Introduction

It has been contended that the amendments to the Right to Information Act (2005), ‘destroy the delicate equilibrium’ between transparency and privacy.

Section 44(3) of the Digital Personal Data Protection Act, 2023 came into force along with the DPDP Rules 2025. It substitutes section 8(1)(j) of the RTI Act. The unamended provision exempted personal information from disclosure only where it had no relationship to any public activity or interest. Or where disclosure would cause an unwarranted invasion of privacy. It expressly permitted disclosure where larger public interest justified it. The substituted clause exempts “information which relates to personal information” and omits the express larger public interest override.

The constitutional validity of this amendment is before a five judge Constitutional Bench, the challenge having been referred without any interim stay.1 The existing scholarship runs in one direction. It tests Section 44(3) against the single proportionality standard, as established in Modern Dental College and Puttaswamy. Qasmi argues in the ILI Law Review that a qualified exemption has become an absolute one. The Law school Policy review frames the challenge as non-retrogression and practitioner commentary invokes the least restrictive means requirement in Anuradha Bhasin.

This blog argues that Section 44(3) should be assessed using the double proportionality framework, articulated in Association for Democratic Reforms v Union of India. The present conflict is between the RTI applicant’s right under Article 19(1)(a) and the data subject’s right to privacy under Article 21. The piece argues that the double proportionality framework is better suited where two individually held fundamental rights are in direct conflict, and thus, this conflict should be resolved using this framework.

Why a single-sided proportionality lens is inadequate

This section reconstructs the single-sided proportionality lens, analysing whether the restriction imposed on the right to information satisfies the four-limb test.

Legitimate aim and suitability

Firstly, the amendment has the legitimate aim of protecting informational privacy. The aim is drawn from Section 44(3), DPDP Act which provides for the processing personal data in a manner recognising individuals right to protect their personal data. It followed Puttaswamy, which recognized informational privacy as intrinsic to article 21, building on R Rajagopal and Mr X v Hospital Z and reaffirmed in the subsequent judgements.

Secondly, a categorical exemption of personal information bears a rational nexus to the aim. As it reduces the risk that sensitive personal data is released without adequate justification. Thus, it satisfies the first two limbs.

Necessity and balancing

The existing critique locates the infirmity at the third limb of necessity. It frames it as a question of the degree of burden upon the information-right, when measured against privacy as a fixed state objective arguing that the exemption is over-inclusive. The amendment bears directly upon the access to information concerning the conduct of public servants and the disbursement of welfare benefits, thereby over-imposing on Article 19(1)(a). So framed, the blanket exemption cannot be regarded as a less restrictive means of pursuing that objective. The amendment fails the fourth limb of balancing because its severity upon the right to know is disproportionate to the privacy secured.

Proponents’ Defences

Proponents of the amendment respond in three ways. First, they rely on section 3 of the DPDP Act, arguing that the personal information required to be disclosed under other laws governing public representatives and other welfare programmes, continues to be disclosed. Second, they contend that Section 8(2) of the RTI Act continues to operate, preserving a general public interest override across all exemptions. Thus, the amendment does not create a true blanket bar. Third, the amendment prevents the potential misuse of the law, and thereby strengthens the privacy right of the individuals.

The indeterminate result

Under the standard test, the necessity and balancing limb can plausibly be argued either way. The structural reason is that the standard framework treats Article 19(1)(a) which is being restricted, as the right and treats privacy only as the State’s legitimate aim. It thus privileges one right and reduces the other to a justification for restriction. Therefore, it does not analyse whether the means chosen to protect privacy were themselves proportionate. This indeterminacy requires a double proportionality inquiry.

Resolving the indeterminacy

As Chief Justice D.Y. Chandrachud observed, in cases where the two fundamental rights conflict, the standard test gives prominence to one fundamental right, minimizing the restriction upon it, thus being ineffective. The double proportionality framework based on the “ultimate balancing test” articulated in Campbell v MGN Ltd and In re S (A Child) answers this structural problem, by requiring that each limb of the test should be applied from the perspective of both rights in conflict. When applied to section 44(3), at the first two limbs, the double enquiry does not alter the result reached in the single-sided lens.

Necessity and Balancing: comparative analysis

Under the unamended Section 8(1)(j), service records and assets of public servants were, in the ordinary case, treated as personal information. They were exempt from disclosure, unless larger public interest justified it. Information which bore a relationship to public interest fell outside the exemption, the override applying to the otherwise exempt information. Thus, it effected a calibrated interference with the right to information.

Assessed through double proportionality, the pre-amendment framework was less restrictive of Article 19(1)(a) than a categorical bar. Because privacy was protected by default in ordinary cases, it was equally effective in securing article 21. It therefore approximated the alternative minimally restrictive of both rights, that has been identified as decisive for the third limb.

The distinctive feature of the double proportionality enquiry is that it asks two questions, i)- whether the pre-amendment framework was equally effective in securing Article 21, ii)- whether it was less restrictive of Article 19(1)(a). The substituted clause, which forecloses a case-by-case weighing within Section 8(1)(J) and protects privacy by eliminating the balancing mechanism rather than recalibrating it, cannot satisfy the necessity limb . And once the least-restrictive-means enquiry is not satisfied, the balancing stage need not be reached.

Defences Reconsidered

Firstly, under the conventional test, Section 3(c)(ii), DPDP Act has been invoked to argue that the overall transparency regime remains intact because the other laws continue to mandate disclosure. Under the single proportionality test , the submission reaches the severity of burden on the information-right, suggesting its mitigation. Under double proportionality, the analysis is whether the RTI exemption itself uses the least restrictive and equally effective means of protecting privacy. Section 3 (c)(ii), only preserves disclosures that are independently mandated. It neither confers a right to access nor restore a public balancing mechanism within Section 8(1)(j) and therefore does not satisfy the necessity limb.

Secondly, the Government has relied upon section 8(2) to argue that a public interest override remains available through the particular section. However, (i)- Section 8(2) is permissive in nature, providing that a public authority “may” allow access whereas the deleted clause took information outside the exemption once larger public interest was established. (ii)- It is a general override across all exemptions and not a tailored balancing rule for personal information. Analysed through double proportionality, the defence faces a dilemma. If section 8(2) replicates the deletion override, the deletion secured no additional protection for privacy and a measure that adds nothing cannot be necessary. If it does not, the calibrated weighing which was formerly available has been removed. Thus the “no blanket bar” defence fails.

Thirdly, viewed unilaterally, the misuse argument is framed as a policy recalibration with a legitimate aim. However, once double proportionality imposes the requirement of the least restrictive means, the analysis shows that the pre-amendment jurisprudence already confined disclosure to information, bearing a nexus to public activity or interest. Thus the categorical bar imposed by the amendment restricts more than is required to secure the privacy interest.

Conclusion

The application of the bilateral proportionality framework to Section 44(3), exposes the defect obscured by the single proportionality framework. Once the test is run from both the articles’ perspectives, the amended section 8(1)(j) cannot be shown to use the least restrictive means of protecting privacy. The infirmity is in the disproportionality of the means chosen to protect privacy when a calibrated and less restrictive alternative had operated for two decades. The Constitutional Bench should therefore, take the double proportionality framework into account while assessing the validity of the amendment.

1 Venkatesh Nayak v Union of India, WP(C) No 177 of 2026 (Supreme Court of India, order of 16 February 2026), heard with WP(C) Nos 211 and 212 of 2026.