Plea Filed In Supreme Court Against S.44(3) Of DPDP Act, Seeks Interim Relief Against Masking/Deletion Of Available Data; Notice Issued

A public interest litigation has been filed before the Supreme Court against Section 44(3) of the Digital Personal Data Protection Act, which substituted Section 8(1)(j) of the Right to Information Act and exempted disclosure of any sort of "personal information" of a person.The petitioners have also sought an interim relief against deletion/masking of data already made available on public portals in compliance of provisions of the RTI Act or other welfare legislations, as it would impair ground-level work that benefits from such information.A bench of CJI Surya Kant and Justice Joymalya Bagchi issued notice on the plea today, after hearing Senior Advocate Shyam Diwan (for petitioners). On the petitioners' request, it also impleaded the State of Rajasthan as a party. The matter will be considered along with similar other pleas, which the Court has agreed to consider.For context, Section 44(3) of the DPDP Act has substituted Section 8(1)(j) of the RTI Act, which exempted disclosure of personal information if the disclosure had no relationship to any public activity or interest or could cause unwarranted invasion of the privacy of an individual.That is, under the earlier framework, a Public Information Officer could direct the disclosure of personal information if he was satisfied that "the larger public interest justifies the disclosure of such information".Now, Section 44(3) of the DPDP Act has exempted all disclosures related to personal information of a person. Further, the substitution has done away with the proviso to Section 8(1)(j), which provided that information which could not be denied to the Parliament or a State Legislature could not be denied to any person.Challenging Section 44(3) of DPDP Act as violative of Articles 14, 19(1)(a) and 21, the petitioners have approached the Supreme Court. The PIL is filed by the Mazdoor Kisan Shakti Sangathan, social activists Aruna Roy and Nikhil Dey, and Shankar Singh Rawat.Besides striking down of Section 44(3) of DPDP Act and restoration of Section 8(1)(j) of the RTI Act, the petitioners seek a declaration for the proactive disclosure mandate under Section 4 of the RTI Act to continue. This provision enabled disclosure of beneficiary data, muster rolls, social audit records, etc.The petitioners further pray for a writ of mandamus to the respondent-authorities to refrain from "dismantling, restricting or abridging access to information currently provided through transparency and accountability portals - including the Jan Soochna Portal (Rajasthan)" and other analogous portals established under welfare legislations.It is contended that the impugned provision fails to distinguish between "personal" and "private" information, unlike Section 8(1)(j) of the RTI Act which provided for a public activist test and a harm test. "Information is personal when it pertains to or identifies an individual...information is private when it concerns that intimate sphere of an individual's life into which the State may not intrude without justification."The petitioners aver that the marginalized communities which they represent depend on personal information held by the State - such as - wage records, beneficiary lists, entitlement registers, public accounts - for enforcing their rights to work, food, and be free from arbitrary action. These records are personal information, not private information, they assert.Further, the petitioners emphasize that the scope of the phrase used in Section 44(3) - information which relates to personal information - is unlimited. It covers any piece of information that even references a person. Besides, there is provision for mandatory denial of information in clear cases and vast discretion with the PIO to characterize any request as relating to personal information and deny it without adjudicatory standard. "It exempts not just an official's name and address but records about the official's exercise of public duty, merely because those records identify the official."It is also the petitioners' contention that the impugned provision fails the proportionality test and there was no constitutional necessity to amend Section 8(1)(j) of RTI Act at all. They further object to the justification of the impugned amendment based on Supreme Court's Puttaswamy judgment by stating that that judgment is an individual's shield against the State - the State cannot use it to withhold its own records of use of public power. Besides, the judgment did not hold privacy to be superior to right to information.According to the petitioners, the DPDP Act is also internally inconsistent, insofar as it carves out public interest exceptions for the State's own data processing but eliminates the public interest override in case of citizens' request.Further, it is argued that the impugned amendment is likely to have a chilling effect on proactive disclosures made on State-level transparency portals - like Rajasthan Jan Soochna portal. The petitioners apprehend that under a...

Plea Filed In Supreme Court Against S.44(3) Of DPDP Act, Seeks Interim Relief Against Masking/Deletion Of Available Data; Notice Issued

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Plea Filed In Supreme Court Against S.44(3) Of DPDP Act, Seeks Interim Relief Against Masking/Deletion Of Available Data; Notice Issued

Debby Jain

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