Supreme Court to decide if DPDP Act cripples RTI and investigative journalism

The Supreme Court on Friday agreed to examine whether the Digital Personal Data Protection (DPDP) Act, 2023 can be used to undermine the Right to Information (RTI) Act by treating all sought-after information as “personal”, and whether it could effectively gag investigative journalists.

A Bench led by Justice Joymalya Bagchi observed that both the DPDP Act and the RTI Act are central legislations and there is a need to harmonise them. The court was responding to petitions challenging the data protection law’s impact on transparency and press freedom.

“The earlier law (RTI Act, 2005) gave certain access with conditions. Here (2023 Act), there is an en bloc embargo. Is this latter law repugnant to earlier law? This has to be looked into with extreme circumspection. After all, both are central laws. There is a need to actually harmonise these two,” Justice Bagchi remarked.

The Bench noted that the RTI Act operates on a “much larger domain” than the DPDP Act. While the RTI law applies to all forms of data, the DPDP Act is concerned only with digital data. The court acknowledged, however, that data is now overwhelmingly stored and processed in digital form.

The court said it would examine whether the “cautionary approach” to sharing data under the DPDP Act effectively repeals earlier transparency legislation. It was hearing multiple pleas challenging Section 44(3) of the DPDP Act, which amended Section 8(1)(j) of the RTI Act. This amendment allows public authorities to refuse information on the ground that the details sought are of a “personal” nature, without the earlier requirement to weigh public interest.

Advocate Vrinda Grover, appearing for some of the petitioners, submitted that the provision has turned the fundamental right to privacy on its head. The right, intended to protect individuals from State intrusion, is now being used to shield the State and public functionaries from RTI disclosures, she argued.

Originally, Section 8(1)(j) of the RTI Act exempted authorities from disclosing personal information only if it had no relationship to any public activity or if disclosure would cause unwarranted invasion of privacy. Even then, the law required disclosure if public interest outweighed privacy concerns. The decision was made by a Public Information Officer or the First Appellate Authority after balancing privacy and transparency.

The Foundation for Media Professionals, represented by advocate Nisha Bhambhani, told the court that the DPDP Act threatens to have a grave impact on investigative journalism. The law does not grant any exemption for journalists. If a journalist reports on a matter, they would need the consent of the data principal. If the data principal seeks erasure of that data, they can demand it. This directly affects the ability of journalists to investigate and report in the public interest.

The court, however, clarified that journalists cannot be treated as a “special category” with unreserved access to data. It referred to Supreme Court judgments on public transparency (Subhash Chandra Agarwal case) and press freedom (Indian Express Bombay Pvt Ltd case), noting that neither the court nor the RTI Act has recognised journalists as a special class.

The Supreme Court’s decision to examine the interplay between the DPDP Act and the RTI Act is significant. Petitioners argue that the 2023 law, enacted to protect personal data, should not become a tool to restrict the transparency and accountability that the RTI Act was designed to ensure. The outcome of the case will have far-reaching implications for the right to information and press freedom in India.