Privacy as an Instrument of Opacity: Section 44(3) of the DPDP Act, 2023 and the Constitutional Reconfiguration of the Transparency - Privacy Balance

Abstract

The Digital Personal Data Protection Act, 2023, through Section 44(3), replaced Clause (j) of Section 8(1) of the Right To Information Act, 2005, with the phrase "relates to personal data", removing entirely the criteria for the information to relate to a public activity or interest, and the "unwarranted invasion of privacy" as a condition precedent to disclosure, along with the authority of the Public Information Officer to disclose when there exists a greater public interest than secrecy; and removed on its face the exception contained in Section 8(1)(j) that information which could not be withheld from Parliament, should not be withheld from a citizen. An exception based upon qualifications has become an absolute exception.
The purpose of this article will be to demonstrate that the provisions of the amended section fail the proportionality tests established by the Supreme Court of India in Puttaswamy supra, and that they do so at the necessity level, since a less restrictive alternative which preserved the balance between individual right and public interest was clearly available in the form of an amendment proposed by the Justice B.N. Srikrishna Committee in 2018. The article will give serious consideration to the position taken by the Union Government in defending these amendments, namely that both are saved by Sections 3 and 8(2) of the DPDP Act respectively. However, it will show how neither of these sections save the challenged provision. Section 3 establishes a new measure of publicity by reference to the amended provisions of the RTI Act itself; whereas Section 8(2) provides a discretion to disclose information where previously clause (j) imposed a duty not to withhold such information. Additionally, the article will recover a fact largely unexplored in the discussion thus far concerning the substitution of clause (j); i.e., whether the deletion of said clause carries with it all or part of a proviso applicable to all of Section 8(1). The article will then proceed to examine who bears the burden of the costs associated with this change. Finally, given the referral of three Writ Petitions pending before the Supreme Court of India to a larger bench in February 2026, the article will conclude by outlining what a constitutionally acceptable reconciliation of the two rights would entail.