The Data Protection Bill 2021

Section

CHAPTER VII
RESTRICTION ON TRANSFER OF PERSONAL DATA OUTSIDE INDIA

33
Prohibition on processing of sensitive personal data and critical personal data outside India.
(1) Subject to the conditions providedin sub-section (1) of section 34, the sensitive personal data may be transferred outside India, but such sensitive personal data shall continue to be stored in India.
(2) The critical personal data shall only be processed in India.
Explanation.—For the purposes of sub-section (2), the expression “critical personal data” means such personal data as may be notified by the Central Government to be the critical personal data.
 
34 Conditions for transfer of sensitive personal data and critical personal data.
 

(1) The sensitive personal data may only be transferred outside India for the purpose of processing, when explicit consent is given by the data principal for such transfer, and where—
(a) the transfer is made pursuant to a contract or intra-group scheme approved by the Authority in consultation with the Central Government:
Provided that such contract or intra-group scheme shall not be approved, if the object of such transfer is against public policy or State policy and unless it makes the provisions for—
 

(i) effective protection of the rights of the data principal under this Act, including in relation to further transfer to any other person; and
(ii) liability of the data fiduciary for harm caused due to non-compliance of the provisions of such contract or intra-group scheme by such transfer; (***)
 

(b) the Central Government, after consultation with the Authority, has allowed the transfer to a country or, such entity or class of (***) entities in a country or, an international organisation on the basis of its finding that–
 

(i) such sensitive personal data shall be subject to an adequate level of protection, having regard to the applicable laws and international agreements; (***)
(ii) such transfer shall not prejudicially affect the enforcement of relevant laws by authorities with appropriate jurisdiction; and
(iii) such sensitive personal data shall not be shared with any foreign government or agency unless such sharing is approved by the Central Government:
Provided that any finding under this clause shall be reviewed periodically in such manner as may be prescribed; or
 

(c) the Authority, in consultation with the Central Government, has allowed transfer of any sensitive personal data or class of sensitive personal data necessary for any specific purpose.
Explanation.- For the purposes of this sub-section, an act is said to be against “public policy” or “State policy”, if the said act promotes the breach of any law or is not in consonance with any public policy or State policy in this regard or has a tendency to harm the interest of the State or its citizens.
 

(2) Notwithstanding anything contained in sub-section (2) of section 33, any critical personal data may be transferred outside India, only where such transfer is—
 

(a) to a person or entity engaged in the provision of health services or emergency services where such transfer is necessary for prompt action under section 12; or
(b) to a country or, any entity or class of (***) entities in a country or, to an international organisation, where the Central Government has deemed such transfer to be permissible under clause (b) of sub-section (1) and where such transfer in the opinion of the Central Government does not prejudicially affect the security and strategic interests of the State.
 

(3) Any transfer under clause (a) of sub-section (2) shall be (***) informed to the Authority within such period as may be specified by regulations.