Personal Information, Public Interest and the Limits of a Substituted Clause: Sections 8(2) and 11(1) of the Right to Information Act After the Digital Personal Data Protection Act, 2023

Abstract

Section 44(3) of the Digital Personal Data Protection Act, 2023 substitutes clause (j) of section 8(1) of the Right to Information Act, 2005, so that a public authority is under no obligation to disclose "information which relates to personal information". The qualifications that governed the clause, the absence of any relationship to public activity or interest, the unwarranted invasion of privacy, and the overriding larger public interest, have all gone. On 16 February 2026 the Supreme Court issued notice on three challenges to the amendment, declined a stay, and referred the questions to a larger Bench, where they remain pending.

The petitions and the commentary describe the amendment as abolishing the public interest test. This article argues that the description is textually incomplete, and that the incompleteness matters to how the reference should be answered. Section 44(3) operates on a single clause of a single sub-section. It leaves intact section 8(2), which permits disclosure notwithstanding any exemption where the public interest outweighs the harm; the proviso to section 11(1), which authorises the same weighing for third party information; the obligations of proactive publication in section 4; and section 3(c)(ii) of the amending Act itself, which excludes from that Act personal data a person is legally obliged to make public. The public interest test has not been abolished. It has been relocated from a mandatory ingredient of the exemption to a discretionary power and a procedural safeguard.

That relocation is nevertheless a diminution of the right guaranteed by article 19(1)(a), because a discretion the refusing officer need not consider, and need give no reasons for declining, cannot discharge the same constitutional obligation. The article proposes that the larger Bench structure the surviving overrides rather than strike the provision down, and sets out the directions that would do so.