India’s Legal and Policy Approach to Personal Data Protection and Cross-Border Data Transfer: A Critical Study with Special Reference to Health Data

IndiaIndia recognises the privacy and security risks and the business and innovation needs of the digital age in its digital personal data protection law, the Digital Personal Data Protection Act, 2023 (DPDPA)Digital Personal Data Protection Act, 2023. It duly recognises the rights and duties of the Data Principal but needs to include a few of the rights compared to the European General Data Protection Regulation (GDPR). It prescribes obligations for the Data FiduciariesData fiduciaries and categorises them into Significant Data FiduciariesData fiduciaries with additional obligations. The DPDPA does not categorise personal data into sensitive personal data, including health data. It applies equally to sensitive and non-sensitive personal data, except if it comes under the subject matter reserved for the Significant Data FiduciariesData fiduciaries. The DPDPA generally allows the cross-border transfer of digital personal data except those countries restricted by the Central Government. It allows data localisation to sectoral laws such as banking and insurance, which provide enhanced protection for digital personal data. The DPDPA also recognises exemptions that confer relatively wide powers to government with some encouraging provisions for research and innovation and start-ups. However, it leaves uncertainties and gaps that may be supplemented by the prospective rules. Though the sensitive nature and distinct requirement of health data has been recognised through legal and policy initiatives for digital health (e.g., DISHA), that may result in specific protection for digital health data.