Introduction:
The right to privacy and the right to information protect distinct but complementary democratic interests. Privacy safeguards individuals against unjustified intrusion into their personal lives, while access to information enables citizens to scrutinise public authorities and hold the State accountable. The relationship between these rights becomes particularly difficult when information held by the government concerns an individual but may also reveal matters of public importance.
Section 44(3) of the Digital Personal Data Protection Act, 2023 (“DPDP Act”) alters this relationship by substituting Section 8(1)(j) of the Right to Information Act, 2005 (“RTI Act”). The substituted provision exempts “information which relates to personal information” from the obligation to disclose information under the RTI Act. The amendment removes the express qualifications and public-interest language previously contained in Section 8(1)(j).
The constitutional difficulty, however, is not simply whether privacy should prevail over transparency. It concerns the design of the statutory relationship between the two rights: whether the amended exemption is sufficiently confined, how it interacts with the RTI Act’s surviving disclosure provisions, and whether its operation adequately accommodates the constitutional importance of access to information.
This article argues that the amendment must be examined through three connected questions: the removal of the former safeguards in Section 8(1)(j), the extension of the exemption beyond the DPDP Act’s own scope, and the constitutional limits governing restrictions on access to information. It further argues that any judicial or legislative response must account for the provisions of the RTI Act that remain in force rather than treating the amendment as an isolated rule.
The Legislative Change: What Section 44(3) Removes
Before its amendment, Section 8(1)(j) exempted personal information where disclosure had no relationship to a public activity or interest or would cause an unwarranted invasion of an individual’s privacy, subject to an express provision permitting disclosure where the larger public interest justified it. A further proviso provided that information which could not be denied to Parliament, or a State Legislature, could not be denied to any person.
Section 44(3), DPDP replaces that detailed clause with the words “information which relates to personal information”. The substituted language no longer expressly incorporates the earlier tests concerning the relationship with public activity or interest, unwarranted invasion of privacy, and the specific public-interest determination by the information officer or appellate authority. It also removes the former proviso concerning disclosure to Parliament and State Legislatures.
The significance of the change lies not merely in the shortening of the provision but in the removal of statutory qualifications. Under the earlier wording, the exemption expressly distinguished between personal information lacking sufficient public relevance and information whose disclosure could be justified by a larger public interest. The amended text does not reproduce that distinction within clause (j).
The deletion of the legislative-disclosure proviso raises a separate question. The proviso established a statutory parity rule: information that could not be denied to Parliament or a State Legislature could not be denied to an ordinary applicant. Its removal invites examination of the relationship between public access, legislative scrutiny and representative democracy.
That argument should not, however, be overstated. The former proviso did not confer identical powers on every citizen and every legislative institution for all purposes. Its significance lay in the specific disclosure rule it established within Section 8(1)(j). The constitutional question is whether removing that rule, in conjunction with the other changes, unjustifiably weakens access to information needed for public accountability.
Equally important is the rest of the statutory framework. Section 8(2) of the RTI Act remains relevant. It permits a public authority, notwithstanding the exemptions in Section 8(1), to allow access where the public interest in disclosure outweighs the harm to the protected interests. Section 11 also contains a public-interest proviso in the context of certain third-party information. These provisions mean that the amendment should not automatically be characterized as eliminating every public-interest route to disclosure.
The more precise question is whether the removal of the express safeguards from Section 8(1)(j), while leaving other provisions in place, produces a materially weaker or less predictable framework for disclosure.
Privacy, Information and Constitutional Structure
The constitutional foundations of privacy and access to information are different, but they may overlap in their practical operation.
In K.S. Puttaswamy v. Union of India (2017), the Supreme Court recognised privacy as a fundamental right protected by the Constitution, including for citizens touring under Article 21. Informational privacy forms an important aspect of this protection. The State cannot disregard an individual’s privacy merely because a public authority holds personal information.
At the same time, the Supreme Court has recognised the importance of the right to know within the framework of Article 19(1)(a), which protects freedom of speech and expression. The RTI Act provides a statutory mechanism through which citizens may obtain information held by public authorities, subject to its exemptions.
The relationship between these rights is therefore not adequately explained by placing one in a permanent hierarchy above the other. The disclosure of personal information may interfere with privacy, but withholding information may also impair the public’s ability to scrutinise government decisions.
The decision in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2019) is particularly relevant. The Supreme Court examined the relationship between transparency, privacy and public interest under the earlier RTI framework. Its reasoning provides an important starting point for assessing how personal information should be treated when disclosure may serve a public purpose.
However, a judgment interpreting the earlier wording does not, by itself, determine the constitutionality of the substituted clause. The amendment changes the statutory text, and its validity must be assessed in light of the law as amended.
The constitutional challenge also raises the relationship between Article 19(1)(a) and Article 19(2). The petitioners’ argument that privacy is not an expressly enumerated ground under Article 19(2) is relevant to the debate over restrictions on freedom of expression. It does not automatically resolve the issue. A court must consider the precise nature of the restriction, the statutory context, the constitutional interests engaged and the applicable standard of review.
The question is consequently one of constitutional justification: whether the amended framework protects privacy in a manner consistent with the constitutional importance of access to information, rather than assuming that either interest invariably prevails.
The Scope Problem: From Digital Personal Data to Personal Information
A further difficulty arises from the relationship between the scope of the DPDP Act and the scope of the amended RTI exemption.
The DPDP Act is concerned with digital personal data, subject to its scope and exclusions. Section 44(3), however, amends Section 8(1)(j) of the RTI Act by substituting the expression “information which relates to personal information”. The substituted clause does not expressly confine the exemption to digital information.
This difference raises a question about legislative fit. Why should an amendment introduced through a data-protection statute establish an RTI exemption that is not expressly limited to the category of data governed by that statute?
The distinction matters because information held by public authorities exists in different forms. Records may be created digitally, maintained on paper, or preserved in mixed formats. The privacy interests involved may be similar across those forms, but the legislative objectives and scope of the two statutes are not necessarily identical.
The issue is not that information held on paper must receive less privacy protection than information stored digitally. Rather, it is whether the breadth of the amended RTI exemption is justified by the objective of protecting personal information, and whether its scope is sufficiently clear and appropriately tailored.
This question may be examined through Article 14, which prohibits arbitrary State action and requires the application of constitutionally permissible standards of classification and justification. The precise test must be applied to the statutory provision and the arguments raised in the pending proceedings. A difference between the scope of two statutes does not, by itself, establish unconstitutionality; the relevant inquiry is whether the legislative distinction or measure can be constitutionally justified.
The Supreme Court’s reported observations during the proceedings concerning the DPDP Act have identified the relationship between the statutes and the breadth of the amended exemption as questions requiring examination. Such observations are significant in identifying the issues before the Court, but they should not be treated as final findings on the constitutional validity of the amendment.
Consequences for Journalism and Public Accountability
The amendment’s practical implications are especially significant where personal information is relevant to the scrutiny of public functions.
Investigative journalists may seek records concerning appointments, public expenditure, disciplinary proceedings, conflicts of interest or the implementation of welfare schemes. Such records can contain personal information while also revealing matters that affect public administration.
Under the amended Section 8(1)(j), the absence of the former express qualifications may create uncertainty about how information officers should approach requests involving such records. Applicants may face greater difficulty in predicting whether information will be disclosed, and authorities may need to determine how the amended clause operates alongside Section 8(2), Section 11 where applicable, and other provisions of the RTI Act.
The concern is not that every personal record must be disclosed merely because a journalist or citizen requests it. Personal information unrelated to public functions may warrant protection, and disclosure may cause genuine harm. The problem arises where the legal framework does not adequately distinguish between information whose disclosure would unjustifiably invade privacy and information whose disclosure may reveal misconduct or the misuse of public resources.
The consequences may extend beyond journalism. Citizens seeking to understand public appointments, government benefits or administrative decisions may encounter records that concern identifiable individuals. The proper legal treatment of such records requires attention both to privacy and to the public interest in accountable administration.
Section 4 of the RTI Act, which establishes proactive-disclosure obligations for public authorities, also remains relevant. The amendment’s interaction with those obligations requires provision-specific analysis; it should not be assumed that the amendment automatically invalidates or overrides every proactive-disclosure duty.
The constitutional concern is therefore one of institutional accountability. If the amended framework makes relevant information more difficult to obtain, the question is whether the remaining safeguards and disclosure mechanisms provide an adequate means of reconciling privacy with public scrutiny.
Routes to Constitutional Reconciliation
The pending constitutional challenge requires a careful distinction between identifying a legal difficulty and determining the remedy available to the Court. Several approaches merit examination, although each raises its own legal constraints.
First, the Court may consider whether the amended provision can be interpreted consistently with the rest of the RTI Act. This would require a reasoned analysis of Section 8(1)(j) alongside Section 8(2), Section 11 where relevant, and the statutory framework governing proactive disclosure. Such an interpretation must remain faithful to the enacted language; it cannot simply recreate qualifications that Parliament has removed.
Second, the Court may examine the constitutional validity of the amended provision under Articles 14 and 19(1)(a), applying the relevant principles to the actual scope and operation of the exemption. Any proportionality analysis must identify the rights affected, the objective pursued, the relationship between the measure and that objective, and whether the restriction is constitutionally justified. The application of those principles must be supported by the relevant authorities and the arguments presented by the parties.
Third, the removal of the former Parliament/State Legislature proviso raises the question of whether its function can be addressed through constitutional interpretation or whether legislative revision is required. A court cannot automatically restore deleted statutory text merely because the earlier formulation offered a more explicit safeguard. The availability of any judicial remedy depends on the applicable principles governing interpretation, severability and constitutional review.
Finally, Parliament may reconsider the relationship between data protection and access to information. A revised framework could expressly address the treatment of personal information connected to public functions, the circumstances in which disclosure may serve a compelling public interest, and the safeguards needed to prevent unnecessary exposure of private details. Such a framework could preserve privacy while providing greater clarity for applicants and public information officers.
These possibilities should not be treated as interchangeable remedies or as outcomes already endorsed by the Court. Their value lies in identifying the legal questions that must be answered if the two statutory regimes are to operate coherently.
Conclusion
Section 44(3) of the DPDP Act changes the relationship between privacy and access to information by replacing the former Section 8(1)(j) with a broader and less qualified formulation. Its constitutional significance lies in the scope of the new exemption, the removal of the earlier express safeguards, and the relationship between the amended clause and the provisions of the RTI Act that remain in force.
The existence of Section 8(2) means that the amendment should not be described as abolishing every public-interest route to disclosure. Yet the continued existence of a discretionary override does not, without further analysis, establish that the former framework’s express safeguards have been preserved in substance. The distinction between a specific qualification within an exemption and a general power to permit disclosure is central to assessing the amendment’s consequences.
The constitutional question is therefore not whether privacy or transparency should prevail in every case. It is whether the statutory framework adequately protects personal information while preserving meaningful access to information necessary for public accountability.
A coherent approach must respect both interests, examine the amendment’s full statutory context, and remain attentive to the limits of judicial interpretation. Whether the appropriate response is constitutional interpretation, judicial review or legislative revision, the objective should be a framework that protects privacy without unnecessarily obstructing the scrutiny of public power.
