The central government has proposed some changes to India’s hallmark transparency law, the Right to Information Act (RTI), 2005 which has raised concerns and criticism. The changes are sought to be done via the proposed Digital Personal Data Protection Bill (DPDP), 2022 which will bring in a privacy framework for the country.
BOOM spoke to an RTI expert and a lawyer to gauge the consequences of these changes to the RTI Act. They were both equally “concerned”.
What does the RTI Act say in its present form?
The RTI Act provides the right to any Indian citizen to seek information from any public body, right from the President of India’s office to your local municipality, and guarantees a reply within 30 days. It lays down a procedure to challenge replies that are unsatisfactory, incomplete, or false.
However, not all information can be asked for. The RTI Act exempts the disclosure of ten types of information, which include information relating to national security, ongoing investigation, and trade secrets, amongst other things.
One of these ten exemptions include Section 8(1)(j) which the government now seeks to amend. Section 8(1)(j) reads as follows-
“information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
In simpler terms, any information which relates to another person’s personal information is exempt from disclosure. But there are three important conditions that a public body must satisfy to deny any personal information to an applicant.
One, that such personal information should have no relationship to any public activity or interest and that its disclosure could cause an unwarranted invasion of the privacy of the individual.
Two, that there should not exist a larger public interest that would justify the disclosure of such information.
And three, that if the information cannot be denied to the parliament or a state legislature, the same cannot be denied to the public.
Once the public body is satisfied that all these three conditions are applicable to the case, it can go ahead and deny personal information.
This could be understood with an example. If a person files an RTI with the Income Tax Department seeking a copy of the Income Tax Return (ITR) filed by another person last year, the Income Tax Department would obviously identify this to be personal information relating to the latter. It will now have to carefully check if the three conditions mentioned above are satisfied before it goes ahead and rejects the person's RTI request.
These three conditions made sure that a public body carefully applies its mind to an RTI request and does not misuse the exemption clause to deny legitimate information queries. In a certain way, it put a citizen on par with a member of parliament or state legislature as any information that could not be denied to them, could not be denied to a citizen.
Think of it like a trump card where also in cases of larger public interest, information could not be denied. Whether this is so in actual practice, is a separate debatable issue altogether. But in theory, these rights exist.
However, now the government seeks to delete these three conditions, thereby removing the public interest trump card and opening it to possible misuse and denial of legitimate information requests.
What are the experts saying?
Experts that BOOM spoke to are worried that the amendment to the RTI Act would turn the law into “right to deny information”.
Shailesh Gandhi, former Information Commissioner at India’s apex body for adjudicating RTI challenges the Central Information Commission told BOOM that Section 8(1)(j) is one of the “most misused provisions to deny information”.
“If information was denied illegally before, the present amendment would make this legal. This is a real threat,” Gandhi said.
Most information held by a public body can be traced back to a person, he explained. “The DPDP Bill defines ‘person’ to also be a company. The amendment would make sure that any information pertaining to a person or even a company could now be denied mindlessly just because the information could be traced back to that person.”
Experts are also concerned about the DPDP Bill having an overriding effect on the RTI Act. This means that in case there is a conflict between one’s right to privacy and one’s right to information, the right to privacy would prevail. This, experts fear would be grossly misused.
“We’ll have a situation where a public body will sit in judgement where it will decide whether giving out a particular information would violate not just the RTI Act, but the privacy law as well since privacy law will trump the transparency law,” Gandhi said.
Some experts have criticised the Supreme Court of India for its decision in the landmark right to privacy judgement of 2017.
“The moment informational privacy was declared a fundamental right (in 2017), the Supreme Court threatened the existence of Section 8(1)(j)”, said Prashant Reddy, an advocate and researcher.
“This provision previously allowed privacy to be trumped by public interest or if it related to a public activity. But once privacy was elevated to the level of a fundamental right, the nature of Section 8(1)(j) had to change,” Reddy explained.
Gandhi too is of the view that the Supreme Court’s right to privacy judgement “created confusion” and failed to define what is privacy. “What was de facto (practices that exist in reality without legally recognised), is being turned to de jure (practices that are legally recognised). They should leave the RTI Act untouched,” he said.
Recently, some Members of Parliament have expressed their concerns about the proposed amendments to the RTI Act. Congress MP Karti Chidambaram and Trinamool Congress MP Jawhar Sircar have accused the government of “trying to weaken peoples’ rights and centralising power with itself”.
The government is likely to table the DPDP Bill in the ongoing second half of the Budget session.
If the DPDP Bill in its current form is approved by the parliament, the RTI Act would stand amended and Section 8(1)(j) would exempt any “information which relates to personal information” with no public interest conditions applied.
(Saurav Das is an independent investigative journalist and transparency activist. He tweets @OfficialSauravD.)