New Delhi: Shortly after opposition MPs of the INDIA bloc on Thursday (April 10) held a press conference seeking a repeal of Section 44(3) of the Digital Personal Data Protection (DPDP) Act, Union minister of electronics and information technology Ashwini Vaishnaw made public a letter meant to address the concerns regarding the amendments made to the Right To Information (RTI) Act through the DPDP Act – believed by anti-corruption and civil liberties’ activists as a fatal blow to government and corporate transparency.

In his letter, 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.

Section 3 of the DPDP Act states that the provisions of the Act will not apply to personal data that is made or caused to be made publicly available by the data principal to whom such personal data relates or any other person who is under obligation under any law for the time being in force in India to make such personal data publicly available.

“Therefore any personal information that is subject to disclosure under legal obligations under various laws governing our public representatives and welfare programmes etc will continue to be disclosed under the RTI Act. In fact, this amendment will not restrict disclosure of personal information, rather it aims to strengthen the privacy rights of the individuals and prevent the potential misuse of the law,” said Vaishnaw in his letter.

However, the minister skipped the key issue of the amendment to the RTI Act that now provides a blanket exemption to the disclosure of personal information.

Venkatesh Nayak, RTI advocacy activist and director of the Commonwealth Human Rights Initiative, New Delhi termed the minister’s explanation as “unconvincing”. 

 “The minister’s explanation is unconvincing to say the least. It is not correct to read Section 3 as a standalone clause like he has done, because statutory provisions do not stand in isolation of each other. Section 3 must be read in conjunction with the amendment made through Section 44(3) of the DPDP Act which turns Section 8(1)(j) of the RTI Act into a category exemption,” Nayak said.

“The impact of the amendment is that as a class/category, all personal information will become exempt from disclosure by default. Without this amendment Section 3 of the DPDP Act would have made sense like the minister has explained. But when Section 8(1)(j) is amended in the manner accomplished by Section 44(3) Section 3 does little to rescue RTI from curtailment,” he added. 

What Vaishnaw said

Vaishnaw’s letter came in response to one by Congress MP and former Union environment minister Jairam Ramesh who had earlier written to him on March 23 seeking “to pause, review and repeal” Section 44 (3) of the DPDP Act 2023 that 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.

Vaishnaw also referred to the Supreme Court’s Puttaswamy judgement that had held privacy as a fundamental right and said that throughout the “extensive consultation process, both with the civil society and in multiple parliamentary fora, the need for harmonious provisions between the right to information and the right to privacy was emphasised.”

“The DPDP Act as enacted by the parliament, harmonises this requirement while maintaining the need for transparency in public life,” he said. 

‘Does not address key issue’

While the minister claimed that the DPDP Act harmonises transparency and privacy, he didn’t mention the vital issue at the centre, that of the calls for the repeal of Section 44(3) that amended the RTI Act in the first instance.

“It is surprising to note that the minister’s response does not address the key issue that is of the amendments made to RTI Act through section 44(3) of the DPDP Act,” said Amrita Johri of the National Campaign for Peoples’ Right to Information (NCPRI).

The DPDP Act has banished 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.

Also read: ‘Draconian Impact’ on Citizens’ Rights: Opposition MPs Demand Repeal of Section 44(3) of DPDP Act

“The new act did away with all of the nuances but simply gave a blanket exemption to the disclosure of personal information the minister has not addressed why the RTI has been amended or whether the govt will reconsider these amendments,” said Johri.

‘Circular logic, not grounded in law’

Vaishnaw’s use of Section 3 to address concerns around the amendment to the RTI Act in Section 44(3), is a “circular form of logic”, according to Apar Gupta, advocate and founding director of the Internet Freedom Foundation.

“If you look at Section 8(1)(j) of the RTI Act, the RTI Act will determine what is made public in the first instance. And based on what is made public under the RTI Act then the DPDP Act will not apply to it. So the RTI Act comes before the Data Protection law,” he said.

Gupta noted that the minister’s argument is not “grounded in law because the structure of the provision is as much.”

“That it is providing a discretionary power to the union government to determine its application,” he said.

“If there was a need to harmonise the data protection law and the RTI Act then the prior provision of Section 8(i)(j) should not have been tinkered with because that is a true reflection of the Puttaswamy judgement which says the right to privacy exists but it requires to be balanced alongside disclosures which are required for public interest which was the earlier phrasing of the section 8(i)(j) itself which has been removed completely,” Gupta added.

Moreover, according to Gupta, while the DPDP Act applies to personal data, the RTI Act applies to personal information.

“Personal information includes both digitised and non-digitised forms of information and it is a broader category which is why it is also understood by paper records or any kind of registers (that may exist). It need not have been amended given that DPDP law only applies to digital data. So there are several flaws in this law,” he said.

‘Misleading information’

That the DPDP Act – which has access to personal data – has been used to dilute the RTI Act that binds the government to disclose personal information in public interest, raises concerns about why the government sought to make this amendment at all.

“The minister offers no reasonable explanation as to why the deletion of the proviso under Section 8(1), which demonstrated parity between the right of access between citizens and their elected representatives in parliament and state legislatures, was necessary,” said Nayak.

Also read: What the Draft Data Protection Rules Lack

In recent months, RTI disclosures have revealed 80% of IIT, IIM faculty are from general category despite reservation mandates; that the Union government spent Rs 14 crore of taxpayers money on running the now scrapped electoral bond scheme, the Ministry of Home Affairs (MHA) had failed to disburse full compensation to Manipur’s violence victims till November 2024, among others. Prior to this in 2020, The Wire had reported using RTI information that contrary to the Union government’s claims in parliament the data on deaths of migrant workers during lockdown had indeed been collected. 

“Information relating to someone who has acquired a fake reservation certificate or fraudulently acquired fake degrees and got jobs or names of contractors used by the government for public contracts or cases relating to individual action in the government will no longer be available,” said former central information commissioner M.M. Ansari.

“You will not have information about how a person has acted or what observations they have made because the RTI Act requires that any decision that you take there has to be a record and it has to be an informed decision. Now whether or not a public servant has diligently recorded facts or taken decisions you will not have access to that information. Therefore it would protect the public servants and they will be doing whatever they consider for their personal benefit or promote the interests of their bosses as Section 44(3) clearly bars personal information,” he added.