By Sanjay Raman Sinha
The proposed Data Protection Bill has cast its ominous shadow on the right to information. The Bill has a rider which not only appropriates years of hard work of RTI activists, but also nullifies key judicial pronouncements.
It is also a curious case of using the historic Puttaswamy judicial verdict, which buttressed the case for individual privacy, for curbing right to information. As per the proposed amendment in the Data Protection Bill, the right to access public information can be denied if the government thinks that it impinges on the private realm of a person and the information demanded is not of larger public interest.
The area of concern is Section 8(1)( j) of the Right to Information Act 2005. The Section mandates 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 the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information”.
This rider is often used to refuse replies. According to an estimate, this clause accounts for 35% of refusals of information by authorities.
Now the screws are further being tightened as the proposed law seeks an amendment in the “public interest” rider in Section 8(1)(j). Now there will be a total ban on sharing of “personal information” contained in public records and documents. The proposed Data Protection Bill says: “(2) Clause (j) of sub-section (1) of section 8 of the Right to Information Act, 2005 shall be amended in the following manner: (a) The words ‘the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information’ shall be omitted;
“Thus the amended section would read and exempt:
(j) information which relates to personal information.”
Shailesh Gandhi, former Chief Information Commissioner and an RTI activist, told India Legal: “The amendment seeks to exempt all information which relates to a person. Most information can be shown to relate to a person, and hence could be denied very easily. Even presently, any invasion on privacy is exempted. Under the amended law, details of foodgrains given to a ration dealer or details of caste/income certificates or work done from MLA funds could be denied as they relate to a shopkeeper, individual and MLA.”
Clearly, the proposed Data Protection Bill has the potential to disrupt right to information under the garb of personal information. A case in point is the 2012 Supreme Court matter where a bench of Justices KS Radhakrishnan and Dipak Misra had upheld this interpretation. The case was Girish Deshpande vs Central Information Commission where the petitioner had asked for relevant information about a government servant. A Special Leave Petition was filed before the Supreme Court regarding the right to privacy with reference to information about public servants. The context was Section 8(1)(j) of the Right to Information Act, 2005.
The bench held: “The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression ‘personal information’, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the Petitioner cannot claim those details as a matter of right.”
Normally, judicial sanction of governmental excesses is not forthcoming. This verdict had presciently but inadvertently marked the way for subsequent government moves for removing the “personal information” rider via the proposed Data Protection Law.
The basic tension is between the right to privacy and the right to information, and the conditional primacy of one over the other.
Interestingly, the judiciary had over the years evolved its stand on the right to privacy. In four basic judgments, the Court had maintained rigidity over the right to privacy as a fundamental right. It held that right to privacy may not be a fundamental right. These cases were—M.P. Sharma vs Satish Chandra; Maneka Gandhi vs Union of India; Kharak Singh vs State of UP and Peoples Union for Civil Liberties vs Union of India.
But Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. changed it all. In a landmark judgment in 2017, a nine-judge Constitution bench unanimously held that the right to privacy is a fundamental right. The question arose as part of litigation over the legal validity of the Aadhaar database. The bench unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”. In doing so, it overruled previous judgments of the Supreme Court in M.P. Sharma and Kharak Singh.
In addition to cementing the right to privacy as a fundamental right, the Puttaswamy verdict also laid down the need for the implementation of a new law relating to data privacy.
What we are witnessing now is executive overreach. Puttaswamy is now being cited for curbing the right to information. Amendment of Clause (j) of sub-section (1) of Section 8 of the Right to Information Act, 2005, in the proposed Data Protection Bill is a clever move to use the verdict to clamp down on the freedom of information or the right to know.
The right to information is no stranger to Machiavellian moves. On August 1, 2019, the government had brought an amendment to this Act. According to it, the government can fix the tenure of the central Chief Information Commissioner (CIC) and Information Commissioners (IC), which was previously fixed at five years.
The government also gained power to determine the salary and allowances of the CIC and ICs, which were previously equal to those of the Chief Election Commissioner (CEC) and Election Commissioners (EC).
That was the first casualty. Now comes the second one. While the Puttaswamy verdict maintained that the right to privacy is not an absolute right and is subject to conditionalities, has the government tested the proposed amendment on the touchstone of constitutionality and legality? The amendment can be challenged in courts.