Overview of the Supreme Court's Referral
On Monday, the Supreme Court of India referred a series of petitions challenging the amendment to Section 8(1)(j) of the Right to Information (RTI) Act by Section 44(3) of the Digital Personal Data Protection (DPDP) Act, 2023, to a Constitution Bench, recognizing its “constitutional sensitivity”. The Chief Justice of India highlighted the need to define “personal information”.
Background of the RTI and DPDP Acts
The RTI Act, 2005 was designed to create an informed citizenry and ensure state accountability, crucial for democracy. The DPDP Act, 2023 has altered this by diluting its foundational sections.
Amendment Details
- Originally, Section 8(1)(j) allowed withholding of personal information if it was unrelated to any public activity or interest, or if disclosure violated privacy.
- It included a “public interest override” that allowed disclosure if it served the larger public interest.
- The DPDP amendment removes this override, prohibiting disclosure related to personal information, effectively imposing a blanket ban.
Implications of the Amendment
- Enables rejection of requests regarding officials, procurement records, audit reports, or public spending.
- Creates a paradox: while the state can process personal data without consent under Section 7 of the DPDP Act, the RTI amendment prevents citizens from seeking government transparency.
- Creates a “chilling effect” on the press, as journalists may be classified as “data fiduciaries” under the DPDP Act, risking fines up to ₹250 crore for non-compliance.
- Exemptions provided to startups are not extended to journalism.
Comparison with the GDPR
The DPDP Act contrasts with the European Union’s General Data Protection Regulation (GDPR), which balances privacy and transparency to ensure accountability.
Constitution Bench Considerations
- The Bench should refer to the judgment in Central Public Information Officer (2019), which held that personal information should remain private unless necessary for public interest.
- The RTI Act has significantly reduced state-citizen information asymmetry, especially benefiting the poor, over two decades.
Ensuring the survival of the RTI is essential for maintaining a responsive government.
