In 2011, David Banisar, in a working paper for the World Bank observed that the right of access to information and the right to protection of personal privacy may appear irreconciliable at first glance, in practice they are “complementary rights that promote individuals’ rights to protect themselves and to promote government accountability” (pg 3). This balance was reflected in India’s laws, through Section 8(1)(j) of the Right to Information Act, 2005 (RTI) and the balancing approach developed by the courts under which personal information could still be disclosed where the circumstances justified it. Unfortunately, it has been undermined by the Digital Personal Data Protection Act, 2023 (DPDP Act), which amended Section 8(1)(j) of RTI and a constitutional battle over its future is now unfolding before the Supreme Court of India. The amendment is unconstitutional because it narrows the public-interest balancing built into Section 8(1)(j) and removes the express safeguard that previously allowed disclosure where the circumstances justified it. Now, it unreasonably restricts the fundamental right to information by upsetting the careful equilibrium between privacy and transparency that the law should preserve.

Section 8(1)(j), as it stood for two decades, was never a blank cheque for disclosure. Whether the context was a widow was asking why her husband’s provident fund was withheld, a journalist tracking how a government contract was awarded, or an applicant wanting to know why her application was rejected, the section housed a crucial safeguard. This was in the form of an Information Officer tasked in each case with answering the question: does the public interest here outweigh the privacy cost? That requirement, to actually think about the balance between access to information and the protection of privacy, was the point.

Section 44(3) of the DPDP Act brought into force in November 2025 has removed that safeguard from the statute. The new Section 8(1)(j) exempts from disclosure “information which relates to personal information.” There is no balancing exercise. Section 8(1)(j) now allows information offices of the government to withhold information that is deemed ‘personal’ even if it has significant connection to a public activity or public interest. There is no public interest override built into the clause itself.

The government will likely argue that Section 8(2) still allows for disclosure in the public interest. But Section 8(2) vests that discretion in the public authority as an institution, not in the Information Officer sitting across the counter from you. The Constitution Bench in CPIO, Supreme Court of India v. Subhash Chandra Agarwal was clear that Section 8(2) does not create an enforceable right to disclosure in the first instance; it only permits disclosure at a later stage where the public authority decides that the larger public interest justifies it. In practice, this means that the override exists on paper but not in the room where an RTI application is actually decided. Even if Section 8(2) still permits disclosure in theory, making the override more restrictive means the default shifts toward non-disclosure, so it becomes a practical basis for denying information altogether unless the applicant can clear a much higher threshold of public interest.

This matters constitutionally for two reasons. First, the right to information is part of free speech under Article 19(1)(a) and, under Article 14, it is difficult to justify a law that treats a politician’s appointment file the same way it treats someone’s medical record. The amended RTI clause now uses the term “personal information” without explaining what it means, and it removes the public-interest balancing test that once kept the provision in check. Read with the DPDP Act’s broad definition of personal data, this gives public authorities room to withhold far more than truly private material, including routine records of public administration.

Secondly, the Supreme Court in K.S. Puttaswamy v. Union of India held that restrictions on fundamental rights must be proportionate. Further, in the context of Article 21 of the Constitution of India, the Court clarified that any invasion of privacy must be sanctioned by law and must follow a procedure that is fair, just, and reasonable.

Parliament already had a court-approved, less restrictive alternative: the old balancing clause. It did not need to invent a new answer. It chose to delete the old one. That is what makes the amendment constitutionally vulnerable. The amendment is not a proportional restriction on the right to information as it nullifies the right in respect of personal information in the hands of public authorities, even if that information may serve a public interest in holding the government accountable.

What has been lost is not a technicality. It is the legal acknowledgment that privacy and transparency are not enemies. They are, as Banisar put it, twin instruments of accountability, pulling in the same direction most of the time. The old Section 8(1)(j) held both values together. The new forfeits accountability in valorising privacy. The amendment violates Article 14 and 21 of the Constitution of India because it restricts the right to information in a disproportionate and unreasonable manner, for the ostensible purpose of protecting personal information and the right to privacy.