The Supreme Court on Tuesday issued notice to the Union Ministries of Law and Justice, and Electronics and Information Technology on a petition filed by the Digital News Publishers Association (DNPA) challenging the constitutional validity of several provisions of the Digital Personal Data Protection (DPDP) Act, 2023, and the accompanying rules. The bench, comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana, declined to grant an interim stay on the provisions, stating that no stay would be granted without hearing the government. The matter is listed for hearing on November 17 along with other pending petitions.
What is the core legal challenge by the Digital News Publishers Association?
The DNPA contends that the DPDP Act, 2023, lacks a specific exemption for journalistic activities, unlike earlier drafts of the legislation. The association argues that mandatory consent, notice, and data deletion requirements are incompatible with newsgathering and investigative reporting, effectively creating a regime of pre-censorship that violates Articles 14, 19(1)(a), 19(1)(g), and 21 of the Constitution.
Senior Advocate Madhavi Divan, appearing for the DNPA, submitted that the absence of a journalism exemption fundamentally alters the manner in which news is gathered and reported. She argued that requiring journalists to obtain permission from individuals before publishing information concerning them undermines the functioning of newsrooms and the confidentiality of sources. Divan emphasised that the DNPA represents 21 legacy digital news publishers, distinguishing them from citizen journalists, and warned that newsrooms could shut down if compelled to seek consent prior to publication.
The petition asserts that journalists investigating corruption, misconduct, or irregularities in public affairs necessarily process personal information of the individuals under scrutiny. Subjecting such processing to the Act's requirements for notice, consent, withdrawal of consent, and deletion of personal data would cripple investigative journalism. The association further relied on the Supreme Court's judgment in Justice K.S. Puttaswamy v. Union of India, which recognised privacy as a fundamental right, to argue that the data protection framework must harmoniously coexist with the freedom of speech and expression and the public's right to know.
Amendment to the RTI Act and Section 44(3)
A significant limb of the challenge targets Section 44(3) of the DPDP Act, which amends Section 8(1)(j) of the Right to Information (RTI) Act, 2005. The original provision exempted personal information from disclosure if it had no relationship to public activity or interest, or if disclosure would cause unwarranted invasion of privacy, provided that information which cannot be denied to Parliament or a State Legislature shall not be denied to any person.
The DNPA has sought a declaration that the substituted clause (g) of Section 8(1) of the RTI Act, brought into force through Section 44(3) of the DPDP Act, is unconstitutional. The petition argues that the amendment restricts the disclosure of personal information held by public authorities, thereby impeding the ability of journalists to access information crucial for reporting on public affairs.
Comparison: RTI Act Exemption Before and After DPDP Act Amendment
Provision | Original Section 8(1)(j) of RTI Act | Substituted Clause (g) via Section 44(3) DPDP Act |
|---|---|---|
Scope of Exemption | Personal information with no relationship to public activity/interest, or causing unwarranted invasion of privacy. | Personal information as defined under the DPDP Act; broader restrictive regime aligned with data protection law. |
Public Interest Override | Explicit: Information not deniable to Parliament/Legislature cannot be denied to any person. | Subject to the framework of the DPDP Act; potential narrowing of override. |
Impact on Journalism | Allowed access to personal info linked to public activity subject to privacy test. | May restrict access to personal data processed by public authorities under new consent/notice regime. |
The bench issued notice on the stay application but refrained from passing any interim order restraining the operation of the challenged provisions. The Union Government is expected to file its response before the next date of hearing on November 17. The outcome of this litigation will determine the extent to which the data protection obligations under the DPDP Act apply to the institutional press and whether a distinct carve-out for journalistic activities will be read into the statute or struck down as unconstitutional.