Supreme Court To Decide On Validity Of Section 44(3) DPDP Act, 2023

The Supreme Court of India has issued notice in a writ petition filed by the Mazdoor Kisan Shakti Sangathan (MKSS) and its founders — Aruna Roy, Nikhil Dey, and Shankar Singh — challenging the constitutional validity of Section 44(3) of the Digital Personal Data Protection Act, 2023 ('DPDP Act'), which is alleged to fundamentally rewrite the privacy exemption in the Right to Information Act, 2005 ('RTI Act'). 

The petition was taken up by a bench comprising the Chief Justice of India Surya Kant and Justice Joymalya Bagchi.

The Petitioners were represented by Senior Advocate Shyam Divan who drew the Court's attention to specific instances demonstrating how the amended provision would operate in practice against the poorest and most marginalised beneficiaries of public welfare schemes. The senior lawyer further told that bench that several State Governments have begun masking and anonymising beneficiary names and personal details from their public disclosure portals following the notification of the impugned amendment.

The bench issued notice to the Union of India and the State of Rajasthan — on both the main writ petition and the prayer for interim directions. The interim prayer seeks, among other reliefs, a direction restraining the State of Rajasthan from dismantling, restricting, anonymising, masking, or in any manner limiting access to information currently disclosed on the Jan Soochna Portal, and a direction to the Union of India to maintain the status quo and not to issue or act upon any direction that results in the masking, anonymisation, dilution, or withdrawal of existing welfare disclosure infrastructure.

The matter has been listed for the next date on 13 May 2026. Divan was assisted by Advocates Sai Vinod (AOR), Madhav Aggarwal, Kanu Garg, Shaishir Divatia & Ankur Singhal.

Section 44(3) of the DPDP Act substitutes Section 8(1)(j) of the RTI Act. As per the petitioner, the original provision contained a carefully calibrated, three-part framework: a public activity test (information relating to the exercise of a public function remained disclosable), a harm test (only 'unwarranted' invasions of privacy could be withheld), and a mandatory public interest override, together with a proviso ensuring citizens had parity of access with Members of Parliament and State Legislatures. Section 44(3) eviscerated this architecture, and replaced it with a single, open-ended exemption covering all 'information which relates to personal information.' 

The Petition principally seeks: (i) to strike down the Section 8(1)(j) of the RTI Act as amended through Section 44(3) of DPDP Act, and restore the original provision, for its unconstitutional curtailment of the ‘right to information’ guaranteed under Articles 14, 19(1), and 21 of the Constitution; (ii) to declare that the mandate of proactive disclosures enshrined under the RTI Act, particularly in Section 4, continues to operate and is immune from any adverse incursion through the DPDP Act; and (iii) restrain the State from retrogressing from disclosures through transparency and accountability portals that currently exist by law or otherwise.  

"The impugned amendment has substituted a constitutionally calibrated privacy-protecting exemption into an everything-personal exemption. It has stripped away the public activity test, the harm test, and the public interest test - and replaced the entire provision with the bare phrase "information which relates to personal information," providing blanket immunity to the same," court has been told.

As per the petitioners, the fundamental infirmity of the impugned amendment is that it conflates two constitutionally distinct categories: information that is private, and information that is personal. Not all information that is personal in character is considered private and requires restriction on its disclosure. The two are not coextensive, it adds.

The DPDP Act, the plea argues, by not defining what kinds of personal information need protection in the RTI context, creates a vast and unenforceable legal framework that will inevitably result in arbitrary application.

Case Title: Mazdoor Kisan Shakti Sangathan & Others vs. Union of India & Others  

Bench: CJI Kant and Justice Bagchi

Hearing Date: April 13, 2026