The Supreme Court’s decision to refer to a Constitution Bench the petitions challenging the amendment to the Right to Information (RTI) Act through Section 44(3) of the Digital Personal Data Protection (DPDP) Act, 2023, marks a critical moment in India’s evolving jurisprudence on the balance between privacy and transparency. Section 44(3) of the DPDP Act amends Section 8(1)(j) of the RTI Act to provide blanket exemption to personal information without the earlier public interest override that permitted disclosure if it served a larger public purpose. Critics argue that this amendment fundamentally weakens the RTI Act, shields public officials from scrutiny, and undermines anti-corruption efforts.
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Five Important Key Points
- Section 44(3) of the DPDP Act, 2023, amends Section 8(1)(j) of the RTI Act, 2005, by removing the public interest exception that previously allowed disclosure of personal information when it served larger public interest.
- The Supreme Court in Puttaswamy (2017) recognised the right to privacy as a fundamental right under Article 21, which the DPDP Act seeks to protect, while the RTI Act protects the fundamental right to information derived from Articles 19 and 21.
- The Constitution Bench referral reflects the Supreme Court’s recognition of the constitutional sensitivity of the balance between privacy and transparency.
- Previously, personal assets and liabilities of public servants declared to the government could be disclosed under RTI if it served public interest in anti-corruption investigations; the amendment now bars such disclosure.
- The amendment enables rejection of requests concerning procurement records, audit reports, or public spending if framed as personal information, severely restricting accountability mechanisms.
Background: The RTI Act and Its Role in Governance
The Right to Information Act, 2005, is one of India’s most transformative governance reforms. It operationalised the fundamental right to information derived from the Supreme Court’s interpretation of Article 19(1)(a) and Article 21. By empowering citizens to seek information from public authorities, the RTI Act has been instrumental in exposing corruption, improving administrative efficiency, and strengthening public accountability.
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Section 8(1)(j) of the RTI Act had a carefully crafted exemption for personal information whose disclosure would constitute unwarranted invasion of privacy. However, this exemption was qualified by the important proviso that information must be disclosed if the appropriate authority was satisfied that larger public interest justified disclosure. This balance between privacy and transparency was the cornerstone of the RTI Act’s effectiveness as an anti-corruption tool.
The DPDP Act: An Overview
The Digital Personal Data Protection Act, 2023, was enacted to create a comprehensive legal framework for the protection of personal data in the digital age. It follows the Supreme Court’s directive in the Puttaswamy judgment (Justice K.S. Puttaswamy vs Union of India, 2017) to establish a data protection regime. The Act creates obligations for data fiduciaries (entities processing data), establishes rights for data principals (individuals whose data is processed), and creates a Data Protection Board for adjudication.
The DPDP Act is broadly modelled on global data protection frameworks such as the European Union’s General Data Protection Regulation (GDPR), though with significant differences in its scope and enforcement mechanisms. While the objective of protecting citizen data is laudable, the manner in which Section 44(3) amends the RTI Act has generated serious concerns about collateral damage to accountability and transparency.
Constitutional Tensions: Privacy vs. Transparency
The constitutional question before the Constitution Bench is fundamentally one of balancing two facets of fundamental rights. The right to privacy under Article 21, as elaborated in Puttaswamy (2017), is not absolute. It is subject to the proportionality test, which requires that any restriction on privacy must be legally justified, serve a legitimate aim, be necessary and proportionate to achieve that aim, and include procedural safeguards.
The right to information, derived from Article 19(1)(a) (freedom of speech and expression) and Article 21, is equally fundamental. The Supreme Court has in multiple cases including Dinesh Trivedi vs Union of India (1997) and PUCL vs Union of India (2003) recognised that access to government information is integral to democratic functioning.
The blanket exemption created by Section 44(3) fails the proportionality test because it does not distinguish between genuinely private personal information and information about the discharge of public duties by public officials. A blanket bar on disclosing any personal information, including the assets and liabilities of public servants, is disproportionate to the legitimate aim of protecting privacy.
Anti-Corruption Implications
The practical impact of Section 44(3) on anti-corruption efforts is significant and direct. Under the earlier framework, RTI requests asking for details of a government official’s declared assets, procurement decisions, tender evaluations, or audit reports could be granted if the Public Information Officer determined that larger public interest was served. This enabled civil society organisations, journalists, and opposition parties to investigate corruption, misuse of public funds, and irregularities in government contracting.
Under the amended provision, any information that can be characterised as personal information may be withheld without the public interest override. This creates a perverse situation where the DPDP Act, ostensibly enacted to protect citizen data, actually ends up protecting the data of public officials from citizens’ scrutiny.
The Way Forward
The Constitution Bench’s deliberations should result in guidelines clearly distinguishing between private personal information (which deserves strong protection) and information about the discharge of public functions by public officials (which must remain accessible in the public interest). The amendment of Section 8(1)(j) through the DPDP Act should ideally be repealed and replaced with a nuanced provision that retains the public interest override for information related to the exercise of public functions. Parliament should be persuaded to revisit the DPDP Act’s impact on the RTI Act through a consultative process involving civil society, information commissioners, and legal experts.
Relevance for UPSC and SSC Examinations
This topic is highly relevant for UPSC Mains GS-II (Polity and Governance) covering RTI Act, fundamental rights, privacy, and transparency. The Puttaswamy judgment, DPDP Act, and the RTI Act are all standard examination topics. Questions on the balance between privacy and transparency, the role of information in democratic governance, and constitutional provisions relating to fundamental rights are regularly asked. For SSC examinations, questions on the RTI Act, its sections, and key provisions frequently appear. Aspirants should understand the constitutional basis of both the right to privacy and the right to information, and the judicial interpretation that has shaped both.