HOW AN AMENDMENT INTRODUCED THROUGH THE DATA PROTECTION ACT PUTS THE RIGHT TO INFORMATION AT RISK

THE CONTEXT: The enactment of the DPDPA, 2023, marks a significant step in India’s journey towards safeguarding personal data. However, the amendment introduced through Section 44(3) of this Act, which modifies Section 8(1)(j) of the RTI Act, 2005, has raised concerns among civil society organizations and transparency advocates.

THE BACKGROUND

• • RTI Act, 2005: Enacted to promote transparency and accountability in the working of every public authority, the RTI Act has been instrumental in empowering citizens to seek information.​
  • Section 8(1)(j) of RTI Act: Prior to the amendment, this section exempted the disclosure of personal information if it had no relation to any public activity or interest, or if it would cause an unwarranted invasion of privacy, unless the larger public interest justified the disclosure.​
  • DPDPA, 2023: Aimed at providing a framework for the processing of digital personal data in a manner that recognizes both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes.

Dimension	Jurisprudence	Principles
Right to Information	State of UP v Raj Narain (1975) held that “the people have a right to know every public act.”	Constitutional morality
Right to Privacy	K.S. Puttaswamy (2017) elevated privacy to a fundamental right; any restriction must satisfy legality, necessity, proportionality.	Doctrine of proportionality
Balancing test	CPIO, Supreme Court v Subhash Chandra Agarwal (2019) directed a case-by-case calibration between privacy and transparency.	Harmonious construction

CURRENT SCENARIO IN INDIA

1. RTI Usage & Backlog

• • 1.47 lakh second appeals/complaints filed in CIC during 2021-24; 22,596 pending as on 29 Nov 2024.
  • 26 of 29 State Information Commissions report a pendency >1 year (Satark Nagrik Sangathan study, 2024).

2. E-RTI Portals & Privacy Red-flags

State portal (2025)	Mandatory field	Potential violation
Punjab	Device location sharing	fails proportionality test of Puttaswamy
Bihar, Odisha, Nagaland, Manipur, Sikkim	Aadhaar / ID upload	contradicts DoPT O.M. 20-06-2017 & CIC ruling in Vishwas Bhambhurkar

3. Legislative Tension

• • DPDPA 2023: treats “personal data” as a broad category; no “public interest override” when it amends RTI §8(1)(j).
  • Draft DPDPA Rules 2025: MeitY acknowledges need for “contextual definitions” and invites feedback (Jan 2025 PIB note).

THE CHALLENGES:

1. Blanket Exemption and the Erosion of Transparency

• • Shift from “larger public interest” test (RTI Act Section 8(1)(j)) to blanket non-disclosure of personal information under DPDPA 2023 dilutes the transparency ethos.
  • Violation of the “Minimum Government, Maximum Governance” principle (2014 manifesto commitment).
  • SDG-16 (“Promote peaceful and inclusive societies…build effective, accountable institutions”) faces setback if transparency tools are weakened.
  • Global Practice: GDPR (EU) balances personal data privacy with freedom of information, suggesting blanket bans are internationally disfavoured.

2. Portal-Design Induced Privacy Breaches

• • Mandating Aadhaar/location/IP address sharing on RTI portals (Punjab, Bihar, Odisha) violates DoPT Office Memorandum (June 20, 2017) against demanding Aadhaar for RTI filings.
  • Risk Amplification: 389 attacks/harassments against RTI activists (Satark Nagrik Sangathan, 2024) underline the life-threatening consequences of privacy lapses.
  • K.S. Puttaswamy Judgment (2017) affirms privacy as intrinsic to dignity; compulsory data-sharing undermines this principle.

3. Digital Divide and the Danger of Exclusion

• • Internet Penetration Gap: 31% of rural households lack internet access (NSS 78th Round, 2021).
  • Constitutional Violation: Disenfranchising offline citizens from RTI processes negates Article 14 (Equality before Law) and Article 21 (Right to Access Justice).
  • In Rajasthan, MKSS reported that online-only systems reduced RTI filings by rural women by 47% (2023 audit report).

4. Institutional Capacity Deficit

• • Central Information Commission (CIC): 30% member posts vacant; average disposal time stretched to 23 months (CIC Annual Report 2023-24).
  • Governance Impact: Delayed redress defeats the purpose of time-sensitive transparency (Section 7(1) RTI Act mandates 30-day responses).
  • Comparative Insight: UK’s Information Commissioner’s Office (ICO) clears 95% cases within 6 months — points to what stronger institutional resourcing can achieve.

5. Legal and Interpretative Uncertainty

• • No operational appellate guidelines yet from the proposed Data Protection Board under DPDPA on:
    • What constitutes “personal information in public records”?
    • How should “larger public interest” be assessed post-amendment?
  • Judicial Principles in Conflict: The balancing test evolved by the SC in Subhash Chandra Agarwal v CPIO (2019) now stands compromised.
  • Risk of Forum-Shopping: Lack of clarity may trigger forum shopping between CIC, High Courts, and Data Protection Board, delaying justice.

6. Federalism and Asymmetry in Implementation

• • Divergent practices across states (Punjab demanding geolocation, Odisha seeking Aadhaar) disrupt the principle of uniform access to RTI, contravening the national character of a Fundamental Right under Article 19(1)(a).
  • Constitutional Spirit: Centre-State cooperation is vital under Article 256 to ensure uniform application of central laws.

THE WAY FORWARD:

1. Legislate a Nuanced “Privacy–Public Interest” Clause

• • Re-introduce an overriding “public interest” proviso in Section 44(3) of DPDPA, aligning with Article 86 of GDPR (which allows disclosure where necessary for public tasks).
  • Uphold the SC’s Subhash Chandra Agarwal precedent (2019) that balances transparency (Article 19(1)(a)) and privacy (Article 21).
  • UK’s FOI Act 2000 permits exemption overrides where public interest outweighs harm from disclosure — a model India can adapt.

2. Issue Binding DoPT Rules under RTI Section 27

• • DoPT must immediately frame binding portal-design rules prohibiting mandatory Aadhaar/location disclosure; allow pseudonymous email IDs with CAPTCHA + OTP for security.
  • Enforce compliance with DoPT OM (2017) and protects applicants per K.S. Puttaswamy proportionality test.
  • Supporting Evidence: Internet Freedom Foundation (IFF) audit (2024) showed 73% of State RTI portals breached minimal privacy norms.

3. Deploy Privacy-Preserving Technology

• • Implement automatic redaction tools (masking identifiers) and differential privacy algorithms in RTI processing; leverage NIC’s OpenForge for developing India-specific modules.
  • Ensure data minimisation principle (GDPR Art 5) without compromising citizens’ right to access information.

4. Strengthen Information Commissions’ Institutional Capacity

• • Mandate filling CIC/SIC vacancies within 45 days (SC order in Anjali Bharati v UoI, March 2023); digitise proceedings with e-Court modules to expedite decisions (<6 months).
  • Uphold citizens’ fundamental right to timely information under Section 7(1) of the RTI Act.
  • Maharashtra SIC’s e-filing system (launched 2022) reduced pendency by 21% in 18 months (SIC Annual Report 2024).

5. Harmonise RTI and DPDPA through Joint Guidelines

• • Create a MeitY-DoPT-CIC joint taskforce to draft a Standard Operating Procedure (SOP) on managing personal information within public records.
  • Avoid legal confusion, ensures regulatory harmony under India’s Concurrent List (Entry 23: Social security and social insurance).
  • UK Information Commissioner’s Office (ICO) “Code of Practice on Disclosing Personal Data” balances FOI and Data Protection Act — an adaptable blueprint.

6. Build Grassroots Capacity and Create Safe Access Channels

• • Launch Jan-Soochna 2.0 — community-led kiosks (like Rajasthan’s 2019 Jan Soochna Portal), encrypted email options for vulnerable applicants, and dedicated district-level whistle-blower support cells.
  • Bridge the rural digital divide (31% without internet, NSS 78th Round) and strengthens the Social Audit mandate under MGNREGA Act, 2005.
  • Rajasthan’s Jan Soochna Portal reduced dependency on RTI by proactively disclosing 70+ datasets at the Panchayat level (PRIA 2023 Evaluation Report).

THE CONCLUSION:

Balancing privacy with transparency is not a zero-sum game but a constitutional dialogue. A finely-tuned RTI-DPDPA ecosystem can simultaneously secure informational self-determination and democratic accountability, ensuring that India’s “Digital Republic” is both secure and answerable to its citizens.

UPSC PAST YEAR QUESTION:

Q. “Recent amendments to the Right to Information Act will have profound impact on the autonomy and independence of the Information Commission”. Discuss. 2020

MAINS PRACTICE QUESTION:

Q. The Digital Personal Data Protection Act, 2023, has raised concerns about potential dilution of the Right to Information in India. Discuss the challenges arising from this situation.”

SOURCE:

https://indianexpress.com/article/opinion/columns/dabba-cartel-a-womans-lunchbox-9967651/

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