The present piece traces the journey of the Right to Information Act in India, which was born out of prolonged protests demanding transparency. It also examines how the Act has been gradually undermined by institutions within the country’s government, including the judiciary, culminating in what may be the final nail in its coffin: the Digital Personal Data Protection Act, 2023 (DPDP Act).

In 1996, in a small dusty town in Rajasthan in India, a movement was started by the people. It did not ask for grains, housing, clothes or even employment but rather for a simple and more understated thing, information about their legitimate wages. This, in turn, allowed the people of this town to demand from the government something very profound, “hissab”, or accountability. The movement later spread across the country, and on 12th October 2005, in the 56th year of the Republic of India, the Right to Information (RTI) Act was born.

This Act in its own words aimed to provide, “for setting out the practical regime of the right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority; the constitution of a Central Information Commission and State Information Commissions; and for matters connected therewith or incidental thereto.”

This legislation was one of a kind domestically due to the power it conferred upon the citizenry and internationally due to the uniqueness of its scope, which brought even the judiciary within its ambit. By enabling citizens to see beyond governmental institutions to the individuals actually responsible for their functioning, it addressed both mundane and profound concerns faced by citizens in their everyday lives, thereby fostering a culture of greater transparency and awareness within civil society.

Last year, in 2025, the people of Beawer were seen celebrating 20 years of this victory, when not long after, on November 13, 2025, the DPDP Rules were notified, leading to the full operationalisation of the Digital Personal Data Protection Act, 2023 (DPDP Act).^[i][ii]

The last clause of the last section of the DPDP Act, namely Section 44(3), is the subject of this blog and I will attempt to argue why this seemingly minor substitution has significantly undermined India’s RTI regime, and will further examine how the courts have previously addressed the conundrum of privacy versus transparency.^[iii]

Before The Amendment

Section 8 of the Right to Information Act, 2005 sets out grounds for denying disclosure, including threats to national security, contempt of court, legislative privilege, commercial confidence, fiduciary relationships, foreign confidential information, risks to life or investigations, and cabinet deliberations.

Clause (j) of this further provides “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”^[iv]

This clause aims to protect the privacy of an individual, granted that such information has no relation to any public activity or function. This clause mandates an assessment via the public function test, which determines whether the information has a relation to public interest or activity and the degree of the same. However, the clause also provides that even if the information has arisen from a public activity, it could still be exempt if disclosing it would be an unwarranted invasion of the privacy of an individual.  This is done to protect the fundamental right to privacy given to an individual under Article 21. Privacy in this context also includes matters  within a home, a person’s body, sexual preferences etc and hence is in line with Article 19 (2) which mentions placing restrictions on Article 19 (1) (a) in the interest of ‘decency or morality’. ^[v]

The proviso relies on foundational democratic jurisprudence and reflects the idea that Parliament and State Legislatures derive their authority from the people, and therefore cannot be granted access to information that is denied to the very citizens they represent. If certain information is considered fit for legislative scrutiny, it logically follows that it is not inherently sensitive enough to be withheld from the public.

This was the prevailing legislation until November 13, which attempted to strike a balance between two fundamental rights, i.e., the right to privacy and right to information.

The Judicial Understanding of Privacy and Transparency

The tension between privacy and transparency has been a persistent constitutional debate, first briefly addressed in the Constituent Assembly and subsequently developed by the courts via judgements of different variations.

“Right to Privacy” was discussed implicitly in the constitutional assembly debates in the limited context of “searches” and “secrecy” of correspondence. However, it was not explored as a Fundamental Right, or the inclusion of it under Art. 21.

Dr. Ambedkar’s draft of the  in the State and Minority Report included, ‘the right of the people to be secure in their persons, house, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause, supported by oath of affirmation and particularly describing the place to be searched and the persons or things to be seized.”^[vi]

However, from the very beginning, there were strong differences of opinion on the right to privacy. A. K. Ayyar felt that protecting privacy and correspondence would be excessive, while B. N. Rau was concerned that it would interfere with police investigations. Consequently, it was not included.^[vii]

This was also reaffirmed in the judgement of M. P. Sharma And Others vs Satish Chandra, wherein the Supreme Court held that since the Constituent Assembly had deliberately chosen not to recognize a fundamental right to privacy, analogous to the American Fourth Amendment, such an insertion would be unconstitutional and unnecessary. ^[viii]

This stance also prevailed in the Kharak Singh Judgement. Privacy was read in a limited sense as something to do with matters within a home, a person’s body, sexual preferences etc.^[ix] However in Gobind vs. State of Madhya Pradesh, the Apex Court upheld the “existence” of a fundamental right to privacy under Article 21 of the Indian Constitution.^[x]

In the context of RTI specifically, the Court had held in the Girish Deshpande judgment that “the performance of a government employee/officer in an organization is primarily a matter between the employee and the employer, and normally those aspects are governed by the service rules, which fall under the expression ‘personal information’.”  It is here we see a change in approach by the courts leaning towards the right to privacy over the right to information. This judgment has often been quoted by PIOs to deny information with respect to public servants, without regard for the previously established statutory public function test. ^[xi]

Finally, in 2018, the Landmark Judgement of Justice K.S.Puttaswamy(Retd) vs Union of India came out and enshrined the right to privacy within the purview of Art. 21, hence, solidifying the position of Privacy within Part III of the Constitution^[xii]. A major critique, however, is that the judgement failed to define privacy, which has led to a broad interpretation of the right to be taken. This has greatly affected the other fundamental right of the people – Right to Information.

Section 44(3): The Amendment

Section 44(3) reads: “In section 8 of the Right to Information Act, 2005, in sub-section

(1), for clause (j), the following clause shall be substituted, namely: ‘(j) information which relates to personal information;’^[xiii]

At first glance, the amendment may appear innocuous. However, its implications for the RTI regime are profound.  Personal information has not been defined within the Act. While the DPDP Act defines “personal data” as “any data about an individual who is identifiable by or in relation to such data”, the amended RTI provision offers no guidance on the scope of “personal information,” leaving considerable room for interpretation. ^[xiv]

The significance of this change becomes clearer when contrasted with the original Section 8(1)(j). Prior to the amendment, information could be withheld only if it related to personal information, had no relationship to any public activity or public interest, or would cause an unwarranted invasion of privacy. Even then, disclosure was permissible where a larger public interest justified it. In other words, the provision required a balancing exercise between privacy and transparency. The amendment removes these qualifications and replaces them with a far broader exemption centred solely on the category of “personal information.” This raises serious concerns about how the personal information clause will operate in practice.

For instance, the Supreme Court has held that citizens have a right to know the names of wilful defaulters and the details of Non-Performing Assets (NPAs) of public sector banks. However, after the amendment, such a disclosure will not be possible as, despite being important public knowledge, this information is “personal”.^[xv]

The experience of the RTI regime has also shown that individuals, particularly those from poor and marginalised communities, can effectively access the benefits of government schemes and welfare programmes only when they have access to relevant and granular information. The amendments, however, risk obstructing the disclosure of such information, including the names of loan defaulters, electoral bond purchasers, voter lists, asset declarations of public servants, identities of officials involved in decision-making, and names of contractors, on the expansive ground that it constitutes “personal information.”

Other information that is increasingly being denied includes details of expenditure related to MLAs’ (Members of Legislative Assembly) funds on the ground that such information is personal to the MLA. Educational, caste, and income certificates may also be withheld, even though RTI applications have previously uncovered fake educational certificates, including doctors working in government hospitals.^[xvi] Similarly, access to marks obtained in competitive examinations may be denied, despite instances where candidates with higher marks were not selected.^[xvii]

For these reasons, the courts of India have, through judicial precedents, attempted to engage with this dilemma in a nuanced manner. Over the years, they have formulated several tests to navigate this tension, such as the Public Function Test, which requires that the nature of the information sought relate to a public activity, not cause an unwarranted invasion of privacy, and, if it does, the CPIO must be satisfied that a “larger public interest” warrants disclosure.^[xviii]

The courts have also applied the proportionality test from the Puttaswamy judgment to weigh (i) the existence of a law; (ii) a legitimate State aim; and (iii) proportionality, a rational nexus between the aim and the means used to achieve it and have advised CPIOs to apply the same judiciously.

Yet, the present amendment nullifies the aforementioned jurisprudence to allow a blanket ban on information being granted on the ground of “personal information”

Critique

The constitutional recognition of privacy in Puttaswamy was never intended to create an absolute right. The central question, therefore, is whether privacy is enough of a reason to completely overpower the demand for transparency?

The Supreme Court has repeatedly emphasised that privacy must coexist with other constitutional values, including accountability, democratic participation, and the citizen’s right to know. ^[xix] The RTI Act itself was founded on the principle that information held by the State belongs, in principle, to the people and that secrecy should remain the exception rather than the rule.

Section 44(3) threatens to invert this presumption. By allowing a vast category of information to be withheld simply because it can be described as “personal,” it transforms privacy from a shield that protects individuals against unwarranted intrusion into a sword that can be used to resist public scrutiny. In doing so, it weakens one of the most powerful accountability mechanisms available to ordinary citizens.

As the matter remains pending before the Supreme Court, we must ask ourselves what is at stake. This is not merely a technical amendment but challenges the very philosophy that animated the RTI movement from its inception in Beawar. As this hard-earned legislation enters its twentieth year, its future appears more uncertain than ever.

^[i] Aroon Deep, “Candlelight Before Codification,” The Hindu, October 17, 2025, https://www.thehindu.com/news/national/rajasthan/candlelight-before-codification/article70164354.ece.

^[ii] The Digital Personal Data Protection Act, No. 22 of 2023, Gazette of India, Extraordinary, Part II, § 1 (Aug. 11, 2023), https://www.meity.gov.in/static/uploads/2024/06/2bf1f0e9f04e6fb4f8fef35e82c42aa5.pdf.

^[iii] Id § 44(3)

^[iv] The Right to Information Act, No. 22 of 2005, § 8(1)(j) (India 2005), https://www.indiacode.nic.in/bitstream/123456789/2065/1/aA2005-22.pdf.

^[v] Shailesh Gandhi & Pralhad Kachare, RTI Act: Authentic Interpretation of the Statute 46 (Vakils, Feffer & Simons Pvt. Ltd. 2016).

^[vi] B.R. Ambedkar, States and Minorities (1947), Constitution of India, https://www.constitutionofindia.net/historical-constitution/states-and-minorities-dr-b-r-ambedkar-1947/.

^[vii]  B. Shiva Rao, The Framing of India’s Constitution: A Study 212–13 (1968).

^[viii]   AIR 1954 SUPREME COURT 300

^[ix]  AIR 1963 SUPREME COURT 1295

^[x] (1975) 2 SCC 148

^[xi]  2012 AIR SCW 5865

^[xii] 2019 (1) SCC 1

^[xiii] The Digital Personal Data Protection Act, No. 22 of 2023, § 44(3) (India 2023).

^[xiv] Id § 2

^[xv] AIR 2016 SUPREME COURT 1

^[xvi] Rafi Ahmed v. Public Information Officer & Registrar, Delhi Bharatiya Chikitsa Parishad, Decision No. CIC/SG/A/2010/000666/7817 (Central Information Commission May 21, 2010), https://ciconline.nic.in/cic_decisions/CIC_SG_A_2010_000666_7817.pdf.

^[xvii] Public Information Officer & Registrar v. Onkar Dattatray Kalmankar, Special Leave Petition (C) No. 2783 of 2025, 2025 LiveLaw (SC) 210 (India), https://www.livelaw.in/pdf_upload/155320252025-02-07-586952.pdf.

^[xviii] Supra Note 10

^[xix] Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481, ¶¶ 87- 88, 131 – 32