Justice Shah is right: Don't threaten investigative journalism with data laws

Hans India

4 days ago

Any democracy thrives on an informed citizenry. The freedom of speech and expression, enshrined in Article 19(1)(a), is not just the right to speak, but also to seek, receive, and disseminate information.
Judicial observations in support of Article 19 and RTI:
The Supreme Court in Indian Express Newspapers v. Union of India (1985) and Secretary, Ministry of I&B v. Cricket Association of Bengal (1995) emphasized that freedom of the press and citizens' right to information are essential to democracy.
Section 44(3) of the DPDP Act, by making it easier to deny access to information, indirectly curtails this fundamental right. This has deep implications not only for journalists but also for whistle-blowers, civil society watchdogs, researchers and citizens participating in public life. Several courts have reiterated the primacy of the RTI Act in ensuring good governance:
In the Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2019), the Supreme Court held that even the office of the Chief Justice of India is not beyond the scope of the RTI Act, showing the judiciary's support for transparency.
In Girish Ramchandra Deshpande v. Central Information Commissioner (2013), the Supreme Court laid down that personal information can be denied under RTI only if it does not serve any public interest—a standard that may now be diluted.
AP Shah writes to Govt:
Recently, in a letter addressed to the attorney-general, minister of law and justice, and the minister for electronics and information technology, former Chief Justice of Delhi High Court, A.P. Shah said Section 44(3) of the Digital Personal Data Protection Act, 2023, should be immediately repealed. Shah was the chairman of the group of experts on privacy in 2011-2012 and served as the former Chief Justice of the Delhi High Court from May 2008 to February 2010.
Harmonising privacy and transparency:
The conflict privacy and the right to know is not a matter of choosing one over the other. Both are fundamental rights. The real challenge lies in harmonizing them, rather than letting one eclipse the other.
For a democracy like India, where public trust in institutions is fragile, the RTI Act is not just a tool but a lifeline for participatory governance. Section 44(3), in its current form, threatens to break that lifeline.
The government must reconsider the amendment. It should restore the public interest test, clearly define personal data and ensure that the Right to Information remains strong and enforceable, even in a privacy-conscious digital age. Only then can India truly uphold the values enshrined in its Constitution—transparency, accountability, freedom and dignity.
The country stands at the constitutional crossroads, where the Right to Privacy and the Right to Information (RTI)—both integral to a democratic society—are increasingly in conflict. Although this is not a new development, the fact is that it has gained sharp focus after the enactment of the Digital Personal Data Protection (DPDP) Act, 2023, especially with its controversial Section 44(3). This provision amends Section 8(1)(j) of the RTI Act, 2005, tipping the delicate balance in favour of privacy, at the cost of transparency and citizen empowerment.
Not a shield for opacity:
Justice A.P. Shah's letter rightly points out that privacy cannot become a shield for opacity, especially in a country where misuse of power is rampant and the demand for accountability is growing. Similarly, citizens must not be made powerless in the face of expanding state control.
While the objective of protecting personal data in the digital age is legitimate and constitutionally backed by the Supreme Court's landmark Puttaswamy judgment (2017), legal experts, retired judges, and civil society groups are sounding the alarm. Justice A P Shah, who was the chairperson of the Expert Committee on Privacy (2011-12) has gone on record urging the government to repeal Section 44(3). This author, in earlier articles, consistently cautioned against the dilution of RTI provisions and examined the advantages and disadvantages of this legal development, as well as the impact of the tension between privacy and information access on India's democratic landscape.
Pros of Section 44(3)-A case for privacy:
1. Strengthens Data Protection
Section 44(3) of the DPDP Act must be seen in the context of a growing global concern for individual privacy. In the Justice K.S. Puttaswamy v. Union of India (2017) case, the Supreme Court declared that privacy is a fundamental right under Article 21 of the Constitution. The judgment stressed that in a digitally networked world, individuals need constitutional safeguards against the misuse of their personal data. By amending the RTI Act to restrict access to what is deemed 'personal information,' the DPDP Act aligns Indian law with global data protection norms like the General Data Protection Regulation (GDPR) of the European Union.
2. Prevents misuse of personal information
The amendment seeks to protect public servants and private individuals from the unnecessary exposure of personal details—such as health records, income data, or family information—that may not have any bearing on their public roles. Misuse of such data can lead to identity theft, harassment or reputational damage.
3. Ensures data sovereignty
India is increasingly moving toward a data-sovereign digital framework, where data is not just seen as private but as a national asset. By ensuring that sensitive data does not fall into unauthorized hands, the DPDP Act contributes to this vision.
Cons of Section 44(3)-Blow to transparency and accountability:
1. Weakens RTI and citizen empowerment
The RTI Act, passed in 2005, has been one of the most transformative laws in India's democratic history. It has empowered ordinary citizens to ask questions of the government and access information that holds public authorities accountable. Over the years, it has been instrumental in exposing scams, corruption, inefficiencies, and arbitrariness.
Section 8(1)(j) of the original RTI Act allowed information to be withheld only if it was unrelated to public activity or interest, unless a larger public interest justified its disclosure. However, the amended provision under the DPDP Act omits the balancing test of public interest and allows a blanket denial of personal data. This could include even data on civil servants' performance, misuse of office, or conflict of interest, effectively shielding public functionaries from scrutiny.
2. Threat to investigative journalism
Journalists often rely on RTI to gather information on government functioning, irregularities, and decisions affecting the public. Limiting access to information under the cover of 'personal data' will impair the media's ability to investigate, report, and question those in power. This directly undermines Article 19(1)(a) of the Constitution, which guarantees freedom of speech and expression, including the right to know. In S.P. Gupta v. Union of India (1981), the Supreme Court clearly stated that the right to know is derived from the right to free speech, reinforcing the idea that information is the currency of democracy.
3. Vague and overbroad definitions
The DPDP Act does not clearly define the boundaries of what constitutes 'personal data' that must be protected, leaving the door open to arbitrary interpretation. For instance, details like travel expenditure of a minister, foreign trips of officials, or performance appraisals can now be termed personal, despite being directly tied to public office. As this author earlier articles pointed out, such legislative ambiguity makes it easier for bureaucrats to stonewall legitimate RTI queries and undermines the very culture of openness that the Act sought to instill.
4. Undermines the public interest doctrine
One of the core safeguards in the original RTI Act was the public interest override, where information otherwise exempt could be disclosed if it served a larger public cause. The amendment to Section 8(1)(j) effectively removes this test, thereby shifting the balance of power back to government authorities, weakening public oversight.
(The writer is a Former CIC and Advisor, School of Law, Mahindra University, Hyderabad)