There is a proposal that India should have a Data Protection Act and the white paper issued by the

Expert Committee looks at the issue with the assumption that this is the most important right for
citizens. It has nowhere recognized or noted the fact that there is a certain overlap and conflict with
the citizen’s Right to Information. The Right to Information has been recognized by the Supreme
Court to be a fundamental right of citizens under Article 19 (1) (a) of the constitution. My
submissions in this regard are only concerning data held by government agencies and the potential
conflict between the RTI Act and the proposed Data Protection Act.

It appears that there is a certain anxiety and rush to protect ‘privacy’ and ‘private data’ which has
surfaced in the last few years, and is probably spurred by the usage of RTI by the ordinary citizens.
Arbitrary and corrupt actions of public servants and other citizens were earlier hidden away from the
eyes of people. The Right to Information began to bring these before the public. It appears that this
impudence and empowerment of the ordinary citizen has begun to worry those with power.
Consequent to this in a bizarre development the Supreme Court has ruled that citizens have a right
to know about the assets of those who wish to become public servants, but not about the assets of
those who are public servants! Lip service is paid to the landmark statement of Justice Mathew “In a
government of responsibility like ours, where all the agents of the public must be responsible for their
conduct, there can be but few secrets. The people of this country have a right to know every public
act, everything that is done in a public way by their public functionaries. They are entitled to know the
particulars of every public transaction in all its bearing. Their right to know, which is derived from the
concept of freedom of speech, though not absolute, is a factor which should make one wary when
secrecy is claimed for transactions which can at any rate have no repercussion on public security”.

It is recognized that there is widespread, debilitating corruption in the nation and all the
instrumentalities of the state are unable and unwilling to curb it. The Right To Information has
provided the citizens a chance to curb arbitrariness and corruption of those in power. There is now a
conscious, systematic and orchestrated attempt to emasculate this power which citizens have got. If
citizens are allowed to properly access information available with the government, they will be able
to monitor its actions and hold public servants accountable.

The Right to Information Act is primarily concerned with information available on record with the
government. With respect to ‘personal information’ (Section 8 (1) (j)) it has the powerful proviso
“that the information, which cannot be denied to the Parliament or a State Legislature shall not be
denied to any person.” Various adjudicating bodies have diluted the provisions of the RTI Act by gross
misinterpretation of the law and the Data protection act will be the last nail to provide a fig leaf of a
legal base to constricting this right. Some of the actions, which RTI act can bring to light are:

1. Allocation of subsidized land to politicians, officers and judges.

2. Beneficiaries of various subsidy and other welfare schemes: There are many ghost
beneficiaries and some who are wealthy also avail of these.
3. Educational, caste, income certificates of people: There are instances where RTI has
uncovered fake education certificates even of doctors working in government hospitals.
4. Marks obtained in competitive exams: In many cases people with higher marks have not
been chosen.
5. Foreign visits of public servants.
6. Details regarding a public servant: memos, show cause notices, censure/punishment
 awarded, details of movable and immovable properties, details of investments, lending and
borrowing from Banks and other financial institutions, and gifts received.
7. Gross arbitrariness and corruption in selections for jobs and non-conformance to rules and
laws.
8. Disproportionate assets compared to declared income.
9. Unfair assessment of students and job seekers in government.

I repeat the information accessible in RTI is only that which is on the record of the government.
We can also look at this from another perspective: Government cannot have a right to intrude on
the privacy of an individual, unless it is justified in a particular case because of abnormal
circumstances. If we accept this premise information collected on public records in the normal
course should be such that it does not intrude on the privacy of an individual. In that case
government must not ask for such information. This would then not be on the records of the
government and hence could not be available in RTI.

If the issues raised here are not considered and a Data Protection Act is implemented, it will be
an unwarranted curtailment of the Right To Information. The applicability and beneficial aspects
of RTI are far higher and affect a large part of our populace. Relatively, the Data Protection Act is
likely to serve only the needs of the elite. Please do stress in your proposal that for giving
information in RTI, the RTI Act should have primacy. If there is data which is not required by
government, and is an invasion on privacy, it should normally not be on government records.

Please do not propose anything which will constrict the Right To Information.

Shailesh Gandhi shaileshgan@gmail.com

Former Central Information Commissioner