The RTI Gut-Punch: SC Kicks the DPDP Can Down the Road as India Gambles on Makeshift AI Regulation

The Supreme Court Defers, Transparency Suffers

On February 16, 2026, the Supreme Court issued notices on petitions challenging the Digital Personal Data Protection (DPDP) Act and its corresponding rules, specifically targeting the controversial amendments made to the Right to Information (RTI) Act, 2005. While the Court referred the matter to a larger bench, it made a crucial, immediate decision: it refused to stay the operation of the DPDP Act.

For practicing lawyers, particularly those who rely on the RTI Act as a pre-litigation discovery tool or for public interest litigation, this refusal to stay is a severe blow. The challenge centers squarely on Section 44(3) of the DPDP Act, which surgically altered Section 8(1)(j) of the RTI Act.

Before this amendment, Section 8(1)(j) protected personal information from disclosure unless the Public Information Officer (PIO) was satisfied that the larger public interest justified it. Crucially, it contained a proviso: information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. The DPDP Act wiped out this public interest override, replacing it with a blanket exemption for all "personal information."

"By removing the public interest test, the DPDP Act has effectively weaponized privacy against transparency. PIOs now have a statutory shield to reject almost any RTI request that tangentially involves a public servant's details, citing the absolute bar on disclosing personal data."

Without a stay from the Supreme Court, this blanket ban is now the defacto law of the land. Until the larger bench decides whether this amendment violates the fundamental right to information under Article 19(1)(a)—and whether it passes the proportionality test laid down in K.S. Puttaswamy—litigators must prepare for a massive spike in RTI rejections. You can no longer rely on the "public interest" argument to force the disclosure of third-party information in corruption or administrative overreach cases.

The AI Policy Cop-Out: Forcing the DPDP to do Heavy Lifting

Meanwhile, as the Supreme Court grapples with the Act's constitutional validity, the Ministry of Electronics and Information Technology (MeitY) has signaled a troubling policy stance: India will likely not enact a standalone Artificial Intelligence law. Instead, the government intends to rely on the existing Intellectual Property (IP) framework and the DPDP Act to regulate AI.

This is a classic case of trying to fit a square peg into a round hole. Relying on the DPDP Act to govern generative AI creates immense compliance headaches for tech-sector lawyers and in-house counsel, primarily regarding two concepts: Consent and Erasure.

Under the DPDP framework, consent must be free, specific, informed, unconditional, and unambiguous. How does an AI developer obtain "specific" and "unambiguous" consent when scraping billions of data points to train a Large Language Model (LLM), especially when the future outputs of that model are inherently unpredictable? The Act offers no clear answers.

Even more problematic is the Right to Erasure. Legal commentary in mid-2026 has rightly zeroed in on the technical impossibility of simply "deleting" a Data Principal's information once it has been baked into a neural network. If a user withdraws consent, the Data Fiduciary must erase the data. But in the AI context, this requires machine unlearning—a nascent and highly unstable technological process. Can a model "forget" specific training data without compromising its entire architecture? By refusing to draft AI-specific regulations, the government is forcing the judiciary and data protection authorities to interpret traditional data-erasure obligations in a technologically incompatible landscape.

The Regulatory Blind Spot: The State's Free Pass

While private Data Fiduciaries sweat over machine unlearning and airtight consent notices, the State continues to enjoy sweeping exemptions. The DPDP Act has been heavily criticized by legal scholars for lacking a statutory requirement of proportionality when it comes to State processing of personal data.

Under the Act's exemption clauses, government agencies can process data without consent for a wide array of state functions. However, unlike the GDPR, the DPDP Act does not explicitly mandate that such processing be strictly necessary and proportionate to the aim pursued. The rules notified in late 2025 did little to cure this defect, leaving a massive "regulatory blind spot."

For defense counsel and civil rights lawyers, this means that challenging state surveillance, data pooling, or automated decision-making by government bodies cannot be effectively fought entirely within the four corners of the DPDP Act. Instead, lawyers will have to continuously bypass the statute and invoke generic constitutional writ remedies under Article 21 to enforce the Puttaswamy proportionality standard.

The Takeaway for Practice

The legal landscape of 2026 is defined by a Data Protection law that is simultaneously doing too much and too little. It has radically overreached into the RTI Act, shutting down transparency, while severely under-delivering on AI regulation and state accountability.

For practitioners, the mandate is clear:

1. RTI Strategy: Stop relying on Section 8(1)(j) public interest arguments for the foreseeable future. Pivot to seeking non-personal, aggregated data, or utilize judicial discovery mechanisms where RTI now fails.
2. Tech Compliance: Advise corporate clients developing AI that the DPDP's Right to Erasure is a ticking time bomb. Contracts with data vendors must include strict indemnities regarding the provenance of scraped data, and tech teams must be pressured to develop viable "machine unlearning" protocols.
3. Constitutional Litigation: Prepare for a protracted battle before the Supreme Court's larger bench. The intersection of the right to know (RTI) and the right to privacy (DPDP) is the most critical constitutional friction point of this decade.

The Supreme Court may have kicked the can down the road, but for lawyers advising clients today, the compliance reality is already here. Adapt accordingly.