New Delhi: While the Digital Personal Data Protection (DPDP) Act, 2023, is yet to be notified, the Delhi high court on Monday (August 25) factored it in while setting aside a 2016 order of the Central Information Commission (CIC) that directed the Delhi University to disclose information regarding the Prime Minister Narendra Modi’s bachelor degree, observing it as “personal information”. 

This has once again reignited concerns raised by rights activists who have criticised the new Act for weakening the Right to Information (RTI) Act.

Section 44(3) of the DPDP Act, 2023, amends Section 8(1)(j) of RTI Act to exempt all personal information from disclosure. The DPDP Act was passed by parliament in August 2023 but is yet to be notified. The Act does away with the exceptions carved out within Section 8(1)(j) of the RTI Act based on which even personal information could have been disclosed. 

Prior to the amendment, in order to deny personal information, at least one of the following grounds had to be proven: information sought has no relationship to any public activity, or information sought has no relationship to any public interest, or information sought would cause an unwarranted invasion of privacy and PIO/appellate authority is satisfied that there is no larger public interest that justifies disclosure.

In its order on Monday, the Delhi high court observed that while the DPDP Act is yet to be notified, “is a significant expression of legislative intent.”

The order said that the court finds merit that the DPDP Act “which amended Section 8(1)(j) of the RTI Act (though not yet notified), is a significant expression of legislative intent.”

“The amended provision simply states that “information which relates to personal information” shall be exempt from disclosure, thereby eliminating the earlier qualification of “unwarranted invasion of privacy” and removing the discretion of the Public Information Officer to disclose such information on the basis of perceived larger public interest.

“This legislative development underscores the evolving jurisprudence that places heightened value on informational privacy and affirms the sacrosanct nature of personal data,” the order said.

The court also said that Section 8(3) does not automatically override the exemption under Section 8(1)(j) when the information sought is inherently personal and protected under the right to privacy. “The statutory provision must be interpreted in harmony with constitutional guarantees, and no disclosure can be directed unless a demonstrable and compelling public interest clearly outweighs the privacy right in question,” it said.

In a 175-page combined judgment, Justice Sachin Datta also set aside the CIC’s order directing the CBSE to share Class X and XII records of BJP leader Smriti Irani to a RTI applicant, stating that there was “no implicit public interest in respect of the information sought.”

“It is unambiguously clear that the ‘marks obtained’, grades and answer sheets etc. are in the nature of personal information and are protected under Section 8(1)(j) of the RTI Act, subject to an assessment of overriding public interest,” Justice Datta said.

The court’s reference to the DPDP Act, 2023, has once again raised concerns about how the Act undermines the RTI Act and transparency in public life. 

According to Apar Gupta, advocate and founding director of the Internet Freedom Foundation, the court’s reference to the Act “is in the nature of an observation and does not carry any legal effect.”

“This is due to the judgement itself noting that the provision and the law has not yet been notified for enforcement,” he said.

“Given this, such a reference could have been avoided and was not necessary for the analysis or the reasoning provided within the judgement. Its appearance has confirmed the fears of several transparency and RTI activists that the DPDPA Act, 2023 will undermine transparency in the public sector,” he noted.

Anjali Bhardwaj, transparency activist associated with Satark Nagrik Sangathan and the National Campaign for Peoples’ Right to Information, said that the invocation of the DPDP Act, which has not yet been notified, confirms suspicions about the law undermining the right to information.

“The law has not been notified, rules have not been framed so it is not in effect. The order says that this shows ‘legislative intent’. But there are many laws that have not been notified like The Whistleblowers Protection Act, 2014, and therefore it is not in effect even today. So can a whistleblower ask for protection because there was legislative intent? This kind of invocation of a law that has not been notified is inexplicable,” she said.

In April, MPs of the opposition INDIA bloc in a letter to Union minister for information technology Ashwini Vaishnaw demanded a repeal of Section 44(3) of the DPDP Act, and said that the provision has a “draconian impact” on the rights of citizens and the freedom of the press by destroying the Right to Information (RTI) Act.

On the same day, Union minister of electronics and information technology Ashwini Vaishnaw addressed the concerns regarding the amendments made to the RTI Act through the DPDP Act. Vaishnaw cited Section 3 of the DPDP Act and said personal details that are subject to public disclosure under various laws will continue to be disclosed and added that the amendment does not restrict disclosure of personal information but aims to strengthen privacy rights. While Vaishnaw also referred to the Supreme Court’s Puttaswamy judgement that had held privacy as a fundamental right, he skipped the key issue of the amendment to the RTI Act that now provides a blanket exemption to the disclosure of personal information.

Bhardwaj said that this kind of invocation also sets a dangerous precedent.

“This sets such a dangerous precedent that in the name of privacy, to deny information on who are the people who graduated in a particular year from the university, in a country like India, where there is great public interest in having this information in the public domain, where fake doctors mushroom and people may want to verify whether they have their degrees. 

“Through the RTI Act people could have verified but that right is being taken away which is a huge blow to the right to information and the implication of the DPDP Act,” she said.

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