India’s Right to Information Act, 2005, has been hailed as one of the best transparency laws in the world. It recognises that citizens are the rulers of the nation. As a consequence, the Act acknowledges their right to access all information from their government.
The law effectively states that the default mode is that they can access all information. It exempts only ten types of information from disclosure.
Unfortunately, the proposed Data Protection Bill on page 30 (point 30) proposes a damaging amendment to the RTI Act. It says that all information that can be related to a person may be denied. In effect, it allows the Right to Information Act to become a Right to Deny for public information officers.
As it turns out, most information sought by applicants relates to a person. This proposed amendment is the latest attempt to undermine the RTI Act, which has made those wielding power uncomfortable because it effectively transfers power to the citizens.
Weakening the Act
The first attempt to weaken the law by the government in less than a year in 2006 by trying to amend it by broadening the scope of the exemptions. Since there was a strong protest by citizens across the country, the attempt was aborted. Some more attempts were made to amend the law but were also given up.
The present government amended the provisions relating to the status and tenure of the Information Commissions but did not touch the exemptions.
The exemptions in the Right to Information Act have been well crafted and are the only information which can be denied to the citizens. If these are expanded, the Right to Information will be constricted.
Despite a very well-defined process and provisions of the law, bureaucrats have found various ways to frustrate the citizen’s right.
This is done by not following the provisions of the law strictly. This is aided by the adjudicators turning a blind eye, since most of them are not able to internalise this transfer of power to citizens.
Though there are ten exemptions in Section 8 (1), the most commonly misused exemption is Section 8(1)(j). It accounts for 35% of refusals.
Section 8 (1)( j ) exempts
“...information which relates to personal information 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 unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information, which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person.”
As per the law, personal information may be exempt if:
a) It is not related to a public activity or interest
b) 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 claims that a disclosure was exempt under Section 8 (1)(j) should make a statement that she would not give this information to parliament.
Many refusals of information did not adhere to the law but refuse information with a bland statement that since it is personal information, it will not be given. It has been widely used to cover up arbitrary, corrupt or illegal acts by government officials.
The proposed Data Protection Bill says:
“(2) Clause (j) of sub-section (1) of section 8 of the Right to Information Act, 2005 shall be amended in the following manner: (a) The words ‘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 unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information’ shall be omitted;
b. The proviso shall be omitted.
Thus the amended section would read and exempt:
( j ) information which relates to personal information.”
We should object to this serious and damaging amendment. Citizens and media must persuade the government not to amend the RTI Act.
Shailesh Gandhi is a former Central Information Commissioner.