By providing wide discretionary powers to the bureaucracy, the new data protection law severely restricts the scope of the Right to Information Act
The Digital Personal Data Protection Act, 2023, enforced on August 11, has two provisions that would seriously weaken the Right to Information Act, 2005, one of the best transparency laws in the world.
The Right to Information Act or RTI empowers citizens and recognises their role as rulers and owners of the country. It is the outcome of people’s struggles led by Mazdoor Kisan Shakti Sangathan, which started in rural Rajasthan.
It was given its final shape by an all-party parliamentary committee that carefully crafted its provisions. Its preamble elegantly states that democracy requires informed citizens and transparency in the affairs of their government so that they can hold it accountable and curb corruption. It harmonises the need for an efficient government while preserving the ideals of democracy.
RTI has been of great help to every segment of society from the most disempowered to the powerful to obtain relevant information and protect their rights.
Governments and those wielding the levers of power have been perturbed by this transfer of power to ordinary citizens. Citizens have taken to RTI like fish take to water.
Despite public officials using various devices to deny citizens their legitimate rights, many have used this democratic instrument to expose wrongdoing and corruption.
RTI has adequate built-in safeguards under Section 8 (1), which has 10 exemptions (from a to j) to ensure the smooth working of the government. One of them—section 8 (1) (j)—is to protect individual privacy.
It, however, has a proviso, which is an acid test to help anyone claiming exemption. It states that information can be withheld “Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person”. Section 8(1) (j) of the RTI states that personal information may be exempted if:
a) It is not related to a public activity or interest or;
b) Would cause unwarranted invasion of privacy of an individual.
The special proviso was provided to help an officer, information commissioner or judge arrive at the right decision. Whoever claimed that a disclosure was exempt under Section 8 (1) (j) should make a statement that he would not give this information to Parliament.
Still, many requests were rejected even without adhering to the law, with the bland statement that since it was personal information they would not give it. This is illegal but has been widely used to cover the arbitrary, corrupt or illegal acts of government officials.
There is a long list of such unlawful rejections. For instance, the Department of Personnel and Training used the section and refused to share the total number of annual performance appraisal reports of Indian Administrative Service (IAS) officers pending presently for over one year, two years, three years and four years.
It has also been misused to withhold the details of beneficiaries of the Prime Minister’s National Relief Fund or the number of bogus caste and education certificates issued in the country. It has been used to guard information about gross arbitrariness and corruption in selections for jobs and non-conformance to rules and laws. At the same time, there are many examples of honest officers and commissioners who have shared information under RTI.
The Digital Personal Data Protection (DPDP) Act, 2023, now attempts to change this. Section 44(3) of the DPDP Act mandates amending Section 8 (1) (j) of the RTI to exempt all personal information. With this amendment all information which can be related to a person can now be legally denied.
Incidentally, this proposal is tacit admission that any current denial of information on the grounds of it being “personal information” only, is illegal. Whenever a public information officer (PIO) wants to deny information, he will be just link it to some person. Most information, except for maybe budgets, can be now be denied.
Further, Section 38 (2) DPDP Act says the Act will override all existing laws. This implicitly means it will also override RTI. This will make it extremely difficult for an official to disclose information, since he would have to decide whether providing the information demanded is likely to override the new Act.
The government will also try to deny information as DPDP has a provision for a maximum penalty of Rs 250 crore. In short, this appears to be a right to deny information masquerading as a Digital Personal Data Protection Act.
The basic logic of the new Act is also unclear as in the 18 years of RTI’s existence, information released under the Act has not caused any undesirable harm to any national or personal interest. The proposed curtailment would be a major regression for democracy. This is a serious threat to our fundamental right.
(Shailesh Gandhi is the former Central Information Commissioner of India)
This was first published in the 1-15 September, 2023 print edition of Down To Earth
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