PERSONAL DATA PROTECTION BILL’ VIS-À-VIS FREEDOM OF ...

PERSONAL DATA PROTECTION BILL’ VIS-À-VIS

FREEDOM OF EXPRESSION (INCLUDING RTI)

Prof. M Sridhar Acharyulu

Abstract

After the Supreme Court emphatically declared that privacy

is a fundamental right emerging from various guaranteed

fundamental rights in Part III of the Indian Constitution, the

Government has constituted a committee headed by former

judge of Supreme Court Justice Srikrishna to draft a law to

secure the privacy and protection of personal data of the

citizens from the state and non-state actors. There is a need

to analyse the conflict between the right to privacy, data

protection and the right to freedom of speech and expression,

in the wake of the Srikrishna Committee’s Personal Data

Protection Bill, 2018. The Bill, which is yet to be officially

accepted by the Government of India, contemplates new

offences of breach of data protection clauses followed by

high penalties. Though the Committee recognized two major

exemptions- the security of the nation and prevention of

crime, it has not defined them. Rather, it has been left for

some other Committee to draft in future. The Bill provides

for an exception in the name of ‘journalistic purpose’, that

makes a journalist to wait for prior permission from an

adjudicating officer. While pre-censorship during

Emergency was limited, this Bill appears to be imposing a

pre-censorship in a permanent form for all times to come.

Dean and Professor at School of Law, Bennet University, Formerly Central

Information Commissioner (2013-18)

25

26 Bennett Journal of Legal Studies [Vol. I

The right to be forgotten is another controversial creation of

the Bill, that has potential to deny the media from

commenting on public servants based on the data of their

past conduct. The Bill also contains a proposal to amend the

Right to Information Act, 2005, and to replace Section

8(1)(j) of the said Act. Has the Srikrishna Committee

removed the ambiguity it noticed in that clause, providing

for protection of private information of public servant, and

promoted transparency in public offices to help good

governance free from corruption and irregularities? In the

name of protecting personal data, the media’s freedom

should not be curbed and on the lame excuse of ambiguity,

no new ambiguous expressions should be added to privacy

clause under RTI Act, which will dilute the transparency law.

The theme of this article is rightly expressed in the statement by

renowned American Journalist Glenn Greenwald1:

“Transparency is for those who carry out public duties

and exercise public power. Privacy is for everyone else”,

BACKGROUND

The freedom of speech and expression is a basic requirement of any

democratic society with rule of law and constitutional governance.

Without free access to information held by the public authorities and

liberty of thought, it is not possible for a citizen to

1 Glenn Edward Greenwald (born March 6, 1967) is also a lawyer and author. He

wrote series of reports for The Guardian newspaper from June 2013, exposing

the United States and British global surveillance programs. He studied and

cited classified documents disclosed by Edward Snowden. Greenwald and his

team won both a George Polk Award and a Pulitzer Prize for those reports.

One of his best-selling books is “No Place to Hide”. He is a champion of right

to privacy as against invading state.

2020] Personal Data Protection Bill’ Vis-À-Vis Freedom of Expression 27

express himself. Hence, the recently invented – “right to

information” is recognized as an inherent component of this

expression by the Supreme Court in several of its landmark

judgments2. Right to information is the most basic right without

which there will be no glasnost and without such glasnost, there can

be no perestroika meaning change in the character of the Indian

state3.

Article 19 of Indian Constitution has recognized and guaranteed the

freedom of speech and expression, which includes the freedom of

media. The text of this Article is:

Article 19: Protection of certain rights regarding

freedom of speech etc., (1) All citizens shall have the right

(a) to freedom of speech and expression;

Article 19(2) says:

(2) Nothing in sub clause (a) of clause (1) shall affect the

operation of any existing law, or prevent the State from

making any law, in so far as such law imposes reasonable

restrictions on the exercise of the right conferred by the

said sub clause in the interests of

(i) the sovereignty and integrity of India,

(ii) the security of the State,

(iii) friendly relations with foreign States,

(iv) public order,

2 Bennett Coleman and Co v. Union of India, AIR 106 (SC:1973), Indian Express

Newspapers (Bombay) Private Ltd v. Union of India, AIR 515 (SC:1986),

State of U.P v. Raj Narain AIR 865 (SC:1975), Union of India

v. Association for Democratic Reforms, AIR 2110 (SC:2002), Thallapallam

Coop Bank v. State of Kerala, 16 SCC 82, 44 (SC:2013), Namit Sharma v.

Union of India, 1 SCC 745 (SC:2013), Central Board of Sec. Education & Ors. v. Aditya Bandopadhyay & Ors, 8, SCC 497 (SC:2011).

3 SP Sathe, The Right to Know, Bombay: N.M. Tripathi, 39, (1991).


(v) decency or morality or

(vi) in relation to contempt of court,

(vii) defamation or

(viii) incitement to an offence

The founding fathers of the Constitution of India preferred the right

to free speech in contrast to the right to privacy. Hence, privacy is

not included in the list of grounds prescribed to restrict free speech

in Article 19(2). Can new restrictions be imposed on freedom of

expression based on any of new grounds other than those listed in

Article 19(2) of the Constitution?

REASONABLE RESTRICTIONS BASED ON LAW

Only through Parliamentary enactments, reasonable restrictions can

be imposed on freedom of speech and expression on the grounds

mentioned. If a new ground is to be added, an amendment to

fundamental rights will become essential. In fact, Supreme Court

has dealt with several reasonable restrictions on the freedom of

press. The Supreme Court specifically discussed the limitations on

the right to privacy in the Puttaswamy4 case, which the Srikrishna

Committee should have seriously considered. Prior to this case, the

Supreme Court broadly explained the scope of privacy and the

necessity of restrictions on privacy in synchronization with Art

19(2), as follows:

In R. Rajagopal v Tamil Nadu5 the question before the Supreme

Court was whether the direction issued by the Tamil Nadu police to

the editor and publisher of a Tamil weekly that was slated to publish

the life-story of a notorious criminal Auto Shankar was

4 Justice K. S. Puttaswamy (Retd.) v. Union of India And Ors. 1 SCC 10

(SC:2017). 5 R. Rajagopal v. Tamil Nadu, 6 SCC 632 (SC:1994).


constitutional. Explaining the scope of right to privacy, the Court

held (per Jeevan Reddy, J.):

A citizen has a right to safeguard the privacy of his own, his

family, marriage, procreation, motherhood, child bearing

and education among other matters. None can publish

anything concerning the above matters without his consent -

whether truthful or otherwise and whether laudatory or

critical. If he does so, he would be violating the right to

privacy of the person concerned and would be liable in an

action for damages. Position may, however, be different, if a

person voluntarily thrusts himself into controversy or

voluntarily invites or raises a controversy. Paragraph 26

Applying the above principles, it must be held that the

petitioners have a right to publish, what they allege to be the

life-story/autobiography of Auto Shankar insofar as it

appears from the public records, even without his consent or

authorisation. But if they go beyond that and publish his life-

story, they may be invading his right to privacy and will be

liable for the consequences in accordance with law.

Similarly, the State or its officials cannot prevent or restrain

the said publication. The remedy of the affected public

officials/public figures, if any, is after the publication, as

explained hereinabove. Paragraph 29.

In PUCL v. Union of India6, it was held that Section 5(2) of the

Indian Telegraph Act, 1885 that allowed for wire-tapping of phones

was violative of right to privacy. The Supreme Court held (per

Kuldip Singh, J.):

6 PUCL v. Union of India, 1 SCC 301 (SC:1997).


“Conversations on the telephone are often of an intimate and

confidential character. Telephone-conversation is a part of

modern man's life. It is considered so important that more

and more people are carrying mobile telephone instruments

in their pockets. Telephone conversation is an important

facet of a man's private life. Right to privacy would certainly

include telephone-conversation in the privacy of one's home

or office. Telephone-tapping would, thus, in fact Article 21

of the Constitution of India unless it is permitted under the

procedure established by law.”

In Mr. X v. Hospital Z7, the question before the Court was whether

the right to privacy of the patient was violated when his blood test

results showing he was HIV+ were disclosed by the hospital to

classmate engaged to marry him, thereby leading to cancellation of

marriage. It was held in negative. If the doctor refused to disclose

the information about HIV+ for the fear of harming reputation of the

Youngman, his fiancé could not have taken an informed decision

regarding marrying him. The Supreme Court held that the hospital

was not guilty of a violation of privacy since the disclosure was

made to protect the public interest. While affirming the duty of

confidentiality owed to patients, the court ruled that “the right,

however, is not absolute and may be lawfully restricted for the

prevention of crime, disorder or protection of health or morals or

protection of rights and freedom of others”.

The broad facets of privacy are explained in the Puttaswamy case.

The list is obviously illustrative and not exhaustive:- Physical

privacy, Privacy in one‘s home, Privacy in Communication, Privacy

in Financial affairs, Privacy of Health, Privacy of individual

Information, Online privacy, and Privacy of thought.

7 Mr. X v. Hospital Z, 8 SCC 296 (SC:1998).

https://en.wikipedia.org/wiki/Information_privacy_law


The right to privacy is overridden on a long range of grounds from

security of state, to a competing private interest and compelling

public interest. Some of these competing rights that deny right to

privacy are:

• public emergency and public safety (communications)

• criminal investigation (search and seizure/communications)

• competing private interests (divorce proceedings)

• best interests of the child (paternity suits)

• public interest (Right to Information)

• competing fundamental rights (HIV status)

Under the law of torts, invasion of privacy has evolved as a civil

wrong and any affected person in principle has right to claim

damages from the concerned civil court. There are a plethora of

judgments which explain that a citizen has a constitutional remedy

against invasion of privacy by the Government by illegally tapping

his/her telephone or searching his private residence as referred

above. Because of the general lack of knowledge of enforcing

tortious liability in India, only the elite and rich turn to higher courts

through writ petitions for constitutional remedies. This suggests the

need for a comprehensive legislation on the right to privacy and a

reasonably justifiable law on data protection also.

RIGHT TO INFORMATION ACT AND PRIVACY

The only enactment that dealt with ‘privacy’ in a limited manner is

the Right to Information Act, 2005, which has provided for

comprehensive protection to the privacy of the public servants from

the demands for disclosure.

However, public information officers interpreting Section 8(1) (j)

of the Act, denied a majority of RTI requests under that section. The

first and second appeals provided under RTI Act were also not

eliciting information about public servants because of the culture


of secrecy embedded in public offices and the mindset of

withholding any information. Most of the denials were intended to

safeguard colleagues from scrutiny or action against their

irregularities. The very purpose of this transparency legislation is to

provide for public scrutiny of public servant’s official actions, which

is an essential democratic norm. But the bureaucrats considered the

information about complaints, inquiries and actions against public

servants as their ‘personal information’, not being inclined to respect

the right to seek such information under this legislation.

In Girish Ramachandra Deshpande, the (Public Information

Officer) PIO, the First Appellate Authority, the (Chief Information

Commissioner) CIC8, single judge bench9 and the Division Bench10

of Bombay High Court supported the view endorsing that the

disciplinary action related activity is between employer and

employee and the citizens need not have access to it. Unfortunately,

the Special Leave Petition (SLP) filed in the Supreme Court was

dismissed11. Though dismissal of the SLP will not constitute

‘precedent’ and declaration of law12, the Department of Personnel

and Training, the central nodal agency to implement RTI Act, issued

an office memorandum13 asking PIOs all over India to deny such

information. It has had a devastating effect on

8 CIC decision in Girish R Deshpande v. Ministry of Labour and Employment

& EPFO NO 1989/IC(A)/2008, in F.No CIC/MA/A/2007/00825.863 dated

2st Feb 2008. 9 Id. WP No. 4221 of 2009 Bombay High Court Nagpur Bench, Justice BP

Dharmadhikari dated 16.2.2010 10 Id. LPA No 358 of 2011 before the Division Bench of DD Sinha and AP

Bhangale, JJ of Bombay High Court at Nagpur on 21.12.2011. 11 Girish Ramachandra Deshpande v. Central Information Commissioner &

ors, SLP Civil NO. 27734 of 2012, JJ (2012) 9 SCALE 700. 12 Dhakeshwari Cotton Mills Ltd v. CIT West Bengal AIR 65 (SC:1955);

Kunhayammed and Ors v. State of Kerala and Anr. 6 SCC 359 (SC:2000). 13 Office Memorandum of DoPT No. 11/2/2013-IR (Pt) on 14th August 2013.


the implementation of the RTI Act, and that effect is continuing. It

is to be noted that the Information Commissioners selected from the

background of bureaucracy are usually not inclined to disclose any

such information as they strongly believe that certain amount of

secrecy is essential for smooth running of administration.

Thus Section 8(1)(j) is most used, if not abused, to deny the

information requests across the country. Srikrishna Committee felt

this privacy clause [S 8(1)(j)] was ambiguous and needed

clarification. The Committee came out with an alternative text to

replace it by drafting a bill to amend RTI Act.

THE REPORT AND THE PERSONAL DATA PROTECTION

BILL, 2018

The Expert Committee chaired by retired Justice BN Srikrishna

submitted the report as well as the draft legislation titled, ‘the

Personal Data Protection Bill, 2018 on 27th July 2018. This report

and Bill were expected to be in accordance with the guidelines laid

down in the landmark nine-judge bench judgment of the Supreme

Court in KN Puttaswamy14 case on the right to privacy delivered in

August 2017.

However, the right to privacy is yet to be properly defined. Except

for some elaborate conceptual explanations in judicial discourses,

the concept of ‘privacy’ remains an ambiguous idea. The Supreme

Court in Puttaswamy expected the Parliament to make a

comprehensive legislation. Though Puttaswamy case set the

controversy on the character of ‘privacy’ as a right to rest, the lack

of a comprehensive and enforceable definition along with defined

scope for exceptions continue to cause serious practical difficulties.

The Justice Srikrishna committee was expected to

14 Supra 33.


partly address these difficulties to the extent of Data Protection. The

salient features of the Committee’s Personal Data Protection Bill,

2018 are briefly analysed below:

a) Restrictions on Processing and Collection of Personal

Data: The Srikrishna Committee recommended that

processing (collection, recording, analysis, disclosure, etc.) of

personal data should be done only for “clear, specific and

lawful” purposes. Only that data which is necessary for such

processing is to be collected. The personal data may be

processed by the government if that is considered necessary for

any function of the Parliament or State Legislature. This

includes the provisions of services, issuing of licenses, etc.

b) Data Localisation: The Bill clearly restricts the storage of

personal data to servers located within India, and states that

transfer beyond the country are subjected to certain safeguards.

The Bill also says that critical personal data should only be

processed in India.

c) Explicit Consent and Sensitive Personal Data: Explicit

consent is mandatory for processing “sensitive” personal data

(such as passwords, financial data, sexual orientation, biometric

data, religion or caste). Such consent for the process should be

purpose specific. For instance, if a citizen disclosed his sexual

orientation to a survey which was meant for assessing the

number of people of that category, that cannot be sold or sent

to commercial/advertisement agencies which can target them.

d) Data Protection Authority: The Bill proposes the creation of

a Data Protection Authority (DPA) to “protect the interests of

data principals”, prevent misuse of personal data and ensure

compliance with the safeguards and obligations under


the data protection framework by corporations, governments or

anyone else processing personal data (known as “data

fiduciaries”). The authority will need to publish Codes of

Practice on all these points. The DPA has the power to inquire

into any violations of the data protection regime and can act

against any data fiduciaries responsible for the same.

e) Rights of Data Principals (Citizens): The Justice Srikrishna

Commission Draft Bill laid down the rights of ‘data

principals’ (citizens, or persons owning the data), proposes

the creation of a data authority to enforce the Act, and

prescribes penalties for violations by ‘data fiduciaries’

(public and private sector entities that collect, process and

store data).

f) Definition of Data and Consent: The Bill defines ‘data’ in

two different ways. The first is ‘personal data, which is “data

about or relating to a natural person…” This definition can

lead to wide open inferences and unwieldy inclusions. There

is a separate category for “sensitive personal data” which

includes: health data, official identifier, sex life, sexual

orientation, biometric data, genetic data, transgender status,

intersex status, caste or tribe, religious or political belief. The

consent that ‘data fiduciaries must obtain for collection and

processing of personal data is qualified by the criteria of

‘informed’, ‘specific’, ‘clear’ and ‘capable of being

withdrawn’. For sensitive personal data, the consent

standards are higher and more detailed. For instance, the data

fiduciary should make sure that the individual is “given the

choice” of separately consenting to the “use of different

categories of sensitive personal data relevant to processing”

and that they


should understand that the processing of this data “may have

significant consequences” for them. The second category

appears to be ‘personal data’ that needs to be protected. The

first category definition would be a real source of problems,

because the person’s wrongs, crimes, misconduct in office,

irregularities, breach of promises and violation of

constitutional norms also would be covered by this open-

ended definition. Several provisions of the Bill with

reference to first category could be troublesome, anti-

democratic and unconstitutional.

NEW RIGHTS OF CITIZENS & HIGH PENALTIES

The Bill proposes several new rights in regard to the data They are:

a) the ‘right to confirmation’ (Whether any company,

which might include a newspaper or tv channel or a web-

journal or a government department using a person’s

data?),

b) the ‘right to correction’ (correction, completion or

updating of inaccurate personal data),

c) the ‘right to portability’ (compelling company ‘X’ to

give the data principal the order history data and transfer

it to company ‘Y’) and,

d) the ‘right to be forgotten’ (right to demand social media

servers to delete a search engine result that is about a

person).

Penalties: There are two major categories of penalties suggested:

1) If a data fiduciary doesn’t follow through on compliance

requirements, it can be fined up to Rs 50 million or 2% of its

worldwide turnover, whichever is higher.


2) If it doesn’t comply with the standards for processing

personal or personally sensitive data it can be fined up to Rs

150 million or 5% of its total worldwide turnover, whichever

is higher. There are other penalties for more minor violations

such as refusing to comply with an individual’s request (Rs.

5 lakhs maximum).

LEAVING SCOPE FOR TWO MORE ENACTMENTS!

The Bill has provided broad exemptions to personal data protection

on the grounds of Security of State (Section 42); Prevention,

detection, investigation and prosecution of Crime (Section 43);

Processing for the purpose of legal proceedings (Section 44),

Research archiving or statistical purposes (Section 45); Personal or

domestic purposes (Section 46); Journalistic purposes (Section 47)

and Manual processing by small entities (Section 48).

However, the Committee left without proposing any drafts on these

two major exemptions to Personal Data Protection provisions -

Security of State (Section 42); and Prevention of Crime (Section 43).

This Bill says the provisions under Sections 4 and 31 will not apply

to new law (to be drafted) to empower state to process the personal

data on grounds of Security of State (Section 42) and Prevention of

crime (Section 43). The Bill says sections 3 and 32, chapter VIII

(Transfer of personal data outside India) will not apply to Law made

for enabling not processing of personal data for purpose of Legal

proceedings (Section 44).

It wanted two new legislations to be made by the Parliament in

future. There are no safeguards in this Bill for citizens’ personal data

from the surveillance of the state. It suggests that the Centre should

‘carefully scrutinize the question of oversight of


intelligence gathering’. The Bill also did not spell out the exceptions

to right to privacy on the grounds of prevention, investigation and

prosecution of persons accused of crimes. The question is why are

these vital aspects left out by the Committee?

JUSTICE SRIKRISHNA’S AMENDMENT OF RTI

It’s necessary to analyse the text of Section 8(1)(j) of RTI Act in the

context of Girish’ judgment and its profuse use to deny information,

as referred above:

8(1) Notwithstanding anything contained in this Act, there

shall be no obligation to give any citizen, —

---- (a) to (h)-----

(j) information which relates to personal information the

disclosure of which has no relationship to any public activity

or interest, 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.

(2) Notwithstanding anything in the Official Secrets Act,

1923 nor any of the exemptions permissible in accordance

with sub-section (1), a public authority may allow access to

information, if public interest in disclosure outweighs the

harm to the protected interests.


There can be seven occasions even if the information sought was

personal and it could be given under this exception:

a. The information relates to public activity,

b. The information relates to public interest,

c. The information disclosure will not cause unwarranted

invasion of privacy of that individual,

d. Though information is personal, not related to public activity

or interest, if larger public interest justifies such disclosure,

e. Though information is personal, and its disclosure could

cause unwarranted invasion of privacy it could still be

disclosed if larger public interest justifies,

f. Though information is personal, not related to public activity

or interest, disclosure causes unwarranted invasion of

privacy of the individual, no larger public interest involved,

yet it could be given to citizen if it can be furnished to the

Parliament or State Legislature15.

g. Though information is personal, not related to public activity

or interest, disclosure causes unwarranted invasion of

privacy of the individual, it could still be given if public

interest in disclosure outweighs the public interest in its non-

disclosure16.

This section explains the scope of protection of personal information

of public servant and prescribes exceptions in the larger public interest.

It says there would be no obligation to reveal personal information

which was not related to “public activity or interest” or

15 Right to Information Act, 2005, Proviso to §. 8(1) 16 Id. §. 8(2).


that would cause an invasion of privacy. The proposed 8(1)(j) claims

to have a balancing act between the public interest in accessing the

information on one hand, and prevention of the harm that could be

caused to the data principal on the other.

Section 8(1)(j) of RTI Act and the defence of privacy cannot be used

to shield crimes, wrongs or irregularities of public servants. The

experience shows that at present the public authorities are not

inclined to reveal information using section 8(1)(j) which naturally

helps in shielding the irregularities of their officers. Section 3 which

declared right to information to the citizens is very strongly

countered by this clause in practice.

Because of significant technological developments in the field of

Information Communication Technology (ICT) the speed and scope

of the social media has phenomenally increased posing serious

threat to the privacy of individuals. With ‘Aadhaar’ (unique

identification of citizens) plans of collecting massive biometric data

of all citizens and linking public welfare schemes and other activities

to Aadhaar, the issue of privacy has been debated and several

challenges have reached the Supreme Court. The nine-judge bench,

after detailed deliberations pronounced a historic judgement saying

the right to privacy is a fundamental right. However, the Bench said

that the right to privacy, though fundamental, was not absolute and

explained the areas of restriction generally. “Urbanization and

economic development lead to a replacement of traditional social

structures. Urban ghettos replace the tranquility of self-sufficient

rural livelihoods. The need to protect the privacy of the being is no

less when development and technological change continuously

threaten to place the person into


public gaze and portend to submerge the individual into a seamless

web of inter-connected lives”17.

Six days after this landmark order, the Supreme Court delivered

another judgment affecting the RTI of the people. Referring to

Girish as precedent, the Division Bench of Supreme Court in

Canara Bank v CS Shyam18, declared even information about

postings of clerks after appointment, transfer and promotion in a

public sector banks as “the private information” and refused to be

disclosed under RTI Act. The Girish and Canara Bank have unduly

expanded the ambit of ‘privacy’ under RTI Act and shrunk the area

of accountability.

NEW CLAUSE PROPOSED IN THE BILL 201819:

The Justice Srikrishna Committee further expanded the scope of the

right of privacy for public servants by recommending additional

grounds to hide information. The Personal Data Protection Bill

suggested replacing the existing Section 8(1)(j) with the following

provision.

In place of the current clause (j) of sub-section (1) of section

8 of the Right to Information Act, 2005 the following clause

(j) of sub-section (1) of section 8 shall be substituted,

namely: —

“(j) information which relates to personal data which is

likely to cause harm to a data principal, where such harm

outweighs the public interest in accessing such information

17 Supra 4, ¶36. 18 Canara Bank v. C.S. Shyam, AIR 4040 (SC:2017). 19 Ministry of Electronics and Information Technology, Report of the

Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, A

Free and Fair Digital Economy, Protecting Privacy, Empowering Indians,

July 27, 2019, https://meity.gov.in/writereaddata/files/Data_Protection

_Committee_Report.pdf.


having due regard to the common good of promoting

transparency and accountability in the functioning of the

public authority;

Provided, disclosure of information under this clause shall

be notwithstanding anything contained in the Personal Data

Protection Act, 2018;

Provided further, that the information, which cannot be

denied to the Parliament or a State Legislature, shall not be

denied to any person.

Explanation. —For the purpose of this section, the terms

“personal data”, “data principal”, and “harm” shall have

the meaning assigned to these terms in the Personal Data

Protection Act, 2018.”

Section 3 (14) “Data principal” means the natural person to

whom the personal data referred to in sub-clause (28)

relates;

A scrutiny of this clause reveals that Section 8(1)(j), if replaced by

the above provision, will expand the scope of denial of information

because of the ambiguity of several expressions and addition of

different grounds for denial such as the ‘harm test’.

The proposed Section 8(1)(j) says “information which relates to

personal data” can be denied. The personal data can be rejected if

it causes harm to the data principal (owner/public servant about

whom the information is sought). As per section 3 (29) of the Bill

2018 “Personal data” means data about or relating to a natural

person who is directly or indirectly identifiable, having regard to

any characteristic, trait, attribute or any other feature of the identity

of such natural person, or any combination of such features, or any

combination of such features with any other


information; This definition itself is very wide in scope. This means,

not only personal data but also any information relating to personal

data also could be denied, if it harms the data principal. The scope

of rejection is further expanded without bounds.

For example, if disciplinary action against officer is considered as

‘personal data’, any information about it also can be denied as that

might be ‘relating to’ it. The mischief lies in the words ‘information

relating to personal data’. If someone asks under RTI whether a

public servant is promoted despite disciplinary action, this could be

considered as information relating to ‘personal data’ and be denied.

The proposed section 8(1)(j) says: “information which relates to

personal data which is likely to cause harm”. ‘Likely’ is a loose and

mischievous expression which can be construed and used according

to individual imaginations. The ‘likelihood’ of harm will stall RTI

questions. If imagination can be stretched, restrictions could also be

stretched.

In present RTI Act, section 8(1)(j) the ‘larger public interest’ is the

test to relax the exemption and the PIO might decide to give

information. In the report Justice Srikrishna said that the undefined

‘public interest’ is ambiguous and suggested specifying the

relaxation clause. But the expressions he included in the Bill are clad

in more ambiguity and have a wide scope for misinterpretation. The

expressions such as ‘relating to’, ‘harm’, ‘likely to harm’ are

ambiguous, wide and without any limits, which decide fate of RTI.

The test Justice Srikrishna suggested appears to be revolving around

‘public interest’ but in fact takes the test beyond ‘public interest’

with many confusing words. It says, ‘where such harm outweighs

the public interest in accessing such information having


due regard to the common good of promoting transparency and

accountability in the functioning of the public authority’

information can be given. The PIO has more difficult task of

understanding whether this ambiguous likelihood of harm is going

to outweigh the common good of promoting transparency. It is not

easy even for the applicant to explain. Justice Srikrishna’s Bill also

did not define public interest, common good, promotion,

transparency and accountability. Another major lacuna of this Bill

is that it did not even define the “term” ‘privacy’ either in the Bill or

in the Report.

THE “HARM” TEST THAT CAN HARM RTI

The most important expression used in Bill that can cause serious

harm to RTI is the ‘harm’. Section 3 (21) says:

“Harm” includes— (i) bodily or mental injury; (ii) loss,

distortion or theft of identity; (iii) financial loss or loss of

property, (iv) loss of reputation, or humiliation; (v) loss of

employment; (vi) any discriminatory treatment; (vii) any

subjection to blackmail or extortion; (viii) any denial or

withdrawal of a service, benefit or good resulting from an

evaluative decision about the data principal; (ix) any

restriction placed or suffered directly or indirectly on

speech, movement or any other action arising out of a fear

of being observed or surveilled; or (x) any observation or

surveillance that is not reasonably expected by the data

principal.

The first two words are enough to cause confusion: ‘harm includes’

could mean anything specified in the ten sub clauses in Section 3(21)

of the Bill besides any other harm which PIO can imagine. Yet

another expression used is: “Bodily injury or mental injury”. Any

RTI request may embarrass or upset or cause worry to


‘data principal’ i.e., public servant, which can be considered as

mental injury. PIO can instantly reject any embarrassing

information because it might cause mental injury.

‘Loss of reputation’ is another ‘harm’ suggested to be a restriction

against disclosure. If that is the ground of denial, can any

information about a wrong-doing by a public servant be disclosed?

Every disclosure about disciplinary action on misconduct might

cause loss of reputation. The Justice Srikrishna Report says that even

the possibility of ‘humiliation’ is enough to deny.

This Committee has amending the RTI in order to protect public

servant from any likely harm by the disclosure of such data Both

‘likely’ and ‘harm’ are potential enough to eclipse the RTI forever.

PROTECT BLACK SHEEP FROM BLACK MAIL

All corrupt public servants can celebrate this Bill. It will safeguard

the black sheep among public servants from possible black mail. The

expression used is ‘subjecting him to black mail or extortion” as part

of wide definition of ‘harm’. If disclosure of any information under

RTI is likely to subject a corrupt officer to black mail or extortion,

it can be denied. Corruption and information relating to it also can

be interpreted as his private information if this Bill is made into an

Act.

There are two more expressions: (ix) any restriction placed or

suffered directly or indirectly on speech, movement or any other

action arising out of a fear of being observed or surveilled; or (x)

any observation or surveillance that is not reasonably expected by

the data principal. Even indirect restriction on speech or fear of

being observed is enough cause for denial. These ten clauses of

‘harm’ in definition will provide ten exit gates to corrupt officers to

escape from RTI scrutiny by the people. Imaginative, efficient


and corrupt public servants may invent ‘harm’ beyond these ten

clauses.

THE BILL PROPOSES PRIOR RESTRAINTS ON MEDIA’S

FREEDOM

The provisions of the Bill have a potential impact on Media’s

freedom which is in the rubric of citizens’ freedom of speech and

expression under Article 19(1)(a) of the Constitution of India. An

individual may not be affected by this proposed Bill unless he gets

into the business of ‘processing’ the data of some person, which

might fall under the two categories of ‘personal’ and ‘sensitive

personal’ data. But every media organization, company, firm, TV

channel, newspaper etc, that processes certain facts (information or

data) of a ‘data principal’ cannot disclose (publish) without the

‘explicit consent’ of the ‘data principal (other citizen, bureaucrat,

minister or MP - present or retired) for news purposes, or for

publication of a book or an Article or souvenir, etc.

Justice Srikrishna Committee has suggested an exception for

‘journalistic purpose’ to the above mandates with reference to data

processing. The journalists will be professionally interested in

critically commenting on the past and present conduct of political

personalities including public servants using the available data. In

such cases the journalists are exempted from the strict provisions of

Personal Data Protection as per the exemption under clause (Section

47) of the Bill which says that the substantial provisions referred

above need not be observed if the data processing is for ‘journalistic’

purposes. The text of the exception is:

S 47: Journalistic purposes— (1) Where the processing of

personal data is necessary for or relevant to a journalistic

purpose, the following provisions of the Act shall not

apply—


(a) Chapter II, except section 4; (b) Chapter III; (c)

Chapter IV; (d) Chapter V; (e) Chapter VI; (f) Chapter VII

except section 31; and (g) Chapter VIII.

(2) Sub-section (1) shall apply only where it can be

demonstrated that the processing is in compliance with any

code of ethics issued by— (a) the Press Council of India, or

(b) any media self-regulatory organization.”

Section 47(1) appears to be upholding the freedom of speech and

expression, where the processing of personal data is necessary or

relevant for journalistic purpose, for which Chapters 2 to 8 will not

apply (except Sections 4 and 31). This means that, for journalistic

purposes, there can be a publication; however, a journalist is

expected to ensure reasonable respect to the privacy of the ‘data

principal’ (Section 4 of Chapter II which only applies). Section 5

which says ‘personal data shall be processed only for purposes that

are clear, specific and lawful’ will not apply if publication is for

journalistic purpose. Collection limitation (Section 6), Lawful

processing limitation (Section 7), Need for giving notice (Section 8),

Data quality (Section 9) Data Storage Limitation (Section 10), and

accountability (Section 11) of Chapter 2 also will not apply to

writings for journalistic purposes. Sections 12 to 17 that deal with

processing of personal data based on consent will not apply to

journalistic writings. Similarly, grounds for processing sensitive

personal data u/s 18 to 22 and processing of personal and sensitive

data of children (Section 23) will not apply. The rights of Data

Principal such as right to confirmation and access, right to

correction, right to data portability, right to be forgotten, and other

general conditions for the exercise of rights in this Chapter VI dealt

with under Sections 24 to 28 also will not apply to journalistic

writings.


There is a twist in Section 47, i.e., the adjudicating officer will

decide whether right to freedom of speech and the right to

information of citizens will override the privacy of data principal.

Sub-section (2) of Section 47 is another hurdle on the media’s

freedom to write. This subsection takes away the freedom that was

given under Section 47(1), which says that such an exemption will

apply only where it can be demonstrated that the processing

follows any code of ethics issued by the Press Council of India or

any media self-regulatory organization. Mischief lies in expression

‘demonstration’ before adjudicating officer. A journalist must

demonstrate to convince that his journalistic purpose is in

compliance with ‘code’ of Press Council or self- regulatory

organization of media, before he publishes a critical analysis about

a bureaucrat or politician. The code developed by the Press Council

of India is not a penal code, and the council is not a court with

powers to impose penalties. That code represents the set of

guidelines based on ethics and proprietary norms, which cannot be

enforced with external pressures. Following the code is a matter of

self-regulation.

The Adjudicating officer envisaged in this Bill is not even a quasi-

judicial officer but a bureaucrat subordinate of political executive,

exercising power to stop a journalist from performing his duties

exercising press freedom. This is the hidden danger, which need to

be decodified and discovered. Any ethical code that is

recommendatory cannot be elevated to the level of a legal

obligation. Imagine if a journalist writes without such convincing

demonstration, he would end up paying huge penalties. This is an

unreasonable restriction on the freedom of media.

Any attempt to restrict the professional activity of writing based on

the grounds other than those prescribed under Article 19(2) will be


unconstitutional. The Press Council is a statutory body with

recommendatory powers to protect journalists from undue pressures

and other from unethical journalists. The PDP Bill also refers to

other ‘codes’ developed by journalistic bodies and elevates them to

the level of a penal code. Compliance with such a code is good for

healthy journalism but to prevent journalist from writing about

public servants on the grounds of failure to demonstrate the

compliance with those codes is neither legal nor constitutional.

A journalistic exercise should be free from prior restraints, including

‘pre-censorship’. Insisting that a journalist should take prior

permission from an adjudicating officer under this Personal Data

Protection Bill brings in the pre-censorship.

If this Bill is accepted by the Government and it passes this

legislation, it will perpetuate the pre-censorship, which was a

temporary restriction during Emergency period (1975-77).

THE RIGHT TO BE FORGOTTEN, TO BE FORGOTTEN!

Another substantial proposition of Justice Srikrishna’s Bill is the

right to be forgotten. The right means right to be forgotten and to

remove, very old irrelevant and unnecessary information links from

social media networks. This concept is prevalent in European Union

(EU) and France, though it was not preferred in the United States

which valued freedom of the press. Mario Costeza Gonzales wanted

Google and a newspaper La Vanguardia,20 to remove a 1998 news

item about the selling of property to pay off debts. EU court in 2009

upheld his right not to be reminded of that unpleasant part of his

life. US courts, however, did not agree with William

20 The Right to be Forgotten, The Guardian, (Feb. 18, 2015, 7.30 AM),

https://www.theguardian.com/technology/2015/feb/18/the-right-be- forgotten-google-search.

http://www.theguardian.com/technology/2015/feb/18/the-right-be-


James Sidis, a former child prodigy who did not want New Yorker

newspaper to publish his past. The court said that there are social

values in published facts. Simply because he does not want

something published, celebrity status cannot be ignored. 21.

In India, one person could get a certificate of marriage with a

woman’s name who never married him. Her father’s plea to annul

that marriage certificate was accepted by Karnataka High Court22. A

rape victim has a right to be forgotten about that nasty past. At the

same time a criminal cannot claim that his conviction should not be

referred by media using this right, Gujarat High Court said.

Thus, in some sporadic cases, where genuine interests of the citizens

were involved the courts considered requests for removing the

embarrassing information from the search engines managed by

Google. Recognizing the right to information as part of Data

Protection legislation might have serious implications on freedom of

speech including right to information. The Srikrishna committee

recommended giving “data principals” (persons whose personal data is

being processed) the ‘right to be forgotten’. This means they will be

able to restrict or prevent any display of their personal data once the

purpose of disclosing the data has ended, or the data principal

21 Sidis v F-R Publishing Corporation, 311 U.S. 711 61 (1940). See also:

What is the Right to be Forgotten and how it could affect you? Catch News,

(Feb. 10, 2017, 1:50 IST), http://www.catchnews.com/tech-news/what- is-the-right-to-be-forgotten-and-how-it-will-affect-you-

1462532182.html. 22 Deya Bhattacharya, Right to be forgotten: How a prudent Karnataka HC

judgment could pave the way for privacy laws in India, First Post

https://www.firstpost.com/india/right-to-be-forgotten-how-a-prudent-

karnataka-hc-judgment-could-pave-the-way-for-privacy-laws-in-india-

3270938.html See also: Arunima Bhattacharya, In A First An Indian Court Upholds The 'Right To Be Forgotten, Live Law, (Feb. 3, 2017, 10:50 AM),

Abhinav Garg, Delhi banker seeks `right to be forgotten' online, (May 1,

2016, 5:32 IST), https://timesofindiArticleindiatimes.com/india/Delhi-

banker-seeks-right-to-be-forgotten-online/Articleshow/52060003.cms.

http://www.catchnews.com/tech-news/what-

http://www.firstpost.com/india/right-to-be-forgotten-how-a-prudent-

http://www.firstpost.com/india/right-to-be-forgotten-how-a-prudent-


withdraws consent from disclosure of their personal data In the

European Union (EU), this right has been recognized and used by

people to get unflattering records of them on news websites taken

down after the matter is no longer a matter of public interest.

Section 27 of the draft bill says:

(1) The data principal shall have the right to restrict or

prevent continuing disclosure of personal data by a data

fiduciary to the data principal where such disclosure-

a) has served the purpose for which it was made or is no

longer necessary;

(b) was made on the basis of consent under section 12 and

such consent has since been withdrawn; or

(c) was made contrary to the provisions of this Act or any

other law made by Parliament or any State Legislature.

(2) Sub-section (1) shall only apply where the Adjudicating

Officer under section 68 determines the applicability of

clause (a), (b) or (c) of sub-section (1) and that the rights

and interests of the data principal in preventing or

restricting the continued disclosure of personal data

override the right to freedom of speech and expression and

the right to information of any citizen.

(3) In determining whether the condition in sub-section (2)

is satisfied, the Adjudicating Officer shall have regard to—

(a) the sensitivity of the personal data;

(b) the scale of disclosure and the degree of accessibility

sought to be restricted or prevented;

(c) the role of the data principal in public life;


(d) the relevance of the personal data to the public; and

(e) the nature of the disclosure and of the activities of the

data fiduciary, particularly whether the data fiduciary

systematically facilitates access to personal data and

whether the activities would be significantly impeded if

disclosures of the relevant nature were to be restricted or

prevented.

(4) The right under sub-section (1) shall be exercised by

filing an application in such form and manner as may be

prescribed.

(5) Where any person finds that personal data, the

disclosure of which has been restricted or prevented by an

order of the Adjudicating Officer under sub-section (2) does

not satisfy the conditions referred to in that sub- section any

longer, they may apply for the review of that order to the

Adjudicating Officer in such manner as may be prescribed,

and such Adjudicating Officer shall review her order on the

basis of the considerations referred to in sub- section (3).

The Bill prescribes under Section 68, a separate adjudicatory wing,

with adjudicating officers who are persons of ability integrity and

standing, with not less than seven years of experience in the fields

specified. Section 27(4) provides for a review by the same

Adjudicating Officer.

DATA PROTECTION AUTHORITY

The bill envisages a Data Protection Authority (DPA), consisting of

a chairperson and members, whose term is fixed at five years or 65

years of age but salary, other terms and conditions of service, will

be as “prescribed”, not fixed by the Bill. Unlike the present


Information Commissioners, the members of DPA are at the mercy

of the executive to prescribe rules which may vary from time to time,

seriously affecting their independent functioning. It is on the lines

of the Government of India’s recent proposal to reduce the status

and salary of the Information Commissioners. With this Bill, a

parallel and superfluous mechanism will be created to usurp the

authority of Information Commissioners to decide the validity of

disclosure of information about public servants, by empowering the

adjudicating officer to decide that question. The public servant’s

privacy or otherwise should have been totally exempted from the

application of PDP Bill. The absence of exemption so is a major

lacuna of the PDP Bill of Srikrishna Committee.

This constitution of the DPA contradicts the RTI Act, CIC and the

Fundamental Rights chapter of Constitution of India. This

undermines the very existence of the Information Commissions at

the Centre and in States.

BREACH OF CONSTITUTIONAL RIGHT TO FREEDOM

OF SPEECH

Protecting the private data of private persons cannot be taken to the

level of compromising the free speech that depends upon

dissemination of information about public functioning. Introducing

rights like ‘right to be forgotten’ or limiting the journalistic writings

with requirement of prior permission from the ‘adjudicating officer’

are not conducive to any vibrant democracy. Besides any attempt to

amend RTI Act 2005 to increase ambiguity must be understood in a

perspective rather than protecting private data of private persons.

We must consider the suggestion to replace present privacy clause

of RTI in the context of the democratic need for transparency and

people’s general right to speech within the realm of Constitution of


India. One should not forget that the RTI is an integral aspect of

fundamental right to speech under Article 19(1)(a) of our

Constitution23 and that it can be limited only according to Article

19(2).

But this proposed Bill has created several grounds such as personal

data, harm, likely harm, possibility of surveillance, loss of

reputation, chance of black mail or extortion, etc. Justice Srikrishna

did even mention about this major Constitutional hurdle while

introducing these new grounds to restrict RTI which also restrict free

speech. These new restrictions cannot be imposed without amending

the Constitution, which is obviously not possible because the

freedom of speech is basic feature of our Constitution. Attempting

to shrink free speech through an amendment to RTI is a serious

interference with the democratic norms of the rule of law. Privacy

should not and does not mean secrecy as far as public affairs are

concerned.

It is clear that Article 19(2), which lists various grounds for

restricting free speech, does not include privacy. With the new

grounds and ambiguous expressions, the Srikrishna committee

expanded the restrictions on Article 19(1)(a)24, beyond the clauses

in Article 19(2)25 of our Constitution and Section 8 of RTI Act.

23 Thallapalam Ser. Coop. Bank Ltd & Ors. v. State of Kerala, 16 SCC 82

(SC:2013). 24 19. Protection of certain rights regarding freedom of speech etc, (1) All citizens

shall have the right

(a) to freedom of speech and expression; (b) to assemble peaceably and

without arms; (c) to form associations or unions; (d) to move freely

throughout the territory of India; (e) to reside and settle in any part of the

territory of India; and (f) omitted (g) to practise any profession, or to carry on

any occupation, trade or business. 25 (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any

existing law, or prevent the State from making any law, in so far as such law

imposes reasonable restrictions on the exercise of the right conferred by the

said sub clause in the interests of the sovereignty and integrity of India,


Hence, making ‘privacy’ a ground for imposing restrictions on

freedom of speech is not constitutional and can be violative of

Article 19, because Parliament has no authority to restrict the

fundamental freedom guaranteed under Article 19(1)(a).

‘Defamation’ as a ground is well recognized and there is legislation

that restricts the free speech on this ground, i.e., Section

499 and 500 of Indian Penal Code. But no publication or expression

can be prevented on the likelihood of defamation. Defamation is

recognised as a ground for a consequential remedy of damages but

cannot be used as a prior restraint on journalistic expression. By

introducing an ambiguous ground of ‘loss of reputation’, the PDP

Bill crosses the permitted field of restrictions in Article 19(2). If a

statement is defamatory it can still be made if it is based on truth, or

as a fair comment or it could be a permitted as privileged discussion.

In such cases it is legally considered as not being defamation. In the

present scenario, what this Bill proposes is not the likelihood of

defamation as a restriction, but rather the likelihood of loss of

reputation to thwart RTI requests. Thus, the Bill is travelling beyond

the scope of Article 19(2) which damages democracy.

Similarly, there are several other open-ended expressions like

‘harm’ or ‘fear of being observed’ or possibility of ‘black mail’ that

cannot be found as grounds for restricting freedom of expression.

JUSTICE SRIKRISHNA & SC CAUTION ON PRIVACY

Test of arbitrariness: The Puttaswamy judgement dealt with

restrictions on the right to privacy, where Justice Nariman gave

the security of the State, friendly relations with foreign States, public order,

decency or morality or in relation to contempt of court, defamation or

incitement to an offence


examples of possible restrictions on the right to privacy, within the

fundamental rights chapter. He cautioned:

“… when it comes to restrictions on this right, the drill of

various Articles to which the right relates must be

scrupulously followed. For example, if the restraint on

privacy is over fundamental personal choices that an

individual is to make, State action can be restrained under

Article 21 read with Article 14 if it is arbitrary and

unreasonable; and under Article 21 read with Article 19(1)

(a) only if it relates to the subjects mentioned in Article

19(2) and the tests laid down by Supreme Court for such

legislation or subordinate legislation to pass muster under

the said Article. Each of the tests evolved by Supreme Court,

qua legislation or executive action, under Article 21 read

with Article 14; or Article 21 read with Article 19(1)(a) in

the aforesaid examples must be met in order that State action

pass muster26.”

Compelling state interest: The Supreme Court went on to say: “The

State requires compelled disclosure of membership lists of a

political organisation on national security or public order grounds.

This is an issue that will be at the intersection of Articles 19(1)(a)

(freedom of speech), Article 19(1)(c) (freedom of association), and

Article 21. The Court will then be required to apply the standards

under Article 19(2) and (4)27.”

Justice Chelameswar28 cautioned referring to concept of

reasonableness, saying:

26 Supra 4, ¶ 86. 27 Id. 28 Id., ¶ 42-43.


“the limitations are to be identified on case to case basis

depending upon the nature of the privacy interest claimed.

There are different standards of review to test infractions of

fundamental rights. While the concept of reasonableness

overarches Part III, it operates differently across Articles

(even if only slightly differently across some of them) … to

begin with, the options canvassed for limiting the right to

privacy include an Article 14 type reasonableness enquiry;

limitation as per the express provisions of Article 19; a just,

fair and reasonable basis (that is, substantive due process)

for limitation per Article 21…”

Justice Chandrachud referring to restrictions, said29: “a law which

encroaches upon privacy will have to withstand the touchstone of

permissible restrictions on fundamental rights.”

It appears Justice Srikrishna Committee did not take this caution of

the Supreme Court seriously. The privacy of public servants has

been protected by the RTI Act in a well-balanced manner as

envisaged by Supreme Court. This committee should have

distinguished private data from the private information in the

context of RTI and need for disclosure in public interest. Action on

the corruption of public servants is not the data, or any information

‘relating to action taken on complained public servants cannot be

imagined as ‘likely’ cause ‘loss of reputation’. In the name of data

protection, one should not protect corruption or corruption related

information. The Data Protection Bill in toto should not apply to

public servants and to their data except for securing their ‘sensitive

personal data’ as defined under Section 3(35) of the Data Protection

Bill 2018, i.e., passwords, financial data, health data, official

identifier, sex life, sexual orientation,

29 Id., Conclusion H.


biometric data, genetic data, transgender status, intersex status, caste

or tribe, religious or political belief or affiliation. This information

can be exempted from RTI except in larger public interest or on all

the suggested contingencies. But other data of public servants like

recruitment, transfer, promotion, disciplinary actions, remuneration,

leaves, their endorsements in public issues, file noting with their

names and notes, their reports, correspondence regarding activity of

the office cannot be considered as their private data.

Data protection and privacy are two distinct fundamental rights in

the European Union30. This distinction was the product of

recognition over a period of time where the independent importance

of data protection was emphasized. Data protection is narrower than

privacy since it is limited to data alone and does not extend to aspects

of privacy that are not informational. It is apparent that some

practices such as ensuring adequate data quality and openness have

little to do with privacy but are rather aimed at ensuring accuracy

such that the data can be effectively used. The Constitution cannot

provide detailed provisions of this nature. The Supreme Court has

recognized that matters of detail cannot be provided in the

Constitution itself, given that it is the basic law of the land, or in

statutes flowing from the Constitution. Despite the Charter of

Fundamental Rights containing privacy and data protection rights,

the EU has formulated detailed directives on data protection. It

comprehensively covers the fair information practices laid down by

the Organization of Economic Cooperation and Development

(OECD) and builds on them to ensure greater protection of data.

30 David Banisar, National Comprehensive Data Protection/Privacy Laws and

Bills 2016, (Oct. 31, 2011), https://papers.ssrn.com/sol3/

papers.cfm?abstract_id=1951416.


The mandate of this Committee is to suggest a comprehensive law

on privacy and personal data protection. But the Committee ignored

developing a framework to regulate the State power of unauthorized

surveillance, interception, pre-invasion precautions or post invasion

reviews or penalties to culprits in Government for unauthorized

surveillance and compensations to victims of privacy invasion or

breach of norms of personal data protection. This is the major failure

of the Committee and the draft Bill.

There is absolutely no need to repair or replace section 8(1)(j) of

RTI Act in the name of securing privacy or protecting data. If this

report and Bill are accepted, the fine balance between expression

right and reasonable restrictions clauses will get totally disturbed

and the authoritarian powers of the executive will be terribly

enlarged at the cost of democracy. This Bill of 2018 could give more

autocratic powers to government of the day than MISA

(Maintenance of Internal Security Act, 1971) during the infamous

Emergency. Expression ‘etc’ in MISA was said to have caused

serious violation of Constitutional rights during Emergency. It is

beyond imagination what damage this Bill could cause.

RESTRICTING ACCESS TO INFORMATION RESOURCES

Information or knowledge is a resource which empowers individuals

and enriches society. Such resource must be equitably accessible to

all. Under Article 39(b) of the Constitution, the state has been

enjoined to direct its policy towards ensuring that ‘the ownership

and control of material sources of community are so distributed so

as to sub-serve the common good’.

The report and the bill deserve to be rejected at threshold. Civil

society has the task to protect RTI from this dangerous Bill and the

Report. If not, this bill might drive the last nail in the coffin of the

RTI and the freedom of the media. Professor EP Thompson


cautioned civil society in his celebrated Article ‘The Secret State”,

which is relevant right now:

We should certainly campaign for a Freedom of Information

Act. The campaign will have educative value. It might secure

small gains, and, for historians, significant ones. But one

should be under no illusions about it: whatever Act is

passed; our public servants will find a way around it. (EP

Thompson, Writing by Candlelight, 1988, p177).

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