The draft Digital Personal Data Protection Bill contains provisions that are likely to upturn the right to information of Indian citizens. A useful tool that empowers citizens to hold the government to account, the Right to Information Act will be rendered almost worthless.
There are two especially perturbing provisions in the draft bill.
Section 29 (2) says that in case of a conflict between the proposed Digital Personal Data Protection law and any other law, the data protection law will prevail.
Section 30(2) of the draft Digital Personal Data Protection Bill seeks to amend provisions of the Right to Information Act pertaining to the exemption from the disclosure of information.
Under the Right to Information Act, Section 8 (1)(j) exempts the disclosure of personal information that is not part of a public activity or is an invasion of the privacy of an individual.
It has a proviso, an acid test to help anyone claiming 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, according to the law, personal information may be exempt if it is not related to a public activity or interest, or will cause an unwarranted invasion of the privacy of an individual.
Whoever claimed that a disclosure is exempt under Section 8 (1)(j), will have declare that they would not give this information to Parliament.
This is in line with Article 19 (2) of the Constitution, on reasonable restrictions on the right to freedom and an adequate safeguard for privacy.
But the proposed Digital Data Protection Bill plans to amend Section 8 (1)(j) of the Right to Information Act to omit the entire part pertaining to the exemption on the disclosure of personal information as well as the proviso.
Thus, public information officers will be able to use this to deny any information that relates to a person.
The Right to Information Act has a safeguard for privacy that has done its job well for 17 years. No violation of privacy has been reported.
Here are a few examples of how the proposed amendment to the Right to Information Act will prove damaging:
1. In 2003, the author of this article asked the Mumbai Police for a list of politicians who had recommended police transfers since this is against the law. When the list was obtained (after some appeals) all the police officials were reprimanded and warned by the police commissioner.
If the law is amended, information could be denied on the grounds that it is related to personal information of the police officers.
2. In December 2005, the author of this article asked for details of the terms on which the iconic Crawford Market in Mumbai was to be redeveloped. The details revealed that the developer would gain Rs 1,000 crore on an investment of Rs 100 crore and the Brihanmumbai Municipal Corporation would get only about Rs 40 crore. The public outcry led to the deal being stopped.
3. In most states, land is given to private hospitals at huge concessions on the condition that they will give free treatment to about 20% of patients who are poor. In 2010, activist Dinesh Kaushik sought details of such patients admitted to Deen Dayal Hospital in Delhi. The information revealed that the obligation was not being met.
If the law is amended, information could be denied on the grounds that it is related to personal information of the developer or the hospital.
4. In May 2006, the Supreme Court sentenced Maharashtra Forest Minister Surupsinh Hirya Naik to 30 days imprisonment for giving permission to saw mills to operate in forests. He complained of chest pain and was promptly given a comfortable air-conditioned room at JJ Hospital in Mumbai to serve out his prison sentence.
Suspecting that he was avoiding imprisonment by faking illness, the author sought his medical records. The matter was settled in March 2007 at the Bombay High Court which stated, “Where the information sought cannot be denied to either Parliament or State Legislature, as the case may be, then the information cannot be denied.”
If the law is amended, information could be denied on the grounds that it is related to personal information of the politician.
5. Activist Anand Bhandare in Mumbai evaluates the performance of corporators by filing Right to Information queries seeking details of the funds spent by them, their attendance and performance.
If the law is amended, information could be denied on the grounds that it is related to personal information of the corporators.
6. In 2012, retired Colonel Suresh Patil noticed that a huge plot of land in Pune was allocated for President Pratibha Patil, due to retire in 2012, and a huge mansion was being built. Suresh Patil sought details of the post-retirement house she was entitled to under the Right to Information. The response made it clear that the President’s proposed retirement home was far in excess of her entitlement. Following controversy, the project was abandoned.
If the law is amended, information can be denied on the grounds that it is related to personal information of the president.
7. In 2012, TK Sreejeeth Vijay, a Class 8 student of Kamaraj English Medium School in Port Blair in the Andaman and Nicobar Islands, was disturbed by the poor condition of the road near his house. He filed an application under the Right to Information Act asking the municipal authorities for a copy of the last inspection report and the name and designation of the inspecting officer. The road was repaired soon after.
If the law is amended, information could be denied on the grounds that it is related to personal information of the inspector.
8. In 2013, Bhadresh Wamja, a second-year BCom student from Saldi village, about 225 km from Gandhinagar, realised that for many months the ration shop in his village had not been supplying the quantities they were entitled to. The shop owner claimed that he was not getting the supplies. Bhadresh filed a right to information application seeking details of the food grains received by the shopkeeper and found that the stipulated quantity had been received by the shopkeeper.
9. Around 2008, activists Buddhi Soni and Mahendra Dube filed a right to information application with the Ratanpur Municipal Council in Chhattisgarh’s Bilaspur district seeking photocopies of the list of below poverty line beneficiaries. The information showed that many wealthy people had their names on the list. It was also found that many people in the list had not received their entitlements, though the records showed that they had received their share.
If the law is amended, information can be denied on the grounds that it is related to personal information of the shopkeepers.
10. In February 2015, when S Rajendran took charge as the District Treasury Officer at Thanjavur in Tamil Nadu, pensioners and the legal heirs of some deceased employees approached him. They said that they had not received dues from the Directorate of Pension, Chennai, even after applying. Rajendran filed a right to information application seeking details of cheques returned by the postal service from the Directorate of Pensions. The reply showed that there was a long list of such cheques that had been returned. He helped facilitate the disbursal of Rs 1.5 crore to 327 people.
If the law is amended, information could be denied on the grounds that it is related to personal information of the pensioners.
As this extensive list of examples shows, Section 29 (2) will enable the Digital Personal Data Protection Bill to override the Right to Information Act.
Section 29 (2) must be altered and Section 30(2) should be dropped from the Digital Personal Data Protection Bill. These proposed provisions violate Article 19(1)(a) of the Constitution on the right to free speech and expression beyond the permissible restrictions in Article 19(2).
Already, more than 3,000 citizens have signed a petition asking the prime minister to prevent the Right to Information Act from being undermined.
Shailesh Gandhi is a former Central Information Commissioner.