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Hans India
15-07-2025
- Politics
- Hans India
RTI vs Privacy: And the twain shall never meet
The clash between the Right to Information Act (RTI) 2005, and the Digital Personal Data Protection Act (DPDP) 2023 raises critical constitutional and jurisprudential issues: RTI is rooted in Article 19(1)(a) freedom of speech and expression — which includes the right to receive information. DPDPA draws strength from Article 21, as interpreted in the K S Puttaswamy ruling, which declared privacy a fundamental right. The legal challenge lies in reconciling these two rights when they come into direct conflict. When India passed the Right to Information Act in 2005, it was hailed as a revolutionary tool for empowering citizens and holding public authorities accountable. Two decades on, we now face a growing threat to that hard-won transparency, courtesy the Digital Personal Data Protection (DPDP) Act 2023. Billed as a progressive law meant to safeguard our digital privacy, the DPDP Act is ironically being used as a potent weapon to deny citizens access to critical information. Government officials can now refuse RTI requests by invoking a broad, often vaguely defined shield of 'personal data'. The result? People are increasingly denied information about how public funds are used, who benefits from welfare programs, and whether officials have misused their positions. Privacy and public interest: Section 8(1) (j) of the RTI Act upholds privacy where necessary, balancing it against public interest. The introduction of an overriding DPDP regime, without clearly defining the scope of exemptions or the hierarchy of laws, creates a dangerous ambiguity. Unless the judiciary or legislature intervene and clarify or harmonise application of these laws, the citizens' right to know may be systematically undermined, particularly when accessing information about the state. This isn't just a bureaucratic tiff between two laws. It is a democratic dilemma. The 'privacy' is being twisted into a legal fig leaf to hide public wrongdoing. What's more alarming is the power imbalance it creates. Lower-level officers — often under political pressure — are now arbiters of what counts as 'personal data,' overriding the established RTI mechanism. Add to this the fact that many states, like Telangana and Andhra Pradesh, don't even have functional RTI commissions due to which tousands of applications are piling up, unanswered. Privacy is a fundamental right as upheld by the Supreme Court in the 2017 Puttaswamy judgment. The RTI Act includes safeguards like Section 8(1)(j)) to protect privacy, disclosing personal information only when it serves a larger public interest. Given this facility, there was no need for another opaque filter. The DPDP Act must not become a smokescreen for stonewalling accountability. Parliament, courts, and civil society must act before we lose one of the most powerful instruments of participatory democracy. Though recently the Chief and four Information Commissioners have been appointed in Telangana, there are still vacancies all over India. There is a need to prioritise issues: 1. Appoint RTI commissioners immediately in states where they do not exist; 2. Reinforce RTI institutions; 3. Amend the DPDP Act to honour RTI's public interest provisions; Train officials so that they can distinguish between legitimate privacy and public transparency; Demand clarity on when RTI should override DPDP, especially in cases pertaining to governance and misuse of public funds. Accountability without RTI! This will invariably have a chilling effect on investigative journalism and civic activism; The government data might become opaque and inaccessible; Citizens will face hurdles when seeking even their own data, if deemed protected under DPDP; There is a need to clear demarcation on when RTI trumps DPDP, especially in public interest. Civil society should challenge the amendments in courts or through public mobilisation, besides building civil society pressure by petitioning Parliament to amend or roll back harmful provisions. This will also result in a decrease in government accountability due to increased opacity. Let's take a look at a recent judgment by the CIC on this conflict: Most of the requests for police related information are stonewalled on the 'privacy' excuse, seldom rightly. That is the major conflict. The Central Information Commission (CIC) (CIC/UTOJK/A/2024/116027 KULDEEPRAJ Vs. UT of Jammu and Kashmir) dismissed a Second Appeal filed against J&K's Home Department and made it unequivocally clear that the RTI Act is not a tool to intrude into personal lives, especially where no public interest is involved. On February 26, 2024, Kuldeep Raj, a resident of Jammu district, wanted to know from the state PIO Home Department information regarding joining reports, selection orders, SROs, category certificates, transfer and promotion details of two police personnel. The First Appellate Authority eventually transferred the matter to the Police Headquarters (PHQ), J&K, in May last year. The appellant filed a Second Appeal before the CIC. During the final hearing held a few days back, the Central Information Commission upheld the PIO's denial of information, stating: 'The requested information qualifies as personal information of third parties and is therefore exempt from disclosure under Section 8(1)(j) of the RTI Act, 2005'. The appeal was filed by an advocate, who sought details of complaints filed by one Fareed Ahmad Chouhan from Ganderbal, including the number of complaints, their nature, status and related documents. The application dated January 11, 2024, was turned down by the Central Public Information Officer (CPIO) of ACB, Kashmir, because disclosure of such information could endanger the life or physical safety of the complainant and could possibly obstruct ongoing investigations or prosecutions. These reasons were cited under Sections 8(1)(g) and 8(1)(h) of the RTI Act, 2005, which exempt disclosure of sensitive information that may harm individual safety or compromise investigative processes. The CIC emphasised that no element of larger public interest was invoked by the appellant to justify overriding the privacy protections enshrined in the law. The Commission cited the Supreme Court's 'Central Public Information Officer, Supreme Court of India Versus Subhash Chandra Agarwal', which held that personal records, including service details, ACRs, financial disclosures, and medical records, are not subject to public disclosure unless a compelling public interest is established. 'The RTI Act is not a surveillance tool and cannot be used to gather personal details of others without a strong and demonstrated public cause,' the CIC noted, adding 'service records of police personnel fall under personal information'. The CIC ruled that ACB J&K had provided a valid and appropriate reply, justifying the denial based on exemptions under the law. 'The safety of individuals and integrity of law enforcement processes must be protected over disclosure of information where no overriding public interest is demonstrated', the Commission said. He further said: 'Disclosing such information may expose the whistleblower to victimization or harassment and could derail sensitive investigations,' the Commission observed, adding 'the appellant has failed to establish any larger public interest that would warrant overriding the exemptions provided under the Act'. This order looks to be a denial to the applicant. The entire question is about what is 'overriding the exemptions' on what compelling public interest is. The PIO, First and Second appeals are heavily dependent upon the 2019 judgment. Instead of going through the time-consuming process of using RTI methodology, the applicant may have to go to a writ petition. All petitioners invariably face the same questions. Another bundle of cases will add to the heavy pendency. Advocates are happy, and judges will be using the time to discuss these old issues. And the victims are the applicants. This transparency watchdog will go a long way in deterring those who are using the RTI Act to breach privacy rights based on the risk of violating privacy, for which the DATA Act prescribed heavy, exorbitant penalties. The judges quite easily use 'the balance between transparency and protection of whistleblowers'. (The writer is Advisor, School of Law, Mahindra University, Hyderabad)
Time of India
17-06-2025
- General
- Time of India
How court stood by queer couple's rights as a ‘chosen' family
In a quiet room of the Madras High Court , a young woman's freedom was restored. More than that, something beautiful unfolded. The court recognised that family, in its deepest and truest sense, is not always something we are born into. Sometimes, it is something we choose. And sometimes, it chooses us. This was the case of a young lesbian woman who was confined by her biological family. Her partner, brave and undeterred, approached the court seeking her release through a habeas corpus petition. What began as a personal struggle for one couple became a significant moment in India's legal history. The court ruled that under Article 21 of the Constitution, which guarantees the right to life and personal liberty, the right to form a "chosen family" is protected. The judgment came without fanfare. No front-page headlines, no breathless TV panels. Yet, its quiet compassion may make it one of the most meaningful verdicts for queer communities in India, perhaps for anyone who has ever felt out of place in their own home and longed for a different kind of belonging. What emerged from this case was not merely an order for release but a broader constitutional articulation, one that shifts the prevailing legal understanding of family in India. by Taboola by Taboola Sponsored Links Sponsored Links Promoted Links Promoted Links You May Like What She Did Mid-Air Left Passengers Speechless medalmerit Learn More Undo Traditionally, Indian statutes and jurisprudence have treated family as a legal unit formed through blood ties, marriage, or adoption. The judgment suggests that such a framework, while still operative, is no longer exhaustive. It affirms that emotional interdependence, mutual care, and voluntary association can constitute family, and that such relationships merit protection under the Constitution. The approach is grounded in landmark Supreme Court decisions: Justice K S Puttaswamy vs Union of India (2017) declared the right to privacy a fundamental right under Article 21, redefining liberty to include decisional autonomy over intimate choices; Navtej Singh Johar vs Union of India (2018) decriminalised consensual same-sex relationships, holding that constitutional morality, not social morality, must guide the interpretation of fundamental rights; and Supriyo vs Union of India (2023), while declining to legalise same-sex marriage, unequivocally recognised the dignity of queer relationships and acknowledged their right to cohabit and form households. These decisions established a framework wherein personal autonomy, dignity, and identity are intrinsic to the constitutional promise of liberty. The Madras HC extends this logic: if individuals are constitutionally entitled to love and cohabit with whom they choose, it necessarily follows that such relationships must be seen as familial in nature. Each of these rulings reminds us that freedom is not simply the absence of interference; it is the presence of dignity. A striking element of the judgment is its explicit critique of police inaction. Despite the woman's stated preference to reside with her partner, law enforcement authorities failed to act with urgency. She told the police she wanted to live with her partner. But the police, perhaps fearing backlash from her biological family, did not act. This is not uncommon. For many LGBTQIA+ people in India, the law is not always a shield. The home, far from being a safe place, can become a site of silence, shame, or violence. And when people turn to police or the courts, they are often met with hesitation, suspicion, or indifference. Citing Shakti Vahini vs Union of India (2018), the HC ruling reminds the state that honour, tradition, or family control cannot be excuses to deny someone their freedom. The Constitution's promise of liberty does not stop at the doorstep of one's natal home. The HC reiterated the state's duty to protect people from honour-based coercion, forced confinement, and familial violence. The judgment makes clear that the state cannot abdicate its constitutional obligations on the basis of social discomfort. The court also emphasised that constitutional rights are enforceable within the domestic sphere. When an adult expresses autonomous choice, state institutions must act to safeguard it. For a long time, Indian law has measured family by only a few yardsticks: blood, marriage, or legal adoption. These categories do not always leave room for the love between two friends who raise a child together, or the care between ageing companions who share their final years, or queer couples who are denied legal recognition but live like any other family. The judgment implicitly challenges the formalistic boundaries of Indian family law. Currently, statutes such as the Hindu Marriage Act, Hindu Succession Act, Guardians and Wards Act, and employment and pension rules operate on presumptions about what constitutes family. However, the court's recognition of chosen families requires a rethinking of these frameworks. If a queer partner is legally acknowledged as part of one's family for purposes of liberty and cohabitation, ancillary rights such as access to healthcare decisions, housing, pensions, inheritance, and next-of-kin status must logically follow. This creates a necessary tension between constitutional rights and statutory limitations. The Constitution, as interpreted by the higher judiciary, recognises a more inclusive notion of family. The legislature and subordinate rule-making authorities must now respond with corresponding reform. Courts in several jurisdictions have recognised non-traditional family forms: In Canada, jurisprudence has acknowledged "functional families" based on emotional and financial dependency, even in the absence of marriage or consanguinity. The Yogyakarta Principles, developed under international human rights law, urge states to ensure that individuals of all sexual orientations and gender identities can form families of their choosing without discrimination. The Madras HC's judgment implicitly aligns with these global developments. No parade will mark this judgment. No stamp will seal it in textbooks just yet. But it is revolutionary in its own way. It reminds us that families are not just born—they are also made. By extending constitutional shelter to chosen families, the court has not merely resolved a dispute. It has reaffirmed the dignity of the individual, the autonomy of choice, and the capacity of the Constitution to embrace a plurality of lives. (The writer is an advocate at Madras High Court) Email your feedback with name and address to
Economic Times
19-05-2025
- Business
- Economic Times
Digitally safe & sound
Dismissing a petition by PhonePe against a police notice related to a 2022 online sports betting investigation, Karnataka High Court recently ruled that digital payment intermediaries are not fully immune from disclosing users' confidential transaction details and account credentials in criminal cases. The ruling underscores the delicate balance between privacy, security and growth. How India navigates this terrain will shape civil liberties, and define its economic trajectory. The 2017 Supreme Court judgment in 'Justice K S Puttaswamy (Retd) vs Union of India' recognised privacy as a fundamental right, aligning India with progressive global data protection standards and bolstering user confidence, a vital ingredient for digital commerce. But the apex court also stipulated that this right is not absolute, and must be harmonised with other compelling state interests. To this end, the 'proportionality test' was established - a nuanced, 4-pronged framework requiring any state intrusion into privacy to: Have a legitimate aim. Be necessary in a democratic society. Be proportionate to the need. Include robust procedural safeguards against abuse. This test is a fulcrum upon which interests of individual liberty and collective security must be balanced, ensuring neither an anarchic digital space nor an overreaching surveillance state. For the digital economy, this framework promises predictability and fairness, both essential for attracting investment and fostering innovation. National security, undeniably, presents one of the most essential legitimate aims. In an era where digital platforms can be exploited for terrorism, sophisticated cyber warfare and large-scale economic fraud, the state's primary responsibility to protect its citizens and its economic stability is paramount. Legislative tools such as Section 69 of the IT Act, enabling lawful interception, and Digital Personal Data Protection (DPDP) Act, reflect this pressing reality. DPDP Act, while aiming to create a data protection regime, rightly includes exemptions for processing personal data in the interest of India's sovereignty, security, public order, and prevention or investigation of offences. Such provisions are pragmatic necessities. The PhonePe case underscores this, affirming that while consumer privacy is vital, it cannot serve as an impenetrable shield for illicit activities that undermine the integrity of our financial systems. Nevertheless, privacy advocates correctly argue that privacy and security are not adversarial. Robust privacy protections can, in fact, bolster security by shielding citizens from identity theft, financial scams, and the chilling effects of undue surveillance that can stifle innovation and free expression, the lifeblood of a dynamic digital economy. The apprehension that expansive surveillance powers without stringent oversight could mirror the Orwellian state is a legitimate fear. An environment of perceived pervasive surveillance can erode public trust, discouraging participation in the digital economy and potentially driving data and talent to jurisdictions perceived as more optimal path forward, therefore, is not a binary choice between privacy and security, but a commitment to the proportionality principle. This means any restriction on privacy must be demonstrably necessary, narrowly tailored and subject to rigorous India's digital economy, this translates into actionable imperatives: Necessity and specificity Surveillance must be a tool of last resort, targeted at genuine, identifiable threats, not a broad dragnet. This will ensure that most citizens and businesses can operate freely, fostering a climate of trust. Robust oversight mechanisms Independent judicial or parliamentary review of surveillance requests is crucial. Transparent, accountable oversight builds confidence that these powers are not being misused, which is essential for domestic and international business confidence. Data minimisation and purpose limitation Entities, both public and private, should collect necessary data and use it only for specified, legitimate purposes. This reduces the attack surface for breaches and limits the scope of potential government requests. Transparent frameworks While operational details of security measures must remain confidential, legal and procedural frameworks governing data access must be clear and publicly accessible. This predictability is key for businesses to navigate the regulatory leaders, innovators and stakeholders in India's growth story understand that a stable, predictable and rights-affirming regulatory environment is the bedrock of economic prosperity. When citizens trust that their data is protected and that state powers are exercised judiciously, they engage more readily in the digital marketplace. When businesses trust that the rules are clear and fairly-applied, they invest with greater High Court's stance reflects the nuanced balancing act required. By diligently applying the proportionality framework, we can cultivate an ecosystem where privacy and security are not seen as conflicting forces, but as complementary pillars supporting a vibrant, secure and equitable digital future. (The writer is former secretary,consumer affairs, GoI)
Deccan Herald
28-04-2025
- Politics
- Deccan Herald
No disclosure, no caveat
Significant concerns have been raised over the adverse impact the Digital Data Protection (DPDP) Act, 2023, might have on the working of a provision of the Right to Information (RTI) law. The DPDP Act will soon come into effect with the notification of its rules. Section 44(3) of the Act intends to change Section 8(1)(j) of the RTI Act, exempting all 'personal information' from disclosure. This means that any public information that also contains 'personal information' will no longer be made public. Under Section 8(1)(j), government bodies can withhold 'information which relates to personal information' if its disclosure is not related to public interest or results in an unnecessary invasion of privacy. However, the information has to be provided if an appellate authority decides that there is public interest in its disclosure. Section 8(1)(j) is now sought to be amended so that information can be withheld as 'personal' without any safeguards and seeks India trade deal on e-commerce, crops and data storage: Reports. The right to privacy and the right to information are fundamental rights. While the right to privacy was defined so by the Supreme Court in the K S Puttaswamy judgement in 2017, the right to information is part of the right to speech and expression. Both are essential democratic rights; they are not derogatory to each other and one should not be pitched against the other. Section 44(3) tries to do that. The term 'personal' is bound to be interpreted wrongly and too widely to cover matters of public interest, and to deny information to those who seek it under the RTI law. However, the Supreme Court has made it clear that the rights to privacy and transparency must be reconciled in DPDP Act itself does undermine the citizens' right to privacy. Section 17(2)(a) of the Act allows the government to exempt its agencies from the law's provisions and gives them access to citizens' personal data. This violates the citizen's rights and the government's responsibility to ensure the protection of personal data. The Act also exempts any State authority from deletion of data after use. This allows the state agencies to store personal data indefinitely – a provision that can be misused against individuals. The government has weakened the RTI steadily through various legal measures and its actions in the past over many years. It should remove the provision in the DPDP Act amending the RTI Act and ensure that the right to privacy is not affected by other provisions of the Act.
