The Supreme Court of India is currently deliberating on the intricate balance between the right to information and the fundamental right to privacy following amendments to the Right to Information (RTI) Act through the Digital Personal Data Protection (DPDP) Act of 2023. The pivotal question before the Court is whether a blanket prohibition on the disclosure of personal information can be justified under the new legal framework.
Constitutional Questions at the Forefront
A bench comprising Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi, and Justice V Mohana is reviewing petitions challenging the amendment to Section 8(1)(j) of the RTI Act. This amendment has removed the clause that previously allowed for the disclosure of personal information if it was in the public interest. Justice Bagchi emphasized the need to examine whether the new approach to personal information protection aligns with constitutional standards.
He elaborated that the RTI Act encompasses a broad spectrum of information, whereas the DPDP Act focuses narrowly on digital personal data, which now constitutes a significant portion of information. The Court is tasked with determining if the cautionary approach of the legislation has a reasonable and intelligible differentia in relation to its objectives.
The Amendment’s Impact on Transparency
The RTI Act was originally enacted to foster transparency and accountability in government, allowing citizens to access information held by public authorities. Previously, Section 8(1)(j) permitted withholding personal information only in limited circumstances, with a provision for disclosure if a larger public interest was at stake. The removal of this provision has raised concerns about the potential impact on transparency.
Advocate Vrinda Grover, representing the petitioners, argued that the amendment fundamentally alters the RTI law by eliminating safeguards that balanced privacy with the need for disclosure in the public interest. She contended that the new provision exempts all personal information from disclosure, potentially excluding information protected under Articles 19 and 21 of the Indian Constitution.
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Concerns Over Investigative Journalism
During the proceedings, Advocate Nisha Bhambhani expressed concerns that the amendment could hinder investigative journalism. She argued that requiring journalists to obtain consent from data principals before reporting could severely impact their ability to report on issues like corruption or abuse of power. Justice Bagchi clarified that existing legal precedents and the RTI Act do not provide special exemptions for journalists beyond the protections available under Article 19(1)(a).
Judicial Review and Government’s Response
Advocate Prashant Bhushan also highlighted the potential consequences for investigative journalism, suggesting the amendment could prevent the publication of reports on public officials involved in corruption without their consent. He referenced the Supreme Court’s previous ruling in the case of Supreme Court of India v Subhash Chandra Agarwal, which upheld both the right to information and the right to privacy as fundamental rights.
Solicitor General Tushar Mehta, representing the Union government, stated that the government would justify the amendment in a forthcoming affidavit, which will be subject to judicial review. The Court has directed the Ministry of Electronics and Information Technology to be impleaded as a party, and the matter will be listed for further hearing after the Union files its response.
