Hard-won RTI gains are at risk as privacy legislation tilts the balance against demands of democracy

It based its verdict on the right of voters to know, so that they could make informed decisions. These affidavits would have self-declared information that was far more reliable than the grapevine and press reportage; unless reported by a candidate, any data dissemination could potentially attract defamation charges.

Politicians eventually welcomed the change after a few grumbles that the judiciary had invaded the legislative turf. One senior politician and minister, who was known to be wealthy and had a clean image, protested that the revelation of his wealth would expose him to extortion.

But that was a mild protest. Everyone agreed that such disclosures were in the public interest and that, on balance, this outweighed the privacy protection concerns of individual candidates. Politicians are in public life, and their privacy claims do not have priority over public accountability. After all, transparency and accountability are the very foundation of good governance and robust democracy. So, although the right to vote is not a fundamental right, the right to know about candidates has acquired constitutional status.

The Right to Information (RTI), a landmark law that codified a constitutional right, was born two years later in October 2005. As we observe its 20th anniversary this month, there is alarm that its potency has gotten significantly diluted in practice.

As an aside, we may note the similar fate of another landmark law, the Bankruptcy and Insolvency Code of 2016, whose effectiveness has been watered down over the years thanks to weak enforcement and a gridlock of judicial challenges. The lynchpin of this law, its strict time limit for bankruptcy resolution, has been breached repeatedly, undermining the law itself.

The RTI, regarded as one of the best transparency (or ‘sunshine’) laws in the world, empowers every citizen to ask questions of the government, which is obliged to provide answers.

Over the past two decades, it has helped expose corruption, enforce accountability and incentivize proactive disclosures, while giving marginalized citizens a tool to challenge an opaque state. Yet, despite its achievements, legislative changes and institutional inertia are risks to its power. Frequent denials of information, rising RTI request pendency and long vacancies in appointments to Information Commissions (ICs) are reducing its effectiveness.

As of 30 June, more than 400,000 appeals and complaints were pending before all 29 ICs at the state and central levels. Of these, 18 reported waiting periods of more than a year. Six ICs have been non-functional for long and two are entirely defunct; three of them, including the Central Information Commission, were functioning without a head. Appointment delays and the resultant inertia may be linked to an RTI law amendment in 2009 that compromised the autonomy of ICs, which are meant to be constitutional bodies.

A more serious threat to the RTI has come from the passage of the Digital Personal Data Protection (DPDP) Act of 2023. Section 8(1)(j) of the RTI law allowed for a denial of “personal information” unless “the larger public interest justifies the disclosure of such information.” The RTI law was amended to remove its public-interest overrider. This removal was justified on the basis of judicial principles derived from landmark cases, especially the Puttaswamy case of 2017 that recognized privacy as a fundamental right.

Undoubtedly, there has always been a conflict between individual privacy and the public right to know. But the RTI was not an ideal sunshine law to begin with. It was the culmination of a decades-long countrywide campaign by civil society activists. The law was thus contested, incremental and hard-won.

The DPDP amendment of the RTI turns a discretionary balancing test into a default veto: public authorities can more easily refuse even serious disclosures by invoking privacy. It gives bureaucrats unbridled power to deny information, fundamentally altering the balance between privacy and public interest.

Without a clear framework to assess and override privacy claims, the RTI’s efficacy stands endangered. What was once an exception (privacy) will become a default bar. This reversal shifts the burden onto citizens to argue their case. Many public information officers will simply refuse disclosure, citing privacy, and ICs may not be in a position to police each demand rigorously.

The rules that make the DPDP law operational have not been notified yet. To save the RTI, it is important for the apex court to interpret the privacy law in harmony with it. It must reaffirm that public interest in exposing corruption, maladministration or abuse of power can trump privacy.

If privacy harms override the public interest, these harms must be precisely articulated. Proactive disclosures by public authorities should be mandated and priority accorded to filling vacancies in all ICs, adopting digital tools and reducing pendency. The Right to Information will wither if nobody can enforce it.

More than 100 RTI activists have been murdered, reminding us that transparency exacts a heavy price. The RTI is a crucial instrument in improving India’s democracy. Diluting it through stealth amendments instead of a democratic debate risks undoing all the gains of this sunshine law.

The author is senior fellow with Pune International Centre