The Supreme Court of India has referred petitions challenging the amendment to Section 8(1)(j) of the Right to Information Act, 2005, by the Digital Personal Data Protection Act, 2023, to a Constitution Bench, terming it constitutionally sensitive.
Background: RTI as a Transparency Mechanism
- Objective of the RTI Act, 2005 : It was enacted to promote transparency and accountability in governance and to reduce information asymmetry between citizens and the State.
- Public Interest Safeguard under Section 8(1)(j): Personal information was exempt from disclosure.
- However, personal information of public officials, such as property records, could be disclosed if it exposed corruption or misuse of office, as public interest prevailed over privacy.
- It established a case-by-case proportionality approach.
- Amendment of Section 8(1)(j): The DPDP Act, 2023 amended Section 8(1)(j), altering the balance between privacy and transparency and raising concerns about dilution of RTI’s accountability framework.
Constitutional Dimensions and Judicial Precedent
- Article 19(1)(a) : The Right to Information is derived from freedom of speech and expression. Transparency enables informed participation and democratic accountability.
- Article 21 : The Right to Privacy was recognised as a fundamental right in Puttaswamy (2017), protecting informational autonomy and dignity.
- Judicial Precedent: In CPIO v. Subhash Chandra Agarwal (2019), the Supreme Court held that personal information may be disclosed if a larger public interest justifies it, reaffirming the principles of proportionality and balancing as constitutional.
Changes Introduced by the DPDP Amendment to the RTI Act
- Removal of the Public Interest Override : Prohibits disclosure of “any information which relates to personal information,” without retaining the earlier public interest exception.
- Eliminates the discretionary power of Public Information Officers (PIO) to balance privacy against the larger public interest.
- Effectively creates a broad exemption that may be used to deny access to information concerning: records of public officials; procurement and contractual processes; audit reports and findings; and details relating to public expenditure.
Power Asymmetry Between State and Citizen
- Denial of Information to Citizens: The State can refuse to disclose information under RTI by invoking privacy protections.
- Expanded State Power to Process Data: Section 7 of the DPDP Act permits government processing of citizens’ data without consent for “legitimate uses.”
- Democratic Imbalance: Creates an asymmetry in which the State can monitor citizens, while citizens’ ability to scrutinise the State is weakened.
Threat to Investigative Journalism
- Risk of Classification as Data Fiduciary: Journalists investigating corruption may be treated as “data fiduciaries” under the DPDP Act.
- Exposure to Heavy Penalties: Alleged breach of privacy during reporting could attract penalties up to ₹250 crore, potentially ending investigative reporting in India.
- Chilling Effect on Media Freedom: Fear of regulatory action may deter investigative journalism, weakening democratic accountability.
Lack of Balance Compared to Global Standards
- Position under the General Data Protection Regulation (GDPR): The European Union’s GDPR provides strong privacy protections while retaining safeguards for journalistic freedom and public interest disclosures.
- Concerns in the Indian Framework: Unlike the GDPR, which explicitly balances data protection with journalistic freedom, the Indian framework risks constraining investigative reporting and undermining press freedom under Article 19(1)(a).
Way Forward
- Interpretation of Personal Information: The Constitution Bench should define “personal information” in the context of governance to prevent overbroad exemptions.
- Restore Public Interest Override: The Court may reinstate the rule allowing disclosure of personal information when it serves a larger public interest, especially in cases involving corruption or misuse of power.
- Proportionality Test: Any restriction on disclosure must meet the constitutional proportionality test i.e it must be reasonable, necessary, and balanced against the need for transparency.
- Safeguard Investigative Journalism: The framework should explicitly protect investigative journalism to prevent a chilling effect on democratic oversight.
- Harmonise Fundamental Rights: The Bench must balance Article 19(1)(a) and Article 21 in a way that protects both transparency and privacy, ensuring that neither right overrides the other completely.
Conclusion
RTI strengthened democracy by enabling citizens to question the State. The Court must ensure privacy does not weaken transparency and accountability.
20 Feb 2026
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