MUMBAI, INDIA — In August 2023, President Narendra Modi’s government enacted a law that critics say will make India’s much-lauded Right to Information Act all but irrelevant. The law, which amends the act by blocking public access to information deemed “personal data,” is expected to come into force any day now.
In April, Electronics and Information Technology Minister Ashwini Vaishnaw told Parliament that the law, called the Digital Data Protection Act, strengthens the privacy rights of individuals, but critics paint a bleaker picture of the law’s potential effects.
Journalists, activists, lawyers and academics frequently use the Right to Information Act of 2005 to access information for the public good. About 6 million RTI applications are filed every year, the highest rate of public information requests in the world.
Between 2009 and 2011, for example, social activists, writers and public intellectuals filed many Right to Information requests, seeking the names of what are called willful loan defaulters. In the years leading up to the 2008 global recession, Indian banks loaned millions of dollars to corporations and individuals who, when the crisis hit, turned out to be willful defaulters.
The average Indian’s earnings and savings were at stake. No one knew who had defaulted on how much — or the toll it would take on the economy.
But the Reserve Bank of India, the central bank and regulatory body for the Indian banking system, denied the information requests, saying the data sought came from “confidential regulatory activities.”
In 2015, after years of battles in various high courts and the Supreme Court, the highest court ruled that the Reserve Bank should come clean. Indians needed to know where their money was and how stable the banks were. The public benefit outweighed confidentiality concerns, the court ruled.
Account-holders who had saved smaller amounts, retirees who had deposited their entire life savings in their banks and government employees who had their pensions coming to their bank accounts were relieved. Thanks to a crusade led by chartered accountant Jayantilal N. Mistry, the government says it has reduced the defaults by more than 75%.
“Such a fight is going to be impossible in the future,” says Anjali Bharadwaj, co-convenor of the National Campaign for People’s Right to Information. “Our research has shown that a majority of [RTI] applications are filed by the marginalized, who are being denied their basic rights.”
The sunshine law
For years, Indians held public village meetings, drafted petitions in lower courts, held countless discussions in cities and marched to demand a law that recognized citizens’ right to information.
In 2005, the RTI codified this right and empowered citizens to scrutinize government functions, prevent corruption and ensure good governance, says Justice Ajit Prakash Shah, former chairman of the Law Commission of India. It was called the “sunshine law,” and it promised to shine a light on the darkness of secrecy.
The RTI included types of information, such as information which would threaten state security, that could be lawfully withheld. One such provision was the unwarranted invasion of the privacy of a person with no public relevance.
“What is crucial to understand is that the RTI, particularly Section 8(1)(j), meticulously balanced the public’s right to know with an individual’s right to privacy,” says Apar Gupta, lawyer and founding director of the Internet Freedom Foundation.
Bharadwaj says, “RTI prevented anyone from vicariously seeking information that was not in public interest.”
The Digital Data Protection Act expands the definition of personal data — and may threaten RTI applications. If a citizen wants to know who constructed the potholed road in front of their house, they may be denied because the name of the contractor or his address would be revealed. If a journalist were to seek the names of workers who haven’t been paid their daily wages, the request may be denied. The assets and finances of a politician could be termed personal data under the new law.
Until now, a citizen could seek such information. Going forward, that may not be the case. On March 26, over 120 opposition leaders urged the repeal of the latest amendment to the RTI Act.
In response, Vaishnaw said, “Personal details that are subject to public disclosure under various laws will continue to be disclosed.” The minister went on to say that the latest law does not restrict the disclosure of personal information but aims to strengthen privacy rights.
However, Gupta says, the primary law mandating such disclosure is the RTI Act, so the amendment will have implications for those laws as well.
Privacy as a fundamental right
The social media age touched off nationwide conversations about data privacy. In 2012, Justice Shah led a committee that cautioned against allowing data protection to override access rights under the RTI Act.
RTI activist Amrita Johri says the Modi government has used the argument of privacy to further its own ends. When the Supreme Court was debating the legality of Aadhar, the system that assigns citizens a unique identification number, which can be obtained on the basis of biometrics and geographic data, the senior counsel for the government claimed that Indians did not have a fundamental right to privacy. But in 2017, the Supreme Court held that privacy is a fundamental right under the Indian Constitution.
Now, Johri says, the new law hides behind the cover of privacy to deny the public crucial information. “They are using the right to privacy,” she says, “to suit their case.”
Not-so-public information
As more government agencies disclose data on their websites, RTI is not the only way for citizens to seek information. For instance, there is granular data available on minimum wages under specific government programs. It’s the kind of detailed data that Bharadwaj says makes public monitoring possible.
That might not be the case in the future, Bharadwaj says. “When this law becomes operational, all public officials will ensure their information disclosure is aligned with the new law, so detailed public information available on the internet today is very likely to be pulled down.”
Gupta is fighting a case in the Supreme Court against the government’s move to dilute the RTI.
“We have to resist,” he says. “Investigative journalism, public interest legal cases and civic activism — pillars of a vibrant democracy — risk being undermined by the new law.”
