How Modi government is using data privacy as an excuse to cripple the Right to Information

The Digital Personal Data Protection Bill, 2023 is expected to be tabled in the Lok Sabha on Thursday. While this will be India’s first law on data privacy, the legislation has encountered opposition on an unexpected front: activists and experts have raised concerns that the Modi government is using the bill to try and significantly dilute the Right to Information Act.

This concern was widely flagged by civil society through an online petition and a letter addressed to Parliamentarians when a previous draft of the Bill was published in November last year, on which the government sought comments from the public.

Transparency activists and experts told Scroll that the inherent conflict between the rights to privacy and to information is being exploited by the government through the Bill to clip the Right to Information Act.

Dilutes the Right to Information

The Digital Personal Data Protection Bill amends Section 8(1)(j) of the Right to Information Act. Presently, Section 8(1)(j) prevents a public authority from sharing anyone’s personal information on two grounds:

• The disclosure of this information has no bearing on any public activity or interest, and  
• The disclosure of this information would cause unwarranted invasion of the privacy of an individual, unless such disclosure is justified in larger public interest.  

Scroll has access to a copy of the bill. Clause 44(3) the bill amends Section 8(1)(j) of the Right to Information Act to put in place a blanket exemption on a public authority divulging any personal information, thus doing away with the public activity/public interest exceptions in the provision.

A similar clause was present in the draft bill published last year.

A problematic law

“Under the RTI Act, granular information is sought to fight corruption,” explained transparency and accountability activist Anjali Bhardwaj, who is co-convenor of the National Campaign for People’s Right to Information, and a founding member of the Satark Nagrik Sangathan. “Personal data of who are receiving entitlements is needed in social audits to know where diversion of funds is happening. This is how monitoring of scholarship and pension schemes, for example, is done.”

“Dealing with the state means dealing with public officers and beneficiaries of welfare schemes,” said social activist Nikhil Dey, who as part of the Mazdoor Kisan Shakti Sanghathan led the struggle for a right to information legislation through the 1990s. “The bill provides a perfect weapon for the government to not let data go out. If the RTI Act is rendered ineffective, stealing of public resources will increase, as it won’t be possible to account for stolen money.”

Venkatesh Nayak, director of the Commonwealth Human Rights Initiative and co-convenor of the National Campaign for People’s Right to Information, asked: “How will Good Samaritans prove, for instance, that ineligible farmers are getting benefits under the PM Kisan Yojna?,”

This was acknowledged by retired Indian Administrative Services officer and Rajya Sabha Member Jawhar Sircar. He said, on behalf of his party the All India Trinamool Congress, that “this bill seeks to curtail the Right to Information Act by restricting powers to seek information under Section 8(1)(j) of the RTI Act. It expands the scope of what constitutes ‘private information’ and therefore ensures that public officials may conceal information about their activities by claiming that these are ‘private matters’”.

Sircar was among the MPs who had walked out of a meeting of the Parliamentary Standing Committee on Communications and Information Technology last week in protest against the committee’s decision to adopt a report in favour of the bill.

Right to information versus the right to privacy?

According to lawyer Prashant Reddy T, there is a legal conflict between the right to privacy and the right to information. Reddy had highlighted this concern on Scroll last year. He argues that the government is legally not in the wrong for amending Section 8(1)(j) of the Right to Information Act through the bill.

“The ‘public interest’ exception in Section 8(1)(j) works only when privacy is not a fundamental right,” he said. “Public interest’ is a wide exception. Restrictions on fundamental rights are to be narrow.”

The right to information was held by the Supreme Court in 1975 to be part of the fundamental right to freedom of speech and expression, guaranteed under Article 19(1)(a) of the Constitution. The Supreme Court then went on to hold in 2017 the right to privacy as a fundamental right guaranteed under the Constitution, particularly within Article 21.

Nayak alleges that the bill pits the two rights against each other. “New laws must be harmonised with existing laws,” he said. “That is not being done by the bill. The bill protects privacy, which is a public interest. However, this must be balanced with other public interests.” This balancing was expressly recommended by the Justice AP Shah-led Group of Experts on Privacy in 2012.

“One fundamental right cannot be interpreted to the detriment of another,” he lamented.

Dey agrees. “There is a creative tension between the right to information and the right to privacy, which was resolved by Section 8(1)(j),” he said. “This will be demolished.”

Bhardwaj shed light on how the government has constantly played the potential conflict between the rights to privacy and information both ways, as per its convenience. “In the privacy and Aadhar cases, it argued before the Supreme Court that there is no right to privacy,” she said. “However, when people ask for information under the RTI Act, the government is citing the right to privacy to deny it.”

Nayak drew attention to the fact that in some countries, such as the United Kingdom and New Zealand, the same authority governs data protection and access to information. As a result, there is a lower possibility of confusion as to which right or law will prevail over the other.

Sensing an opportunity

The Central Information Commission’s Annual Report for 2020-21 disclosed that central level public authorities invoked Section 8(1)(j) to reject 34.4% of all right to information applications received by them in 2020-’21, making it the most frequently used exemption. This is borne by anecdotal evidence reported by Scroll last year.

Reddy said that the government jumped on the opportunity to make the personal information exception bulletproof under the bill.

No one from activist circles was invited to consultations over the bill by the government, Bhardwaj revealed. “Opposition MPs in the Parliamentary Standing Committee on IT and Communications have confirmed that citizens’ concerns over the bill weren’t shared with them,” she said.

Right to information activist and former Central Information Commissioner Shailesh Gandhi, who also flagged this problem on Scroll earlier this year, said that in an online public consultation on the bill on December 23, when he raised the concern of dilution of the Right to Information Act, Union Minister Rajeev Chandrashekhar waved off his concern, The minister stated that privacy, as a fundamental right, must get primacy over the right to information, before putting Gandhi on mute.

A major regression

“In 18 years, no undesirable harm has come to any national or personal interest because of the RTI Act,” emphasised Gandhi. The proposed curtailment would be a “major regression for democracy”, he said.

Said Reddy, “The next logical step would be MP and MLA candidates refusing to share details of their personal assets.”

Added Nikhil Dey, “The bill almost repeals the RTI Act. If it is passed, it will change the entire discourse on the right to information in the country.”