Since its enactment, the Right to Information Act, 2005, has ushered in an era of transparency in governance. While this legislation has cast a bright light on the many dark deeds of the Indian state, it has often been stopped in its tracks by the many exceptions carved out in Section 8 of the legislation.
This provision lists a series of exceptions to the right to information. One of these, Section 8(1)(j), allows public information officers to deny requests for personal information that have no connection to public activity and which can cause unwarranted invasion of privacy unless the applicant can demonstrate that a larger public interest justified the disclosure of such information.
In its existing form, Section 8(1)(j) has been successfully deployed by public information officers to deny service records, assets, complaints and disciplinary proceedings pertaining to bureaucrats. In 2012, a Supreme Court bench of Justice KS Radhakrishnan and Justice Dipak Misra upheld this interpretation in the case Girish Deshpande vs Central Information Commission. In this case, the applicant had asked for information about a bureaucrat. The Supreme Court stated in pertinent part:
The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest.
This conclusion of the court was extraordinary given that the employees in question were public servants being paid by taxpayers and who are, in theory, accountable to citizens. Far from trying to legislatively over-rule this decision to bring bureaucrats under the Right to Information Act, the government through the proposed Digital Personal Data Protection Bill, 2022, aims to tighten Section 8(1)(j) even further.
As per Clause 30 of this bill, the “public interest” exception in Section 8(1)(j) will be deleted and instead there will now be a blanket ban on the sharing of “personal information” contained in public records. Since the government has not released a white paper explaining its rationale behind the amendment, one can only guess, that the proposed amendment is meant to reflect the new status of informational privacy as a fundamental right post the Puttaswamy judgement delivered by the Supreme Court in 2017.
When the Right to Information Act was enacted in 2005, privacy (especially informational privacy) was not a fundamental right. Two constitutional benches of the Supreme Court in the case of Kharak Singh vs State of UP (1964) and Govind vs State of MP (1975) had categorically ruled against reading into the Constitution a fundamental right to privacy.
The Puttaswamy judgement overruled these earlier judgments to declare privacy, including informational privacy, as a fundamental right. This new elevated status of privacy as a fundamental right was not adequately reflected in the existing wording of Section 8 because of its broad based “public interest” exception.
Exceptions to fundamental rights are supposed to be narrow and not broad enough to eviscerate the right itself but then again, this provision was drafted in an era before privacy was a fundamental right. It is thus not surprising that the drafters of the new data protection law have decided to amend Section 8(1)(j) to delete the public interest exception and allow public information officers to simply deny all personal information contained in public records.
The fear now is that with a “public interest” exception out of the law the Indian state will have a legally tenable case to also withdraw all personal information of bureaucrats, politicians and judges contained in election affidavits or asset disclosure forms. This will be so because even public servants like politicians, judges and bureaucrats are entitled to a fundamental right to privacy. They can easily argue that the forced disclosure of their assets and income is in violation of their fundamental right to informational privacy.
This is quite simply not good news for Indian democracy, which is why some of us warned against the strategy of anti-Aadhaar activists of elevating informational privacy to the status of a fundamental right. Judicial restraint in such matters is a virtue especially when two prior constitutional bench judgments ruled against reading into the constitution, a fundamental right to privacy.
Given the almost complete silence from transparency activists on this amendment proposed in the Digital Personal Data Protection Bill, 2022 it is very likely this bill will get enacted into law. As a result an era of civil society activism that pushed for greater transparency stands defeated by a new civil society movement that believes in greater privacy rights.
The writer is a lawyer.