Amending the RTI Act through the DPDP Act: An Unnecessary and Alarming Change

Introduction

The Right to Information (RTI) Act, 2005, is widely hailed as a landmark legislation that institutionalized transparency and accountability in Indian governance. Over the past two decades, it has enabled ordinary citizens to question authorities, expose corruption, and participate in the democratic process meaningfully. However, recent developments, particularly the amendment to Section 8(1)(j) of the RTI Act through Section 44(3) of the Digital Personal Data Protection (DPDP) Act, 2023, have raised serious concerns. This amendment is viewed by many as an attempt to dilute the core principles of transparency by expanding the scope of “personal information” and omitting critical safeguards related to public interest.

Understanding Section 8(1)(j) of the RTI Act

Section 8(1)(j) of the RTI Act provides exemptions from disclosure of personal information if:

• The information has no relationship to any public activity or interest, or
• Disclosure would cause unwarranted invasion of privacy.

However, a critical safeguard is embedded in the provision: if the Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information, it shall be provided.

This balance ensures that while individuals’ privacy is respected, public interest remains paramount—especially when it pertains to public servants and their conduct in public offices.

The Amendment via Section 44(3) of the DPDP Act

The Digital Personal Data Protection (DPDP) Act, 2023, was enacted in response to the Supreme Court’s landmark judgment in K.S. Puttaswamy v. Union of India (2017), which recognized the right to privacy as a fundamental right under Article 21 of the Constitution. However, through Section 44(3), this Act amends Section 8(1)(j) of the RTI Act and removes the safeguard clause related to public interest.

As per the amendment, public authorities can now withhold “personal information” purely on the basis of its classification as such—without assessing whether its disclosure serves a greater public interest.

Concerns Arising from the Amendment

1. Absence of Public Interest Test

The removal of the public interest override undermines a key principle of the RTI Act. Previously, even sensitive or personal information related to public servants—such as educational qualifications or caste certificates—could be disclosed if deemed necessary in the larger public interest. The amendment effectively shuts this door.

2. Ambiguity in Defining ‘Personal Information’

The term “personal information” is vaguely defined under the DPDP Act. Without a clear demarcation, this leaves ample room for subjective interpretation by government bodies. As a result, information that was earlier available under RTI could now be denied simply by labeling it as “personal.”

3. Threat to Transparency and Accountability

The amendment potentially shields public officials from legitimate scrutiny. For instance, misuse of caste certificates, fake degrees, or disproportionate asset accumulation—all of which are matters of public concern—may now be deemed off-limits. This could severely erode citizens’ ability to hold officials accountable.

4. Overriding an Established Law via a New Law

The RTI Act is a well-established and stand-alone legislation. Amending it through a new law that was meant to address data protection and privacy appears arbitrary and legally questionable. It undermines the legislative sanctity and the spirit in which RTI was enacted.

Government’s Justification and Counterpoints

The Union Minister of Information and Broadcasting, Ashwini Vaishnaw, has defended the amendment on the grounds of harmonizing the right to privacy with the right to information. He stated that Section 44(3) of the DPDP Act was intended to prevent the “misuse” of RTI.

However, this justification appears flawed for several reasons:

• RTI already balances privacy and public interest: The original Section 8(1)(j) did precisely what the government claims the DPDP is now attempting—strike a balance between privacy and transparency. The deletion of the public interest clause tips the scale unfairly toward secrecy.
• Transparency is not ‘misuse’: Using RTI to expose corruption, fraud, or administrative malpractices—some of which may involve personal data—cannot be considered misuse. In fact, it is at the core of democratic accountability.
• Right to privacy does not override public interest: In Puttaswamy itself, the Court acknowledged that the right to privacy is not absolute and must be subject to reasonable restrictions in public interest.

Examples Highlighting the Need for Public Interest Safeguards

• Fake Caste Certificate Case: A bureaucrat using a fraudulent caste certificate to obtain a reserved post was exposed via an RTI query. Such information, though technically “personal,” was essential to serve public justice.
• Educational Qualifications of Public Officials: Queries related to degrees and credentials of elected representatives and bureaucrats have, in several instances, uncovered forgery or misrepresentation. With the new amendment, these queries may now be denied.

Implications for Civil Society and Activism

Civil society organizations and transparency activists have been vocal about the dangers of the DPDP-induced RTI amendment. For a country grappling with bureaucratic opacity and corruption, weakening the RTI Act amounts to clipping the wings of citizen empowerment.

The amendment creates a chilling effect. RTI activists already face social and physical threats—removing legal provisions that protect their right to seek information worsens the risk they take in pursuing truth and justice.

Legal and Constitutional Concerns

The RTI Act was passed by Parliament after extensive deliberations. Amending it via another law—without public debate or stakeholder consultation—violates the principles of legislative due process. Moreover, Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression, which includes the right to know.

The current amendment, lacking a proportionality test or safeguards, may be susceptible to constitutional challenge, particularly when it hinders fundamental rights and bypasses legislative scrutiny.

Conclusion and the Way Forward

The amendment to the RTI Act via the DPDP Act is unnecessary, unwarranted, and threatens the foundational ethos of transparency in Indian democracy. Instead of harmonizing rights, it prioritizes one at the cost of the other.

What should be done?

• Restore the Public Interest Clause: Reinstate the safeguard that allows disclosure of personal information when public interest is at stake.
• Revisit the Definition of Personal Information: Ensure that it is clearly and narrowly defined to prevent misuse by authorities.
• Delink RTI from the DPDP Act: Amendments to the RTI Act should come through separate, deliberate legislative processes—not via unrelated statutes.
• Engage Civil Society: Transparency activists, legal experts, and citizens must be part of any reform process affecting fundamental rights.

The strength of a democracy lies in the empowerment of its citizens. The RTI Act is a symbol of that empowerment. Diluting it without justification is a step backward, not forward.