Mumbai, India – In August 2023, the government of President Narendra Modi has promulgated a law which, according to criticism, will make the right to information much appreciated by India. The law, which changes the law by blocking public access to information deemed “personal data”, should come into force any day now.
In April, the Minister of Electronics and Information Technologies, Ashwini Vahnaw, told Parliament that the law, called the Digital Data Protection Act, strengthens the rights to the confidentiality of individuals, but that criticisms paint a darker image of the potential effects of the law.
Journalists, activists, lawyers and academics frequently use the 2005 law on the right to information to access information from the public good. About 6 million RTI requests are filed each year, the highest rate of requests for public information in the world.
Between 2009 and 2011, for example, social activists, writers and public intellectuals filed numerous requests for the right to information, looking for the names of what are called the failed voluntary loan. In the years preceding the 2008 global recession, Indian banks have lent millions of dollars to companies and individuals who, when the crisis has struck, turned out to be defaulting volunteers.
The revenues and savings of the average Indian were at stake. No one knew who had been lacking on the amount – or the balance sheet she would take on the economy.
But the reserve bank of India, the central bank and the Indian banking system regulatory body, said information requests, saying that the data sought came from “confidential regulatory activities”.
In 2015, after years of battles in various high lessons and the Supreme Court, the highest jurisdiction judged that the reserve bank should be cleaned. The Indians needed to know where their money was and how stable the banks were. The public advantages prevailed over confidentiality problems, ruled the court.
Account holders who had saved smaller amounts, retirees who had deposited all their life savings in their banks and government employees who brought their pensions to their bank accounts were relieved. Thanks to a crusade led by the authorized accountant Jayantilal N. Mistry, the government affirms that it has reduced defects by more than 75%.
“Such a fight will be impossible in the future,” explains Anjali Bharadwaj, co-conventor of the national campaign for people’s right to information. “Our research has shown that a majority of requests (RTI) are filed by the marginalized, who are refused their fundamental rights.”
The law of the sun
For years, the Indians have held public village meetings, written petitions before lower courts, have made countless discussions in cities and worked to demand a law that recognized the law of citizens to information.
In 2005, the RTI codified this law and allowed citizens to examine the functions of the government, to prevent corruption and to guarantee good governance, said judge Ajit Prakash Shah, former president of the India Law Commission. It was called the “law of the sun” and promised to highlight the darkness of secrecy.
The RTI included types of information, such as information that would threaten the security of the state, which could be legally hidden. One of these provisions was the unjustified invasion of the privacy of a person without public relevance.
“What is crucial to understand is that RTI, in particular section 8 (1) J), has meticulously balanced the right of the public to know with the right of an individual to private life,” explains Apar Gupta, lawyer and founding director of the Freedom Internet Foundation.
Bharadwaj says: “RTI prevented anyone from looking for proxy information that was not in the public interest.”
The Digital Data Protection Act is expanding the definition of personal data – and can threaten RTI applications. If a citizen wants to know who built Potholed’s road in front of his house, he can be refused because the name of the entrepreneur or his address would be revealed. If a journalist was to seek the names of workers who have not been paid for their daily salary, the request can be refused. The assets and finances of a politician could be qualified as personal data under the new law.
Until now, a citizen may seek such information. In the future, this may not be the case. On March 26, more than 120 opposition leaders urged the repeal of the last amendment to the RTI law.
In response, VAHNAW said: “Personal details that are subject to public disclosure under various laws will continue to be disclosed.” The Minister continued by saying that the last law does not restrict the disclosure of personal information but aims to strengthen privacy rights.
However, says Gupta, the main law obliging such disclosure is the RTI law, so that the amendment will also have implications for these laws.
Confidentiality as a fundamental right
The age of social media addressed national conversations on data confidentiality. In 2012, judge Shah led a committee that warned against data protection authorization to replace access rights under the RTI law.
RTI activist Amrita Johri said that the Modi government has used the privacy argument to advance her own ends. When the Supreme Court debated the legality of Aadhar, the system which attributes to citizens a unique identification number, which can be obtained on the basis of biometrics and geographic data, the main council of the government said that the Indians had no fundamental right to privacy. But in 2017, the Supreme Court judged that private life was a fundamental right under the Indian Constitution.
Now, says Johri, the new law is hidden behind the coverage of privacy to refuse public information from the public. “They use the right to privacy,” she says, “to suit their case”.
Not so public information
While more and more government agencies disclose data on their websites, RTI is not the only way for citizens to search for information. For example, there are granular data available on minimum wages in specific government programs. It is the detailed data type which, according to Bharadwaj, makes public surveillance possible.
This may not be the case in the future, says Bharadwaj. “When this law becomes operational, all officials ensure that their disclosure of information is aligned with the new law, so that the detailed public information available on the Internet today is very likely to be reduced.”
Gupta fights a case before the Supreme Court against the government’s decision to dilute the RTI.
“We have to resist,” he said. “Investigative journalism, legal affairs of public interest and civic activism – the pillars of a dynamic democracy – are likely to be compromised by the new law.”