Comments on the Srikrishna Committee Report and the Draft Data Protection Bill 2018 – IV

[Ed Note : The following post, the fourth post in the series of posts containing comments to the Report and Draft Bill, 2018  published on the MeitY website, has been authored and compiled by students of NALSAR University of Law. This post contains comments on the amendment to Section 8(1)(j) of the RTI Act, 2005 that has been proposed by the Committee. 

The first post in the series can be found here. Keep watching this space for more posts!]

Transparency and accountability in a government and its administration is an indispensable part of a participatory democracy. Information is the oxygen for the survival of a democracy. The Right to Information Act was passed in 2005 replacing the Freedom of Information Act, 2002 so that every citizen has the right to access information controlled by public authorities. RTI is intrinsic to good governance and a necessity for democratic functioning.

The Data Protection Bill and the Data Protection Report made by the B.N. Srikrishna Committee in 2018 has proposed amendments to the Right to Information Act. It proposes a change in section 8(1)(j) of the Act. The proposed amendment is –

information which relates to personal data which is likely to cause harm to a data principal, where such harm outweighs the public interest in accessing such information having due regard to the common good of promoting transparency and accountability in the functioning of the public authority;

Provided, disclosure of information under this clause shall be notwithstanding anything contained in the Personal Data Protection Act, 2018; Provided further, that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

The reason behind such change as mentioned in the report is that the current version of section 8(1)(j) does not indicate what would constitute an unwarranted invasion of privacy and that the amendment would solve this problem. The report states that – “A lot of information sought from a public authority may contain personal data of some kind or another. Further a strict interpretation of purpose limitation may give rise to the inference that any disclosure other than for the purpose for which the personal data was submitted would lead to an unwarranted invasion of privacy.” According to the report, information should not be disclosed in ‘exceptional circumstances,’ where the likelihood of harm from the disclosure outweighs the common good of transparency and accountability in functioning of public authorities. The report mentions that by the proposed amendment a more precise balance would be created between Right to Information and Right to Privacy.

However, it is submitted that the amendment are problematic for a number of reasons which are enlisted below –

  • The Data Protection Report mentions that there needs to be harmonisation of Right to Information and Right to Privacy, and that a balancing act should be performed of reconciling both rights. However, the proposed amendment fails to achieve this goal, as it compromised on the Right to Information. The Report cites the case of Thalapallam Ser. Coop. Bank Ltd. State of Kerala[1], in which the Court said both these rights have to balanced in terms of public interest. In order to balance right to information and right to privacy of public officials performing a public duty as per the parameters of public interest, it is to be understood that right to information takes more importance. In order to achieve this balance Supreme Court laid down three tests in the case of Supreme Court vs Subhas Chandra Agrawal which is –
  1. whether the disclosure of the personal information is with the aim of providing knowledge of the proper performance of the duties and tasks assigned to the public servant in any specific case;
  2. whether the information is deemed to comprise the individual’s private details, unrelated to his position in the organization, and
  3. whether the disclosure will furnish any information required to establish accountability or transparency in the use of public resources.

If these tests are satisfied then the information has to be disclosed. It is important to understand that the degree of right to privacy available to public officials when performing public duty is lower than the right to privacy available to a private person in general circumstances.[2] Therefore, right to information has to be more important in the specific context of public officials when doing public duty than right to privacy. However, when we read the amendments proposed, they clearly elevated the right to privacy to a higher pedestal over the right to information, which runs antecedent to the decision of the Supreme Court. Therefore, the amendments are not to be implemented. Apart from the fact, that the amendment does not adhere to constitutional principles as discussed above, this in itself is very problematic which is discussed below.

  • Section 8(1)(j) of the Right to Information Act, 2005 states that when personal information is asked for which has no relation to any public interest or activity or infringes upon the privacy of a person unnecessarily then the information need not be disclosed. This section also sets an acid test to determine whether information has to be disclosed or not by stating that if the information can be disclosed to the Parliament or a State Legislature then it has to be disclosed to the public at large as well.

This section by its virtue has enough safeguards within itself to prevent any unnecessary information to be disclosed that could infringe upon the privacy of an individual and meet the standards of privacy that have recently developed, if used properly. However, this section has been misused and has been weaponised against the very idea of having the RTI act, which was to curb corruption and create transparency. This is said because of the Supreme Court judgement in Girish Ramachandra Deshpande vs CIC[3], wherein the court ignored this proviso and precedents and laid down that assets and details of the public servant constituted as personal information. This case has had a chilling effect on several cases like R.K Jain vs Union of India[4] and Canara Bank vs CS Shyam [5] to name a few. So, the RTI Act which was capable enough to balance public officials right to information and to right to privacy got distorted due to the Girish Ramchandra Deshpande case resulting into the dilution of the RTI Act and diminishing its purpose of creation.

  • Now, when we consider the amendment which has been brought in by the Draft Data Protection Bill, 2018 modifies the section 8(1)(j) to – “This amendment further dilutes the RTI Act and it will totally diminish the purpose of having the RTI Act. This is stated because of the following –

Firstly, the phrase “relates to personal data” makes the ambit of information that can fall within this to be extremely wide and vague. The Draft Bill does not define ‘personal data,’As a result, anything and everything can be included as relating to personal data. The consequence of this will be that every time information is sought about a public official, this section will come into application and information could be withheld from disclosure. Without any violation of privacy, information would be withheld simply because the amendment uses as broad a phrase as ‘personal data’ without defining it. This non-disclosure of the information without any infringement of privacy will result into a violation of the right to know which is enshrined in Article 19(1)(a) of the Constitution.[6]

Secondly, the standard has been set to “likely to cause” which is an extremely low standard. The mere possibility that the disclosure of information may cause harm is too low a standard to follow. It will deter PIOs from disclosing any information because there might be a remote possibility of causing harm. They would be over cautious of disclosing information and will be reluctant to disclose any information. A standard so low cannot be followed for an act like RTI which is so fundamental to bringing transparency and accountability in the functioning of the government. Using of such a low standard will deny the right to information to citizens.

Thirdly, the word “harm” is very broadly defined by the draft bill in its section 3(21). It includes ‘bodily injury’, ‘mental injury’, ‘loss of reputation’ among other things. Inz practicality, information exposing corruption activities will definitely bring a loss of reputation to the concerned person. Making this as a ground to not expose the corrupt official makes no logical sense. Also, ‘mental injury’ cannot be a ground to not expose a corrupt official. These grounds have no rational basis. It is equivalent to saying that someone who commits a crime should not be punished because it would be affect him physically and mentally and lower his reputation in the society.

Hence, the amendment proposed should not be accepted as it would completely water down the RTI Act,2005 and render it ineffective.

4)   On one hand, the proposed amendment sets the threshold of “likely to cause harm to a data principal, where such harm outweighs the public interest” which must be adhered to when determining whether there should be disclosure. However, the proposed amendment also retains the proviso to the old Section 8(1)(j) of the RTI Act which says that “information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” Hence, while the first part of the proposed amendment proposes to set a different threshold as compared to the previous Section 8(1)(j), the “acid test” of the proviso retained is that of 8(1)(j) itself. Hence, the proposed amendment is contradictory in itself, there being two different thresholds present in itone threshold is borrowed from the old Section 8(1)(j) and the other new threshold introduced.

Further, the PIOs under the RTI Act are not judicially trained and practically speaking, it is extremely difficult for a ground – level PIO to understand the complex concept of privacy and the jurisprudence associated with it. Keeping this in mind, the contradictory thresholds set by the proposed amendment further complicate the already – complex process of interpretation for the PIOs. This complication will lead to unintended consequences wherein a PIO may disclose information that was intended to be denied and deny information that was intended to be disclosed. Thus, it is proposed that the different thresholds will defeat the purpose of the amendment itself and the amendment must be corrected to that extent.

  • There exists consistent pro-disclosure jurisprudence regarding disclosure of information of election candidates. In the case of Union of India v Association for Democratic Reforms & Anr[7] the court held that citizens have a right to know about the assets of those who want to stand for elections (become public servants). This was followed by the case of PUCL v. Union of India[8] wherein the court struck down Section 33(b) of the Representation of People’s Act 1951 which imposed certain restrictions on disclosure of information by elected candidates, declaring it to be beyond the legislative competence of the Parliament in view of the directions issued in the ADR Case.

In keeping with this pro – disclosure jurisprudence is the recent case of Lok Prahari v. Union of India[9], wherein the court ruled in favour of asset – disclosure of election candidates saying that, “If assets of a Legislator or his/her associates increase without bearing any relationship to their known sources of income, the only logical inference that can be drawn is that there is some abuse of the Legislator’s Constitutional Office. Something which should be fundamentally unacceptable in any civilized society and antithetical to a constitutional Government. It is a phenomenon inconsistent with the principle of the Rule of Law and a universally accepted Code of Conduct expected of the holder of a public office in a Constitutional democracy.” (emphasis added)

It is thus seen that the court has consistently upheld the disclosure of assets of not only election candidates but also their associates. Obviously, if citizens have a right to know about the assets of those who want to become public servants, the threshold of their right to get information about those who are already public servants cannot be lesser. Keeping this is mind, the proposed amendment goes against the established threshold regarding asset disclosure and thus it is proposed that it must be modified to take into account firmly established jurisprudence.

 

  • The Right to Privacy and the Right to Information both trace their origins to Article 19(1)(a) of the Constitution of India, the exceptions to which are present in Article 19(2). The same has also been elucidated on page 45 of the Law Commission’s Report on the Public Interest Disclosure Bill 2001.

One of the exceptions listed under Article 19(2) is “defamation”. “Defamation” includes certain defenses like truth, fair comment, privilege etc.

In this light, it is important to note that the definition of “harm” as per Section 3(21) of the Draft Bill (which is also to be used in the proposed amendment to the RTI Act) includes “loss of reputation” and not “defamation”. “Loss of reputation” is much broader than “defamation” simply because the defenses that apply to defamation do not apply to it. Thus, the exception of imposed by the proposed amendment is broader than the exception set out under Article 19(2) and is, to that extent, unconstitutional.

Hence, it is proposed that for the purposes of the RTI Act under which disclosure of information can be denied only under Article 19(2), the exception of “loss of reputation” under “harm” should be changed to “defamation” in line Article 19(2).

Therefore, for all the reasons mentioned above, which are that the Bill does not harmonize the two rights, problems with the words and phrases in the amendment, internal conflicts within the amendment, the proposed amendment being on a lower standard than set by the Supreme Court in right to information and public disclosure cases, and its scope wrongfully extending beyond the restrictions mentioned under article 19(2). It is proposed that the RTI Act should not be amended and Section 8(1)(j) should remain as it is presently.

However, it is important to mention on a broader note that contrary to the general perception, the Right to Privacy and the Right to Information are complementary and not contradictory to one another and must be presented as being so in the future in keeping with the Constitution and for the good of all the people in the country.

The next post can be found here.

[1] Thalapallam Ser. Coop. Bank Ltd. v. State of Kerala, (2013) 16 SCC 82

[2] Supreme Court of India vs Subhas Chandra Agarwal, (2011) 1 SCC 496.

[3]Girish Ramachandra Deshpande vs CIC, 2012 (119) AIC 105 (SC).

[4] R.K. Jain Vs. Union of India, 2013 (10) SC 430.

[5] Canara Bank vs CS Shyam, 2007 (58) AIC Ker 667.

[6] State of UP vs Raj Narain, 1975 AIR 865.

[7] Union of India v. Association for Democratic Reforms & Another, 2002 (5) SCC 294.

[8] People’s Union for Civil Liberties and Another vs Union of India and Another ,2003 (4) SCC 9.

[9] Lok Prahari vs Union of India, AIR 2018 SC 1041.

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