Introduction
In India’s democracy few laws have been as empowering such as the Right to Information (“RTI”) Act, 2005. It acts like a tool in the hands of citizens to cut through the opacity of bureaucratic secrecy, thereby allowing citizens to hold power to account. However, this transparency is now threatened by a change made by the legislature, contained in the recently enacted Digital Personal Data Protection Act, (“DPDPA”), 2023. It threatens to become a shield for opacity, putting a curtain between the citizens and information. By ringing an amendment to the RTI exemption clause through DPDPA, the Government has moved away from the citizen’s “Right to Know” and towards the State’s “Right to Deny”. The question is not just limited to privacy and transparency but also includes aspects of documents disclosure regarding the misconduct by public officials, which is now shielded from the public scrutiny.
It provides a ground for public authorities to deny requests for all the information which relating to the public assets, disciplinary action records, and specific schemes by calling it a protection of personal data, which would ultimately weaken investigative journalism. The core of the shift lies in the Section 44(3) of the DPDP Act, 2023 which has substituted a clause from Section 8(1)(j) of the RTI Act, 2005.
The Prior Scene: Balancing Through The RTI Act
The Right to Information is not just a right granted to us but also has been recognized judicially as a prominent part of the fundamental right to Freedom to Speech and Expression under Article 19 (1)(a) of the Indian Constitution. The RTI Act operationalized this right, creating a law that created a framework in favour of the citizen to few exceptions to the government.
- The Legislative Protection: The uncut Section 8(1)(j) of the RTI Act, 2005 acted as a guardian to an individual’s privacy and data personal to him acknowledging the need of public oversight. This clause was a masterpiece as it created a proportion in the scope of disclosing information. The disclosure of personal data and information could be denied if either of the two conditions were fulfilled that the information was not related to public activity or interest, and the information causes an unwarranted invasion of privacy.
Further, even when if the conditions are met, the clause included a proviso relating to “Public Interest Override”, which allowed the Public Information Officer (“PIO”) to impart the information if the interest of public at large outweighed the harm to privacy.
- The Judicial Anchor: The Provision under RTI Act was the result of the landmark interpretation by the judiciary in the case of CPIO, Supreme Court of Inida vs. Subhash Chandra Agarwal, (2020) 5 SCC 481 while upholding the disclosure of assets under the RTI Act, affirming that the Right to Information and the Right to Privacy enshrined as fundamental right under the case of S. Puttaswamy vs Union of India, (2017) 10 SCC 1, shall be dealt with care on a case-to-case basis.
The court laid emphasis on the proportionality test for PIOs, transparency was the default, privacy was a valid defence, but one that could be overridden by a compelling public interest. Information like disclosure of the assts and communication of public functionaries done officially related to the public activity, would often fail to satisfy the privacy defence test.
The balance was embedded a such your medical records are safe, but the disciplinary record of a corrupt public officer was made accessible if it served the greater good.
The Post Amendment Scenario: Shifting to Total Prohibition
The DPDPA is legislated with the significant objective of safeguarding citizen’s data in this digitally modern age. However, the substitution done through Section 44(3) of the DPDPA in the RTI Act perform quiet a devastating effect.
The Section 44(3) of the DPDP Act read as:
“In section 8 of the Right to Information Act, 2005, in sub-section (1), for clause (j), the following clause shall be substituted, namely: “(j) information which relates to personal information”.
The difference made is stark and clear, the amendment systematically deletes every safeguard and qualifier of the original clause under the RTI Act.
- The removal of “Public Interest Override”: The elimination of the Larger Public Interest override is a very critical setback for transparency. This implies that the PIO is no longer required to performed the test of Proportionality to balance the privacy against accountability. If the information can be termed as “personal”, it is now a clear and absolute exempt from disclosure of such information, no matter its relation to corruption, fraud or misconduct exists. The DPDPA itself states “Personal Data” broadly as a data that can identify an individual. When applied in the context of RTI act, this give PIOs a basis to keep an enormous spectrum of documents with themselves that were previously accessible to the citizen.
- The problem with PIOs: Choosing silence over disclosure: The argument presented by some proponents is that the public still has the access via Section 8(2) relating to the public interest, which allows for information disclosure. Although, they are ignoring the harsh law created through the DPDPA , that is penalties. The DPDPA specifies severe monetary penalties for data breaches and non-compliance, which can be up to Rs. 250 Crores for a data fiduciary which includes public authorities and the PIOs. Faced with the threat of penalties, why would a PIO risk a massive file crucial to public data disclose an asset declaration or a disciplinary record under Section 8(2) when the Section 8(1)(j) provides a clear shield? This liability risk will lead to extreme PIO risk-aversion, making the default decision denial, not disclosure.
The Impact In India
The practical consequences of this amendment brought in is far-reaching, which conclusively weakens the concept of transparency and the pillars of accountability in a functioning democracy. This is not just about protecting the citizen’s details but also the official’s chair.
- New shield for the Public Officials: Information that was a crucial aspect of the anti-corruption activities and journalism is now under a legally guarded shield.
- Asset Declaration: Earlier, the declaration of the personal assets by the PIOs and other public officials were often disclosed in the public sector under the public interest override. This maintained a vital check against the illegal asset accumulation and consolidation which often went unreported. The se records can now be denied access outright naming them as “personal information”.
- Qualifications and Appointments: Reports and records containing information about the departments, inquiries, appraisals, transfer order, and the actions taken were often release on the grounds of public activity. But now, they can be withheld, creating a safe space for the official misconduct and fraud that can continue and remain unchecked.
- Crippling investigative Journalism and Social Audits: The RTI Act is not a device for idle curiosity, instead it acts as the first stage evidence collector for the investigative journalism, Public Interest Litigation (“PILs”) and social audits.
- The Chilling Effect: The discard of public interest override, coupled with the risk of massive DPDPA penalties is a severe threat. The press and the civil society will face challenges and greater obstacles to prove the piece of corruption or join a picture together to unfold a fraud or misconduct. The state hence, gain an unproportionate power to control information and function with reduced checks.
AMLEGALS Remarks
The RTI Act gave the ordinary public of India a legal right, to ask and pose questions to the government, keeping an eye on the administrative apparatus. The amendment introduced by the DPDPA strikes off that power given to the citizens. By replacing a nuanced, sound, and effective provision, the state has created an unprecedented legal opacity, defecting the primary aim of the DPDP Act to protect the individual from the power of the corporation, rather protecting the powerful from the scrutiny of the citizen.
Unless, this change is reversed or amended again through judicial intervention, India’s hard-won progress and evolution on transparency and disclosure of information is on halt, making a way for increased corruption and darkness for the citizens.
For any queries or feedback, feel free to connect with mridusha.guha@amlegals.com or khilansha.mukhija@amlegals.com