Is Privacy Being Used to Limit the Right to Know? – SC Moves DPDP Challenge to Constitution Bench

 

INTRODUCTION

Recently, a three-judge bench of the Honourable Supreme Court refused to examine a batch of pleas to pass an interim order for the stay of the implementation of Section 44(3) of the Digital Personal Data Protection (DPDP) Act of 2023, which challenges the Constitutional validity of provisions that relate to personal information. The bench noted that the matter pertained to certain sensitive and complex issues involving the fundamental right to information and the fundamental right to privacy. 

BACKGROUND

Three writ petitions were filed before the Supreme Court, of which one was filed by Venkatesh Nayak, another by digital news platform, The Reporters Collective, and journalist Nitin Sethi, and the third one filed by the National Campaign for People’s Right to Information (NCPRI). The petitioners challenged Section 44(3) of the DPDP Act, which amends Section 8(1)(j) of the Right to Information Act of 2005. It was argued that Section 44(3) of the DPDP Act, 2023, imposed a blanket ban on the Right to Information Act applicants, preventing them from seeking disclosure of personal information. Prior to the amendment, personal information could have been disclosed if there was an overriding public interest. It was submitted that the provision cynically uses the right to privacy to cripple the citizen’s right to information. 

KEY POINTS

1. The petitioners raised the issue of proportionality and contended that Section 44(3) effectively amends Section 8(1)(j) of the RTI Act. Under the original provision, authorities could refuse disclosure of personal information if it bore no connection to any public activity or if releasing it would result in an unwarranted invasion of privacy. However, disclosure was still required where public interest outweighed privacy concerns. Importantly, this balancing exercise, between transparency and privacy, was entrusted to the Public Information Officer or the First Appellate Authority under the RTI Act, who determined on a case-by-case basis.
2. The counsel appearing on behalf of the NCPRI argued that a five-judge Constitution Bench in its November 2019 judgment in the Central Public Information Officer versus Supreme Court of India had examined Section 8(1)(j) of the RTI Act to apply the proportionality test to balance the right to information against the right to privacy. The 2019 judgment held that personal information should remain in the realm of privacy unless disclosure was necessary in the larger public interest.
3. The petitioners raise concerns about the independence of the Data Protection Board, particularly the process for appointment of its Chairperson and members, which is alleged to be susceptible to executive control. It was further argued that Section 44(3) introduced by the DPDP Act has accorded the government unguided discretion to deny personal information, which is unconstitutional. The fundamental right to privacy under Article 21 of the Constitution has been extended to the state.
4. The Petitioners argued that the imposition of the fundamental right to privacy is an unreasonable restriction on the right under Article 19. It violates Article 14 by equating the privacy of public functionaries to that of ordinary citizens. It inverts the jurisprudence of privacy vis-à-vis the right to information and prioritises privacy over the larger public interest of transparency and open governance, and thus describes Section 36 as vague, overbroad, and arbitrary, infringing Articles 14 and 19 as well. 
5. The petitioners contended that the amendment to Section 8(1)(j) of the RTI Act has rendered the right to information illusory. 
6. The petitioner states that journalists and transparency campaigners often rely on limited access to personal information, especially when it clearly serves the public interest, to expose wrongdoing, corruption, or conflicts of interest. By removing the public-interest safeguard, the amendment would weigh heavily towards privacy, making it harder to hold people accountable.
7. The petitioners sought to declare the whole of the DPDP Act of 2023 unconstitutional, specifically Sections 5, 6, 8, 10, 17, 18, 19, 36, and 44(3), as violative of Constitutional provisions. They have also challenged Rules 3, 6, 7, 8, 9, 13, 16, 17, and 23 of the Digital Personal Data Protection Rules, 2025, to be void, inoperative, and unconstitutional. 

RECENT DEVELOPMENTS

The three-judge bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi, and Justice Vipul M Pancholi agreed that the issue required further consideration and thus referred the matter to a larger bench. The bench also sought the Centre’s response to the constitutional concerns raised by the petitioners. 

CONCLUSION

To conclude, the constitutional challenge to Section 44(3) of the DPDP Act raises fundamental questions about the future of transparency in India. The eventual outcome will have far-reaching implications for how competing fundamental rights are harmonised in the digital era. At stake is whether privacy will be interpreted as an absolute shield, or whether transparency, anchored in public interest, will continue to serve as a cornerstone of constitutional accountability.

 

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WRITTEN BY: STUTI ANVI