Challenge to DPDP Act | Day 2: Law may impede investigative journalism, petitioners argue
Constitutionality of the Digital Personal Data Protection Act, 2023Judges: Surya Kant CJI, Joymalya Bagchi J, V. Mohana J
Today, a Bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana heard a batch of petitions challenging the constitutionality of provisions of the Digital Personal Data Protection Act, 2023 (DPDP Act) and the Rules framed under it. The petitioners contended that the Act amends Section 8(1)(j) of the Right to Information Act, 2005 (RTI) by removing the public interest safeguard that earlier allowed disclosure of personal information in appropriate cases, replacing it with a broader exemption.
Petitioners: Amendment removes RTI’s public interest safeguard
Advocate Nisha Bhambhani submitted that the amendments would seriously impede investigative reporting because journalists would be required to obtain the consent of the “data principal” before publishing a report, and later erase the information at that person’s request. CJI Surya Kant responded, “The balance has to be worked out with the right to privacy.”
Advocate Vrinda Grover argued that the DPDP Act fundamentally alters the RTI framework as the amended provision exempts personal information from disclosure without preserving the balancing exercise built into the original law. This would exclude “a whole swathe of information” that citizens could previously access under Articles 19 and 21.
Advocate Prashant Bhushan argued that the balance between privacy and the right to information had already been settled by the Supreme Court in Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal (2019). He submitted that the original Section 8(1)(j) exempted only personal information unrelated to any public activity or public interest, or information whose disclosure would amount to an unwarranted invasion of privacy. “That balance has now been dismantled,” he argued. As a result, he contended, even information such as pending charge sheets against public officials, or details relating to welfare schemes and ration cards, could now be withheld on the ground that they constitute personal information.
How far can the RTI exemption go?
Justice Bagchi observed that both the RTI Act and the DPDP Act are central legislations and the Court would have to examine whether they operate harmoniously. He noted that the RTI Act “operates in a much larger domain”, covering all forms of information, while the DPDP Act applies to “a much narrower sliver”, although digital information today constitutes the overwhelming part of information held by the State. The Bench said it would examine whether the distinction drawn between digital personal data and other forms of information is founded on an intelligible differentia and bears a rational nexus to the object of the legislation.
Bhushan argued that the amendment extends beyond digital personal data because it expressly substitutes Section 8(1)(j). Justice Bagchi said the Court would also have to consider whether the legislation can impose “a blanket prohibition on disclosure of all digital personal information” or whether a proportionate approach is constitutionally required.
Addressing the concerns over journalism, Justice Bagchi clarified that neither Subhash Chandra Agarwal nor the RTI Act creates a separate exemption for journalists beyond the protection available under Article 19(1)(a).
Union to justify amendments
Solicitor General Tushar Mehta informed the Bench that the Union would file its reply within two weeks and place its justification for the legislation on record, adding that it would remain “subject to judicial review.”
The matter has been directed to be listed on a non-miscellaneous day.