Privacy and transparency: No information asymmetry between State and citizens
The Supreme Court of India has referred petitions challenging the amendment to Section 8(1)(j) of the Right to Information Act, 2005 by Section 44(3) of the Digital Personal Data Protection Act, 2023 to a Constitution Bench, acknowledging the issue’s constitutional sensitivity.
At stake is the balance between privacy and transparency, and whether the amendment undermines the foundational purpose of the RTI Act: ensuring an informed citizenry and accountable governance.
What changed in Section 8(1)(j)?
Original RTI provision (2005)
Section 8(1)(j) allowed denial of personal information only if:
It had no relation to public activity or public interest, or
Its disclosure would cause an unwarranted invasion of privacy
Importantly, it included a “public interest override”:
Even personal information could be disclosed if a Public Information Officer determined that larger public interest justified it.
This override was central to balancing privacy with democratic accountability.
Amendment under the DPDP Act (2023)
The amendment removes the public interest override and prohibits disclosure of:
“any information which relates to personal information.”
This effectively creates a blanket prohibition, significantly broadening the exemption.
Critics argue this could allow authorities to deny requests relating to:
Public officials’ conduct
Procurement records
Audit findings
Public expenditure
In effect, it narrows the citizen’s ability to scrutinise the State.
The “legitimate uses” paradox
Civil society groups such as the Internet Freedom Foundation highlight a contradiction:
Section 7 of the DPDP Act permits the State to process personal data without consent for certain “legitimate uses”.
Yet, citizens cannot invoke similar reasoning to seek transparency about government actions involving personal data.
This creates an asymmetry:
The State can access and process citizens’ data.
Citizens face greater barriers in accessing information about the State.
In a democracy, such asymmetry raises constitutional concerns under Articles 19(1)(a) (freedom of speech and expression) and 21 (right to life and privacy).
Chilling effect on journalism
One of the petitions, filed by The Reporters’ Collective, argues that:
Journalists could be classified as “data fiduciaries” under the DPDP framework.
Violations may attract penalties up to ₹250 crore.
This creates a risk that investigative journalism could be curtailed due to fear of financial liability.
Unlike startups, which enjoy certain exemptions under the DPDP framework, journalism has not been given comparable statutory safeguards.
By contrast, the General Data Protection Regulation (GDPR) in the European Union explicitly recognises exemptions for journalistic purposes, attempting to balance privacy rights with press freedom.
Judicial precedent: The 2019 judgment
In Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, the Supreme Court held:
Personal information must ordinarily remain private.
However, disclosure is permissible if justified by larger public interest.
This precedent reinforced the balancing test that the RTI framework originally embodied.
The Constitution Bench will likely revisit this doctrine to clarify:
What constitutes “personal information”?
How should privacy and transparency be reconciled?
Whether removal of the public interest override violates constitutional principles.
Why this matters
Over two decades, the RTI Act has:
Reduced state–citizen information asymmetry
Empowered citizens, including marginalised communities
Exposed corruption and administrative arbitrariness
If the amendment effectively shields public authorities behind a broad “personal information” exemption, it could weaken democratic accountability.
The constitutional question
The core issue is not whether privacy should be protected — it unquestionably must be. Rather, the question is:
Can privacy be protected without dismantling transparency?
Democracy requires both:
Privacy to safeguard individual dignity.
Transparency to ensure State accountability.
The Constitution Bench’s interpretation will determine whether India preserves the RTI’s public interest architecture or allows a structural tilt in favour of opacity.
Ensuring there is no structural information asymmetry between the State and citizens is essential for maintaining a responsive, accountable government.
Prelims Practice MCQs
Q. With reference to Section 8(1)(j) of the Right to Information Act, 2005, consider the following statements:
It originally allowed denial of personal information only if disclosure had no relationship to public activity or interest.
It contained a public interest override permitting disclosure if larger public interest justified it.
The Digital Personal Data Protection Act, 2023 retains the public interest override but narrows its scope.
How many of the statements given above are correct?
(a) Only one
(b) Only two
(c) All three
(d) None
Answer: (b) Only two
Explanation:
Statement 1 is correct — Section 8(1)(j) permitted withholding personal information only if it had no relation to public activity or would cause unwarranted invasion of privacy.
Statement 2 is correct — It included a public interest override allowing disclosure if larger public interest justified it.
Statement 3 is incorrect — The DPDP amendment removed the override instead of retaining it.
Q. Which of the following best describes the “public interest override” in the RTI framework?
(a) It allows disclosure of classified defence information in all cases.
(b) It permits disclosure of exempted information if larger public interest outweighs harm.
(c) It mandates automatic disclosure of personal information of public servants.
(d) It authorises the Central Government to override State RTI decisions.
Answer: (b)
Explanation:
The public interest override was a balancing mechanism allowing otherwise exempt information to be disclosed if larger public interest justified it. It was not automatic (eliminates c), nor unrestricted (eliminates a), nor federal in nature (eliminates d).
Q. With reference to the Digital Personal Data Protection Act, 2023, consider the following:
It allows the State to process personal data without consent under certain “legitimate uses”.
It explicitly provides broad exemptions for journalistic activities similar to the EU GDPR.
Non-compliance may attract significant financial penalties.
Which of the statements given above are correct?
(a) 1 and 3 only
(b) 1 only
(c) 2 and 3 only
(d) 1, 2 and 3
Answer: (a) 1 and 3 only
Explanation:
Statement 1 is correct — Section 7 allows processing without consent under certain conditions.
Statement 2 is incorrect — Unlike GDPR, the DPDP Act does not provide comparable broad journalism exemptions.
Statement 3 is correct — Penalties can go up to ₹250 crore.