That is the total and unedited open letter by Justice Ajit Prakash Shah, former Chairperson of Regulation Fee of India and former Chief Justice of Delhi Excessive Court docket, to Legal professional Normal R. Venkataramani expressing concern over the adjustments within the Proper to Data (RTI) Act, 2005, introduced via the Digital Private Information Safety (DPDP) Act, 2023.

■ ■ ■

Justice Ajit Prakash Shah

Former Chief Justice, Excessive Court docket of Delhi

Former Chairman, Regulation Fee India

28 July 2025

OPEN LETTER

To,

Shri. R. Venkataramani,

Legal professional Normal for India

Sub: Pressing Must Roll Again Amendments to the Proper to Data Act, 2005

1. I write to you with profound concern over the latest legislative adjustments to the Proper to Data Act, 2005 (‘RTI Act’) via the Digital Private Information Safety Act, 2023 (‘DPDP Act’). These adjustments characterize a seismic shift in India’s transparency framework for the more severe, threatening to dismantle RTI Act’s core goal of democratic accountability and citizen empowerment. It has come to my consideration – via experiences in The Financial Occasions and different sources – that the Ministry of Electronics and Data Know-how (‘MeitY’) has formally sought your authorized opinion on whether or not the DPDP Act undermines the RTI Act. As a involved citizen, I’ve utilized my thoughts to this necessary topic. My endeavour in submitting this opinion is to help your workplace and contribute meaningfully to the general public discourse on this matter of pressing constitutional significance.

2. India’s RTI Act has been hailed globally as a benchmark “sunshine legislation” that reworked the connection between the state and its residents by selling transparency and accountability in public administration. It codified the basic proper to info, derived from Articles 19(1)(a) and 21 of the Structure. It has empowered residents to scrutinize authorities features, forestall corruption, and guarantee good governance. The unique RTI Act, significantly Part 8(1)(j), meticulously balanced the general public’s proper to know with the person’s proper to privateness – a steadiness persistently affirmed by the Indian judiciary. The latest amendments, nevertheless, destroy this delicate equilibrium.

3. The DPDP Act considerably harms the RTI Act, each instantly and not directly, within the following method:

A. Part 8(1)(j) Amended: Part 44(3) of the DPDP Act replaces the narrowly tailor-made exemption in Part 8(1)(j) with an overbroad provision for withholding info, and eradicating the “public curiosity” override. This allows public authorities to disclaim info just by classifying it as “private,” no matter its public relevance or significance.

B. Proviso to Part 8(1) Deleted: The removing of the proviso to Part 8(1) of the RTI Act – which mandated that info not deniable to Parliament or a State Legislature shall not be denied to any individual – is alarming for democracy. This try to respectable info asymmetry between elected representatives and peculiar residents undermines the precept of an knowledgeable citizenry very important for democratic functioning and public accountability.

C. Impression on Suo Motu Disclosures (Part 4): The expansive definition of ‘private information’ within the DPDP Act, coupled with the absence of a public curiosity override, severely curtails proactive disclosures underneath Part 4 of the RTI Act. Public authorities can now withhold info regarding their features, decision-making processes, worker particulars, and budgets if such info may be broadly interpreted as ‘private info’.

4. As a co-author of the Report of the Group of Consultants on Privateness (2012), constituted underneath the aegis of erstwhile Planning Fee, it was our place that any laws on privateness mustn’t have an effect on or dilute the RTI Act. Our report advisable that “Privateness Act mustn’t circumscribe the Proper to Data Act.” It additionally unequivocally acknowledged that “Any info that’s out there or accessible in public area or furnished underneath the Proper to Data Act, 2005 is not going to be considered delicate private information.” This foundational precept, articulated in higher element in our report, demonstrates the complementary nature of privateness and transparency – which the DPDP Act gravely disrupts.

5. These amendments are manifestly ill-thought-out, elevating essential authorized points which are ripe for constitutional problem.

A. Does the modification to Part 8(1)(j) of the RTI Act by way of Part 44(3) of the DPDP Act represent an unreasonable restriction on the basic proper to info underneath Articles 19(1)(a) and 21 of the Structure?

B. Does the removing of the “bigger public curiosity” override from Part 8(1)(j) of the RTI Act, contradict the ideas established in Justice Okay.S. Puttaswamy (Retd.) v. Union of India (2017), which emphasised that privateness, whereas a basic proper, shouldn’t be absolute and may be topic to cheap restrictions within the public curiosity?

C. Does the broad and undefined scope of “private info” within the amended Part 8(1)(j), when learn along with the DPDP Act’s definition of “private information,” result in an arbitrary and extreme denial of knowledge that’s intrinsically linked to public exercise and accountability, thereby undermining the general public’s proper to know?

D. Does the deletion of the proviso to Part 8(1) of the RTI Act, which ensures info accessible to the legislature is open to the general public, violate the ideas of democratic accountability and an knowledgeable citizenry?

E. Does the DPDP Act, via its broad definitions and lack of public curiosity override, undermine the spirit and effectiveness of suo motu disclosures underneath Part 4 of the RTI Act?

The Unique Framework of Part 8(1)(j): A Balanced Method

6. The RTI Act was designed with a transparent intent to allow ‘most disclosure with minimal exemptions’ with a view to promote transparency and accountability in public authorities. Inside this framework, Part 8(1)(j) served as an important provision for balancing the precise to info with the precise to privateness.

Slim Scope of “Private Data”

7. The unique Part 8(1)(j) of the RTI Act was fastidiously worded to exempt “info which pertains to private info the disclosure of which has no relationship to any public exercise or curiosity, or which might trigger unwarranted invasion of the privateness of the person.” This restrictive phrasing ensured that the exemption was not a blanket one however utilized solely to particular classes of non-public information. It primarily involved info that genuinely lacked public relevance or constituted an “unwarranted invasion” of privateness. This method ensured that the supply was not supposed to be a broad protect in opposition to disclosure.

The Indispensable Public Curiosity Balancing Take a look at

8. A essential element of the unique Part 8(1)(j) is that it permits disclosure “except the Central Public Data Officer or the State Public Data Officer or the appellate authority, because the case could also be, is happy that the bigger public curiosity justifies the disclosure of such info.” This “public curiosity override” is the cornerstone of the RTI Act’s steadiness. It permits Public Data Officers (PIOs) to weigh the general public’s proper to know in opposition to particular person privateness issues on a case-by-case foundation.

Judicial Affirmation of the RTI Act’s Steadiness

9. The judiciary persistently affirmed the fragile steadiness struck by the unique Part 8(1)(j). The nine-judge bench resolution in Justice Okay.S. Puttaswamy (Retd.) v. Union of India (2017) unequivocally declared the precise to privateness as a basic proper underneath Articles 14, 19, and 21 of the Structure. Nevertheless, the Supreme Court docket held that the precise to privateness, like different basic rights, shouldn’t be absolute and may be restricted. Any invasion of privateness should meet a three-pronged proportionality check:

(i) legality (existence of a legislation),

(ii) respectable state purpose, and

(iii) proportionality stricto sensu.

10. The unique Part 8(1)(j) with its public curiosity override is inherently aligned with the ideas of proportionality. It ensures a calibrated method to privateness invasion when a respectable state purpose, equivalent to public curiosity in transparency, justifies disclosure. This place has been strengthened by the five-judge Structure Bench in Central Public Data Officer, Supreme Court docket of India v. Subhash Chandra Agarwal (2019). The Court docket reiterated that choices on public disclosure have to be made on a “case-by-case foundation” by weighing competing public curiosity claims. Particularly, the Court docket upheld the disclosure of judges’ belongings by affirming the general public curiosity override in Part 8(1)(j).

11. Courts and Data Commissions persistently accepted the prevailing Part 8(1)(j) as a good and workable steadiness between the precise to info and the precise to privateness. The framework allowed for nuanced decision-making, guaranteeing that non-public info was shielded from unwarranted invasion whereas allowing disclosure the place public accountability was paramount.

The Digital Private Information Safety Act, 2023 and the Dilution of Part 8(1)(j)

12. The DPDP Act’s Part 44(3) drastically amends Part 8(1)(j) of the RTI Act to easily learn: “(j) info which pertains to private info.” This seemingly minor textual change basically alters its unique character and goal.

The Undefined and Overbroad Scope of “Private Data”

13. It removes the essential qualifying phrases: “the disclosure of which has no relationship to any public exercise or curiosity, or which might trigger unwarranted invasion of the privateness of the person.”

14. Whereas the RTI Act itself doesn’t outline “private info,” the DPDP Act defines “private information” broadly as “any information about a person who’s identifiable by or in relation to such information.” This broad and imprecise definition, when implicitly utilized to RTI, permits public authorities to categorise just about any information associated to a person as “private info,” thereby exempting it from disclosure. This might embody public officers’ salaries, instructional {qualifications}, disciplinary actions, and property data, which had been beforehand accessible.

15. The vagueness of ‘private info’, coupled with the removing of qualifiers within the unique 8(1)(j), is a big authorized loophole. It shifts the burden of proof on the general public authority to justify non-disclosure primarily based on particular standards, to the RTI applicant, who now has to show the knowledge shouldn’t be ‘private’. Thus, it basically alters the RTI Act’s openness precept and creates a ripe surroundings for PIOs to protect info.

Exclusion of the Public Curiosity Take a look at

16. Essentially the most vital change is the entire removing of the general public curiosity override from Part 8(1)(j). Which means even when the disclosure of sure private info is overwhelmingly within the public curiosity – for instance, exposing corruption or guaranteeing the accountability of public officers – it may possibly now be denied outright just because it pertains to ‘private info’. This blanket ban on the disclosure of non-public info, no matter its public relevance, eliminates the nuanced balancing act that’s central to the unique RTI framework. The removing of this significant safeguard transforms an exception right into a broad rule, severely curbing the general public’s proper to entry info.

17. The next tables illustrate the stark variations between the unique and amended Part 8(1)(j):

Unique 8(1)(j)	Amended 8(1)(j)
What’s Protected	Private info unrelated to public exercise or curiosity, or inflicting unwarranted invasion of privateness.
Disclosure Situation	Will be denied provided that it causes unwarranted invasion of privateness and has no relationship to public exercise or public curiosity.
Public Curiosity Override	Disclosure allowed if bigger public curiosity justifies it.
Definition of “Private Information”	Undefined however utilized narrowly with a public curiosity check.

Grave Knock-on Results on Democratic Governance

18. The amendments to Part 8(1)(j) of the RTI Act carry profound and detrimental penalties for the functioning of India’s democratic governance.

Chilling Impression on Journalists and Free Speech

19. The amendments, coupled with the broad definitions within the DPDP Act, pose a extreme risk to unbiased journalism and the liberty of the press. Journalists concern that the Act will criminalise routine reporting and require consent for information protection, which is impractical for investigative journalism, particularly in conditions like riots, custodial deaths, or corruption scandals. The DPDP Act’s definitions of “Information Principal” (an individual talked about in a information article) and “Information Fiduciary” (the journalist dealing with that info) imply that even quoting a reputation or taking a photograph could possibly be thought of processing private information, doubtlessly resulting in heavy penalties as much as ₹250 crore or ₹500 crore.

Undermining Public Accountability and Anti-Corruption Efforts

20. The removing of the general public curiosity override and the imprecise definition of “private info” underneath the DPDP Act will considerably hamper efforts to make sure public accountability and fight corruption. Details about public servants’ {qualifications}, disciplinary actions, property data, and even minutes of public conferences may now be withheld underneath the guise of privateness. Even a doc that will in any other case be disclosed could also be withheld just because a small a part of it pertains to “private info” of a person. The RTI Act’s unique intent was to forestall corruption and guarantee accountability. This was achieved by permitting entry to details about public officers’ conduct and belongings. If this info is topic to blanket exemption, then the mechanism for accountability is damaged, resulting in elevated opacity and potential for corruption.

21. The RTI Act was a potent weapon in opposition to corruption, making authorities officers cautious of misconduct. This modification weakens that deterrent impact. The modification creates an info asymmetry that favors public authorities and doubtlessly corrupt officers. By limiting entry to private info that’s intrinsically linked to public exercise, it shifts the steadiness of energy away from residents and oversight our bodies, making it more durable to carry the federal government accountable. This instantly undermines the foundational goal of the RTI Act.

Crippling Social Audits

22. Social audits, an important mechanism for guaranteeing transparency and accountability within the implementation of public welfare schemes, rely closely on the power to entry details about beneficiaries, expenditures, and repair supply. Social audits require detailed details about people, equivalent to beneficiaries and officers, to confirm scheme implementation. If this “private info” is now exempt, then the very information wanted for audits is inaccessible, making them inconceivable or ineffective.

23. By making a blanket ban on disclosure of non-public info, the amendments will cripple social audits and the verification of public service supply. Examples embody exposing ration distribution fraud or figuring out “ghost beneficiaries” in public distribution methods, which had been beforehand achieved via RTI requests. These very important oversight mechanisms will change into inconceivable if entry to related private information of beneficiaries or officers concerned is denied. The influence on social audits highlights how the modification’s broad sweep impacts grassroots accountability.

Susceptibility to Authorized Problem: Violation of Constitutional Ideas

24. The amendments launched by the DPDP Act to Part 8(1)(j) of the RTI Act aren’t merely problematic from a coverage perspective; they’re inclined to authorized problem on basic constitutional grounds.

Failure to Fulfill the Proportionality Take a look at

25. As established in Puttaswamy, any invasion of privateness, or restriction on basic rights, should fulfill the three-pronged proportionality check: legality, respectable state purpose, and proportionality. Whereas the DPDP Act offers legality, the blanket ban on private info disclosure, and not using a public curiosity override, fails the proportionality limb.

(a) Rational Nexus: A blanket exemption from disclosure for all “private info” shouldn’t be rationally related to the respectable state purpose of merely defending a person from unwarranted infringement of privateness. As defined earlier, the unique Part 8(1)(j) was meticulously crafted to exempt solely such private info that had “no relationship to any public exercise or curiosity, or which might trigger unwarranted invasion of the privateness.” This inherent qualifier ensured that the scope of privateness safety was tailor-made to the precise hurt. The present broad exemption encompasses huge swathes of knowledge which are intrinsically linked to public features and accountability, the place the privateness curiosity is negligible or outweighed by public curiosity.

(b) Least Restrictive Means (Necessity Take a look at): The Puttaswamy judgment mandates that any restriction on a basic proper should make use of the least intrusive means potential to realize its respectable purpose. The unique Part 8(1)(j), with its in-built public curiosity override and the requirement to reveal “unwarranted invasion,” served as a much less restrictive, but efficient, mechanism for privateness safety. It allowed for a nuanced, case-by-case balancing that prevented arbitrary denials. The modification, by eradicating this steadiness and making a blanket ban, adopts probably the most restrictive means potential. It presupposes that every one “private info,” no matter context or public relevance, carries an equal and overriding privateness sensitivity, which is clearly fallacious in a clear governance framework.

(c) Proportionality Stricto Senso (Balancing Take a look at): This ultimate element requires a balancing of the opposed influence on the affected rights in opposition to the profit derived from the restriction. The good thing about a blanket privateness safety, achieved at the price of a whole erosion of the general public’s proper to info on issues of public concern, is disproportionate. The opposed influence on public accountability, anti-corruption efforts, social audits, and journalistic freedom (as detailed beforehand) far outweighs the marginal, if any, further privateness safety gained past what the unique Part 8(1)(j) already afforded. It undermines the very essence of public oversight and creates an info asymmetry that tilts closely in favour of public authorities.

26. This failure to fulfill the stringent proportionality check, significantly on the elements of rational connection, necessity, and balancing, renders the modification to Part 8(1)(j) constitutionally susceptible and inclined to authorized problem.

Deprivation of Basic Rights

27. The modification deprives residents of their basic proper to info, which is an intrinsic a part of the precise to freedom of speech and expression [Article 19(1)(a)] and the precise to life and private liberty (Article 21). By making a broad exemption for “private info” and not using a public curiosity override, it unduly restricts the move of knowledge crucial for knowledgeable public discourse and democratic participation. The precise to info is a basic proper, and any restriction on it have to be cheap. A blanket ban on “private info” no matter public curiosity is an unreasonable restriction, instantly depriving residents of their basic proper. This means that the modification shouldn’t be merely a coverage selection however a constitutional infringement.

28. Moreover, whereas purporting to guard privateness, the modification paradoxically undermines the broader constitutional scheme the place transparency and accountability are complementary to, not in contradiction with, privateness. The modification creates a false dichotomy between privateness and transparency, implying they’re inherently conflicting, whereas judicial pronouncements have emphasised their complementary nature in a democratic society.

Deletion of the Proviso to Part 8(1) of the RTI Act: Erosion of Democratic Oversight

29. The unique proviso to Part 8(1) of the RTI Act acknowledged: “Offered additional, that the knowledge, which can’t be denied to the Parliament or a State Legislature shall not be denied to any individual.” This proviso embodies the precept that what’s accessible to the legislature, representing the individuals, should even be accessible to the individuals instantly. The deletion of this proviso shouldn’t be merely a procedural change however a symbolic and substantive assault on the precept of standard sovereignty. It means that the federal government’s main accountability is to the legislature, slightly than on to the citizenry, making a hierarchical info move that’s antithetical to a vibrant participatory democracy.

The Mandate of Suo Motu Disclosures underneath Part 4 of the RTI Act

30. The RTI Act not solely mandates disclosure upon request but in addition imposes an obligation on public authorities to actively disclose, disseminate, and publish info of normal public curiosity suo motu. Part 4(1)(b) of the RTI Act units out 17 classes of knowledge that public authorities should proactively disclose, together with particulars about their features, decision-making norms, paperwork held, worker contacts, and budgets. The constructive results of proactive disclosure embody minimizing time, cash, and energy for the general public to entry routine info, serving to residents perceive what info is offered, and decreasing the executive burden of particular person RTI requests.

31. The DPDP Act defines “private information” broadly as “any information about a person who’s identifiable by or in relation to such information.” It mandates that non-public information processing typically requires “free, particular, knowledgeable, unconditional, and unambiguous” consent, obtained via “clear affirmative motion.” Whereas the DPDP Act is ostensibly centered on safety of digital private information, it has overpassed the profound and unintended consequence of dismantling proactive transparency mechanisms which have been constructed over years underneath the RTI Act. The stringent consent necessities for processing “private information” create a basic battle with the suo motu disclosure mandate of Part 4 of the RTI Act. Many classes of knowledge proactively disclosed underneath Part 4, equivalent to beneficiary lists for welfare schemes, worker particulars, or property data, inherently comprise “private information”.

Conclusion

32. In gentle of the profound implications for democratic governance and basic rights, the next suggestions for legislative motion are respectfully submitted:

A. Part 44(3) of the DPDP Act, which amends Part 8(1)(j) of the RTI Act, must be instantly repealed.

B. It have to be explicitly clarified inside the DPDP Act that the RTI Act applies with full pressure. This readability is crucial to forestall any future misinterpretation that may undermine the RTI Act’s effectiveness.

I urge your good workplaces to provide this matter their pressing consideration and provoke steps to rectify this essential legislative flaw, thereby upholding the constitutional values of transparency, accountability, and the basic rights of each citizen.

Finest regards,

Ajit Prakash Shah

Copy to:

1. Minister for Regulation & Justice

2. Minister for Electronics & Data Know-how

[Letter courtesy: The Wire, an Indian nonprofit news and opinion website. It was founded in 2015 by Siddharth Varadarajan, Sidharth Bhatia and M. K. Venu.]