Saturday, April 13, 2024

Where the mind is NOT without fear, and Right to fear becomes Duty!

Disasterous impact of the Data Bill on Art 19(1)(a) and RTI

Professor M Sridhar Acharyulu,

Dean, School of Law, Mahindra University, Hyderabad

Former Central Information Commissioner, (2013 to 2018)

Permission to borrow famous poem of Rabindranath Tagore, Where the mind is NOT without fear and the head is held NOT high, Where knowledge is NOT free, the people are entering the ‘fear’ through altering the freedom of expression.

The civil society need to understand dangers in the proposed Digital Data Provision Bill 2022 and attacks RTI Act.  Right to Information (‘RTI’) Act, effective since October 12, 2005, was one of the best transparency laws in the world, has become ineffective and diluted.

One of the most effective RTI being the outcome of people’s struggles led by the people’s political organisation, the Mazdoor Kisan Shakti Sangathan’s struggles, in 2004, after good discussions about its provisions, and it took an All-Party Parliamentary Committee to be carefully drafted. It was one well effective preamble that requires informed citizens and transparency in the affairs of it’s the State. The people lost their possibility of real transfer of power to common citizens. Many lovers of democracy made them feel like fish outside water.  The very empowered people will become week without legitimate power. No chance will be left for democratic instrument to expose the officials’ wrong doings and corruption.

This bill justifies the exemptions of both – Article 19(1), (2) and Section 8 (1)(j) of RTI Act. In the name of interest of “sovereignty and integrity of India, security of the state, friendly relations with foreign states, maintenance of public order or preventing incitement to any cognizable offence relating to any of these” would seriously reduce the power of Government.The Bill which seeks to deny providing any personal information on administration officials under Section 8(1)(j) of the Right to Information Act, citing the protection of “individual privacy”. This will adversely affect with the right of privacy-vis-à-vis the right to freedom of speech.

Data Bill affects RTI

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.”

This most widely used exemption cannot be used at all. As per the law, personal information may be exempt if: a) It is not related to a public activity or interest, or b) It would cause unwarranted invasion of privacy of an individual.

The proposed Data Protection Bill says: “(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 Bill becomes law by Parliament, neither PIOs- the officers nor the Information Commissioner who is like Judge cannot help to arrive at the right decision, whoever claimed that a disclosure was exempt under section 8(1)(j) should make a statement that they would not give this information to Parliament.

Will cover up corruption

There were several examples such as:  File notings and minutes of meetings, without this, the government can never question the documents. The first Central Information Commissioner fought a great war with the Government to get ‘file notings.’ They will now become secrets and they can be punished as “Official Secrets”. The Union Government’s Department of Personnel and Training refused to provide the “Total number of Annual Performance Appraisal reports (APAR) of IAS officers pending presently for over one year, two years, three years and four years”, claiming exemption under section 8(1)(j).

Not only that the request for details of Member of Legislative Assembly funds was denied, saying it was personal information.

Several citizens will not get details of beneficiaries of PM CARES Fund or the instances of bogus caste certificates, education certificates, ghost employees, gross arbitrariness and corruption in selections for public sector jobs, and non-conformance to rules and laws.

They can never get details about disproportionate assets compared to declared income of public officials.

It would affect the democratic power with which verification of affidavits of elected representatives is done. People will not get unfair assessment of students and job seekers in government. It will be impossible to find instances of disregard of proven corruption charges against officials.

If section 8(1)(j) of RTI Act, as proposed amended will accounts for 35% of refusals by Central and State Information Commissioners and more than fifty percent Public Information Officers all over in India- both in Centre and State Governments.  It is a serious harm as that denied any personal information regarding officials the RTI Act’s Section 8(1)(j), citing the protection of “individual privacy.”

Becomes Duty to deny the RTI

Though the Data Bill will create an exception to RTI Act, which will remove the power of PIOs in state and central governments.The civil persons strongly argue that this RTI Act S 8(1)(j) is being abused by officers. In fact, it helps the public interest works effectively and prevent the corruption, which the state machineries do not stop corruption. Another problem is that once the RTI Act is will apply to almost all the Public Authorities under Data Authority officers, which means practically the RTI Act will be totally not use it. Hence the amendment or denial of this Section 8(1)(j) should be strongly be rejected by the people.  Instead, the political parties should allow RTI Act should be strengthened. The Bill tries to claim that RTI will remain as it was, but removal of such exception to RTI section 8(1)(j) will use only DATA Bill so that RTI Act will in effect had no exist at all.

An example: New abuse of the RTI of S. 8(1)(j) is in Agni-path scheme with reference to ad hoc military recruitment, which was classified as ‘secret’.  This is example of totally remove Sections 8 and 9 of RTI Act, including Section 8(1)(j). In effect, it allows the Right to Information Act to become a Right to Deny for public information officers.

One of the most powerful duty of public authorities would make Section 4(1)(b) of the RTI Act requires to do makesuomotu disclosure of salaries of public servants, details of beneficiaries of subsidies and particulars of recipients of concessions, permits or authorisations granted. This power becomes not necessary. All these would have to be stopped suomotu disclosures. The ability of the law to uncover corruption or wrongdoing would be effectively finished. With this it becomes duty not to give information.

Earlier powerful Information Commissioner Shailesh Gandhi said: Equally painful for me is that none of the lawyers or media persons raised any issue about the proposed damage to citizens’ fundamental RTI under Article 19(1)(a) of the Constitution. Citizens have not realized the implications of this proposal as yet. They must discuss this proposed regression in their fundamental rights under Article 19(1)(a). I am finding even serious lawyers’ groups unwilling to discuss these.

Giving Absolute power under Data Protection Authority

Justice Srikrishna Committee, which was set up in 2017, after the Supreme Court’s Puttaswamy judgment has ignores the concerns raised by stakeholders. Earlier version of Bill has been extensive changes. It will destroy Article 19(1)(a) of the Constitution and play havocthe name of protecting privacy is destined to destroy the right to information through data changes.

The re-introduced the Personal Data Protection Bill without budging on the most contentious provision to exempt itself from the law.The Bill exercises very control over the major actors under the Bill – data principal, data fiduciaries and the Data Protection Authority of India (‘DPAI’). This authority sought to be established under the Bill that shall regulate and adjudicate upon the issues arising due to data breaches.

Strong argument will be codifying the rights and obligations of data principals and fiduciaries, in reality, it confers unchecked powers upon the executive that consequently dilutes the right to privacy.Data Protection law is supposed to founded on the pillars of accountability and transparency. But not.

The danger of recommendation

The Committee had recommended the selection committee to consist of the Chief Justice of India or her nominee, the Cabinet Secretary and one person with expertise and repute in the data technology field. But this will prevent an important particular limb of the polity from exercising much high power over the DPAI, which will uphold its independence.

Elected political power leaders and judges will get high power through DPAI Bill. Because of this political excessive power will totally dependent upon the protection of fundamental right, especially the Article 19(1) and 19(2) of Indian Constitution. 

Under section 42(2) of the DPAI Bill, the selection committee for appointing board members, exclusively constitutes of the members of the executive.

Control over the Executive

The selection committee under the Bill constitutes of Cabinet Secretary of the Central Government, Secretary of Government of India of the of Ministry Legal Affairs and Secretary of the Govt of India in the Ministry of Department dealing with Electronics and Technology.

In consequence, the members of Judiciary and an independent professional, as recommended, have been excluded from the selection process. The executive will absolutely be controlling by the Executive. Thus, the executive has absolute control over the appointment process of the board of DPAI. The 6 full-time members of the board shall be the representative of the executive. The rationale in the NTT case of Supreme Court to an independent regulatory body can be possibly be struck down.

Surveillances increases

Section 35 of the Billallows the executive to exempt any state agency from obtaining consent of an individual before processing their data on specified grounds.

Despite of the recommendation, the Bill permits additional grounds for such exemption. The Centre has been given excessive discretionary power. These governmental officers which violates right to privacy and curbs other fundamental rights from being effectively exercised. It denies test of proportionality.  Section 35 has increased the scope of highest degree of surveillances. 

This power affects the citizens. In the name of Security of State, and prevention, detection and investigation of crimes as legitimate grounds for processing personal data without the consent of the individual, subject to the tests of necessity and proportionality. With this excuse Section 35 can use absolute exemptionin the interest of sovereignty and integrity of India, public order and maintenance of friendly relations with foreign States.

Deny fundamental right of privacy

Data Protection law also subject to have the right to easily withdraw consent to process. With this law their data without any repercussions can be withdraw. If not so, it can dilute the ‘free will’ requirement under the consent framework.The bill will be detrimental to the fundamental right of privacy.

Section 11(6) of the Bill states that if a data principal withdraws his consent without any ‘valid reason’ then all legal consequences with respect to such withdrawal shall be borne by the data principal.’

This provision has extremely diluted the consent framework envisaged within the Bill as recommended by the Committee.It has also added that element of ‘inappropriate pressure’ on the will of the individual that renders the choice/consent of the data principal invalid.

On the point of the ‘validity’ of the reason of withdrawal, the corporations have been brought under the scrutiny of the State, the fundamental right of the citizens is yet diluted.It appears to have designed to bring all kinds of actor in the Bill under the direct or indirect control of the executive. Hence, the Bill legitimizes the use of unfettered power by the executive.

Deemed consent with Section 8 of Bill

It says under Section 2. Definitions (18) “public interest” means in the interest of any of the following: (a) sovereignty and integrity of India; (b) security of the State; (c) friendly relations with foreign States; (d) maintenance of public order; (e) preventing incitement to the commission of any cognizable offence relating to the preceding sub-clauses; and (f) preventing dissemination of false statements of fact.

Section 5 of Bill:  Grounds for processing digital personal data a person may process the personal data of a Data Principal only in accordance with the provisions of this Act and Rules made thereunder, for a lawful purpose for which the Data Principal has given or is deemed to have given her consent in accordance with the provisions of this Act.This provision besides Section 7 and 8 clauses etc, is having potential power of abuse the ‘consent’.

This means a Data Principal will get all the power to deem to have given consent to the processing of her personal data if such processing is necessary: (1) in a situation where the Data Principal voluntarily provides her personal data to the Data Fiduciary and it is reasonably expected that she would provide such personal data; and Section 11. (Additional obligations of Significant Data Fiduciary) (1) The Central Government may notify any Data Fiduciary or class of Data Fiduciaries as Significant Data Fiduciary, on the basis of an assessment of relevant factors, including: (a) the volume and sensitivity of personal data processed; (b) risk of harm to the Data Principal; (c) potential impact on the sovereignty and integrity of India; (d) risk to electoral democracy; (e) security of the State; (f) public order; and (g) such other factors as it may consider necessary;

If the Bill is approved by the Parliament, increase various possibilities to consider as deem give consent for exemption. It could be a dangerous provision because it says ‘it is may’.

The Data Bill has totally ignored the ratio of Madras Bar Association v Union of India. The provision of the Selection Committee in the National Tax Tribunal Act (NTTA) was struck down by the Supreme Court as it comprised more executive members than judicial members. It was held unconstitutional because it contravened the institutional independence of the tribunal. The NTTA empowered the executive to decide transfers, the location, jurisdiction, and constitution of benches. It amounted to excessive executive interference. This principle would not, prima facie, extend to those tribunals which review the actions of independent regulators such as the Securities and Exchange Board of India, the Competition Commission of India, or the Telecom Regulatory Authority of India. 

Under the DPDP authority and the selection committee or other officers will working a direct link with the executives, but will have no independence of authority.

In addition, the DPAI also performs adjudicatory functions. The appellate adjudicatory officers are to be appointed by the board members of the DPAI who are solely appointed by the executive members. Such appointments could undermine the independence of the authority.

The RTI Amendment Act, 2019 which brought about similar changes like DPAI, has seriously damaged the both RTI and DPAI. Similarly, executive officers will decide the salary, and jurisdiction upon the central government (whose jurisdiction?), like the State Information Commissioners under RTI Act will have power to Central Government. This will undermine the independence of the adjudicative with like judges, similarly the DPAI.  Based on the principles of rule of law, it is they can be easily struck down.It can be highly abused by the state, like it was abused during 1975 Emergency in India.

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.


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