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RTI amendment is a serious threat to fundamental rights and democracy: ex-Central Information Commissioner Shailesh Gandhi

Hailing the RTI Act as “one of the best transparency laws in the world”, Gandhi argues that the recent amendment to the legislation, introduced in the Digital Personal Data Protection Act, 2023, will turn it into “an ineffective tool”.

By Shailesh Gandhi

The Right To Information Act codified the citizen’s fundamental right under Article 19 (1)(a) and was transforming India’s elective democracy into a participatory democracy. The RTI Act is one of the best transparency laws in the world. It is empowering the citizens and is a practical recognition of their role as rulers and owners of India. It is the outcome of people’s struggles led by Mazdoor Kisan Shakti Sangathan’s struggles starting in rural Rajasthan which culminated in the drafting of the law in 2004. There were intense discussions about its provisions, and it took an all-party parliamentary committee to carefully craft its provisions. Its preamble elegantly states that democracy requires informed citizens and transparency in the affairs of their government so that they can hold it accountable and curb corruption. It harmonized the need for an efficient government while preserving the ideals of democracy.

The RTI Act is one of the most empowering legislations for the citizens of India. It has been of great help to every segment of society from the most disempowered to the powerful to obtain relevant information and protect their rights. It recognizes that all information held by government belongs to them and hence they must have access to it. It has built adequate safeguards under Section 8 (1) to protect harm to specific interests. The ten exemptions of Section 8(1) have served the nation well.  In nearly 18 years of working there has been no significant instance of harm to any specific interest which should have been protected.

Despite public officials using various devices to deny citizens their legitimate right, many have used this democratic instrument to expose wrongdoing and corruption. Citizens using RTI can be our best vigilance monitors who can also get accountability from their public servants. Governments and those wielding the levers of power have been perturbed at this transfer of power to the ordinary citizens.

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The most widely misused exemption is Section 8 (1)(j) which exempts personal information which is not part of a public activity, or which is an invasion on the privacy of an individual. It has a proviso which is an acid test to help anyone claiming this exemption which states: ‘Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.’  Thus Section 8(1)(j) of the RTI Act states that personal information may be exempt if:

  1. It is not related to a public activity or interest OR
  2. Would cause unwarranted invasion of the privacy of an individual

To help an officer, Information Commissioner or judge to arrive at the right decision, the special proviso was provided as an acid test. Whoever claimed that a disclosure was exempt under Section 8 (1)(j) should make a statement that he would not give this information to parliament.

Many refusals of information did not adhere to the law but refused information with a bland statement that since it was personal information they would not give it. This was illegal but has been widely used to cover arbitrary, corrupt or illegal acts of government officials. Some examples were:

  • DOPT refused “Total number of Annual Performance Appraisal reports (APAR) of IAS officers pending presently for over one year, two years, three years and four years”: claiming exemption under Section 8 (1)(j) !
  • Request for details of MLA funds was denied saying it was personal information.
  • Details of beneficiaries of PM fund.
  • Bogus caste certificate, education certificates, ghost employees
    Gross arbitrariness and corruption in selections for jobs and non-conformance to rules and laws.
  • Disproportionate assets compared to declared income.
  • Verification of affidavits of elected representatives.
  • Unfair assessment of students and job seekers in government.
  • Disregard of proved corruption charges against officials.
  • File Notings and minutes of meetings

However many honest officers and commissioners often gave information if it was not covered by the exemption. Section 44(3) of the Data Protection Bill amends the RTI Act Section 8 (1)(j) to read as exempting

( j ) information which relates to personal information

With this amendment all information which can be related to a person could be legally denied.  Most information could be shown as being related to a person and hence the law would become a Right to Deny Information for PIOs who do not wish to give information. Incidentally, this proposal is tacit admission that any current denial of information on the grounds of it being ‘personal information’ only, was illegal. Whenever a PIO wants to deny information, he will be able to link it to some person. Thus RTI would become a RDI: Right to Deny Information, rendering it as an ineffective tool. As per Section 38(2) it will override all existing laws. Thus it would override the RTI Act as well. This will make it extremely difficult for an official to disclose information, since he would have to decide whether providing the information demanded is likely to run foul of the Data Protection Act. Given the fact that the Data Protection Act has a provision for a maximum penalty of 250 crores, the normal action will be denial of information. This appears to be a Right to DENY Information masquerading as a Digital Personal Data Protection bill.

This is a serious threat to our fundamental right and our democracy. Citizens and media should discuss the impact of Sections 38 (2) and 44(3) of the Data Protection Act. A major instrument of citizen empowerment and curbing corruption is being retracted. We must oppose this by active debates and discussions.

Shailesh Gandhi is former Central Information Commissioner. 

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