A six-month imprisonment is no trivial matter. More so, if the offence is as innocuous as publishing data on export and import. Going by the Finance Bill 2022, it may appear that this is exactly what the government is proposing to do. Logically speaking, it would be difficult to imagine a person being apprehended for putting out information on export and import. One is, therefore, inclined to accept the government’s explanation, that the contentious provision is just to be used to stop illegal gathering and publishing of data. Yet, what is laid down in black and white in the draft statute is hard to ignore. According to the new Section 135AA that the Finance Bill proposes to insert into the Customs Act, “if a person publishes any information relating to the value or classification or quantity of goods entered for export from India, or import into India, or the details of the exporter or importer of such goods under this Act, unless required so to do under any law for the time being in force, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to fifty thousand rupees, or with both.” To a person with working knowledge of English, the first part of the new section clearly conveys that people can be held liable for publishing any data related to exports and imports. The second part of the sentence adds that information related to value or classification or quantity of exports or imports is also not to be shared. It says that one could publish such information only when required under any law which is in force for the time being.
FinMin explains
Following criticism from some non-BJP politicians, academics and experts who argued that this could curb the free flow of information, senior Finance Ministry officials stepped in to counter such a view. They said that the clause was being inserted to address concerns of exporters and importers who had complained that their data was being stolen and illicitly published. The Central Board of Indirect Taxes and Customs (CBIC) tweeted that the proposed clause will only criminalise the illicit publication of personalised, transaction level information by private entities, which affects the competitive position of Indian businesses in international trade and compromises their data privacy. The explanation is convincing. But if the government’s purpose is to target illegal publishing of data, there is no reason for the clause to be so indirect about it. In the way it is worded, the penalty could well apply to experts or even mediapersons who analyse trade-related data collated from various sources. Finance Ministry officials did explain that there was no issue with aggregate data on exports and imports that will actually be published by the Department of Commerce and by all the agencies. But what about data collected and analysed from sources such as the General Administration of Customs (GAC) of China? The proposed clause can lead to apprehensions that a person may be held liable for working with data shared by countries such as China, especially if it conflicts with the numbers provided by the Indian government. There is also data periodically published by organisations such as the WTO. Will one need to be careful while interpreting those numbers as well? One could say that these concerns may be a bit far fetched. But if there is ambiguity in the framing of a statute, one can never say for sure how it would be interpreted or implemented. There is one sure way to lay apprehensions to rest. The Centre must re-word the proposed insertion and clearly mention that the penalty and imprisonment would be for those who steal and share export and import data illegally.