The Digital Personal Data Protection Act, 2023 (“DPDP Act”) notified on Gazette of India on August 11, 2023 after getting assent of president of India, introducing far-reaching changes, which are likely to have a debilitating effect on the very efficacy of Righ to Information Act, 2005 (“RTI Act”). Article 21 of the Constitution provides for the right to privacy and requires balancing with Article 19, which ensures freedom of speech and expression. Right to obtain information is a derived right from Article 19. Similarly, the Supreme Court has crafted ‘privacy’ as an implied right under Article 21. The RTI Act, over the years and after initial euphoria, has been diluted considerably, through administrative and judicial tinkering. The amendment introduced through DPDP Act in RTI Act, on the grounds of protection of privacy, are likely to take the residual sting out of RTI Act, as a tool to foster transparency and accountability in the fight against corruption while preserving the paramountcy of the democratic ideal in the working of every public authority

Challenges posed by DPDP Act through Sub-section (3) of Section 44 amending the ongoing sub-section (j) of section 8 (1) of the RTI Act and completely taking away the discretion of disclosure of personal information from the hand of Central/State Public Information Officer.

FRAMEWORK OF THE DIGITAL PERSONAL DATA PROTECTION ACT, 2023(DPDP ACT)

The DPDP Act is a legal framework introduced in India to safeguard the personal data of individuals and ensure that their data is shared only with their consent. The DPDP Act regulates the processing of digital personal data and outlines various provisions to protect individuals’ privacy in the digital age. The Act provides for the processing of digital personal data in a manner that recognizes both the right of individual to protect their personal data and the need to process such personal data for lawful purposes. The act also introduces several compliances requirement for the collection and processing of personal data, has provision to curb misuse of individuals’ data and entails up to Rs 250 Crores penalty for any breach.

FRAMEWORK OF THE RIGHT TO INFORMATION ACT, 2005(RTI ACT)

Right to Information Act, 2005 (RTI Act) was introduced as a fundamental right to make it mandatory for the governmental bodies to disclose information. Under this Act, a person can make a request to the governmental bodies to disclose certain information and the concerned authorities have to respond with the necessary data unless they have some legally compelling reasons to stop them from doing so. Right to Information (RTI) has helped to curb down corruption and mismanagement that was going down in the working of the government intuitions and promoting accountability and transparency to the same.

RTI Act is probably the most empowering law that gives genuine democratic powers to a citizen in the domain of information obtaining including the personal information provided it is satisfactory to prove that a larger public interest shall serve, if personal information is disclosed. The tests of public interest and protection against unwarranted invasion of privacy are inbuilt in RTI Act, through caveat of consultation with affected stakeholders. Section 11 includes notice and seeking views, before sharing personal information with third party.

ABSOLUTE RESTRICTION IN DISCLOSURE OF PERSONAL INFORMATION THROUGH DPDP ACT

The DPDP Act seeks absolute restriction in disclosure of personal information through amendment to existing Section 8 (1) (j) and exclude all personal information, giving officials immunity, even when information impacts larger public interest. In another far-reaching change, immunity extended to a person is sought to be enlarged to include HUF, corporates/ firms, association/body, the state and artificial juristic person, in revised all-encompassing definition of ‘person.

THE EXISTING SECTION 8 (1) (J) OF RTI ACT READS AS FOLLOW:

(j) 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.

After DPDP Act, sub-section (3) of Section 44 amending the section 8 (1) (j) of RTI Act, it shall read as follow:

(j) information which relates to personal information

The RTI Act under section 8 provides exemption from disclosure of information but at sub-section 1(j) provides for the protection of such personal information that has no relation with any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. The act also says information that cannot be denied to Parliament or a state legislature shall not be denied to any person.

Keeping in view, the larger public interest RTI Act allows Central/ State public information officers to share information related to personal information also but after this amendment there shall be absolute restriction and no discretion Central/ State public information officers to share personal information.

Further, mechanism under DPDA Act with regards to any dispute will be adjudicated by a data protection board likely to be appointed and controlled by the government, whereas under RTI Act, 30 days’ time framework were given to Central/State public information officers to disposed and further 30 days to Appellate Authority with no cost only through mail communication only.

Mechanism introduced under DPDA Act that no suit, prosecution or other legal proceedings shall lie against the Central government, the Board, its Chairperson and any Member, officer or employee thereof for anything which is done or intended to be done in good faith under the provisions of this Act or the rules made there under. The Central Government may, for the purposes of this Act, require the Board and any Data Fiduciary or intermediary to furnish such information as it may call for, is also not favoring to the spirit of larger interest serving as compared to the provision enshrined in the RTI Act amended through DPDA Act.