When Privacy Becomes Opacity: Section 44(3) of the DPDP Act, 2023 and the Constitutional Balance Between Privacy and Transparency

Introduction

The recognition of the right to privacy as a fundamental right in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) marked a significant development in India’s constitutional jurisprudence. It established informational privacy as an essential aspect of individual autonomy and dignity under Article 21 of the Constitution. However, the protection of personal information must also be considered alongside another constitutional value: the citizen’s right to access information concerning public administration and government accountability.

The Right to Information Act, 2005 (“RTI Act”) has historically sought to maintain this balance by permitting the disclosure of personal information where the larger public interest justifies it. This position underwent a significant change through Section 44(3) of the Digital Personal Data Protection Act, 2023 (“DPDP Act”), which amended Section 8(1)(j) of the RTI Act by replacing the earlier qualified privacy exemption with a broader exclusion for “information which relates to personal information”.

The amendment has raised concerns regarding the scope of information that public authorities may withhold, particularly where disclosure relates to the conduct of public officials, the administration of welfare schemes, public expenditure or the exercise of governmental powers. Critics argue that the removal of the express public-interest qualification from Section 8(1)(j) risks weakening the transparency framework established under the RTI Act.

The constitutional validity of the amendment is now under challenge before the Supreme Court of India. The proceedings raise important questions concerning the relationship between informational privacy, freedom of speech and expression, and the right to information.

This article examines the legal implications of Section 44(3), the safeguards that continue to exist under the RTI Act, the principal constitutional objections to the amendment and the latest developments in the judicial challenge.

1. The Evolution of Section 8(1)(j) of the RTI Act

Before its amendment, Section 8(1)(j) of the RTI Act provided an exemption from disclosure in respect of personal information where disclosure had no relationship to any public activity or interest or would cause an unwarranted invasion of an individual’s privacy, unless the Central Public Information Officer (“CPIO”), State Public Information Officer (“SPIO”) or appellate authority was satisfied that the larger public interest justified disclosure.

The provision also contained a proviso stating that information which could not be denied to Parliament or a State Legislature could not be denied to any person. The earlier provision therefore incorporated a qualified exemption rather than an absolute prohibition on disclosure of personal information. Its operation involved the following considerations:

• Relationship with public activity or interest: The nature of the information and its connection, if any, with public activity or interest were relevant to determining whether the exemption could be invoked.
• Unwarranted invasion of privacy: The disclosure had to be examined in the context of the privacy interests of the individual concerned. Information relating to an individual was not automatically exempt merely because it was personal in nature.
• Larger public-interest override: Even where the exemption was otherwise attracted, disclosure could be justified where the larger public interest outweighed the privacy concerns involved.
• Parliamentary and legislative disclosure safeguard: Information that could not be withheld from Parliament or a State Legislature could not be withheld from an individual applicant.

The provision enabled Information Officers to consider the circumstances of individual requests instead of applying a blanket restriction to all records containing personal information.

For instance, information relating to public officials, asset declarations, public appointments or the exercise of statutory powers could raise questions of public accountability. Although such records might contain personal information, their disclosure could be justified depending on the nature of the information and the public interest involved.

The Supreme Court’s decision in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2019) is particularly relevant to this framework. The Constitution Bench recognised the need to balance the right to information against the right to privacy, emphasising that neither right is absolute. It also examined the role of the public-interest test in determining whether personal information could be disclosed under the RTI Act.

2. Section 44(3) of the DPDP Act: What Has Changed?

Section 44(3) of the DPDP Act substitutes clause (j) of Section 8(1) of the RTI Act with the following provision: “information which relates to personal information;”

The amendment removes the earlier statutory language referring to the absence of a relationship with public activity or interest, unwarranted invasion of privacy and the express larger public-interest override contained within the previous clause. It also removes the proviso concerning information that could not be denied to Parliament or a State Legislature.

The revised provision is materially shorter and does not expressly reproduce the qualifications contained in the earlier exemption.

The scope of the amended exemption

An important interpretative issue arises from the terminology used in the amended provision. Section 2(t) of the DPDP Act defines “personal data” as any data about an individual who is identifiable by or in relation to such data. However, the amended Section 8(1)(j) of the RTI Act uses the expression “personal information”, rather than the defined expression “personal data”. The distinction is significant. The amended RTI provision does not expressly incorporate the definition of personal data under Section 2(t), nor does it provide an independent definition of personal information.

Consequently, questions arise regarding the scope of the amended exemption, including whether it extends to all information relating to an identifiable individual or whether its application must be informed by the nature of the information, the context in which it is held and the applicable constitutional principles.

The broader interpretation may potentially affect access to records concerning public officials, public appointments, beneficiary records, government contracts and the administration of public schemes, particularly where such records contain identifiable personal information. However, it would be premature to conclude that every record containing an individual’s name, designation, or other identifier is automatically exempt from disclosure. The precise scope of the amended provision remains a matter of statutory interpretation and constitutional scrutiny.

3. What Safeguards Continue to Exist under the RTI Act?

Although Section 44(3) has removed the express qualifications previously contained in Section 8(1)(j), it has not eliminated every disclosure mechanism under the RTI Act. Several provisions continue to be relevant when assessing requests for information held by public authorities.

A. Proactive disclosure under Section 4

Section 4 of the RTI Act imposes obligations on public authorities to maintain records and proactively disclose specified categories of information. These include particulars of the organisation, functions and duties of public authorities, powers and responsibilities of officers, decision-making procedures, applicable norms, rules, regulations, budgets and other prescribed information.

The provision seeks to reduce the need for individual RTI applications by requiring public authorities to make important institutional and administrative information accessible. However, Section 4 does not create an unconditional obligation to disclose every record. The applicable statutory exemptions and other legal restrictions must still be considered.

B. Severability under Section 10

Section 10 of the RTI Act provides for severability where a record contains both exempt and non-exempt information. Where the exempt portion of a record can reasonably be separated from the remainder, the public authority may provide access to the non-exempt portion after severing the protected information.

This mechanism remains relevant where an administrative document contains both institutional information and personal details. For instance, where a record contains information concerning a public decision along with personal particulars of an individual, the possibility of partial disclosure must be examined rather than assuming that the entire document is necessarily exempt.

C. Third-party consultation under Section 11

Section 11 prescribes a procedure for dealing with information relating to or supplied by a third party and treated as confidential by that party. Where the CPIO or SPIO intends to disclose such information, the third party must ordinarily be given written notice within five days of receipt of the RTI request and an opportunity to make a representation. The third party is entitled to make its representation within ten days of receiving the notice.

The Information Officer must consider the representation before deciding whether the information should be disclosed. Importantly, Section 11 is a procedural safeguard and does not confer an absolute veto on the third party. The final decision regarding disclosure remains with the Information Officer, subject to the applicable statutory framework.

D. Public-interest disclosure under Section 8(2)

Section 8(2) of the RTI Act continues to permit a public authority to allow access to information where the public interest in disclosure outweighs the harm to the protected interests, notwithstanding the Official Secrets Act, 1923 and the exemptions contained in Section 8(1). The provision therefore retains a general discretionary public-interest disclosure mechanism.

However, its operation must be distinguished from the earlier Section 8(1)(j). Under the previous clause, the larger-public-interest qualification was expressly incorporated into the personal-information exemption. Section 8(2), by contrast, empowers the public authority to permit disclosure where the requisite public-interest considerations are satisfied.

This distinction is central to the constitutional challenge. Critics contend that the discretionary character of Section 8(2) is not equivalent to the earlier statutory requirement to consider larger public interest while applying the personal-information exemption.

E. Disclosure obligations under other legislation

The RTI Act is not the only statutory framework through which information concerning public institutions, companies and public functionaries may become accessible. The Companies Act, 2013, applicable SEBI regulations and the Lokpal and Lokayuktas Act, 2013 contain separate disclosure and declaration requirements in specified circumstances.

Such disclosures operate under their respective statutory frameworks. They should not, however, be treated as a general substitute for access to information under the RTI Act, particularly where the information sought is not independently required to be disclosed under another law.

4. The Constitutional Challenge: Privacy versus the Right to Information

The amendment has prompted constitutional challenges before the Supreme Court, with petitioners questioning whether the broadening of the personal-information exemption is consistent with fundamental rights under Articles 14, 19(1)(a) and 21 of the Constitution.

The principal concern is that removing the express public-interest qualification from Section 8(1)(j) may disproportionately restrict access to information necessary for public scrutiny and governmental accountability.

A. Right to information under Article 19(1)(a)

The Supreme Court has recognised that the right to information is closely connected with the freedom of speech and expression guaranteed under Article 19(1)(a). In State of Uttar Pradesh v. Raj Narain (1975), the Court recognised the importance of citizens’ right to know about public acts performed by public functionaries.

Similarly, in S.P. Gupta v. Union of India (1981), the Court emphasised the importance of openness in governmental functioning and the public’s right to know, subject to legitimate grounds for confidentiality. The petitioners challenging Section 44(3) argue that access to information is essential for democratic participation, investigative journalism and accountability in public administration. In their view, a broad exemption for personal information could restrict access to records that are relevant to examining the exercise of public power, even where disclosure may serve a substantial public interest.

B. Right to privacy under Article 21

The constitutional right to privacy was recognised as a fundamental right by the nine-judge Constitution Bench in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017). The judgment recognised informational privacy as an essential component of individual autonomy and dignity. It also established that restrictions affecting privacy must satisfy the requirements of legality, legitimate State aim and proportionality.

The right to information and the right to privacy must therefore be understood as constitutional interests that may require reconciliation in appropriate circumstances. In Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2019), a five-judge Constitution Bench examined the relationship between these competing interests in the context of the RTI Act. The judgment highlighted the importance of examining the nature of the information sought, the privacy interests involved and the public interest in disclosure.

The challenge to Section 44(3) raises the question of whether replacing the earlier qualified exemption with a broader formulation adequately preserves this constitutional balance.

C. The proportionality argument

A central argument against the amendment concerns its proportionality. The petitioners contend that while protecting personal information is a legitimate legislative objective, the removal of the earlier statutory qualifications may impose an excessively broad restriction on access to information.

The proportionality analysis requires consideration of whether a measure pursues a legitimate objective, whether it is rationally connected to that objective, whether a less restrictive but equally effective alternative is available and whether the measure strikes an appropriate balance between the competing rights.

Critics argue that the earlier Section 8(1)(j) already provided a mechanism for protecting privacy while permitting disclosure where larger public interest justified it. They therefore question whether replacing this framework with a broader exemption is necessary to achieve the objective of protecting personal information. The constitutional validity of the amendment will ultimately depend on the Supreme Court’s assessment of these competing considerations.

5. The Government’s Defence: Sections 3 and 8(2) of the DPDP Act and RTI Act

In response to concerns regarding the amendment, the Union Government has relied on the continuing statutory framework to argue that Section 44(3) does not eliminate legitimate disclosure of personal information.

Two provisions are particularly relevant to this defence.

A. Publicly available information under Section 3 of the DPDP Act

Section 3(c) of the DPDP Act excludes from its scope personal data made or caused to be made publicly available by the individual to whom the data relates, or by another person who is under a legal obligation to make such data publicly available. The Government has relied on this exclusion to support its position that personal information which is required to be disclosed under other laws, including disclosure obligations concerning public representatives and welfare schemes, should not become inaccessible merely because of the DPDP Act.

However, this argument raises an important question concerning the relationship between the DPDP Act and the amended RTI provision.

Section 3(c) concerns the applicability of the DPDP Act to specified categories of publicly available personal data. It does not expressly provide an interpretation of the amended Section 8(1)(j) of the RTI Act or restore the public-interest qualifications removed by Section 44(3). There is also an important commencement consideration. Under the notification issued by the Ministry of Electronics and Information Technology on 13 November 2025, Section 3 of the DPDP Act is scheduled to commence eighteen months after publication of the notification, unlike Section 44(3), which came into force immediately under the same notification.

Accordingly, Section 3(c) should not be treated as an operative statutory exception to the amended RTI provision as of the date of this article. Its eventual interaction with the amended RTI framework remains an important interpretative issue.

B. The continuing public-interest power under Section 8(2)

The Government has also relied on Section 8(2) of the RTI Act, which permits disclosure where public interest outweighs the harm to protected interests. The argument is that the amendment does not eliminate public-interest disclosure altogether because Section 8(2) continues to operate notwithstanding the exemptions under Section 8(1).

However, critics distinguish between the earlier Section 8(1)(j), which expressly incorporated a larger-public-interest qualification into the personal-information exemption, and Section 8(2), which provides a discretionary power to allow disclosure. The concern is that the removal of the express qualification may alter the initial approach adopted by Information Officers when deciding RTI applications involving personal information. Applicants may consequently have to rely more heavily on appellate proceedings or other legal remedies to challenge refusals.

Whether Section 8(2) adequately preserves the balance previously incorporated into Section 8(1)(j) is therefore one of the significant issues arising from the amendment.

6. Supreme Court Proceedings and the Current Legal Position

The constitutional validity of the DPDP Act, including the amendment to Section 8(1)(j) of the RTI Act, has been challenged through multiple petitions before the Supreme Court. The proceedings include challenges brought by Venkatesh Nayak, The Reporters Collective Trust and journalist Nitin Sethi, among others, raising concerns regarding the effect of the amended provision on transparency, freedom of expression and access to public information.

On 16 February 2026, a three-judge Bench of the Supreme Court issued notice to the Union Government on the challenges and declined to grant an interim stay of the impugned provisions. The Court acknowledged the need to examine the competing constitutional interests involved.

On 7 August 2026, the Court heard further arguments and granted the Union Government additional time to respond to the challenges. A further development occurred on 27 October 2026, when the Supreme Court issued notice to the Union Government on a petition filed by the Digital News Publishers Association (“DNPA”), which challenged provisions of the DPDP Act and the Digital Personal Data Protection Rules, 2025 on grounds relating to press freedom and the right to information. The matter was directed to be listed alongside the pending proceedings on 17 November 2026.

As of 3 November 2026, the constitutional challenge remains pending. No interim stay of Section 44(3) has been granted, and the amended Section 8(1)(j) continues to operate. Accordingly, Information Officers must apply the amended statutory provision while considering RTI applications, subject to the other applicable provisions of the RTI Act. Applicants aggrieved by a refusal of information may pursue the statutory appellate remedies under Section 19 of the RTI Act, including a first appeal before the designated senior officer and a second appeal before the Central or State Information Commission, as applicable.

The Supreme Court’s eventual determination will be significant in clarifying the scope of personal-information exemptions and the extent to which public-interest considerations may inform disclosure decisions under the amended framework.

Conclusion

Section 44(3) of the DPDP Act has materially altered the relationship between privacy protection and transparency under India’s RTI framework. By replacing the earlier qualified exemption under Section 8(1)(j) with a broader reference to information relating to personal information, the amendment has raised important questions concerning the scope of disclosure exemptions and the continuing role of public-interest considerations.

Although Sections 4, 8(2), 10 and 11 of the RTI Act continue to provide mechanisms relevant to transparency, severability, public-interest disclosure and third-party consultation, their continued existence does not necessarily resolve the concerns arising from the removal of the express qualifications previously contained in Section 8(1)(j).

The constitutional challenge therefore extends beyond the interpretation of a statutory exemption. It concerns the manner in which the State must reconcile informational privacy with democratic accountability and the citizen’s right to know. The Supreme Court’s consideration of these issues will be important in determining whether the amended provision strikes a constitutionally permissible balance between individual privacy and public transparency, while also shaping the scope of DPDP compliance services India and the obligations of organisations handling personal data in the context of public administration.

For public authorities, media organisations, civil society institutions and businesses dealing with information disclosure and data protection obligations, the evolving legal position warrants close attention. Legal advice on RTI disclosure obligations, data protection and privacy law, and related constitutional issues will remain relevant as the Supreme Court examines the scope and validity of the amended framework.

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