Supreme Court Refers DPDP Act Constitutional Challenge to Five-Judge Bench: RTI vs. Privacy Rights at Stake

Petitioners' Constitutional Arguments

Multiple writ petitions have been filed before the Supreme Court challenging the constitutional validity of specific provisions of the DPDP Act and the Digital Personal Data Protection Rules, 2025. The challenged sections include 17(1)(c), 17(2), 33(1), 36, and particularly 44(3). Petitioners argue that these provisions violate fundamental rights enshrined in Articles 14 (equality before law), 19(1)(a) (freedom of speech and expression, which includes the right to information), and 21 (right to life and personal liberty, which encompasses privacy).

The core argument is straightforward: the amendment to Section 8(1)(j) is disproportionate. Petitioners contend that while privacy deserves protection, a blanket prohibition on disclosure of personal information is not a narrowly tailored means of achieving that protection. They argue the amendment tips the constitutional balance too far in favor of privacy at the expense of transparency and the right to know. The petitioners further contend that the amendment allows authorities to deny information by simply citing its personal nature, without any assessment of whether disclosure would genuinely harm privacy interests or whether public interest would justify revelation.

Impact on Investigative Journalism and Governance Transparency

The implications for investigative journalism and press freedom are substantial. Journalists investigating matters of public concern often need to access personal data held by government agencies—financial records, property ownership, employment details, and similar information that might reveal conflicts of interest, misuse of office, or abuse of power. The blanket exemption created by Section 44(3) makes such reporting significantly harder, as journalists cannot obtain even basic personal information without overcoming an absolute legal barrier rather than a balancing test.

Concerns have been raised that the amendment could seriously impede investigative reporting. Journalists might need to seek consent from data principals and face requests for data erasure, thereby affecting press freedom and transparency in governance. In cases where a journalist reports on corruption or misconduct involving personal data, the new framework creates legal obstacles that did not exist before. The Right to Information Act, 2005, previously allowed for disclosure when the public interest was sufficiently compelling; the amended framework eliminates that possibility altogether.

The Court's Balancing Task

The Supreme Court acknowledged the need to strike a careful balance between competing rights. Article 19(1)(a) protects freedom of speech and expression, which the courts have long held includes the right to seek and receive information. Article 21 protects the right to privacy, which the Supreme Court recognized as a fundamental right in the 2017 judgment in Puttaswamy v. Union of India. The Constitution does not rank one above the other; instead, each right is subject to reasonable restrictions imposed by law.

The question before the Constitution Bench is whether Section 44(3) represents a reasonable restriction on the right to information or whether it goes beyond what the Constitution permits. A reasonable restriction must be necessary to achieve a legitimate state objective and must be proportionate—no broader than required to achieve that objective. Petitioners argue that a blanket exemption fails the proportionality test because it excludes all personal information from disclosure, even in cases where public interest is overwhelming and privacy harm is minimal.

Legislative Overreach and Fundamental Rights

Petitioners contend that the amendment constitutes legislative overreach by effectively rewriting the balance struck by the Right to Information Act, 2005, without going through the constitutional amendment process. They argue that the 2005 Act represented a deliberate legislative choice to allow disclosure of personal information when the public interest justified it. By removing that caveat through an amendment in a later statute, Parliament altered a fundamental aspect of the right to information without explicitly stating that it was changing the constitutional balance.

This raises a broader constitutional question: can Parliament modify the scope of a fundamental right through ordinary legislation, or must such changes be made through constitutional amendment? The Supreme Court has held that fundamental rights cannot be diluted through ordinary legislation. If the court agrees that Section 44(3) effectively dilutes the right to information, it could strike down the provision as unconstitutional.

Current Status and Practical Impact

Despite the constitutional challenge, the Supreme Court declined to grant an interim stay on the DPDP Act, 2023. This means the amendment to Section 8(1)(j) remains fully operative while the Constitution Bench considers the challenge. The Court issued notice on petitions challenging the Act's constitutional validity on February 16, 2026, but has not suspended the law's operation pending final judgment.

The regulatory framework remains incomplete. The Digital Personal Data Protection Rules were notified in 2025, but the Data Protection Board of India, which is crucial for enforcing the DPDP Act, remains unconstituted as of mid-2026. The Board lacks both a Chairperson and its required members, despite the government initiating the appointment process in May and June 2026. This regulatory gap complicates matters, especially with the Consent Manager framework expected to roll out by November 2026 under the DPDP Rules, forcing companies to invest in compliance infrastructure without a functioning Board to provide guidance.

What Happens Next

The Constitution Bench will examine whether the blanket exemption in Section 44(3) is constitutionally proportionate and whether it violates Articles 19(1)(a) and 21 when read together. The court will likely consider how other democracies balance transparency and privacy, the practical impact of the amendment on investigative journalism and governance accountability, and whether a narrower approach could protect privacy while preserving the right to information in cases of compelling public interest. The judgment of the Constitution Bench will set the framework for how India reconciles data protection and transparency for years to come.