RTI Act Does Not Need Any Covert Amendment; it Needs Implementation

Whenever a PIO wants to deny information, they will be able to link it to some person. Further the proposed bill defines ‘person’ very widely to include individuals, companies and the State. Most information except budgets would be linked to one of these. Thus, the RTI Act would become a Right to Deny Information Act, rendering it as an ineffective tool.

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The proposed Digital Personal Data Protection Act, 2022 has two provisions which would seriously weaken the Indian citizens’ right to information. The Indian Right to Information (‘RTI’) Act, effective since October 12, 2005, is one of the best transparency laws in the world. It empowers citizens, and is a practical recognition of their role as rulers and owners of India.

This is the outcome of people’s struggles led by the people’s political organisation, the Mazdoor Kisan Shakti Sangathan’s struggles, starting in rural Rajasthan, which culminated in the drafting of the law in 2004. There were intense discussions about its provisions, and it took an All Party Parliamentary Committee to carefully craft its provisions.

Its preamble elegantly states that democracy requires informed citizens and transparency in the affairs of its government so it can hold the government accountable and curb corruption. It harmonised the need for an efficient government while preserving the ideals of democracy.

Governments and those wielding the levers of power have been perturbed by this transfer of power to ordinary citizens. Citizens have taken to the RTI Act like fish take to water. On the one hand, public officials have used various devices to deny citizens their legitimate right; on the other, many citizens have used this democratic instrument to expose the officials’ wrongdoing and corruption.

Limited exemptions under RTI Act, and their misuse

The law recognises that the default mode is that each citizen has the right to access almost all the information with the government. Ten categories of information have been exempted from disclosure to prevent harm to certain interests and to ensure smooth working of the government. These are outlined in Section 8(1) of the RTI Act, with the ten subsections from a) to j).

The most widely used exemption is Section 8(1)(j), which exempts personal information which is not part of a public activity, or which is an invasion on the privacy of an individual. It has a proviso, which is an acid test to help anyone claiming exemption. It states: “Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” Thus, as per the law, personal information may be exempt if:

1. It is not related to a public activity or interest, or
2. It would cause unwarranted invasion of privacy of an individual.

To help an officer, information commissioner or judge to arrive at the right decision, the special proviso was provided as an acid test. Whoever claimed that a disclosure was exempt under section 8(1)(j) should make a statement that they would not give this information to Parliament.

On the one hand, public officials have used various devices to deny citizens their legitimate right; on the other, many citizens have used this democratic instrument to expose the officials’ wrongdoing and corruption.

Many refusals of information did not adhere to the law, but nonetheless came with a bland statement that since it was personal information, it would not be given. This was illegal, but has been widely used to cover arbitrary, corrupt or illegal acts of government officials. Some examples are provided below:

• The Union Government’s Department of Personnel and Training refused to provide the “Total number of Annual Performance Appraisal reports (APAR) of IAS officers pending presently for over one year, two years, three years and four years”, claiming exemption under section 8(1)(j)!
• The request for details of Member of Legislative Assembly funds was denied, saying it was personal information.
• Details of beneficiaries of PM CARES Fund.
• Instances of bogus caste certificates, education certificates, ghost employees,
  gross arbitrariness and corruption in selections for public sector jobs, and non-conformance to rules and laws.
• Disproportionate assets compared to declared income of public officials.
• Verification of affidavits of elected representatives.
• Unfair assessment of students and job seekers in government.
• Instances of disregard of proven corruption charges against officials.
• File notings and minutes of meetings

Effect of the Digital Personal Data Protection Bill on RTI Act

However, many honest officers and commissioners often gave information if it was not covered by the exemption. Unfortunately, the proposed Digital Personal Data Protection Bill plans to amend the RTI Act’s section 8(1)(j) to read as exempting “(j) information which relates to personal information”.

If this amendment is made, all information which can be related to a person could be legally denied. Most information relates to a person and hence the law would become a right to deny for public information officers (‘PIOs’), who do not wish to give information.

Incidentally, this proposal is tacit admission that any current denial of information on the grounds of it being ‘personal information’ is illegal. Whenever a PIO wants to deny information, they will be able to link it to some person. Further the proposed bill defines ‘person’ very widely to include individuals, companies and the State. Most information except budgets would be linked to one of these. Thus, the RTI Act would become a Right to Deny Information Act, rendering it as an ineffective tool.

As soon as I voiced my first point, the Minister waved his hands and said that I was giving my view, and the government’s view was that privacy is a fundamental right and has to get primacy over the RTI. I said that the RTI amendment was almost like a repeal of the law. The minister looked annoyed and I was muted.

Section 4(1)(b) of the RTI Act requires from public authorises suo motu disclosure of salaries of public servants, details of beneficiaries of subsidies and particulars of recipients of concessions, permits or authorisations granted. All these would have to be stopped. The ability of the law to uncover corruption or wrongdoing would be effectively finished.

Legislative pre-consultation over the Bill: An eyewash

It is also sad that legislative pre-consultation is being done in a biased manner on such an important bill. I am recounting my experience of such a meeting:

A public consultation on the Digital Personal Data Protection Bill by Union Minister Rajeev Chandrashekhar was held on December 23 at 2 p.m. in Delhi. This was announced on 22 as a hybrid event.

I had registered for the video conference, identifying myself as a former Central Information Commissioner, but did not receive a link for joining. A friend who had received the link shared it with me and I was able to join. The participants appeared to be corporate lawyers, and the entire discussion was around the data protection aspects.

 I put these questions in the chat box “1. Section 29 (2) should not allow DPDP to override RTI.

2. RTI Act should not be amended since the proposed amendment in Section 30 (2) would make it a Right to Deny Information. Most information is linked to a person and can be labelled ‘personal’.”

I was given a chance to ask them. As soon as I voiced my first point, Chandrashekhar waved his hands and said that I was giving my view, and the government’s view was that privacy is a fundamental right and has to get primacy over the RTI. I said that the RTI amendment was almost like a repeal of the law. The minister looked annoyed and I was muted. This was no consultation!

It appeared Chandrashekhar was not expecting any question on the RTI.

Equally painful for me is that none of the lawyers or media persons raised any issue about the proposed damage to citizens’ fundamental RTI under Article 19(1)(a) of the Constitution. Citizens have not realized the implications of this proposal as yet. They must discuss this proposed regression in their fundamental rights under Article 19(1)(a). I am finding even serious lawyers’ groups unwilling to discuss these.

I am hoping the government agrees to implement the two points mentioned above. If it is not convinced, it should translate the Bill in various regional languages and hold genuine public consultations across the nation.

Shailesh Gandhi is a former Central Information Commissioner.