Abstract
The right to information is the essence of democracy; it empowers individuals to access information that is being kept by the state. It ensures transparency as the government remains accountable to individuals in the way it carries out its functions. The saying “power corrupts and absolute power corrupts absolutely” stands true. Right to Information cannot implement in isolation, and it can only provide with specific restrictions, checks, and balances. The right to privacy renders the citizens with a right to control the collection, access, and use of their personal information that is in the hands of the state. As the two rights are premised upon radically different normative foundations, and they offer divergent theorems henceforth, potential conflict between them is inevitable.
When there is friction between the privacy of an individual and the Right to Information, there is no yardstick to weigh which right should prevail over another. The two valuable rights overlap extensively, and the existing structure is incapable of segregating the two without causing prejudice to either. The legislation and judgments available in India on this issue have led to various debates related to regulations governing access to personal information by the government. As truly said by Michel Foucault, “It is not possible for power to be exercised without knowledge, it is impossible for knowledge not to engender power.” Thus, it is requisite to accentuate a balance between the parallel rights.
The paper throws light on relevant sections of the RTI Act and corresponding provisions of
Indian constitution related to Right to Information and Right to Privacy.
The paper, while exploring a comprehensive analysis of the conflicts between the two rights, features cases through which the judges reasoned in resolving such clashes taking consideration of the methods of conceptual balancing.
Lastly, the paper outlines the criteria for identifying where there is no conflict of rights; on the contrary, the reasons are coexistent to each other.
Keywords: Right to information, Right to Privacy, Balance, Conflict, Coexistent, RTI Act.
- Introduction
The right to information endeavors maximum transparency in the functioning of the government, and it provides access to pertinent information to their stakeholders so that they get extensive knowledge about government policies. On the other hand, the right to privacy shields one’s personal information about family life, relationships, physical and mental health from unsolicited encroachment. The constitution of India doesn’t explicitly mention either the right to privacy or the right to know. But the Apex court has acknowledged both the mentioned above rights as fundamental rights in various landmark cases, and both said rights are the sine qua non of Article 19 and 21 of the Indian constitution.
For the most part, these two rights are complementary in holding governments accountable to individuals. However, there is a potential conflict and overlapping between these rights when there is a demand for access to information held by state bodies.
Howbeit, alternatively of looking at them as conflicting laws, RTI and RTP are better considered as “two sides of the same coin.” They complement each other; one promotes individuals’ right to protect themselves, and the other advocates’ state accountability. Both are essential for good governance. The two notions, information, and privacy are interrelated. On one level, the protection of individual privacy is achieved through institutional and governmental transparency, as transparency of actions taken by the government or private sector, concerning the individuals works to inspire trust. On another level, situations of privacy and transparency bring out the question of how the public good should be balanced against public and private interests.
- Right to Information
The core objective of Right to Information is to ensure that the activities of public officials are to open to the sharp eye of citizens scrutiny; not that details about private persons that happen to be in the warehouse of the Government be so disclosed, and the state cannot pull the curtains of secrecy around decisions which can be revealed without injury to the public interest. By serving the wheel of democracy and progression, Right to information purveys to the advocacy of participatory democracy, where transparency in its functioning is the factual hallmark.
Legal Background
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and right to seek receive and impart information and ideas through any media and regardless of frontiers.”[1]
The state is duty-bound to espouse international law and treaty obligations in the dealings of organized people with one another. Therefore, it compels the state to undertake the execution of these international laws and obligations concerning Right to Information. Various International organizations also formally recognized the right to information as against the government and public authorities. Since these various international organizations in itself introduced various norms and policies which affect the domestic laws also. Therefore, it necessitates the active participation and conformity of the states with it. The Rio Declaration of 1992 imposes the enormous pressure on international institutions and organizations to frame policies that promotes public participation and access to information.
Concept and Definition
The Right to Information is the bedrock of democracy and it can pave the way for transparency, openness, and accountability in the governance of the affairs of the state and ensure the active participation of the people in a democratic society.[2] RTI bestows the citizens to have access to government-held information. It strengthens democracy by guaranteeing transparency and accountability in actions of public authorities, and it also escalates the quality of citizen-participation in governance from mere voting to participation in decision-making policies that affect the life of the whole state and its citizens. The concept of ‘good governance’ rests with three pillars such as transparency, accountability, and access to information. Thus, the absence of even one single pillar can downfall the expected quality of good governance. The Right to Information would restructure the transparency of the government and public authority dealings and the instances in which the public being blindfolded in times of corruption will be limited, and will further provide the public with an avenue to raise their dissenting views and concerns of the same.”[3]
“Right to Information” means the Right of access to information which is held by or under the control of any public authority and includes the right to-
- Inspection of documents, work, and records;
- Taking records, extracts, notes or certified copies of documents
- Taking certified samples of material; and
- Obtaining information in the form of tapes, video, diskettes, floppies, and cassettes or in any other electronic form or through printouts where such information kept in a computer or in any other device.[4]
Importance
The pioneer right of access to government information demonstrates the importance of information in a democracy. As James Madison wrote: “A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their Governors must arm themselves with the power which knowledge gives.”[5]
Constitutional Provisions
The Right to Information is guaranteed under Article 19(1) (a) which is enumerated in Part III of the Indian Constitution that forms the part of Fundamental rights. Indian Constitution does not explicitly use the words ‘freedom of information’ in Article 19, but it is proclaimed by the judiciary that it is included in Article 19(1) (a), which guarantees freedom of speech and expression. The Supreme Court of India has held that a citizen has a right to receive information, derived from the concept of freedom of speech and expression comprised in Article 19(1) (a).[6] In SP V. Union of India, it said: “no democratic government can exist without the responsibility, and the basic postulate of accountability is that people should have information about the functioning of power.” In State of Uttar Pradesh v Raj Narain,[7] the Supreme Court of India held that Article 19(1)(a), in addition to guaranteeing freedom of speech and expression, it guarantees the right to receive information on matters concerning public interest.
- Privacy:
Nowhere in Indian law, the definite definition of ‘‘Privacy’’ is available. Westin defined privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.’’[8] Privacy can be reckoned as a zone of seclusion in which the individual has control access to various types of personal information and that personal information is protected from public scrutiny.
In this tract, the individual is free to experiment, develop relationships, and create an autonomous self without fear of censure or manipulation. S. Justice Louis Brandeis referred to it as “the right to be left alone.”
Privacy enjoys a robust legal framework internationally. Article 12 of the Universal Declaration of Human Rights, 1948, and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons against “arbitrary interference” with one’s privacy, family, home, correspondence, honour and reputation. India signed and ratified the ICCPR on April 10, 1979, without reservation. Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognizes the respect for private and family life, home and communications. Article 8 mandates the protection of personal data and its collection for a specified, legitimate purpose.[9]
In the Indian context, Hon’ble Supreme Court, in the case of Kharak Singh v. State of UP, first read the right to privacy into the right to life. It held that “nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy. A right of an individual to be free from restrictions or encroachments on his information, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.”[10]The Right to privacy as a fundamental right was further affirmed in a unanimous verdict of Justice K. S. Puttaswamy (Retd.) &Anr. Vs. Union of India and Ors., it averred that the right to privacy is intrinsic to an individual’s life and liberty. Justice D.Y. Chandrachud held in the judgment that “Life and personal liberty are inherent to human existence. The human component in the life of the person is integrally founded on the sanctity of life. A constitutional democracy can persevere only if citizens have an undiluted conviction that the rule of law will guard their rights and liberties against any encroachment by the state and that judicial remedies would be accessible.”[11]
Thus, no person shall be deprived of his life or personal liberty except according to a procedure established by law.[12] It was stated in Puttaswamy judgement that privacy has two broad mantles:
The first one being normative and other being descriptive.
Privacy in the normative sense allies to moral values, eternal principles, and essentials about human dignity, autonomy, and self-worth.
In the vivid sense, it referred to a bundle of entitlements and claims seconded on the normative basis and furnished implementable being backed by constitutional mandate.
If the State infringes the right to privacy, the person may approach the apex court of the land to defend and enforce his/her right.
Legal Background
The Supreme Court of India considered it to be increasingly crucial to accommodate the right to privacy under the purview of the right to life and the judicial drive towards such a regime initiated roughly when A. K. Gopalan came for pointed consideration in Kharak Singh and it subsequently built up into a well-structured outlook based on integrative method associating Articles 14, 19 and 21 of the Indian Constitution (popularly called the Golden Triangle) in Maneka Gandhi owing to the developing knowledge/ consciousness and assent to the idea of self-development of every human being. This is the developmental perspective of privacy, which espouses the quick incorporation of the right to privacy into the right to life under the Indian Constitution. But if we interpret the other end of the spectrum, which talks about the protectionist method advocating the right to privacy, the grounds for holding this right fundamental under the aegis of the Indian Constitution seem effective. Right to Privacy is not absolute in nature and are subject to various regulations and law.
Importance
Right to privacy fosters autonomy and individual dignity and serving as a structure on which many human rights are built. The right protects a person from unwarranted intrusion by the state and public scrutiny.
- The Conflict between Right to Information and Right to Privacy:
As Right to Information and Right to Privacy are premised upon radically different normative foundations, and they offer divergent theorems henceforth, it is inevitable to come across clashes in between.
The government stores a lot of information about individuals in its dossiers supplied by individuals in applications made for obtaining various licenses, permissions including passports, or through disclosures such as income tax returns or for census data. By means of Right to information, an applicant can solicit government records containing information concerning identifiable individuals.
In some cases, this will involve disclosure of information about public officials. In others, it will include disclosure of information concerning ordinary citizens. Considering one man’s freedom of information is another man’s invasion of privacy; a right to receive information to achieve greater transparency in public life could impinge on the right to privacy of an individual. The data not only becomes available for legitimate users but also abuses. In each instance, the subject of the information can plausibly raise a privacy protection concern.
RTI Act has an exemption for personal information, but the term “personal information” is amorphous as the act does not define it. The frame of reference with the implementation of the RTI Act has shown that there has been an unpropitious bent to deny information on numerous crucial matters citing privacy concerns, which altogether defeats the very purpose of the Act.
- Complimentary nature of Right to Information and Right to Privacy
Although disputes between the right to privacy and the right to information are often more focused on, it is essential to accentuate their complementary essence to reach an equilibrium between the two aforementioned fundamental rights.
A right to information renders citizens access to information about the functioning of the state and, the right to privacy provides citizens the control over their personal information. They collectively endeavor to establish the balance between the citizen and the state and are together considered essential for good governance. Both rights can be used to provide an individual to access his/her personal information from the public authority. Also, the rights as mentioned above ensure the accountability of the government and they functionas citizen rights shielding liberty against state overreach.[13]The Right to Information Act protects the privacy of an individual through Section 8(j).
- Balancing between Right to Information and Right to Privacy
The chief ambition of the Indian Constitutional Scheme is based upon “Balance of Rights” and not the “Demarcation of Rights” because it does not provide any yardstick to gauge which right should prevail over other. The principle of indivisibility of fundamental rights requires that both rights carry equal weight. Neither right can be used as a trump over the other nor must alternative means be employed to resolve the conflict. The concept of conceptual balancing to conciliate the stinging angularities of opposition between the aforementioned rights may sound uncomplicated in theory but is quite challenging in practice.
To conciliatethe two rights in majority cases becomes a constitutional challenge and it needs to be squared through the agency of judicial process to tussle with a multitude of nuances and subjectivities.
Section 8(1)(j) of the RTI Act explicitly exempts disclosure of personal information, but it is incidental to public interest which may warrant disclosure of such information to an applicant by the public authority whereby imparting no exemption and, if need be, dismissing the right to privacy. However, the hurdle lies with demarcating the extent or bound to which personal information may be disclosed. Though there is no straitjacket course to identify the line of demarcation of disclosure and non-disclosure of personal information, evaluating the circumstances and contextual priority is essential to determine how much of personal information of an individual needs to be disclosed having regard to the broader question of public interest for the good of the society at large. In case of collision between the two Fundamental Rights, judges are called upon to analyze the question on a case by case basis. It is necessary to resolve the conflicts between these two rights and maintain equilibrium between them to protect and promote the interest of human rights. In The Institute of Chartered Accountants of India v. Shaunak H. Satya and Ors.[14], The Apex court observed that “Authorities shall maintain proper balance so that while achieving transparency, demand for information does not reach unmanageable proportions affecting other public interests.”
Privacy exemption in RTI law— RTI act provides for withholding personal information. Any potential infringement of the right to privacy by the provisions of the RTI Act is sought to be balanced by section 8 which provides that no information should be disclosed if it creates an unwarranted invasion of the privacy of any individual. This exception states that there is no obligation to disclose information which pertains to personal information, the disclosure of which has no nexus to any public activity or interest, or which would cause unwarranted invasion/intrusion of the privacy of the individual unless the more sufficient public interest justifies the disclosure of such information.[15] If, however, the applicant can prove that there is substantial public interest in disclosing the information, the bar of preventing disclosure is lifted and after duly informing the third party i.e. the party whose information or whose records are to be sought and after considering the third party’s views, the authority can disclose the personal information.
The primacy of Public Interest: The Fundamental Right that strengthens and substantiate the public Interest should prevail. Pros and cons of disclosure and the competing merits of privacy rights need to be balanced according to the public interest. The object of Right to Information is to synchronize the colliding public interests, i.e., to ensure the transparency to bring in accountability containing corruption on the one hand, and at the same time warrant that the revelation of information, in actual practice does not harm or adversely affect other public interests, which include efficient functioning of the state, optimal use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand.[16]In case of Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi[17], Justice Swatenter Kumar had held that the public interest must consider while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.
It is pretty obvious that so far as the classification of both the rights – the right to privacy and the right to information are regarded, they go hand-in hand to the broader regime of good governance.
Doctrine of public policy which subsumes the idea of public interest provides the abiding reason to ponder that one of the two rights as superior and the other as inferior under unfolding facts and circumstances. There is no cosmic recipe or tool to mediate between both the rights. Right to privacy is no doubt crucial in a democratic set up where in an individual has control access to his personal information. An individual should be free to develop relationships, experiment and create an autonomous self without the fear of exposure to the public gaze, censure or condemn by parading the information to the world. By which it creates a favorable atmosphere for the fullest possible manifestation of one’s personality but when public interest becomes a compelling demand, private interest must yield to the demands of public interest.
Subject to the limitation of privacy in case of public officials: Right to privacy ensures that one is not to be disturbed by conduct intended to subject the victim to great tensions by baring one’s intimate life and affairs to public view or by disgracing and intrusion of one’s solitude. Less broad protections of privacy are granted to public officials. In the case of Mr. Amarjeet vs. Union Public Service Commission, the court held that citizens have a right to know about charges against candidates for elections as well as details of their assets since they desire to offer themselves for public service. Public servants cannot claim exemption from disclosure of charges against them or details of their assets. Given the dismal record of mis-governance and rampant corruption which colludes to deny citizens their essential rights and dignity, it is in the fitness of things that the citizen’s right to information is given greater ascendancy than privacy.
Doctor-Patient fiduciary relationship: The physician has to maintain the confidentiality of patient’s information for preserving the doctor-patient relationship. A physician must respect the information about the patient including his life and character and should not be disclosed unless required by law though physicians may disclose the information if he considers potential harm to a healthy person weigh over the privacy of the patient and should act as he wishes his family member be treated similarly.[18]
In the case of Mr. ‘X’ v. Hospital ‘Z’[19] it was held that doctor-patient relationship is considered a fiduciary relationship as it’s build on trust, even though it is commercial in nature. Doctors are bound to maintain confidentiality both morally and ethically. In such a circumstances public disclosure of even true private information may sometimes lead to the collision of one person’s right to privacy with another person’s right to be informed. In another case the court held that the hospital or doctor is allowed to disclosure of such information to persons relating to the girl whom he intended to marry and she had a right to know about the HIV-positive status of the appellant. The Court also held that appellant’s right of privacy was not affected in any manner by revelation his HIV – positive status. The Court also said that appellant’s right was not infringed in any manner by revealing his HIV-positive status to the relatives of his fiancée.[20]
- Conclusion
The freedom of information holds that every citizen should have the right to obtain access to government records.
The raison d’être often advanced in support of the right are;
First, that the right of information adds the accountability of government and its agencies;
Second, that it empowers the citizens to contribute more efficiently to deliberate on the relevant questions of public policy;
Third, that right to information renders justice in administrative decision-making processes concerning individuals.
The protection of the right to privacy, on the other hand, states that individuals should have some control over the data pertaining themselves, used by others.
Therefore, one of the paramount principles of privacy protection is that information used for the acquired purpose should not be used consistently for another purpose without the consent of the individual to whom the information concerns. It protects personal autonomy to control the data concerning oneself and suggests that the acceleration of personal data collection, primarily by government agencies, carries a potential danger to the fundamental aspect of our traditional freedoms.
However, each right limits the other generally, and litigation will occur when a party claims the enforcement of one of these rights against another party claiming a defense based on the other right. In such a case, it is up to the court to find the correct balance between the two rights in question. Pros and Cons of disclosure and competing merits need to be evaluated according to the public interest.
[1] Universal Declaration of Human Rights, 1948 Art. 19.
[2]SarfrazAlam, Right to Information and Right to Privacy: An Appraisal, learningmania (February 23, 2018, 18:08), http://www.learningmania.in/researchRight+To+Information+and+Right+To+Privacy%3A+An+Appraisal-bid-29.html.
[3]VishakaSooriyabandara, Balancing the Conflict between Right to Information and Right to Privacy under Sri Lankan Fundamental Rights Perspective, research gate (February 23, 2018 20:22), https://www.researchgate.net/publication/228125289_The_Right_to_Information_and_Privacy_Balancing_Rights_and_Managing_Conflicts.
[4] Right to Information act, 2005 § 2(j).
[5]Fred H. Kate, D Anette Fields, James K. McBain, THE RIGHT TO PRIVACY AND THE PUBLIC’S RIGHT TO KNOW: The “Central Purpose” of the Freedom of Information Act, repository, (February 23, 2018, 19:04), https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1740&context=facpub.
[6]P.V.Narsimha Rao v State (1998) AIR 1998 SC 2120.
[7]1975 AIR 865, 1975, SCR (3) 333.
[8] Westin Alan, Privacy and freedom, pg.7(1970).
[9]KrishnadasRajagopal, The lowdown on the right to privacy, The Hindu, July 29, 2017
[10]1963 AIR 1295.
[11]KalpanaKannabiran, Right to privacy as right to life, The Hindu, November 9, 2017.
[12] Indian Constitution, 1950 Art. 21.
[13]SiddharthSonkar, Opinion | the right to privacy vs right to information, LIVEMINT (28 Aug 2018, 10:56 PM), https://www.livemint.com/Opinion/6tqMxfqtGJyCqTyuKT6PhK/Opinion–The-right-to-privacy-vs-right-to-information.html.
[14](2011) 8 SCC 781.
[15] Right to Information act, 2005§ 8.
[16]VishakaSooriyabandara, Balancing the Conflict between Right to Information and Right to Privacy under Sri Lankan Fundamental Rights Perspective, research gate (February 23, 2018 22:30), https://www.researchgate.net/publication/228125289_The_Right_to_Information_and_Privacy_Balancing_Rights_and_Managing_Conflicts.
[17](2012) 13 SCC 61.
[18] Medical ethics regulations, 2002§2(2).
[19]AIR 1999 SC 495.
