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BACKGROUND

In the year of 2005, the United Progressive Alliance (UPA) Government headed by honorable Prime Minister Dr. Manmohan Singh recognized the Right to Information Act in the 14thLokSabha. It has been the most popular, reformative and ambitious law in Indian political and administrative history. Under this act, the citizens of India are certified as the “rulers of the nation” and thereby acknowledges them the right to access all information from their government. This Act discloses the governmental and administrative functions, programs and process related information to every common man. The right to information of citizens about government activities was first recognized by Justice K.K Mathew in State of Uttar Pradesh v Raj Narain and others . In this judgement, the Supreme Court affiliated that “Information Right” is a part of Constitutional and fundamental rights under the Article 19 (1) (a) of Part III of the Indian Constitution .

INTRODUCTION

On 18th December 2022, the Union Government circulated the draft of Digital Personal Data Protection (DPDP) Bill for public consultation, asking stakeholders to submit their views on the draft by December 17th. This Bill is a product of the modern digitalized economy. It frames out the rights and duties of the citizen (Digital Nagrik) on one hand and the obligations to use collected data lawfully of the Data Fiduciary on the other hand. It is the fourth iteration of a data protection law in India. The first draft of this bill was proposed in the year of 2018  by Justice Srikrishna Committee set up by the Ministry of Electronics and Information Technology (MeitY) with a mandate of setting out a data protection law in India.

Ashwini Vaishnaw, the Union minister for electronics and information technology presented the Digital Personal Data Protection Bill under the governance of Prime Minister Shri Narendra Modi with the vision of enforcing the principles of data privacy and uplifting global experience in a wider as well as stricter sense. PM Modi ji wants to create a globally benchmarked comprehensive digital legal framework. Hence, the government has attempted to keep it technology agnostic, simple to read and the implementation is completely digital by design. 

THE PROPOSED AMENDMENT

Indeed this Bill is an astounding initiative towards the development of a digital economical structure. But unfortunately, it proposes a damaging amendment to the RTI Act under Section 30 (2). It reads:

“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. ” 

This proposition of amendment is extremely derogatory towards the principles upheld by the makers of the RTI Act. It transforms the Right to Information Act to become a Right to Deny for public information officers. 

RIGHT TO PRIVACY 

The conceptualization of the “Right to privacy” is an outcome of digital innovation. The Supreme Court unanimously recognized “privacy” as a fundamental right on August 24th, 2017 in the case of Justice K.S Puttaswamy v. Union of India. The matter was referred to a nine bench judge comprising of Chief Justice Khehar and Justices JastiChelameshwar, S.A. Bobde, DY Chandrachud, Abdul Nazeer, Nariman, R.K. Agarwal, Abhay Manohar Sapre and Sanjay KishanKaul. The verdicts of M.P. Sharma  and Kharak Singh  was overruled. Therefore, Right to Privacy was inserted particularly under Article 21 and wholly under Part III of the Indian Constitution. 

The Right to Privacy is a very essential fundamental right. It determines the dignity of an individual. The expression of the term “human dignity” has been clearly defined under Article 88 of the General Data Protection Regulation (GDPR). The Council of the European Union stated that rules-

“shall include suitable and specific measures to safeguard the data subject’s human dignity [my italics], legitimate interests and fundamental rights, with particular regard to the transparency of processing, the transfer of personal data within a group of undertakings, or a group of enterprises engaged in a joint economic activity and monitoring systems at the work place” 

CRITICAL ANALYSIS

The Government has put forward its best efforts to enforce the constitutional validity of the “right to privacy” of an individual on the matter of digital data. It empowered “privacy of personal data” which is a very crucial fact nowadays. But then if we amend Section 8 (1) (j) of the Right to Information Act then we should also amend Article 91 of the Criminal Procedure Code, 1973 . 

Section 124 of the Indian Evidence Act, 1872 says-

“Official communications.—No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.” 

Hence, the right to privacy of the citizens is indirectly protected under this article by restricting the public officer to leak any such communication made to him which might harm public interests.

Section 13 of The Digital Personal Data Protection Bill, 2022 has stated that the term “personal data” means any data about an individual who is identifiable by or in relation to such data. 

Therefore, if we completely remove the power of the government to access the personal data of any individual under Article 8 (1) (j) then it will disrupt the entire structure of the Right to Information Act. Many RTI activists have also stated that this amendment would weaken the power of the Act. PralhardKachare, former head of the RTI training cell at the YashwantraoChavan Academy of Development Administration claimed that in the garb of privacy, this amendment will protect corruption.

CONCLUSION

According to my analysis, Article 8 (1) (j) of the Right to Information Act, 2005 is a very important clause for the government to identify corrupted people and it should not be omitted. In the place of that the government can ensure the involvement of competent authority  in determining the validity of the personal information gathered and till what extent it can be exposed to serve the purpose of the trial. The government can write a petition to the competent authority seeking the requirement of the personal data. Thereafter the competent authority can collect that from the victim and share the relevant data in such a way that it does not affect the “right to privacy” of that person and equivalently satisfy the requirement of the government also.
 


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