Explained: Why the Supreme Court Has Referred the DPDP–RTI Clash to a Constitution Bench

In a significant development for transparency and privacy jurisprudence, the Supreme Court of India has decided to refer a batch of petitions challenging a key provision of the Digital Personal Data Protection Act, 2023 to a Constitution Bench.

The petitions argue that the new data protection law weakens citizens’ right to seek information under the Right to Information Act, 2005. The Court has described the issue as complex, sensitive and legally important.

Here is what the controversy is about and why it matters.

What Did the Supreme Court Decide?

A three-judge Bench headed by Chief Justice of India Surya Kant agreed to refer the matter to a Constitution Bench. Constitution Benches, usually comprising five or more judges, are set up to decide substantial questions relating to the interpretation of the Constitution.

However, the Court refused to pass any interim order staying the implementation of Section 44(3) of the Digital Personal Data Protection Act.

While issuing notice to the Union government, the Chief Justice observed that the Court may need to clarify what exactly constitutes “personal information” under the law.

What Is Section 44(3) of the DPDP Act?

Section 44(3) amends Section 8(1)(j) of the Right to Information Act, which deals with exemptions from disclosure.

Before the amendment, Section 8(1)(j) allowed public authorities to deny disclosure of personal information only if:

• The information had no relationship to a public activity; or
• Disclosure would cause an unwarranted invasion of privacy.

Even then, information could be disclosed if the public interest outweighed the privacy concerns. A Public Information Officer would decide this after weighing both sides.

Petitioners argue that the DPDP amendment creates a “blanket ban” on disclosure of personal information through RTI applications, without retaining the earlier balancing test.

Why Are Petitioners Calling It a “Body Blow” to RTI?

Advocate Vrinda Grover, appearing for petitioner Venkatesh Nayak, argued that instead of carefully refining the law, the government has used a heavy-handed approach that undermines citizens’ right to know.

Senior Advocate Prashant Bhushan, appearing for the National Campaign for People’s Right to Information, submitted that:

• The earlier RTI framework carefully balanced privacy and transparency.
• The amendment now gives “unguided discretion” to deny information.
• It may lead to automatic rejection of RTI requests concerning public officials.

According to the petitioners, this change could affect access to:

• Procurement records
• Audit reports
• Appointment files
• Records relating to public funds
• Exercise of statutory powers

In their view, if such information can be denied merely because it “relates to personal information,” the right to information may become ineffective in practice.

What Is the Constitutional Question?

The petitions raise multiple constitutional challenges.

1. Does It Violate Article 19(1)(a)?

The right to information has been recognised by the Supreme Court as part of the freedom of speech and expression under Article 19(1)(a) of the Constitution.

Petitioners argue that the amendment imposes an unreasonable restriction on this right by giving primacy to privacy without a public interest override.

2. Can the State Claim a Right to Privacy?

One of the striking arguments raised is that privacy is a fundamental right available to individuals, not to the State.

Petitioners contend that by shielding information about public officials under the label of “personal information,” the amendment effectively extends privacy protection to the State. They argue that this reverses established constitutional principles.

3. Does It Violate Article 14?

The challenge also invokes Article 14, which guarantees equality before law.

The petitioners argue that equating the privacy rights of public functionaries with those of ordinary citizens ignores the principle that public officials are subject to higher standards of scrutiny in a democracy.

What About the 2019 Supreme Court Judgment?

The issue of balancing privacy and transparency was previously examined in the 2019 Constitution Bench judgment in Central Public Information Officer v. Supreme Court of India.

In that case, the Court applied the proportionality test to determine when personal information could be disclosed under RTI. It held that:

• Personal information is protected by privacy.
• However, disclosure may be justified if it serves a larger public interest.

Petitioners argue that the DPDP amendment disrupts this carefully crafted balance by removing or diluting the public interest safeguard.

What Is the Government’s Position Likely to Be?

While detailed arguments from the government are awaited before the Constitution Bench, the broader legislative intent behind the DPDP Act is to strengthen data protection and safeguard informational privacy.

The government has previously maintained that the DPDP Act does not dilute the RTI Act but seeks to harmonise privacy and transparency in the digital age.

The Constitution Bench will now have to examine whether such harmonisation has gone too far in favour of privacy at the cost of transparency.

Why Is This Case So Important?

This case is not just about one provision. It touches the core of India’s constitutional democracy.

1. Transparency vs Privacy

India has two powerful constitutional values:

• The right to privacy, recognised in the 2017 Puttaswamy judgment.
• The right to information, recognised as part of free speech.

The Court must now determine how these two rights should interact when they appear to conflict.

2. Impact on Governance

If the amendment is upheld in its broadest interpretation, critics argue that it could:

• Reduce public oversight over government functioning.
• Make it harder to expose corruption or maladministration.
• Limit participatory democracy.

On the other hand, if the Court narrows the scope of “personal information,” it may preserve RTI’s effectiveness while respecting privacy.

3. Clarifying “Personal Information”

One key question flagged by the Chief Justice is the meaning of “personal information.”

Does it include:

• Service records of public officials?
• Asset declarations?
• Disciplinary proceedings?
• Performance assessments?

The Constitution Bench may lay down authoritative guidelines on how to interpret the term in the RTI context.

What Happens Next?

The matter will now be placed before a Constitution Bench of the Supreme Court. That Bench will:

• Hear detailed arguments from petitioners and the government.
• Examine constitutional provisions, past judgments and legislative intent.
• Decide whether Section 44(3) of the DPDP Act is constitutionally valid.

Until then, the provision remains in force, as the Court has declined to stay its operation.

The Larger Picture

This case marks a pivotal moment in India’s evolving digital and constitutional landscape.

As the State increasingly regulates personal data in the digital era, questions about access to information and public accountability are becoming more complex. The outcome of this case will shape:

• The future of RTI jurisprudence
• The scope of informational privacy
• The transparency standards applicable to public authorities

The Constitution Bench’s ruling is likely to become a landmark decision defining how India balances privacy with the people’s right to know in a digital democracy.