Can there be blanket ban on disclosure of personal information? Supreme Court on challenge to RTI amendment

The Supreme Court on Friday observed that a careful balance would have to be struck between citizens' right to information and the fundamental right to privacy while examining changes made to the Right to Information (RTI) Act through the Digital Personal Data Protection (DPDP) Act.

A Bench of Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing petitions challenging the amendment to Section 8(1)(j) of the RTI Act by which the public interest clause for disclosure of personal information was removed.

The Court said the central constitutional issue before the Court was whether there can be a blanket prohibition on disclosure of personal information.

"The question is whether there can be a blanket prohibition on disclosure of all digital personal information, or whether the legislation has to adopt a proportionate approach," said Justice Bagchi.

He further said the Court would have to examine whether parliament's approach of expanding protection for personal information under the amended law satisfies constitutional standards.

"The Right to Information Act operates on a much larger domain. It covers all forms of information, not merely digital information. The Digital Personal Data Protection Act operates in a much narrower sliver, although today that narrow sliver constitutes the overwhelming part of information. The State appears to have adopted a more cautionary approach. The question is whether that cautionary approach, and the classification it creates, has a reasonable and intelligible differentia having regard to the object of the law," said Justice Bagchi.

The RTI Act allows citizens to seek information from public authorities to promote transparency and accountability in government. Earlier, Section 8(1)(j) allowed authorities to withhold personal information only in limited situations. Even then, the information could still be disclosed if a larger public interest justified it.

This was removed through the amendment.

The same then came to be challenged before the Court.

During an earlier hearing in February, the Court had declined to stay the amendment, observing that the issue involved balancing the fundamental rights to privacy and information. The Court had described the matter as "complex" and indicated that the scope of "personal information" would require careful consideration.

When the matter came up for hearing today, advocate Vrinda Grover, appearing for the petitioners, said the amendment had fundamentally changed the RTI law.

She argued that the earlier law contained safeguards that protected privacy while also allowing disclosure when there was a larger public interest. Those safeguards, she said, have now been removed.

"Earlier, the provision had inbuilt safeguards on the nature of personal information that could be withheld from disclosure. Those safeguards have now been removed. The public interest qualifier has been deleted, and the provision now simply states that information relating to personal information shall be exempt from disclosure. Consequently, a whole swathe of information protected under Articles 19 and 21 now stands excluded," she told the Court.

Referring to an earlier hearing, CJI Kant said the Court had already indicated that some balancing would have to be done regarding the kind of digital personal data that requires protection.

Advocate Nisha Bhambhani argued that the amendment could seriously affect investigative journalism.

She submitted that journalists often rely on official records obtained through RTI applications while reporting on corruption or abuse of power.

"If a journalist has to seek the consent of the data principal before reporting, and if the data principal later seeks erasure of that data, it would seriously impede investigative journalism," said Bhambhani.

On the issue of journalistic exemptions, Justice Bagchi clarified that neither the Subhash Chandra Agarwal judgment, nor Express Newspapers, nor the RTI Act itself create any special exemption for journalists beyond the protection available under Article 19(1)(a) (freedom of speech and expression).

Advocate Prashant Bhushan also argued that the amendment could seriously hamper investigative journalism.

"What will happen now is that if somebody wants to publish a report saying that a public official indulged in corruption, they may first have to seek that person's consent," Bhushan argued.

He further said that a balance was struck by the Supreme Court in the judgment for Supreme Court of India v Subhash Chandra Agarwal. He explained that the judgment had held both the right to information and the right to privacy as fundamental rights and that the RTI Act had carefully balanced them.

Bhushan said that balance has now been disturbed.

"That balance has now been dismantled. The amendment treats all personal information as exempt from disclosure. The consequence is that even information such as pending charge sheets against a public officer, or details relating to welfare schemes and ration cards, could now be denied solely on the ground that it constitutes personal information," submitted Bhushan.

Responding to this, Justice Bagchi clarified that the Court is not only examining the data protection law but also its impact on the RTI Act.

"The Right to Information Act is a Central law. This is also a Central law. We have to harmonise the two," said Justice Bagchi.

Solicitor General Tushar Mehta, appearing for the Union government, replied that the Union would justify the amendment in its affidavit, subject to judicial review.

Mehta sought two weeks to file the Centre's response.

After Bhushan requested that the matter be listed after the government's reply is filed, the Court impleaded the Ministry of Electronics and Information Technology as a party.

It also directed that the case be listed on a non-miscellaneous day after the Union files its response.

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