Privacy and transparency: on the RTI Act amendment, petitions

Context & The Gist

The Supreme Court has referred petitions challenging the amendment to the Right to Information (RTI) Act, brought about by the Digital Personal Data Protection (DPDP) Act, 2023, to a Constitution Bench due to its “constitutional sensitivity”. The core issue is the dilution of the RTI Act’s foundational principle of transparency by removing the ‘public interest override’ clause, effectively creating a blanket ban on disclosing ‘personal information’ even when it relates to public activity. This amendment significantly impacts the balance between privacy and transparency, potentially hindering citizen scrutiny of government actions.

Key Arguments & Nuances

• Dilution of Public Interest Override: The original RTI Act allowed disclosure of personal information if it served a larger public interest. The DPDP amendment removes this crucial provision, prioritizing privacy over transparency.
• Information Asymmetry: The amendment exacerbates the information gap between the state and citizens. While the state can process personal data without consent (under Section 7 of DPDP), citizens are restricted from seeking information about government functioning. This creates an imbalance of power.
• Chilling Effect on Journalism: Journalists may be classified as ‘data fiduciaries’ under the DPDP Act, facing hefty fines for non-compliance, potentially stifling investigative journalism.
• Contradiction with Global Standards: The DPDP Act’s approach contrasts with the EU’s GDPR, which strives to balance privacy and transparency.
• Impact on Accountability: The amendment enables rejecting requests for information related to officials, procurement, audits, and public spending, reducing government accountability.

UPSC Syllabus Relevance

• Polity: Right to Information, Constitutional provisions related to freedom of speech and information.
• Governance: Government transparency, accountability, and responsiveness.
• Law & Justice: Analysis of the DPDP Act and its impact on existing legislation like the RTI Act.

Prelims Data Bank

• RTI Act, 2005: Enacted to promote transparency and accountability in governance.
• DPDP Act, 2023: Aims to provide a comprehensive legal framework for the digital personal data of individuals.
• Section 8(1)(j) of RTI Act: Deals with exemptions from disclosure of information, including personal information.
• Section 44(3) of DPDP Act: Amends Section 8(1)(j) of the RTI Act.
• GDPR (General Data Protection Regulation): EU law on data protection and privacy.
• Central Public Information Officer (2019) SC Judgement: Held that personal information should remain private unless disclosure is necessary for the larger public interest.

Mains Critical Analysis

The amendment to the RTI Act raises significant concerns regarding the principles of transparency and accountability in governance. The removal of the ‘public interest override’ clause represents a fundamental shift, prioritizing privacy to an extent that it undermines the very purpose of the RTI Act. This can be analyzed using a PESTLE framework:

• Political: The amendment reflects a potential reluctance towards transparency and increased scrutiny of government actions.
• Economic: Reduced transparency can lead to increased corruption and inefficient resource allocation.
• Social: Diminished access to information can empower the state at the expense of citizens, hindering informed participation in democratic processes.
• Technological: The DPDP Act, while aiming to protect data privacy, inadvertently restricts access to information through its amendment to the RTI Act.
• Legal: The constitutional validity of the amendment is being challenged, highlighting the legal complexities involved.
• Environmental: (Not directly applicable in this case)

A critical gap lies in the lack of a balanced approach. While data privacy is crucial, it shouldn't come at the cost of transparency and accountability. The amendment creates a situation where the government can monitor citizens but citizens are denied the ability to scrutinize the government. This asymmetry is detrimental to a healthy democracy.

Value Addition

• Internet Freedom Foundation (IFF): A digital rights organization actively campaigning for the preservation of the RTI Act.
• The Reporters’ Collective: A network of journalists who filed a writ petition challenging the amendment.
• Justice K.S. Puttaswamy (Retd.) v. Union of India (2017): Landmark SC judgment declaring privacy a fundamental right. This case provides the backdrop for the DPDP Act but the amendment to RTI seems to contradict the spirit of this judgement.

Context & Linkages

This past article highlighted the shortcomings of the DPDP Act, including its weakening of protections by amending the RTI Act. The current article builds upon this critique, focusing specifically on the implications of the RTI amendment for transparency and accountability. Both articles point to a trend of prioritizing government control over citizen rights in the realm of data protection.

This article strongly advocates for upholding the RTI Act’s role in promoting good governance and exposing corruption. It directly counters the arguments for re-examining the RTI Act, emphasizing its importance for civic scrutiny. The current article demonstrates how the DPDP amendment undermines the very principles championed in this earlier piece, effectively curtailing the RTI Act’s effectiveness.

The Way Forward

• Judicial Review: The Constitution Bench must carefully consider the constitutional validity of the amendment, balancing privacy concerns with the fundamental right to information.
• Legislative Reconsideration: The government should reconsider the amendment and explore alternative approaches that protect both privacy and transparency.
• Strengthening the RTI Act: Enhance the RTI Act by providing greater clarity on the ‘public interest’ criterion and ensuring effective implementation.
• Promoting Digital Literacy: Empower citizens with the knowledge and skills to exercise their right to information effectively.
• Independent Data Protection Authority: Establish a truly independent Data Protection Board of India (DPBI) free from government influence.