DPDP Act vs RTI Act: Is the Right to Information Being Diluted?

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Picture Courtesy:  THEHINDU

Context

A Constitution Bench of the Supreme Court is hearing petitions challenging Section 44(3) of the DPDP Act, 2023, which is argued to create a "blanket exemption" for personal information and weaken the RTI Act.

What are the Core Legal Challenges: DPDP Act vs  RTI Act?

The tension between the right to privacy and the right to information has evolved through key legal and legislative milestones:

• K.S. Puttaswamy Judgment (2017): A nine-judge Supreme Court bench declared the Right to Privacy a fundamental right under Article 21. However, it was established that this right is not absolute and must be balanced against other rights, including transparency.
• Justice B.N. Srikrishna Committee (2018): Drafted a data protection law, recommended that in any conflict between data protection and RTI, the RTI Act should prevail to serve the larger public interest.
• DPDP Act (2023): Strengthens personal privacy by amending Section 8(1)(j) of the RTI Act 2005 to exempt nearly all personal information from disclosure.
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What are the Implications of the "Blanket Exemption" of Personal Information under DPDP Act?

Shielding Corruption and Reducing Accountability

• The Problem: Information about corruption, such as asset declarations, transfers, and educational qualifications of public officials, is classified as "personal."
• Example (Adarsh Housing Society Scam): This scam was exposed using RTI to access beneficiary lists. Under the new amendment, such a list could be denied as "personal information," making it harder to expose wrongdoing. .
• Impact: It becomes difficult for citizens to hold officials accountable by verifying their declared assets against known sources of income.

Creating Opacity in Public Procurement and Funds

• The Problem: Details of government contracts and public funds involve the names of contractors or donors.
• Example (PM CARES Fund): Activists already faced challenges in getting donor details. The new law provides a legal basis to deny such information, citing the privacy of the donor or contractor.

Eroding Social Audit Mechanisms

• The Problem: Social audits for welfare schemes like MGNREGA depend on public disclosure of beneficiary lists to identify "ghost" or fake accounts.
• Example (Rajasthan's Jan Soochna Portal): Discloses beneficiary details to prevent fund leakage. The DPDP Act could make such proactive disclosures illegal without consent from every beneficiary, hindering grassroots transparency. 

What is the Government’s Argument about "Blanket Exemption" of Personal Information under DPDP Act?

Harmonization with Puttaswamy Judgment: Government claims the change is necessary to align the RTI Act with the fundamental right to privacy and prevent misuse of personal data of officials.

Continued Existence of Section 8(2): Officials argue that Section 8(2) of the RTI Act still allows for disclosure if the public interest outweighs the harm.

• However, legal experts argue the specific nature of the amended Section 8(1)(j)—which lacks a public interest test—overrides the general Section 8(2), indicating a legislative intent to restrict information.

Way Forward

Narrowly Define "Personal Information": The definition must be clarified to exclude information related to public duties, government expenditure, and official functions.

Restore the Public Interest Test: The Supreme Court could "read down" the amendment to reinstate the PIO's discretionary power to disclose information when a larger public interest is at stake.

Uphold the S.P. Gupta Principle: The judiciary should be guided by the S.P. Gupta vs Union of India (1981) case, which held that citizens, as the masters in a democracy, have a right to know how their government operates.

Learn from Global Best Practices: Balancing Privacy and Access

• European Union: General Data Protection Regulation (GDPR) is a strong privacy law, but Article 86 permits public authorities to disclose personal data for public access to official documents; it's not a blanket ban.
• United Kingdom: Freedom of Information Act 2000 (FOIA) requires a "Public Interest Test." Information is withheld only if the interest in exemption outweighs the public interest in disclosure.

Conclusion  

The central conflict in the dispute is the tension between state accountability and citizen privacy in a modern democracy. A data protection law should primarily focus on protecting citizens from state surveillance, not on shielding the state from citizen oversight.

Source: THEHINDU