The Right to Information Act, 2005 has served as a foundational instrument of democratic accountability in India. From exposing irregularities in the Commonwealth Games and the Adarsh Housing Society scandal to unravelling the Vyapam scam, the RTI Act placed an extraordinary tool in ordinary hands, the right to demand answers from the State. Its architecture was deliberately built on a principle of maximum disclosure, with exemptions operating as narrow, qualified exceptions subject to a mandatory public interest override.

Section 44(3) of the Digital Personal Data Protection Act, 2023 has quietly disturbed this balance. By substituting Section 8(1)(j) of the RTI Act with the phrase “information which relates to personal information”, the amendment removes the balancing obligation that previously required Public Information Officers to weigh privacy against accountability before denying disclosure. What was a carefully negotiated tension between two constitutional values has been resolved by legislative fiat, in favour of opacity.

From a Balancing Act to a Blanket Bar

The original Section 8(1)(j) of the RTI Act was a qualified exemption, not an absolute one. It permitted a Public Information Officer to deny access to personal information only where it bore no relationship to any public activity or interest, or where its disclosure would cause an unwarranted invasion of privacy. Critically, even these grounds yielded to a larger public interest, requiring the PIO to perform a proportionality exercise at the point of decision.

The government’s position is that the amendment does not create a new exemption but merely codifies existing judicial reasoning. It points to Girish Ramchandra Deshpande v. Central Information Commissioner, where the Supreme Court upheld denial of a public servant’s personal information under Section 8(1)(j), and argues that the amendment aligns RTI with the fundamental right to privacy recognised in K.S. Puttaswamy v. Union of India. The Ministry of Electronics and Information Technology has further clarified that Section 8(2) of the RTI Act, which permits disclosure where public interest outweighs harm, remains untouched and preserves the balance.

Puttaswamy Cuts Both Ways

The government’s primary constitutional defence rests on Justice K.S. Puttaswamy v. Union of India (2017), wherein the Supreme Court recognised privacy as a fundamental right under Article 21. The amendment, it contends, merely gives legislative expression to this constitutional recognition.

However, Puttaswamy simultaneously imposed a four-part proportionality test on any restriction touching fundamental rights, requiring that it serve a legitimate aim, adopt the least restrictive means, and involve a balancing of competing rights. By replacing a nuanced balancing obligation with a blanket exemption, the amendment eliminates precisely the exercise Puttaswamy mandated. In Anuradha Bhasin v. Union of India, the Supreme Court further held that blanket restrictions operating without regard to specific facts are constitutionally impermissible, and the amended Section 8(1)(j) operates exactly in that manner.

The right to information equally occupies firm constitutional ground. In State of U.P. v. Raj Narain and S.P. Gupta v. Union of India, the Supreme Court read the right to information into Article 19(1)(a), holding that openness is the rule and secrecy the exception. In Association for Democratic Reforms v. Union of India, the Court struck down the Electoral Bonds Scheme affirming that financial information of those exercising public power is not shielded by privacy. The amendment, by resolving the tension between these two constitutional values categorically and in advance, substitutes judicial balancing with legislative presumption.

The Accountability Vacuum

The practical consequences of the amendment extend well beyond legal theory. Asset declarations of public servants, disciplinary records, educational certificates of government appointees, and beneficiary data under welfare schemes all potentially fall within the undefined sweep of “personal information” with no avenue for challenge.

The Supreme Court has consistently rejected categorical privacy shields for those exercising public power. In PUCL v. Union of India, it mandated disclosure of candidates’ personal assets, holding that those assuming public office carry reduced privacy expectations with respect to that office. In Association for Democratic Reforms v. Union of India, it struck down the Electoral Bonds Scheme affirming that financial information of public actors is not insulated by privacy.

These concerns have now crystallised into active constitutional litigation. In Venkatesh Nayak v. Union of India, an RTI activist has challenged the amendment on the ground that it violates Articles 14 and 19(1)(a) by equating the privacy of public functionaries with that of ordinary citizens, creating a manifestly arbitrary exemption with no definitional boundary. Simultaneously, in The Reporters Collective Trust v. Union of India, the petitioners have argued that the amendment renders accountability journalism and citizen-led transparency initiatives constitutionally infructuous, handing the government unbridled power to deny information central to public scrutiny. The National Campaign for People’s Right to Information v. Union of India further challenges the amendment as disproportionate and manifestly arbitrary under Article 14.

An Open Question Before a Larger Bench

On February 16, 2026, the Supreme Court issued notice in Venkatesh Nayak v. Union of India, The Reporters Collective Trust v. Union of India, and National Campaign for People’s Right to Information v. Union of India, referring the core constitutional questions to a larger bench. No interim stay has been granted and the blanket exemption operates today.

The questions before the bench are not merely technical. Privacy protects the individual from arbitrary State intrusion. Transparency protects the citizen’s right to hold that same State accountable. These rights demand calibration, not a legislative presumption in favour of one over the other. The larger bench must determine whether Section 44(3) satisfies the proportionality standard that Puttaswamy itself mandated and whether privacy can serve as a cloak for the very opacity it was never designed to protect.

The Way Forward

The resolution of this tension does not require choosing between privacy and transparency, it requires restoring the mechanism through which they were always meant to be balanced. The larger bench would be best served by reading down Section 44(3) rather than striking it down entirely, restoring the public interest override within Section 8(1)(j) while preserving the DPDP Act’s broader privacy framework. This approach is constitutionally sound as it applies the proportionality standard Puttaswamy mandated without dismantling the legitimate objectives of data protection legislation.

*Aqsa Kalam, 4th Year, BA LLB (Hons.) | Jamia Millia Islamia, New Delhi