By Vikrant Rana, Anuradha Gandhi and Rachita Thakur
Introduction
Ever since the Digital Personal Data Protection Act, 2023 (hereinafter referred to as the DPDP Act)[1] was passed in August 2025, the amendment that it brings in the Right to Information, 2005 has alarmed the opposition parties and various civil society organisations with the impact it is likely to have over right to privacy and investigative journalism.
Being one of the biggest debates ever since the DPDP Act enactment, now that the Rules are around the corner, the Union Minister of Information and Broadcasting, Shri Ashwini Vaishnaw recently affirmed that the DPDP Act balances the fundamental right to privacy with the right to information. Addressing the concerns, the Minister asserted that that the two legislations are not at odds with each other and further emphasized that the DPDP Act has been carefully crafted to uphold individual privacy without compromising the transparency and accountability ensured by the RTI Act.[2]
What is the controversy?
The concerns primarily stem from an amendment introduced in Section 8 (1) (j) of the Right to Information Act, 2005 (hereinafter referred to as the RTI Act)[3] through Section 44 of the DPDP Act. The National Campaign for Peoples’ Right to Information (NCPRI) highlighted the concern that DPDP Act amends the RTI Act, exempting all personal data from the ambit of the RTI Act regardless of public interest considerations.[4]This apparently would block journalists and citizens from accessing key personal information that often reveals corruption or misuse of power.
What is Section 8 (1) (j) of the RTI Act?
Section 8 of the RTI Act exempts certain categories of information from disclosure and sub-clause (1) (j) of Section 8 specifically exempts “information which relates to personal information, the disclosure of which has no relationship to any public activities or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
This final provision, referred to as the “larger public interest” explains that although privacy is inviolable, however, in some cases the general public’s right to know can outweigh a person’s right to privacy, especially when it comes to public employees and government operations.
The Section has been instrumental in revealing information on many matters of national importance in the past.
The Test of “Larger Public Interest”- Judicial Reasoning
Just like the global ‘freedom of information’ frameworks, India’s RTI Act strikes balance between the right to know and an individual’s right to privacy. The judicial trend ever since the enactment of the RTI Act has framed the course of law on what information should be disclosed by the Central Information Commission (CIC) in the wake of larger public interest and what would not satisfy the said requirement.
Over the years, the jurisprudence on the type of information that can be disclosed under the RTI Act has taken a specific shape where the courts, delving into the merits of each case, have allowed/dis-allowed disclosure in consonance with the fundamental rights of privacy and information. Section 8 of the RTI Act specifically protects certain information from disclosure, however, certain personal information can be disclosed if there is a ‘larger public interest’ as against the protected information.
In the case of Mr. Surup Singh Hrya Naik vs State of Maharashtra Through Additional Secretary, General Administration Deptt. And Others, [5] the Bombay High Court upheld the order of disclosure of medical records of the Petitioner, an MLA, to be in the larger public interest. While in another case, the Kerala High Court affirmed the decision of the CIC denying disclosure of information about appointment, posting and transfer and promotion of a clerical staff employed at the Bank in the case of Canara Bank v. The Central Information Commissioner and Another, Kerala High Court. [6]
Impact of the Amendment?
Section 44(3) of the DPDP Act supersedes Section 8 (1) (j) of the RTI Act by the exception: “(j) information which relates to personal information;”
Thereby removing the “larger public interest” and creating a complete exemption for ‘personal information’ from disclosure under the RTI Act.
The fear of denial of information in the wake of privacy and intrusion
Several prominent civil society organisations have continued to oppose the Amendment as it is likely to compromise the RTI Act amid concerns that the amendment be used as a weapon to build a wall around public officials and disclosure about their personal assets, appraisals, transfer etc,, to deny requests for information being in proximity of personal data which can reduce accountability of the government.[7]
Ministry’s clarification
The Ministry of Electronics and Information Technology (MeitY) on August 20, 2025 clarified that the Amendment aligns with the Supreme Court’s judgment in the case of Justice K.S. Puttaswamy v. Union of India,[8] judicial reasoning on reasonable restrictions, codifies existing jurisprudence and helps avoid potential conflicts between the laws.[9]
The Ministry further elaborated that Section 8 (2) of the RTI Act, a public authority still has the right to allow access to information if the public interest in disclosure outweighs the harm to the protected interests. Section 8 (2) of the RTI Act reads as follows:
“Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”
In fact, now the Attorney General of India, Shri R. Venkatramani has also backed the Ministry and endorsed that the DPDP Act does not weaken the RTI Act. [10]
Transparency v. Privacy- Let us learn how EU handles the conflict
As the most comprehensive data protection regulation, the General Data Protection Regulations (GDPR) caters to both, the right to privacy and the right to freedom of information. This was affirmed by the European Courts in the case of Google Spain v. AEPD & Mario Costeja Gonzalez[11] where the court acknowledged that the right to privacy is not absolute and needs to be balanced with other rights, in particular the interest and right of the general public in having the access to the information.
The court further propounded guidance on the factors to take into consideration during the balancing exercise:[12]
- The nature of information in question, if the information is sensitive to the private life of the individual and there is not public interest, privacy would override the right of the general public;
- Each request for deletion or erasure needs a case-by-case assessment to seek balance between the fundamental rights.
The GDPR, under Article 86, acknowledges the need to balance both the rights by mandating States to enact laws reconciling data protection with public access to official documents and obligations of professional secrecy protected as form of the right to respect for private life.
In the case of Volker und Markus Schecke and Hartmut Eifert v. Land Hessen,[13]the EU court had to judge the proportionality of the publication of the name of beneficiaries of EU agricultural subsidies and the amount they received. The beneficiaries contested the proportionality of the said publication. The CJEU held that the right to data protection is not absolute and the publication naming the beneficiaries with the precise amounts received by them constituted interference with their private life. [14]
The CJEU in the Rechnungshof v. Österreichischer Rundfunk and Others,[15] reviewed an Austrian legislation’s compatibility with the EU data protection law where the EU legislation required the state body to collect and publish data on income of employees of public entities which would be further made available to general public. Comparing the legislations, the court observed that the Austrian Legislation pursued the legitimate aim as its objective was to keep the salaries of public employees within reasonable limits which was not the case with the EU legislation. The CJEU left it for the national court to ascertain whether the publication of data of income of individuals was necessary and proportionate with the aim of the legislation and called for an examination whether the aim could be achieved through less intrusive means. [16]
Contrary to the above, the CJEU in the case of Client Earth and PAN Europe v. EFSA[17] examined the decision of the European Food and Safety Authority to refuse applicants full access to documents was necessary to protect the privacy and data protection rights of the persons to whom the documents referred. Overturning the decision of the EFSA allowing restricted and partial access to the document with names redacted, the CJEU held that the transfer of personal data was necessary to ascertain the impartiality of each external experts carrying out their tasks as scientists and that the EFSA did not specify how revealing the names of the external experts would prejudice the experts’ legitimate interests.
Basis these judgements by the CJEU, no right can automatically override the other right. In fact balancing these rights depend on case-to-case analysis.
Conclusion
As reported, the Central Government is most likely to notify the DPDP Rules well before the next Parliament Session. With the Rules being around the corner, the DPDP Act nears its operationalization and thus the debates around ‘privacy v. transparency’ have also peaked. Though some say that the amendment is unnecessary, the government maintains its stand on strengthening the data privacy ecosystem in the country and balancing it with the RTI Act to pave a way for both to exist in harmony. Once the DPDP Act becomes operational, its implementation and interpretation by the courts is likely to shape the future course of the law.
https://ssrana.in/articles/right-to-be-forgotten-judicial-publicly-available-documents/
[1] https://www.meity.gov.in/static/uploads/2024/06/2bf1f0e9f04e6fb4f8fef35e82c42aa5.pdf
[2] https://www.pib.gov.in/PressReleasePage.aspx?PRID=2158506
[3] https://www.indiacode.nic.in/bitstream/123456789/2065/5/a2005-22.pdf
[5] Bombay High Court [Writ Petition No. 1750 of 2007] decision date: 23/03/2007
[6] Writ Petition (Civil) 9988 of 2007, decision date: 11/07/2007
[7] https://www.scconline.com/blog/post/2025/08/11/indias-transparency-quandary-rti-versus-dpdp/
[8] (2017) 10 SCC 1
[9] https://www.pib.gov.in/PressReleasePage.aspx?PRID=2158506
[11] CJEU, 2014
[13] CJEU, Joined cases C-92/09 and C-93/09, Volker und Markus Schecke GbR and Hartmut Eifert v. Land Hessen [GC], 9 November 2010, paras. 47–52, 58, 66–67, 75, 86 and 92.
[15] CJEU, C-465/00, C-138/01 and C-139/09, Rechnungshof v. Österreichischer Rundfunk and Others and Christa Neukomm and Jospeh Lauermann v. Österreichischer Rundfunk, 20 May 2003.
[17] CJEU, C-615/13P, ClientEarth, Pesticide Action Network Europe (PAN Europe) v. European Food Safety Authority (EFSA), European Commission, 16 July 2015