She said companies are putting in too much resources, time and funding behind collecting and processing datasets using their sophisticated AI/ML technology but if eventually they will have to share this with other players in the market, they lose the competitive edge. Such mechanisms can disincentivize them from growing.

Aditi tackled the more foundational aspect of this question on how data thresholds will be set. She doubted if such a proposal can be operationalized. The report as it stands does not delve into how to categorize business basis the volume of metadata that is stored, how much data has been processed etc.

12. It seems the report is creating a scheme for statutory licensing of privately held data at graded pricing levels. Can such substantive changes be made by executive action and no legislative amendment?

​Nikhil opined that the statutory licensing of data will need a new law either by way of the PDP Bill or a new legislation. Currently, as the legal landscape stands, there are no enabling provisions for statutory licensing to be notified through executive action.

Unpacking Non-Personal Data – Is Non-Personal Data a National Resource?

Summary by: Deepro Guha, Senior Research Analyst, TQH

In partnership with The Print and Network CapitalTQH organised a series of online discussions on ‘Unpacking Non-Personal Data’, bringing together lawyers, tech policy experts, investors and political voices to deliberate on the proposed framework for non-personal data (NPD) governance. The first discussion focused on defining non-personal data. The second looked at the impact of the proposed provisions on the innovation ecosystem in India and the third deliberated on the question – is data a national resource?

For the  third discussion on 8th August, 2020, Mr. Baijayant ‘Jay’ Panda (National Vice President, BJP) was in conversation with Aparajita Bharti (Founding Partner, TQH). This session focused on data being viewed as a national resource and touched upon the positive and negative implications of getting Big Tech to share non-personal data with startups as envisaged by the Non-Personal Data (NPD) Committee Report.

This piece captures the essential aspects of the above discussion. For details on other discussions in the series, please follow the links below:

Defining Non-Personal Data
Impact on the Indian Innovation Ecosystem

Discussion 3: Is Non-Personal Data a national resource?

Q.1 Who owns non-personal data?

A.1 Mr. Panda acknowledged that this question is one of the biggest questions that confronts modern economies today. The question is relevant because both big companies and governments today collect large amounts of data. Individuals have, for convenience sake, given a large amount of data about themselves to companies and the government, for regulation and governance, has also been collecting data.

Before answering the question, Mr. Panda clarified that he would be speaking only of raw (unprocessed) non-personal data. He differentiates between data which is merely collected as opposed to data which is collected and worked upon (an aspect that would bring in elements of intellectual property rights). With regard to raw data, he said that the question around ownership still remains to be answered; it is not obvious whether the processor should own the data, or the community or the government. He added that India is at the cutting edge of this debate, and such a debate is expected to rage all over the world in the times to come.

Mr. Panda spoke about the example of the data collected by the census. He asked who this data should belong to? Can people say census data should not be shared because they are the owners of the data they have provided? Such questions will need to be answered to opine whether data is a national resource.

Q.2 Will mandatory sharing of data inhibit innovation?

A.2 Mr. Panda spoke of the libertarian world view and the socialist world view and how these are extreme positions vis-à-vis ownership of property. He said we would need to find a middle ground to these viewpoints. He gave the examples of oil monopolies, telecom monopolies etc. which were broken up in the USA in the past to check market imbalance. He also gave the example of net neutrality regulation in India, wherein it was concluded that just setting up infrastructure shouldn’t allow companies the authority to monopolize access to the customer. He added that the NPD Report does not provide for nationalization of data but provides a regulatory structure to create a market for data.

Q.3 Should the Competition Commission of India (CCI) regulate data imbalances in the market, or should there be a separate regulator?

A.3 Mr. Panda again cited the example of the oil/telecom monopolies and the net neutrality issue and brought out the difference between the two, in that, in the case of oil/telecom companies, it was the competition regulator which broke up the monopoly but in the case of net neutrality, it was FCC (USA) or TRAI (India) that examined the issue. He said the reason for this was that specialized regulators are required for new technological sectors because technology is evolving so fast. So even if there are overlaps between different regulators, there need to be specialized regulators when it comes to technology related sectors.

Q.4 Is any data really raw? Given there are so many different types of industries collecting so many different types of data, who decides which data is raw or processed for any industry?

A.4 Mr. Panda stated his preference for free markets but not for absolutely unregulated free markets. He was of the opinion that slicing/dicing of data by companies counts as processed data, but some data like simple locational data would be an example of raw data. He said that the debate on what is raw and what is processed will hopefully get settled going forward through extensive discussions, but the NPD Report has set a good tenor for us to start thinking about these questions.

Q.5 What will be the implications for India’s foreign and trade relations in case India mandates sharing of data?

A.5 Mr. Panda said that this will depend on how the rest of the world decides to go forward. However, India’s move seems rational in the current context. He gave examples of breaking of monopolies in other sectors in the past and how that didn’t prevent companies from coming to India, nor did TRAI’s net neutrality regulations prevent internet companies from operating in India. He also gave the example of Big Tech initially opposing GDPR and data protection regulations around the world but eventually making peace with the regulations.

Q.6 What are the privacy concerns related to anonymized data sets, especially given the concerns around de-anonymization?

A.6 Mr. Panda talked about the leeway we have all agreed to give to privacy concerns to operate in the modern world by giving examples of Google maps, airport scanners etc. He opined that a black and white situation in case of privacy is not possible and 100% privacy can never be ensured. He added that it will have to be an ongoing effort to ensure as much privacy as possible while providing for appropriate regulation. He cited the PGP (pretty good privacy) encryption principle in support of his argument by saying that it wasn’t a cosmic standard of privacy, but a “pretty good” standard. He said that while some anonymity can be ensured, there will always be crooks trying to break it. Therefore, even though perfect anonymity may not be possible right now, we should still attempt to regulate the sector to the best of our ability and continue to increase protections to privacy as per available technology.

Q.7 Should there be legal limitations on usage of shared data by startups?

A.7  Mr. Panda said that the monetization of data should be based on private effort and proprietary knowledge used on such data. He added that monetization would be important for innovation and can actually run both ways (Big Tech to startups and vice versa).

In terms of  legal limitations on usage of shared data, he was of the opinion that we are moving too far ahead of the argument; saying that data will only be shared and given to startups may be a false assumption and data may in fact be shared at all levels. Taking a call on such things at this stage will be difficult because the definitions of raw and processed haven’t even been decided as yet; these issues will need to resolved first before we can discuss advanced issues.

Q.8 Why specifically target the oligopolistic market in tech when other industries also have the same structure?

A.8 Mr. Panda spoke about certain natural oligopolies like oil. He said that the same approach cannot be adopted for every sector/ industry. There has to be a balance between scale and competition, and the means to do that will be industry-dependent. While some concentration of market power may happen, access needs to be given to startups in the tech field to allow them to get a foothold in the rapidly evolving sector.

Q.9 How do you fire up innovation in startups? What about California where there is no mandated data sharing but still lots of innovation?

A.9 Mr. Panda said that, “Nothing succeeds like providing a level playing field.” He also spoke of dangers of overregulation and how regulators should be enablers and not enforcers. He highlighted the need to ensure setting up of infrastructure as the top most priority for tech regulators. He said that California has succeeded in providing infrastructure, knowledge and institutions to fire up innovation. India is trying to do the same; it already has close to 20 unicorns and needs to continue making ease of doing business simpler to further fire up innovation and investment.

Q.10 What is your view on the issue of there being too many proposed data regulators? Would this thwart EODB?

A.10 Mr. Panda  started by saying that there can be a problem of too few or too many regulators. He gave the example of the lack of regulation in broadcasting 30-40 years back – a lot of time was wasted in not regulating a fledgling industry. He said a balance will have to be maintained while looking at the number of regulators. He added that there will mostly be an overlap between regulators’ powers and duties, such as in venn diagrams, but this is not necessarily bad. What we should look to avoid is significant overlap.

Q.11 How do we incentivize data sharing by Big Tech?

A.11 Mr. Panda said incentives would definitely play a part, but cannot be the only solution. He added that a lot of industries ask for self-regulation but this does not always work out, either for consumers or smaller players. To answer this question, we should go to the core issue: who does raw data belong to – the collector of the data, or its source? If it belongs to the collector, then there should be no regulation and only incentives, but if it belongs to the source then only incentives would not serve the purpose.

Q.12 While anti-trust is an issue everywhere, why haven’t other countries gone down the path of sharing data?

A.12 Mr. Panda said that other countries are also looking into this issue and used the example of the EU. He said exploration of this approach started with governments questioning whether they can use data to improve policy making (e.g. preventing crime, improving health etc.). He added that other countries are looking at it, but India is clearly at the forefront on this issue.

Q.13 Do you think India will be seen as overzealous when it comes to regulation of data?

A.13 Mr. Panda opined that India should shed its inhibitions about being a global leader while at the same time not letting hubris get to it. He talked about the scale and technological edge that India has and said that India must utilize this, while at the same time considering all opinions of relevant stakeholders.

Q.14 What is the future path India should take with respect of regulation of data and what would be a legitimate timeline for such a path? Should the PDP Bill be passed first? Should it mention NPD?

A.14 In Mr. Panda’s opinion, we are taking the right path by starting a conversation on the subject. We are hearing all opinions and we don’t want to penalize innovation nor do we want to inhibit new startups. We have to look at what the world is doing and how it is going about regulating data, and take the best models applicable to India. He also spoke about the dangers of trying to get to a perfect system in one go and said that often “perfect is the enemy of the good”. He suggested that we should not hesitate to proceed while continuing to learn and adopt new ways to improve data regulation; we can’t wait forever till every ‘I’ is dotted and ‘T’ is crossed and we must start off with the current knowledge and improve as we go forward.