'Restricts Access To Info, Favours Potentially Corrupt Officials': Justice AP Shah Writes To AG Urging Roll Back Of Amendments To RTI Act

Former Delhi High Court judge Justice Ajit Prakash Shah has written an open letter to the Attorney General of India R. Venkataramani, expressing "concern" over the legislative changes made to RTI Act through the Digital Personal Data Protection Act 2023, remarking that these changes threaten to dismantle the Act's purpose of democratic accountability and citizen empowerment. 

"It has come to my attention – through reports in The Economic Times and other sources – that the Ministry of Electronics and Information Technology ('MeitY') has formally sought your legal opinion on whether the DPDP Act undermines the RTI Act. As a concerned citizen, I have applied my mind to this important subject. My endeavour in submitting this opinion is to assist your office and contribute meaningfully to the public discourse on this matter of urgent constitutional importance," the letter states. 

The former Chairman of the Law Commission has said that original RTI Act, particularly Section 8(1)(j), meticulously balanced the public's right to know with the individual's right to privacy – a balance consistently affirmed by the Indian judiciary; the recent amendments, however, "destroy this delicate equilibrium".

The letter lists the manner in which the DPDP Act 2023 attempts to harm the RTI Act which is as follows:

• Section 44(3) DPDP Act replaces exemption in Section 8(1)(j) with an over-broad provision for withholding information, and removing the "public interest” override. It empowers public authorities to deny information by classifying information as "personal," regardless of its public importance.
• The removal of proviso to Section 8(1) of the RTI Act mandating that information not deniable to Parliament or a State Legislature shall not be denied to any person - is alarming for democracy. 
• The expansive definition of 'personal data' in DPDP Act, coupled with the absence of a public interest override curtails proactive disclosures under Section 4 of the RTI Act. 

It adds:

"The RTI Act was a potent weapon against corruption, making government officials wary of misconduct. This amendment weakens that deterrent effect. The amendment creates an information asymmetry that favors public authorities and potentially corrupt officials. By restricting access to personal information that is intrinsically linked to public activity, it shifts the balance of power away from citizens and oversight bodies, making it harder to hold the government accountable. This directly undermines the foundational purpose of the RTI Act". 

Empowers authorities to classify any data as personal data exempting it from disclosure

The letter states that the DPDP Act's Section 44(3) drastically amends Section 8(1)(j) of the RTI Act to simply read:"(j) information which relates to personal information."

It states that the textual change might seem minor however it fundamentally alters its original character and purpose as it removes the crucial qualifying phrases:

"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."

While the RTI Act itself does not define "personal information," the DPDP Act defines "personal data" broadly as "any data about an individual who is identifiable by or in relation to such data."

The letter states that this  broad and vague definition, when implicitly applied to RTI, enables public authorities to "classify virtually any data related to an individual as "personal information," thereby exempting it from disclosure". It states:

"This could include public officials' salaries, educational qualifications, disciplinary actions, and property records, which were previously accessible. The vagueness of 'personal information', coupled with the removal of qualifiers in the original 8(1)(j), is a significant legal loophole. It shifs the burden of proof on the public authority to justify non-disclosure based on specific criteria, to the RTI applicant, who now has to prove the information is not 'personal'. Thus, it fundamentally alters the RTI Act's openness principle and creates a ripe environment for PIOs to shield information"

It also states that the public interest override has been completely removed from Section 8(1)(j) which means that even if the disclosure of certain personal information is overwhelmingly in the public interest it can now be denied outright simply because it relates to 'personal information'. 

What does the amendment to S. 8(1)(j) entail

The amendment protects all personal information, regardless of public relevance. Such information can be denied in all cases if it relates to personal information. There can be no disclosure even if public interest is involved and while personal Info is undefined but its is likely to be interpreted broadly. 

'Chilling Impact on Journalists', potential heavy penalties

The letter states that the amendments pose a severe threat to independent journalism and the freedom of the press. It states that Journalists fear that the Act will criminalise routine reporting and require consent for news coverage, which is impractical for investigative journalism, especially in situations like riots, custodial deaths, or corruption scandals.

"The DPDP Act's definitions of "Data Principal" (a person mentioned in a news article) and "Data Fiduciary" (the journalist handling that information) mean that even quoting a name or taking a photo could be considered processing personal data, potentially leading to heavy penalties up to ₹250 crore or ₹500 crore," the letter states.

On how it impacts Social Audit

The former judge has said that the social audits, which is crucial to ensure to transparency and accountability in the implementation of public welfare schemes, depends upon the ability to access information about beneficiaries, expenditures, and service delivery.

The letter states that if this "personal information" is now exempt, then the data needed for audits is inaccessible, making social audits impossible. 

Noting that the amendments will impact grass root accountability the letter adds:

"By creating a blanket ban on disclosure of personal information, the amendments will cripple social audits and the verification of public service delivery. Examples include exposing ration distribution fraud or identifying "ghost beneficiaries" in public distribution systems, which were previously achieved through RTI requests". 

On how amendments violate Constitutional Principles

The letter states that any invasion of privacy, or restriction on fundamental rights, must satisfy the three-pronged proportionality test: legality, legitimate state aim, and proportionality as laid down in Puttaswamy's case. 

"While the DPDP Act provides legality, the blanket ban on personal information disclosure, without a public interest override, fails the proportionality limb," it adds.

-This entails that the blanket exemption from disclosure for all "personal information" is not rationally connected to the legitimate state aim of merely protecting an individual from unwarranted infringement of privacy.

-Secondly, unlike the original Section 8(1)(j) which served as a less restrictive and effective mechanism for privacy protection, the amendment creates a blanket ban, adopts the most restrictive means possible by presupposing that all personal information, irrespective of context or public relevance, carries an equal and overriding privacy sensitivity.

-Finally, the benefit of a blanket privacy protection, achieved at the cost of a complete erosion of the public's right to information on matters of public concern, is disproportionate. 

Deprives citizens of their fundamental right to information

The letter states that the amendment deprives citizens of their fundamental right to information, "which is an intrinsic part of the right to freedom of speech and expression [Article 19(1)(a)] and the right to life and personal liberty (Article 21)".

The creation of a broad exemption for "personal information" without a public interest override, unduly restricts the flow of information necessary for informed public discourse and democratic participation, the letter states.

It states that right to information is a fundamental right, and any restriction on it must be reasonable and thus this kind of blanket ban on "personal information" regardless of public interest is an unreasonable restriction, directly depriving citizens of their fundamental right.

"This suggests that the amendment is not merely a policy choice but a constitutional infringement," the letter claims.

Erodes democratic oversight

The letter states that the original proviso to Section 8(1) of the RTI Act stated: "Provided further, that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."

Thus this proviso essentially said that whatever is accessible to the legislature which represents the people, "must also be accessible to the people directly".

Hence the deletion of this proviso is "not merely a procedural change but a symbolic and substantive attack on the principle of popular sovereignty," the letter states. 

In conflict with Suo Motu disclosure mandate

The letter states that the RTI Act not only mandates disclosure upon request but also imposes a duty on public authorities to actively disclose, disseminate, and publish information of general public interest suo motu. 

The letter states while the  DPDP Act is "ostensibly focused" on protecting digital personal data, it has lost sight of the profound and unintended consequence of "dismantling proactive transparency mechanisms" that have been built over years under the RTI Act. It states:

"The DPDP Act defines personal data broadly as any data about an individual who is identifiable by or in relation to such data...The stringent consent requirements for processing "personal data" create a fundamental conflict with the suo motu disclosure mandate of Section 4 of the RTI Act. Many categories of information proactively disclosed under Section 4, such as beneficiary lists for welfare schemes, employee details, or property records, inherently contain personal data".

The letter thus recommends that the Section 44(3) of the DPDP Act, which amends Section 8(1)(j) of the RTI Act, "should be immediately repealed". Further it must be explicitly clarified within the DPDP Act that the RTI Act applies with full force to prevent any future misinterpretation that might undermine the RTI Act's effectiveness.

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