Concerns over MP Chief Information Commissioner's rush on data protection law

The Digital Personal Data Protection Bill (DPDP Act), passed by the Rajya Sabha on August 9, 2023, is one of the many controversial laws passed during the last monsoon session. Most apprehensions against this law have been expressed by RTI activists. According to him, this law violates the public's right to information. However, even after the law was made, the DPDP Act has not been implemented in any state till the date of writing (8 September 2023). According to Section 1(2) of the Act, the government will issue separate information for the implementation of this Act. This law can be implemented in any state only after the issue of this notification.

Madhya Pradesh Chief Information Commissioner (CIC) Arvind Kumar Shukla has been accused of ignoring this section of the law. Ajay Dubey, convener of the Right to Information Movement, alleges,

"The Chief Information Commissioner of Madhya Pradesh has begun a concerning practice of withholding requested information under the Right to Information, citing the DPDP Act as justification. Moreover, he has reached out to the government, urging them to place restrictions on public information officers in utilizing the DPDP Act."

The CIC of Madhya Pradesh has raised questions regarding this step, sparking a debate. Legal experts argue that his action is deemed illegal and contradictory to the law.

What is the DPDP Act?

According to the government, the Digital Personal Data Protection Act (DPDP Act) has been brought to protect the personal data of citizens. This law is related to every personal data which is present in digital form. If understood in simple language, this law provides protection to any information which violates a person's privacy or which reveals someone's identity. This law obliges any company to properly manage personal data, protect it from leaking and delete it after the need is over. However, there is no such restriction on the government. The government can use personal data at any time to provide benefits of any scheme, to take action on issues related to the country's defence and to maintain law and order.

How does the DPDP Act weaken the Right to Information?

Apart from this, Shailesh Gandhi expresses concern about Section 38 (2) of the DPDP Act. He explains that under this section of the law, the provisions of the DPDP Act will be given priority over the provisions of RTI or any other law. Till now, under RTI, such personal information of any person which is in the public interest could be obtained. However, the DPDP law makes it impossible to do so by imposing restrictions on it.

How will this law weaken RTI? Responding to this, Ajay Dubey says,

"If I were to request information under RTI pertaining to the qualifications of a public servant, including their academic background, experience, and other identity-related details, the concerned department may refuse to disclose it by citing that it falls under the category of personal information."

“Information Commissioner is trampling constitutional rights”

Talking to us, Ajay Dubey says, 

“In the entire country, the Information Commissioner of Madhya Pradesh has been the first to use this Act to crush the constitutional rights of the common people.” Dubey says “The job of the Information Commissioner is to strengthen the right to information but he has only worked to weaken it.”

He has also complained about the conduct of the Chief Information Commissioner to the Governor. He wrote in his complaint that – "With the intention of providing relief to the corrupt system, Mr Shukla had written a letter to the Madhya Pradesh government in the month of August asking for the implementation of DPDP Act 23, which is a betrayal of the fundamental rights of the people in Madhya Pradesh."

Example giving rise to suspicions 

The apprehension of other RTI activists like Dubey about weakening the right to information is further strengthened by an incident that took place in the Narmadapuram district of Madhya Pradesh. Under RTI, the sender sought information regarding the caste, original residence, educational qualification, and technical qualification of Kamlesh Bhumarkar. Kamlesh held the position of Lab Assistant at Dr. Shyama Prasad Mukherjee Hospital situated in Itarsi, Narmadapuram district, in the month of August last year. This information was refused by the Information Officer as it was personal information.

In this case, quoting Section 8 (1) (j) of RTI, it has been said that – Now that the said provision of Section 8 (1) (j) of the “Act” has been replaced as per the DPDP Act 2023. Since the information sought is of a particular person, it is related to a particular person and the data of that person and by giving the information, that person is identified. Therefore, in the context of the amended provision of Section 8 (1) (j) of the Act, the sought information is eligible for disclosure. Since it is not available, no order is required to be given regarding giving information regarding point number 1.

According to Shailesh Gandhi, the law explicitly states that it cannot be utilized or referred to in any case, unless the government provides a separate notification for its implementation.

Chief Information Commissioner's side

Talking to Ground Report on this entire issue, Chief Information Commissioner Arvind Kumar Shukla says,

“I have written a letter to the government asking it to ensure that the Digital Data Protection Bill is followed in every department.” 

Since the mandatory notification required by the Central Government to implement the law has not been issued yet. In such a situation, when Arvind Shukla asks questions on the validity of implementing the law, he says “let's see” without giving us any clear answer.

Laws have been implemented late in the past too

Explaining more clearly the intricacies of the implementation of the law, former judge RBS Baghel says,

“Some laws come into force with immediate effect after being signed by the President and to implement some laws, the government issues separate notifications. Giving the example of the Legal Services Authority Act (1987), he says that “despite being passed in 1987, this Act was implemented in 1995.”

Describing the DPDP Act, Baghel says, “It is even written in Section 1(2) of the DPDP Act that different dates can be set for the implementation of its different provisions.” They also believe that this Act cannot be used before the notification is issued.

In such a situation, it seems inappropriate for Madhya Pradesh Chief Information Commissioner Arvind Kumar Shukla to show haste in the implementation of the DPDP Act. Complaining about this, Ajay Dubey has demanded the Governor of Madhya Pradesh to conduct an investigation against the Chief Information Commissioner and dismiss him. He says that if the Governor does not take any action against the Chief Information Commissioner, he will approach the court.

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