The Wire: New Delhi: Monday, 14 April 2025.
He has failed to address the concern that Section 44(3) of the DPDPA weakens citizens’ right to information and transparency in governance.
On March 26, 2025, over
120 MPs from the INDIA bloc urged the repeal of Section 44(3) of the Digital
Personal Data Protection Act, 2023 (DPDPA), warning that it undermines the RTI
Act by removing the public interest test in Section 8(1)(j).
Shortly after, in response to a letter by Jairam Ramesh, Ashwini Vaishnaw cited Section 3 of the DPDPA to claim that the RTI framework remains protected but this is misleading. Section 3 has no relevance to the RTI amendment, and his response fails to address the core concern: Section 44(3) weakens citizens’ right to information and transparency in governance. IFF does a fact check.
Background
On March 26, 2025, over 120 MPs from the INDIA bloc addressed a joint letter to the Union minister for electronics and information technology and for information and broadcasting, Ashwini Vaishnaw, calling for the repeal of Section 44(3) of the DPDPA.
Their appeal reflects a growing political consensus and echoes long-standing civil society concerns that this provision strikes at the heart of the Right to Information Act, 2005 (RTI Act) and must be withdrawn.
On April 10, 2025, Vaishnaw issued a response to a separate letter dated March 23, 2025 by MP Jairam Ramesh, who had warned that Section 44(3) of the DPDPA would hollow out the RTI framework.
His concern was precise: that by exempting all “personal information” from disclosure, the amended law would enable public authorities to deny access to vital data – such as details of subsidy disbursal and welfare schemes – simply because it pertains to individuals, whether beneficiaries or officials.
The DPDPA passed without meaningful public consultation introduces a major change to the RTI framework. Section 44 amends Section 8(1)(j) of the RTI Act and permits authorities to withhold any “personal information” without applying the earlier public interest test.
This removes the crucial balance between privacy and transparency. It allows officials to deny access to information even when the data is vital for public accountability. Due to the vague definition of “personal information,” authorities may arbitrarily classify data such as tender documents or corporate submissions as private.
The amendment risks turning the DPDPA into a new Official Secrets Act one that hides governance behind the pretext of privacy.
What Vaishnaw gets wrong
Vaishnaw’s defence disregards over a decade of expert recommendations and parliamentary deliberation.
The Justice A.P. Shah Committee (2012) explicitly cautioned against allowing data protection to override access rights under the RTI Act.
The Srikrishna Committee (2018) recommended narrowly tailored exemptions – permitting non-disclosure only where there is a risk of grave harm, such as identity theft, discrimination or blackmail.
Even the joint parliamentary committee reviewing the 2019 version of the Data Protection Bill – comprising members from across party lines – did not recommend any amendment to the RTI Act.
Section 3 cannot justify Section 44(3) of the DPDPA’s attack on RTI
It is a fact that Section 44(3) of the DPDPA amends Section 8(1)(j) of RTI Act. This amendment has significantly weakened the RTI framework, as it allows authorities to deny access to information simply by labelling it as “personal information”.
This concern has been raised repeatedly and with extensive reasoning. You can read more about the effect of the amendment on RTI here.
However, the recent response by Vaishnaw is incorrect on a reading of law and facts.
Vaishnaw in his response dated April 10 contends that Section 3 of the DPDPA exempts publicly available information and any information that is required to be disclosed by law, suggesting this protects the right to information.
However, this position overlooks a critical legal interdependence: the primary law mandating such disclosure is the RTI Act. Specifically, it is the RTI Act that empowers citizens to access information held by public authorities, including certain categories of personal information, unless explicitly exempted under Section 8(1)(j).
If this section is amended to remove the public interest requirement that required balancing, then public authorities have no option but to provide blanket refusals for any government record that contains “personal information”.
Hence, any public information that contains “personal information” is not made “public” in the first instance itself.
Further, the amendment to the RTI Act is not coming from Section 3. Section 44(3) directly amends Section 8(1)(j) of the RTI Act the part that deals with exemptions for “personal information”.
So while Vaishnaw highlights Section 3 to defend transparency, that section has nothing to do with the amendment to the RTI Act.
Secondly, Vaishnaw’s suggestion that publicly available information does not fall under the purview of the DPDPA ignores a practical reality. If information is genuinely and proactively made public, people would not need to file RTIs to access it. The fact remains that a large portion of “public” information is not readily accessible and RTI requests are often the only way for citizens to obtain such data.
Weakening the RTI Act by amending Section 8(1)(j) directly impacts this process.
Therefore, while Vaishnaw is correct in stating that Section 3 of the DPDPA exempts certain categories of data from its purview, using it as a justification is disingenuous. It does not address the fundamental concern: that Section 44(3) of the DPDPA dilutes the RTI Act and undermines the citizen’s right to information. That is the core issue, and it remains unaddressed.
Also read: Transparency Activists Decry Vaishnaw’s Explanation on Data Protection Law Amending Key Provisions of RTI Act
The constitutional balance between privacy and transparency
The rights to privacy and information are not in conflict; they are complementary guarantees under Part III of the constitution to rationalise the imbalance in power between the government and us, the citizens of India.
While the right to privacy protects individuals from arbitrary intrusion, the right to information empowers us to hold the state accountable. Both are essential to a functioning democracy.
This balance is firmly embedded in Indian constitutional jurisprudence. In K.S. Puttaswamy vs Union of India WP (C) No. 494 of 2012, the Supreme Court affirmed that privacy and transparency must be reconciled within a proportionality framework ensuring that restrictions on either right are justified, necessary and the least restrictive means available.
This approach was already reflected in Section 8(1)(j) of the RTI Act, which protected personal information but permitted disclosure where a larger public interest warranted it.
Courts over time and in a range of cases have upheld this principle: for instance in Surupsingh Hrya Naik vs State Of Maharashtra, AIR 2007 BOM 121 and in Vijay Prakash vs Union of India & Ors AIR 2010 DELHI 7 the Delhi high court and the Bombay high court clarified that privacy must yield when public accountability is at stake.
Even in Girish Ramchandra Deshpande vs Central Information Commissioner & Ors, 2012 AIR SCW 5865, the Supreme Court prioritised privacy, yet observed that necessary information can be disclosed if it is in the public interest.
Through this observation the Supreme Court ensured that transparency must not be compromised even if the court leaned towards protecting individual privacy.
Section 44(3) dismantles this equilibrium. By eliminating the public interest test and creating a blanket exemption for all personal information, it overrides carefully evolved jurisprudence and removes a critical safeguard. The result is not improved privacy protection but unchecked opacity.
Statement from Apar Gupta, advocate and founder director, Internet Freedom Foundation
“The change to Section 8(1)(J) the RTI Act is not merely a technical amendment; it is an attack on the ability for citizens to hold the government accountable. The RTI Act now has a cold iron statutory bar that will prevent a public information officer from disclosure of any “personal information”. It will advance state impunity rather than individual privacy.
“The implications are profound. Investigative journalism, public interest litigation and civic activism pillars of a vibrant democracy risk being undermined. The ability to scrutinise public officials, demand clarity on policy decisions and hold institutions accountable is imperilled.
“The RTI Act is not an inconvenience to be legislated away. It is a constitutional commitment to the people of India a means to hold power to account, to question, to demand answers. Hence, the MPs’ letter and the press conference is a welcome step.
“The repeal of Section 44(3) is not merely a legislative correction it is a democratic imperative along with a broader review of the data protection law that was passed through parliament without any meaningful debate.”
He has failed to address the concern that Section 44(3) of the DPDPA weakens citizens’ right to information and transparency in governance.
 |
| FILE: Ashwini Vaishnaw briefs the media on cabinet decisions in New Delhi. Photo: PTI/Kamal Singh. |
Shortly after, in response to a letter by Jairam Ramesh, Ashwini Vaishnaw cited Section 3 of the DPDPA to claim that the RTI framework remains protected but this is misleading. Section 3 has no relevance to the RTI amendment, and his response fails to address the core concern: Section 44(3) weakens citizens’ right to information and transparency in governance. IFF does a fact check.
Background
On March 26, 2025, over 120 MPs from the INDIA bloc addressed a joint letter to the Union minister for electronics and information technology and for information and broadcasting, Ashwini Vaishnaw, calling for the repeal of Section 44(3) of the DPDPA.
Their appeal reflects a growing political consensus and echoes long-standing civil society concerns that this provision strikes at the heart of the Right to Information Act, 2005 (RTI Act) and must be withdrawn.
On April 10, 2025, Vaishnaw issued a response to a separate letter dated March 23, 2025 by MP Jairam Ramesh, who had warned that Section 44(3) of the DPDPA would hollow out the RTI framework.
His concern was precise: that by exempting all “personal information” from disclosure, the amended law would enable public authorities to deny access to vital data – such as details of subsidy disbursal and welfare schemes – simply because it pertains to individuals, whether beneficiaries or officials.
The DPDPA passed without meaningful public consultation introduces a major change to the RTI framework. Section 44 amends Section 8(1)(j) of the RTI Act and permits authorities to withhold any “personal information” without applying the earlier public interest test.
This removes the crucial balance between privacy and transparency. It allows officials to deny access to information even when the data is vital for public accountability. Due to the vague definition of “personal information,” authorities may arbitrarily classify data such as tender documents or corporate submissions as private.
The amendment risks turning the DPDPA into a new Official Secrets Act one that hides governance behind the pretext of privacy.
What Vaishnaw gets wrong
Vaishnaw’s defence disregards over a decade of expert recommendations and parliamentary deliberation.
The Justice A.P. Shah Committee (2012) explicitly cautioned against allowing data protection to override access rights under the RTI Act.
The Srikrishna Committee (2018) recommended narrowly tailored exemptions – permitting non-disclosure only where there is a risk of grave harm, such as identity theft, discrimination or blackmail.
Even the joint parliamentary committee reviewing the 2019 version of the Data Protection Bill – comprising members from across party lines – did not recommend any amendment to the RTI Act.
Section 3 cannot justify Section 44(3) of the DPDPA’s attack on RTI
It is a fact that Section 44(3) of the DPDPA amends Section 8(1)(j) of RTI Act. This amendment has significantly weakened the RTI framework, as it allows authorities to deny access to information simply by labelling it as “personal information”.
This concern has been raised repeatedly and with extensive reasoning. You can read more about the effect of the amendment on RTI here.
However, the recent response by Vaishnaw is incorrect on a reading of law and facts.
Vaishnaw in his response dated April 10 contends that Section 3 of the DPDPA exempts publicly available information and any information that is required to be disclosed by law, suggesting this protects the right to information.
However, this position overlooks a critical legal interdependence: the primary law mandating such disclosure is the RTI Act. Specifically, it is the RTI Act that empowers citizens to access information held by public authorities, including certain categories of personal information, unless explicitly exempted under Section 8(1)(j).
If this section is amended to remove the public interest requirement that required balancing, then public authorities have no option but to provide blanket refusals for any government record that contains “personal information”.
Hence, any public information that contains “personal information” is not made “public” in the first instance itself.
Further, the amendment to the RTI Act is not coming from Section 3. Section 44(3) directly amends Section 8(1)(j) of the RTI Act the part that deals with exemptions for “personal information”.
So while Vaishnaw highlights Section 3 to defend transparency, that section has nothing to do with the amendment to the RTI Act.
Secondly, Vaishnaw’s suggestion that publicly available information does not fall under the purview of the DPDPA ignores a practical reality. If information is genuinely and proactively made public, people would not need to file RTIs to access it. The fact remains that a large portion of “public” information is not readily accessible and RTI requests are often the only way for citizens to obtain such data.
Weakening the RTI Act by amending Section 8(1)(j) directly impacts this process.
Therefore, while Vaishnaw is correct in stating that Section 3 of the DPDPA exempts certain categories of data from its purview, using it as a justification is disingenuous. It does not address the fundamental concern: that Section 44(3) of the DPDPA dilutes the RTI Act and undermines the citizen’s right to information. That is the core issue, and it remains unaddressed.
Also read: Transparency Activists Decry Vaishnaw’s Explanation on Data Protection Law Amending Key Provisions of RTI Act
The constitutional balance between privacy and transparency
The rights to privacy and information are not in conflict; they are complementary guarantees under Part III of the constitution to rationalise the imbalance in power between the government and us, the citizens of India.
While the right to privacy protects individuals from arbitrary intrusion, the right to information empowers us to hold the state accountable. Both are essential to a functioning democracy.
This balance is firmly embedded in Indian constitutional jurisprudence. In K.S. Puttaswamy vs Union of India WP (C) No. 494 of 2012, the Supreme Court affirmed that privacy and transparency must be reconciled within a proportionality framework ensuring that restrictions on either right are justified, necessary and the least restrictive means available.
This approach was already reflected in Section 8(1)(j) of the RTI Act, which protected personal information but permitted disclosure where a larger public interest warranted it.
Courts over time and in a range of cases have upheld this principle: for instance in Surupsingh Hrya Naik vs State Of Maharashtra, AIR 2007 BOM 121 and in Vijay Prakash vs Union of India & Ors AIR 2010 DELHI 7 the Delhi high court and the Bombay high court clarified that privacy must yield when public accountability is at stake.
Even in Girish Ramchandra Deshpande vs Central Information Commissioner & Ors, 2012 AIR SCW 5865, the Supreme Court prioritised privacy, yet observed that necessary information can be disclosed if it is in the public interest.
Through this observation the Supreme Court ensured that transparency must not be compromised even if the court leaned towards protecting individual privacy.
Section 44(3) dismantles this equilibrium. By eliminating the public interest test and creating a blanket exemption for all personal information, it overrides carefully evolved jurisprudence and removes a critical safeguard. The result is not improved privacy protection but unchecked opacity.
Statement from Apar Gupta, advocate and founder director, Internet Freedom Foundation
“The change to Section 8(1)(J) the RTI Act is not merely a technical amendment; it is an attack on the ability for citizens to hold the government accountable. The RTI Act now has a cold iron statutory bar that will prevent a public information officer from disclosure of any “personal information”. It will advance state impunity rather than individual privacy.
“The implications are profound. Investigative journalism, public interest litigation and civic activism pillars of a vibrant democracy risk being undermined. The ability to scrutinise public officials, demand clarity on policy decisions and hold institutions accountable is imperilled.
“The RTI Act is not an inconvenience to be legislated away. It is a constitutional commitment to the people of India a means to hold power to account, to question, to demand answers. Hence, the MPs’ letter and the press conference is a welcome step.
“The repeal of Section 44(3) is not merely a legislative correction it is a democratic imperative along with a broader review of the data protection law that was passed through parliament without any meaningful debate.”
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