A Supreme Court bench of Justices Surya Kant and Joymalya Bagchi was informed on September 26 that of 10 the information commissioner posts, eight are lying vacant and even the post of Chief Information Commissioner is yet to be filled. Presently only two officials are manning the Information Commission that has over 26,800 appeals/complaints pending disposal.

The apex court had in January sought the Union and state governments to furnish data regarding appointments and selection process as regards Information Commissions (including proposed timelines) as well as total pendency of cases/appeals before them. The Union government indicated that the appointment process would be completed within three months.

Senior advocate Prashant Bhushan, who raised the issue, pointed out that the State Information Commission of Jharkhand has remained defunct since May, 2020. The SC ordered expediting the selection process, and directed the largest opposition party in Vidhan Sabha to nominate one of its elected members as member of the Selection Committee for the limited purpose of selection to the post of CIC and ICs in two weeks. One must be thankful to the apex court for protecting the right to information. In hindsight, why should RTI activists knock on the doors of the judiciary every time when for all practical purposes the government must make efforts to fill vacancies as and when they arise? That is also the reason for citizens’ presumption that Article 19 is under attack.

Just one fundamental right, the freedom of speech and expression is enough to protect the Constitution of India as espoused by Dr B R Ambedkar. In the name of privacy or so called balancing, if the right to information collapses then it will be like making a mockery of the rule of law. It is imperative that every citizen must understand Article 19, 21 and 14 to find the constitutional basis of expression.

Last month the Supreme Court Bench of Justices Surya Kant and Joymalya Bagchi wanted social media to be regulated. The bench directed that the regulations must be drafted in consultation with the National Broadcasters and Digital Association, in response to an intervention application filed by a non-profit body representing persons with spinal muscular atrophy. They alleged that comedians Samay Raina, Vipul Goyal, Balraj Paramjeet Singh Ghai, Sonali Thakkar and Nishant Jagdish Tanwar had made derogatory remarks about those living with the disorder. This raises the question-Should commercial speech on digital platforms also be regulated?

Renowned author Apar Gupta said in the Hindu (5.9.2025) conversation: In Subramanian Swamy v. Union of India (2016), the Supreme Court upheld the constitutionality of criminal defamation, recognising individual dignity as a basis for sustaining the remedy. However, to treat dignity as an independent ground for restricting speech, particularly when invoked on the basis of individual sensibilities, risks inviting expansive censorship.

Another popular author Jay Vinayak Ojha observed: When a bench of equal strength delivers a ruling that departs from an earlier coordinate bench, it is a breach of judicial discipline. In such cases, the only proper course is to refer the matter to a larger bench.

Ojha explained, “Yes, such regulations are likely to exert a chilling effect on speech. Restrictions based on morality or defamation may legitimately intersect with questions of dignity, and in those instances, the Constitution permits limits on expression. The difficulty arises when dignity is considered as an independent basis for restriction, which is not constitutionally defensible. Such a move would inevitably curtail the freedom of comedians, satirists, and other artists, and discourage them from performing with candour. The direction is fine, but it depends upon what finally comes up in Parliament.

Journalist bodies concerned:

The Press Club of India and 21 media organisations comprising over 1,000 journalists wrote to Union Minister Ashwini Vaishnaw, urging for exclusion of journalistic work from the Digital Personal Data Protection (DPDP) Act. They were deeply concerned about the crushing impact of the 2023 Act, especially on important constitutional issues. “This law, in its current form, poses a threat to freedom of expression, especially for working journalists,” the Press Club of India president Gautam Lahiri and secretary general Neeraj Thakur pointed out.

When the opposition walked out:

Despite the serious threat to freedom of expression, the Lok Sabha cleared it right after the confidence vote, especially when most opposition members had walked out. It was passed by voice vote in the Rajya Sabha, without any serious debate on its provisions. This lack of deliberation, Lahiri suggested, reflects the urgency with which the press must now seek clarity and protection under the law.

India’s Digital Personal Data Protection Act was enacted on August 11, 2023, following its passage by the Lok Sabha on August 7 and the Rajya Sabha on August 9. However, the Act did not become fully operative immediately—it requires specific rules to be notified by the Central Government before its provisions take effect.

By January 3, 2025, the Ministry of Electronics and Information Technology (MeitY) officially published draft rules and opened them for public consultation, which was meant to close February 18. However, it was later extended to March 5. These draft rules cover consent mechanisms, data breach reporting, data retention timelines, parental consent for minors, and setting up a Data Protection Board of India, among other operational details. Industry groups—like telecom firms and trade associations—have requested more time to comply and have raised concerns over issues such as potential data localisation requirements that weren’t clearly addressed in the Act. It is now diluting the freedom of speech and expression.

RTI weakened:

First and foremost, the Right to Information Act 2005, which celebrates 20 years next month, is critical as RTI has ensured government’s greater accountability to the citizens. Secondly, is the right of citizens under the Constitution to gain access to information and hold the powerful to account their legitimacy in public domain. And then to journalists.

The RTI is not just a simple Act but one that stems from Articles 14, 19 and 21. Similarly the new DATA Act also has similar constitutional foundational defects.

The DPDP Act amends the Right to Information (RTI) Act, removing a key provision that allowed for the release of personal information if a larger public interest justified it.

The four bodies believed that journalism is being rendered toothless through the DPDP Act, by choking RTI Act and by strangulating the right of the whistle blowers, transparency activists, researchers, lawyers and larger civic society’s right to hold the government to account.

Broad Exemption:

The amendment creates a broad exemption for “personal information,” allowing government bodies to refuse to disclose records, such as the names of corrupt officials or loan defaulters that have historically been accessed through the RTI Act.

Reduce govt accountability: Transparency activists have warned that this change will reduce government accountability and make it harder to expose wrongdoing.

Restore RTI: Finally, they ask that the original version of Section 8(1)(j) of the RTI Act be reinstated, so that journalists can continue to access important public interest information without being blocked by broad privacy claims. Thus, journalists have raised concerns that several provisions of the DPDP Act could infringe on their constitutional rights under Article 19(1)(a) and (g), which protect freedom of speech and expression, as well as the right to practise their profession.

(The writer is a former Central Information Commissioner, and presently Professor, School of Law, Mahindra University, Hyderabad)