Supreme Court refers to Constitution Bench on whether DPDP law uses privacy to dismantle people’s right to know

The Supreme Court on Monday (February 16, 2026) agreed to refer to a Constitution Bench a series of petitions challenging a “body blow” allegedly posed by India’s new digital personal data law to citizens’ right to a transparent and accountable government under the Right to Information (RTI) Act.

Section 44(3) of the Digital Personal Data Protection (DPDP) Act of 2023 imposes a “blanket ban” on the RTI Act applicants, preventing them from seeking disclosure of ‘personal information’, the petitioners said. They submitted that the provision cynically uses the right to privacy to cripple the citizens’ right to information.

Chief Justice of India Surya Kant, heading a three-judge Bench, refused a plea to pass an interim order to stay the implementation of Section 44(3), though the top judge said that the petitions raised a “complex, slightly sensitive and really interesting” question of law.

“We may have to lay down what is meant by ‘personal information’,” Chief Justice Kant remarked, issuing notice to the government.

Advocate Vrinda Grover, appearing for petitioner Venkatesh Nayak, submitted that the government “instead of using a chisel, a hammer has been used to deliver body blows to citizens’ right to information”.

The petitioners argued that Section 44(3) has amended Section 8(1)(j) of the RTI Act. 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.

“Section 8(1)(j) of the RTI Act had struck the right balance between the right to privacy and the right to information,” advocates Prashant Bhushan and Rahul Gupta, appearing for the National Campaign for People’ Right to Information, submitted.

Mr. Bhushan argued that a five-judge Constitution Bench in its November 2019 judgment in the Central Public Information Officer versus Supreme Court of India had examined Section 8(1)(j) of the RTI Act to apply the proportionality test to balance the right to information against the right to privacy. The 2019 judgment had held that personal information should remain in the realm of privacy unless disclosure was necessary in the larger public interest.

Ms. Grover argued that Section 44(3) introduced by the DPDP Act has accorded the government “unguided discretion to deny personal information, which is unconstitutional”. In fact, the fundamental right to privacy has been extended to the state.

“It is an unreasonable restriction on the right under Article 19 (right to free speech). Privacy is not a fundamental right available to the state. It violates Article 14 (right to equal treatment) by equating privacy of public functionaries to that of ordinary citizens. It inverts the jurisprudence of privacy viz-a-viz the right to information and prioritises privacy over the larger public interest of transparency and open governance,” Mr. Nayak’s petition argued.

Mr. Bhushan said the Constitutional consequence of the DPDP provision was both 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’,” Mr. Bhushan submitted.

The petitioners contended that the amendment to Section 8(1)(j) of the RTI Act has rendered the “right to information illusory” and sounded the death knell for participatory democracy besides being ruinous to ideas of open governance.