India’s Right to Information (RTI) Act has been hailed as one of the best transparency laws in the world. It recognises that citizens are the rulers of the nation. They are true rulers and owners of the government. In recognition of this, the RTI Act recognises their right to access all information from their government.
The law effectively states that the default mode is that they can access all information and exempts only 10 types of information under Section 8 (1) which is exempt from disclosure.
Those wielding power have been uncomfortable with this situation which effectively transfers power to the citizens. It empowers them to know about most of the decisions taken in their name.
This led to 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 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 law have been well crafted and are the only information which can be denied to the citizens. If these are expanded, RTI gets constricted. Despite a very well-defined process and provisions of the law, bureaucracy finds various ways to frustrate the citizen’s rights.
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. But the law allows honest and conscientious officers and adjudicators to provide most of the information to citizens.
Though there are 10 exemptions in Section 8 (1) the most commonly misused exemption is Section 8(1)(j) and 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 OR
b) Would cause an 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 claimed that a disclosure was exempt under Section 8 (1)(j) should make a statement that he would not give this information to Parliament.
Many refusals of information did not adhere to the law but refused information with a bland statement that since it was personal information, they would not give it. This was not as per the law but was widely used to cover arbitrary, corrupt or illegal acts of government officials. However, honest officers and commissioners often gave information if it was not strictly covered by the exemption.
Last week, aiming to protect against personal data breaches, the Indian government released the draft Digital Personal Data Protection Bill 2022.
Unfortunately, the proposed Bill, on page 30 (point 30(2)), proposes an amendment to the RTI Act thus:
“ (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.
If this amendment is made, all information which can be related to a person may be denied. Most information relates to a person; hence, the law would become a Right to Deny for PIOs who do not wish to give information.
We should object to this serious and damaging amendment to the RTI Act.
Citizens and media must persuade the government not to amend the RTI Act.
(Shailesh Gandhi served as Central Information Commissioner under the RTI Act, 2005, from 18 September 2008 to 6 July 2012. He is a graduate in Civil Engineering from IIT-Bombay. Before becoming a full-time RTI activist in 2003, he sold his packaging business. In 2008, he was conferred the Nani Palkhivala Memorial Award for civil liberties.)