A serious threat to Art 19(1)(a), RTI and journalism

There are six core constitutional questions before the Supreme Court, related to the RTI and DPDP Act.

1. Can Parliament amend the RTI Act through the DPDP Act? There is no inherent constitutional prohibition on amending one statute through another. The real question is whether the substance of the amendment violates fundamental rights.

2. Is “personal information” a constitutionally sufficient exemption? Does the phrase provide adequate precision, or is it so broad that it permits arbitrary denial?

3. Can privacy completely override public interest? Or must there always be a proportionality-based balancing mechanism?

4. Is deletion of the public-interest override constitutionally valid? This is perhaps the central Section 44(3) issue.

5. Does the DPDP framework adequately protect Article 19(1)(a)? Particularly the right to know and investigative journalism.

6. Are the executive powers and Data Protection Board sufficiently constrained and independent? This brings Articles 14, 19 and 21 together with separation-of-powers principles.

The constitutional objective should not be to choose RTI over privacy or privacy over RTI. A democratic constitutional order needs both. The legitimate rule should be something like: Genuinely private information must be protected; information bearing upon public power, public money and public accountability must remain accessible; and where the two overlap, an independent, proportionate public-interest balancing test must operate.

This has to be examined at a petition of W.P. (C) Nos 177/2026, 211/2026 and 212/2026, setting out each challenged section, the exact constitutional provision invoked, the petitioner’s argument, the Union’s likely defence, and the possible Supreme Court test. Three principal petitions concern this issue, and the Court has referred the challenge to a five-judge Constitution Bench. The Court has not granted an interim stay.

The principal cases are: Venkatesh Nayak v. Union of India, W.P.(C) No. 177/2026; The Reporters Collective Trust & Anr. v. Union of India, W.P.(C) No. 211/2026; National Campaign for People’s Right to Information (NCPRI) v. Union of India, W.P.(C) No. 212/2026.

The Supreme Court’s decision to place the matter before a five-judge Constitution Bench reflects that larger constitutional significance. The petitioners’ fundamental objection to Section 44(3) is that the amendment appears to remove that balancing exercise at precisely the point where it is most necessary.

That is why the case is much bigger than an ordinary challenge to a data-protection statute. It concerns the constitutional relationship between Article 19(1)(a), Article 21, Article 14, privacy, transparency, investigative journalism and democratic accountability.

The Challenge:

The challenge has also expanded beyond Section 44(3). The petitions attack several provisions of the DPDP Act and the 2025 Rules, including provisions concerning government access to data, journalistic processing and the institutional independence of the Data Protection Board. A subsequent petition by journalist Geeta Seshu and SFLC has also brought the public-data/private-data distinction directly before the Supreme Court.

Threat to freedom:

Section 44(3) of the Digital Personal Data Protection (DPDP) Act, 2023 is most disastrous to freedom of speech & expression, including the Right to Information Act, 2005. The court was hearing multiple petitions challenging provisions of the DPDP Act, primarily Section 44(3), which had amended the RTI Act to facilitate public authorities to blankly refuse information on the ground that the details sought were of a “personal” nature. The petitioners submitted that the provision has turned the fundamental right to privacy on its head. The right, meant to protect ordinary citizens against State incursion, has been extended to protect the State and public functionaries from RTI disclosures.

Good news:

It is good news for RTI. The Supreme Court on August 7 agreed to examine the Digital Personal Data Protection (DPDP) Act, 2023.

“The earlier law (RTI Act, 2005) gave certain access with conditions. Here (2023 Act), there is an en bloc embargo. Is this latter law repugnant to the earlier law? This has to be looked into with extreme circumspection. After all, both are Central laws. There is a need to harmonise these two,” Justice Joymalya Bagchi remarked. The Supreme Court judge rightly said the RTI law operated on a “much larger domain” than the DPDP Act. It covered all forms of data, whereas the DPDP law was concerned only with digital data. The court said that data was now overwhelmingly in digital format. The judge said the court would examine if this restrictive or “cautionary approach” to sharing data under the DPDP Act worked to repeal earlier transparency laws. They argued that Section 44(3) of the DPDP Act has amended Section 8(1)(j) of the RTI Act. Originally, the RTI provision had exempted authorities from disclosing personal information to an applicant if the details sought had no relationship to any public activity or if disclosure would amount to an unwarranted invasion of privacy. Even then, the government had to disclose if public interest outweighed privacy. One of the petitioners pointed out that the 2023 Act threatened to have a grave impact on investigative journalism.

“The Act was not granting an exemption to journalists. If a journalist is reporting, they would have to seek the consent of the data principal. If the data principal wants to erase the data, they can do it. This has a direct effect on investigative journalism,” the counsel submitted.

The court said journalists cannot be considered a “special category” with unreserved access to data.

What exactly did Section 44(3) change?

The original Section 8(1)(j) of the RTI Act did not create an absolute exemption for personal information. It provided a carefully constructed balancing mechanism: Personal information could be withheld where it had no relationship with public activity or interest, or where disclosure would cause an unwarranted invasion of privacy.

But there was an important public-interest override: even such information could be disclosed where the competent authority was satisfied that a larger public interest justified disclosure.

Section 44(3) replaces the detailed formulation with simply: “information which relates to personal information.” That apparently small textual change is the heart of the litigation.

The constitutional concern:

The petitioners essentially argue: Privacy was previously a qualified exemption; Section 44(3) converts it into something approaching a blanket exemption.

That changes the architecture of the RTI Act from: the question is among transparency, privacy exception and public interest balancing. Personal information vs exemption from disclosure! The Supreme Court itself has recognised that the issue requires authoritative consideration because it involves competing fundamental rights.

Violation of Article 19(1)(a): Right to know:

The most fundamental argument is that the right to receive information is an integral component of freedom of speech and expression under Article 19(1)(a). The RTI Act is not merely a statutory convenience. It gives practical content to the constitutional right of citizens to know how public authorities function.

Difficulty becomes particularly acute where the information concerns:

Public officials; government decision-making; public expenditure; appointments; conflicts of interest; beneficiaries of government schemes; corruption; abuse of office; disciplinary proceedings; and assets and liabilities of public servants.

Information concerning an individual may technically be “personal”, yet simultaneously have enormous public significance. The challenge therefore is: Can information be treated as private merely because it relates to a person, even when disclosure is necessary to scrutinise public administration? That is a major Article 19 question. The petitions rely substantially on the Supreme Privacy itself is a fundamental right under Article 21.

Thus, the constitutional problem is not: privacy versus no privacy.

The question for the Constitution Bench is whether Parliament has adopted a constitutionally permissible mechanism for balancing the two.

(The writer is Advisor, School of Law, Mahindra University, Hyderabad)

ABOUT THE AUTHOR

Prof Madabhushi Sridhar Acharyulu

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