Live Law: Article: Thursday, 10th September
2026.
There is a particular
irony in a data protection statute becoming the instrument that narrows a
citizen's access to information about the state. Section 44(3) of the Digital
Personal Data Protection Act, 2023 does exactly this. It rewrites Section
8(1)(j) of the Right to Information Act, 2005, and in doing so, it does not
merely tweak an exemption clause it removes the balancing exercise that has
anchored India's transparency regime for two decades. Three writ petitions
currently pending before a Constitution Bench of the Supreme Court ask whether
this rewriting is constitutionally permissible. The answer will determine
whether India's citizens retain a meaningful right to know, or whether
“personal information” becomes the all-purpose curtain behind which governance
retreats from scrutiny.
What Section 44(3)
Actually Does
Before the amendment,
Section 8(1)(j) of the RTI Act exempted personal information from disclosure
only where it had no relationship to any public activity or public interest, or
where disclosure would cause an unwarranted invasion of privacy. Crucially,
even where that threshold was met, the Public Information Officer or the
appellate authority still had to ask whether the larger public interest
justified disclosure. This was not an abstract nicety. It was the mechanism by
which asset declarations of public servants, disciplinary records, subsidy
disbursal data, and tender documents were prised out of a reluctant bureaucracy
over the RTI Act's twenty-year history.
Section 44(3) deletes the
public interest override. Personal information is now exempt, full stop, unless
it falls into narrow carve-outs. The effect is not incremental. It converts a
proportionality test administered case by case into a categorical bar administered
at the point of the request. A Public Information Officer no longer needs to
weigh accountability against privacy; she needs only to characterise the
information sought as “personal,” a term the DPDP Act itself leaves largely
undefined for this purpose. That gap between an undefined trigger and an
absolute consequence is precisely where the constitutional trouble begins.
The Litigation and Where
It Stands
Three petitions filed by
RTI researcher Venkatesh Nayak, by The Reporters Collective Trust, and by the
National Campaign for People's Right to Information have challenged the
amendment on the ground that it defeats the right to information guaranteed under
Article 19(1)(a), and that it does so without the safeguards Article 14 and
Article 21 would otherwise demand. On 16 February 2026, a bench led by Chief
Justice Surya Kant issued notice and referred the matter to a five-judge
Constitution Bench, acknowledging that the case raises complex and
constitutionally sensitive questions about how privacy and transparency are to
coexist. Significantly, the Bench declined to stay the amendment pending
adjudication, which means the blanket exemption has been operative for months
while the constitutional question remains open. The Chief Justice's own framing
that the Court would need to “iron out creases” and arrive at a workable
definition of personal information is telling. It suggests the Court itself
does not see the current formulation as a stable resting point, even as it
allows that formulation to govern real RTI applications in the interim.
Senior counsel appearing
for the petitioners have pointed the Court toward its own five-judge precedent
in Central Public Information Officer, Supreme Court of India v.
Subhash Chandra Agarwal (2019), where the Court held that the correct
approach to Section 8(1)(j) was a structured balancing exercise, not a
categorical exclusion. That precedent did not treat privacy and transparency as
mutually exclusive; it treated them as competing constitutional values
requiring case-specific reconciliation. Section 44(3), on this reading, does
not harmonise RTI with post-Puttaswamy privacy jurisprudence so
much as it discards the balancing methodology that jurisprudence itself
endorsed.
The Government's Defence,
and Its Limits
The Union's position is
that Section 3 of the DPDP Act preserves RTI disclosures because it exempts
information that any law requires to be made public. This argument has a
circularity problem: the RTI Act is precisely the law whose disclosure mandate
has just been narrowed by Section 44(3). Pointing to Section 3 to reassure
petitioners that RTI disclosures survive is of limited comfort when the
amendment under challenge is the provision that shrank what the RTI Act
requires to be disclosed in the first place. The government's second line of
defence that the amendment merely aligns RTI with the constitutional status of
privacy assumes that pre-2023 Section 8(1)(j) was somehow indifferent to
privacy. It was not. It built privacy protection into the same clause as the
public interest override, which is exactly the “harmonious construction” model
that expert bodies, from the A.P. Shah Committee in 2012 to the Srikrishna
Committee in 2018, had recommended retaining. Neither committee, nor the Joint
Parliamentary Committee that examined the 2019 draft data protection bill,
proposed severing the public interest test altogether.
Why “Crisis” Is Not
Hyperbole
The word crisis is often
used loosely in legal commentary, but here it captures something specific: a
structural mismatch between where the burden of proof now sits and where the
constitutional right actually lives. Article 19(1)(a) has long been read, since State
of U.P. v. Raj Narain and reaffirmed in subsequent RTI jurisprudence,
to include a citizen's right to know how the state functions. That right does
not evaporate merely because Parliament has amended a subordinate exemption
clause; it constrains how far that clause can travel. The present amendment
tests that constraint by shifting the default from disclosure-unless-private to
non-disclosure-unless-otherwise-provided, inverting two decades of statutory
architecture through a data protection statute that was never advertised, during
its passage, as an RTI amendment.
The institutional fallout
is already visible and is not speculative. Public Information Officers, now
personally exposed to data protection liability for wrongful disclosure but
facing no comparable exposure for wrongful denial, have an obvious incentive to
over-withhold. Independent reporting on Central Information Commission appeal
data for 2026 suggests a marked rise in rejections citing personal information
grounds, consistent with what one would predict from the incentive structure
Section 44(3) creates. Journalists investigating the use of public funds now
face the additional risk of being characterised as data fiduciaries for the
purposes of their own reporting, with the DPDP Act's penalty ceiling running
into hundreds of crores a figure calibrated for corporate data breaches, not
for a reporter seeking a beneficiary list under a welfare scheme. None of this
required a single adverse court ruling. It follows from the ordinary risk
calculus of officials and institutions operating under the amended provision as
it stands today, unstayed.
A Comparative Aside
India is something of an
outlier in refusing to write an explicit transparency carve-out into its data
protection statute. Jurisdictions that legislated privacy and
freedom-of-information regimes in tandem generally built the interface between
the two into the privacy statute itself, rather than leaving it to be inferred
later through litigation. The absence of any such carve-out in the DPDP Act is
not an oversight; it is the product of a legislative process in which the RTI
amendment was folded into a data protection bill and passed with a matter of an
hour's debate, without the sustained parliamentary scrutiny that a direct
amendment to a transparency statute would ordinarily attract. A crisis produced
by that kind of procedural shortcut is not easily cured by judicial
interpretation alone, however carefully calibrated; it also calls for
Parliament to revisit the amendment through a process that treats the RTI Act's
architecture as worthy of amendment on its own terms.
What the Constitution
Bench Should Not Avoid
The temptation before a
Constitution Bench in a case framed as pitting two fundamental values against
each other is to look for language that appears to honour both without
disturbing the amendment's structure. That would be a mistake. Subhash
Chandra Agarwal already supplies the doctrinal tool the Bench needs: a
two-step proportionality inquiry that asks first whether the information
genuinely engages a privacy interest, and second, only where it does, whether
disclosure is nonetheless justified by the public interest. Restoring that
structure into Section 8(1)(j), whether by reading down Section 44(3) or by
directing Parliament to reinstate the override, would not require the Court to
subordinate privacy to transparency. It would simply require the Court to insist
that the government's own precedent, and its own committees' recommendations,
be followed rather than legislated around.
Until that happens, the
amendment remains in force, and every RTI applicant who is told that
information about the exercise of public power is “personal” and therefore
off-limits experiences the crisis in real time, one rejected application at a
time. That is not a hypothetical constitutional question awaiting a
Constitution Bench's leisure. It is an ongoing redistribution of power between
citizen and state, occurring under cover of a statute that was sold as
protecting the citizen from the state.
Authors are 4th year Law
students at CHRIST (Deemed to be University), Delhi NCR Campus. Views are
personal.
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