THE SUPREME COURT will hear the challenges to Section 44(3) of the Digital Personal Data Protection (DPDP) Act again on 17 November. On 27 October, a bench led by Chief Justice Surya Kant issued notice on a fresh petition by the Digital News Publishers Association, which also attacks the law’s amendment to the RTI Act, and tagged it with the pending cases. In February, the Court had refused to stay the amendment and sent the challenges to a larger bench. The petitioners are serious people, and they have made a serious case. It deserves a full hearing, not least because it is mostly wrong.
Start with what the amendment did. Section 8(1)(j) of the RTI Act exempted personal information that had no link to any public activity or interest, or whose release would be an unwarranted invasion of privacy. But there was a catch. A Public Information Officer (PIO) or an appellate authority could still order disclosure if satisfied that the larger public interest justified it. The DPDP Act cut the clause down to one line, exempting information “which relates to personal information”. The public-interest test for personal information is gone.
THREE PETITIONS came first. They were filed by The Reporters’ Collective Trust with journalist Nitin Sethi, by the National Campaign for People’s Right to Information (NCPRI), and by RTI activist Venkatesh Nayak. News publishers have since joined them. Their case is simple. The old clause allowed disclosure when personal information related to public activity or public interest. The new clause, they say, works as “a blanket ban” on disclosing personal information, whatever the public interest. The Reporters’ Collective’s petition adds that journalists and transparency activists rely on such information, in limited cases, to expose corruption, wrongdoing and conflicts of interest. Arguing for Nayak, advocate Vrinda Grover said that “instead of using a chisel, they have used a sledgehammer”.
The Reporters’ Collective wants the amendment repealed, so that any citizen, not only a journalist, can seek such information for a public purpose. Arguing for the NCPRI, Prashant Bhushan leaned on the Supreme Court’s 2019 judgment in Subhash Chandra Agarwal, which said personal information can be disclosed if it has a reasonable link with public activity and the larger public interest. This is a fair case. It should not be waved away.
The petitions also attack other parts of the Act, such as the Centre’s power to call for data under Section 36. This piece is only about Section 44(3).
THE GOVERNMENT has given its answer. In a written reply in the Lok Sabha in August 2025, IT Minister Ashwini Vaishnaw said the amendment balances the right to privacy, as affirmed in Puttaswamy, with the right to information. He also pointed to Section 8(2) of the RTI Act, which was left untouched. It lets a public authority give access if “public interest in disclosure outweighs the harm to the protected interests”. The bench has its own view. It noted that Subhash Chandra Agarwal did not directly deal with Section 8(1)(j). The Chief Justice said both sides would have “arguable points” and called the issue “complex but interesting”.
NOW THE WEAK SPOT. It is real, so let us say so plainly. The old clause ended with a proviso: information that cannot be denied to Parliament or a State Legislature shall not be denied to any person. The new clause has no such proviso. This deletion is hard to defend. The proviso was never a privacy test. It was a rule of equality. It said a citizen cannot be treated worse than an MP. The minister’s reply does not even mention it. Concede the point.
But what follows from it? A flaw in one clause is a reason to repair that clause, not to throw out the whole idea. The Chief Justice himself said that “some ironing out of the creases might be needed”. Putting back a proviso is a chisel job. It does not need us to bring back a test that leaves a citizen’s private data to an officer’s discretion.
THAT DISCRETION is the real issue. In 2017, a nine-judge bench unanimously held that privacy is a fundamental right. A fundamental right cannot depend on how one officer reads the words “larger public interest”. If it does, it is a favour, not a right.
Under the old clause, the person whose data was sought decided nothing. Section 11 let that person object, but the final call sat with the PIO. The Centre for Internet and Society made this point years ago. It noted that there was “no clear definition” of larger public interest, and warned that phone numbers, passport details and tax returns could reach strangers where such an interest was found. So who was guarding the citizen? Mostly, an officer who had no way of knowing why the applicant wanted the data.
LOOK AT REAL CASES. In Kapil Agarwal v. CPIO, a wife asked for her estranged husband’s tax records from 2007-08 onwards. She needed them for her maintenance claim. The Central Information Commission ordered disclosure of his net taxable income. On 28 April 2026, the Delhi High Court set that order aside. It held that tax details are personal information, and that “larger public interest” “cannot be interpreted in a way that allows misuse of the provisions of the Act”.
Then there is Karnataka. In a ruling reported in June, the High Court heard a woman who wanted the asset statements of a former KSRTC officer, whom she accused of fraudulently obtaining a sale deed for her land. The PIO and the Information Commission had refused her. The High Court upheld the refusal. It said public servants “do not cease to possess privacy rights merely by reason of their employment in public service”. It also said: “Mere allegations, however serious, cannot by themselves convert personal information into public information.”
These are not rare cases. In March, the same court set aside another Commission order that had given a wife her husband’s tax returns. It held that RTI is no substitute for the matrimonial court, which can summon such records itself. The Commission has also given opposite answers to the same question. In 2015, one Information Commissioner held that a wife’s maintenance was an overriding public interest. In 2020, another refused a woman her estranged husband’s returns because she had shown no larger public purpose. Same law, two answers. The citizen whose data was sought just had to hope for the better one.
The petitioners will say the courts corrected these mistakes. That is true, as far as it goes. But see what the correction cost. The husband in Kapil Agarwal went to the High Court in 2021. He won in 2026. Not everyone can wait five years, or pay for the fight. A right that must be fought for in a High Court, case by case, is a right in practice only for those who can afford the fight.
SO WHAT has the amendment changed? Less than its critics say, and its defenders should admit as much. Section 8(2) is untouched: a public authority can still release personal information when the public interest in disclosure outweighs the harm. Someone still has to make that call, so some discretion survives. The petitioners call the new clause a blanket bar; the government says Section 8(2) keeps the door open. The larger bench will decide how much weight that provision can bear.
What has changed is where the rule lives. The courts had already read the old clause as protecting personal information by default. The Karnataka High Court said the burden “would necessarily lie on the applicant seeking disclosure”. But that rule lived in judgments, and the Commission did not always follow them, as the tax-return cases show. Each time, the citizen had to go to a High Court to have it applied. Now it is in the text of the Act, where every PIO and every Commissioner must apply it. The Karnataka High Court called the clause “a statutory manifestation” of the right to privacy. The amendment makes that plain.
THE COURT may well bring back the proviso, and it should be asked to. A citizen should never rank below an MP when it comes to seeing a government file. But the main principle should stay. A citizen’s private data is protected by the Constitution first. It should not depend on an officer’s guess about what the public deserves to know.
The Constitution made privacy a right. The old test made it a request.
