SC to hear plea accusing new data protection law of ‘weaponising’ right to privacy and ‘disarming’ RTI

Supreme Court to examine claims that India's new data protection law undermines citizens' Right to Information by prioritizing privacy.

The Supreme Court is scheduled to hear on February 16 a petition which accuses India’s new digital personal data protection law of weaponising the right to privacy to disarm the citizens’ right to seek information from the state under the Right to Information (RTI) Act.

A three-judge Bench headed by Chief Justice of India Surya Kant would hear a petition filed by human rights and transparency activist Venkatesh Nayak, represented by advocate Vrinda Grover, who has challenged Section 44(3) of the Digital Personal Data Protection (DPDP) Act of 2023.

The petition submitted that Section 44(3) has amended Section 8(1)(j)of the RTI Act to facilitate public authorities to blankly refuse information on the ground that the details sought are of a “personal” nature. It said the provision has turned the fundamental right to privacy on its head. The right, meant to protect ordinary citizens against state incursion, has been extended to protect the state and public functionaries from RTI disclosures.

Originally, the RTI provision had exempted authorities from disclosing personal information to an applicant if the details sought had no relationship to any public activity or if disclosure would amount to unwarranted invasion of privacy. Even then, the government had to disclose if public interest outweighed privacy. The decision whether or not to reveal ‘personal information’ was taken by a Public Information Officer or the First Appellate Authority under the RTI Act after thoroughly weighing privacy and transparency concerns.

“The Constitutional consequence is immediate and serious. Every RTI application involving identifiable public officials, procurement records, audit reports, appointment files, utilisation of public funds, or exercise of statutory discretion can now be denied automatically on the ground that it ‘relates to personal information’. The balancing mechanism that ensured proportionality has been dismantled. The exemption operates as an irrebuttable bar at the first gate. This is not a minor statutory adjustment; it is a structural alteration of the decision-making architecture of the RTI Act,” the National Campaign for People's Right to Information (NCPRI), represented by advocate Prashant Bhushan, argued in a separate petition filed in the apex court.

The petition represented by Ms. Grover said the amendment introduced by the DPDP Act accorded “unguided discretion to the Executive to deny personal information, which is unconstitutional”.