Does the Data Act dilute the Right to Information Act? | Explained

The story so far: The petitions challenging the amendment to the Right to Information (RTI) Act that provides blanket exemption for personal information, through a section in the Digital Personal Data Protection (DPDP) Act, has been referred to a Constitution Bench of the Supreme Court.

How was the DPDP Act framed?

The Supreme Court in Puttaswamy (2017) had declared the right to privacy as a fundamental right primarily under Article 21 (right to life and liberty). It is also an overarching right that includes freedom of speech and expression (Article 19). In this judgment, the court had directed that the government must put forth a data protection regime.

The government had constituted a committee under the chairmanship of Justice B.N. Sri Krishna to deliberate and report on the data protection framework. The committee submitted its report and a draft Bill on data protection in July 2018. Subsequently, in August 2023, Parliament passed the DPDP Act, 2023. The DPDP Act provides the legal framework for the protection of personal data of individuals (known as data principals) which they share with other persons, companies and government entities (data fiduciaries).

What is the controversy?

The RTI Act, 2005 was enacted to provide citizens with the right to seek information from public authorities. Section 8(1)(j) of the RTI Act stipulated that 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 an individual need not be provided. However, if the appropriate authority was satisfied that larger public interest justified the disclosure of such information, the same could be provided.

Section 44(3) of the DPDP Act amends section 8(1)(j) of the RTI Act. It provides a blanket exemption to any information which relates to personal information without any exceptions. It may be inferred that the aim of the amendment is to protect the fundamental right to privacy of public officials that cannot be abridged or taken away by parliamentary law. Further, the argument of the government is that section 8(2) of the RTI Act provides that notwithstanding the exemptions permissible under section 8(1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interest.

However, this amendment has been challenged in the Supreme Court, through a series of petitions, on the ground that it is ultra vires the Constitution.

What can be the way forward?

The Supreme Court has in various cases viewed the right to information as integral to Articles 19 and 21. Previously, the personal assets and liabilities of public servants, which they are required to periodically submit to government, were disclosed by Public Information Officers under the RTI Act if it served larger public interest. This had been used to probe any allegation of corruption by public servants. However, with the current amendment, such information would be declined on the ground that it is related to personal information. It enables rejecting requests concerning even procurement records, audit reports or public spending on the premise that it could be ‘personal information’. The court had remarked that it might lay down the guidelines as to what is meant by ‘personal information.’ This is a welcome step. However, the amendment of the RTI Act through the DPDP Act, 2023 should be repealed. Section 8(1)(j) should revert to the earlier position which allowed the disclosure of personal information if it fulfilled larger public interest. This specific provision, which is superior under legal principles to the general provision under section 8(2), already contained the required proportionate balance, between the needs for privacy and disclosure, with respect to the personal information of public officials.

Rangarajan R is a former IAS officer and author of ‘Courseware on Polity Simplified.’ He currently trains at Officers IAS academy. Views expressed are personal.