Right To Privacy Vis A Vis Right To Information
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
RIGHT TO PRIVACY VIS A VIS RIGHT TO INFORMATION
Dr. Seema Goyal, Assistant Professor of Law
ABSTRACT
Access to data as well as freedom to seclusion are often described as “two different ways of dealing with the same condition or two different aspects of the same transaction”, but both runs parallel as well as ancillary to each other that promote and protect individual’s Right to guard themselves and enhance the accountability of the Government as both of it function in safeguarding liberty of the citizens against the State. The Right to Information provides the access to information, while Right to Privacy veils it instead but both are equally incumbent Human Rights for every person. Keywords: Right, Information, Privacy, Liberty, Safeguarding
1. Introduction:
Right to Information Act, 2005 provides a powerful weapon to every citizen to enlist information from the Government as a matter of right. This Act is pervasive in nature and comprehends all aspects and matters of governance, being applicable to Govt. at all levels i. e. , Union, State and local as well as recipients of Govt. grants. Concept of Right to Information in India The phrase ‘Right to Information ‘is derived from the Freedom of expression to seek and obtain Information where the term Information covers data that has been obtained from text, audio or figures.
Under Right to Information Act, 2005, any person who wants to get Information may seek from the official concerned of the department on moving an application asking therein, the information required and that official is legally bounded under the provisions of RTI Act to furnish such information sought by the applicant within 30 days on receiving the said
application. Right to Information is a universally accepted right to get access to Information which are available with the public authorities or public bodies. In a democratic regime, every individual has a Right to seek Information as it is a bed-rock for the democracy. It makes accountability of the Government in governance of the affairs of the State and ensures active participation of the public or folk in a democratic society. Thus, it helps in bringing limpidity in governing the affairs of the State and promotes good governance. Right to Information is not expressly provided in the Constitution of India as a basic fundamental freedom. It has been interpreted through Article 14 i. e. , Equality, Article 19 (a) i. e. , liberty to Speech and Expression as well as Article 21 i. e. , freedom to Life and through other judicial pronouncements.
Right to Information is also not an absolute in nature, but certain reasonable restrictions can be imposed on this Right for credit of internal safety of the Nation & National Interest. Section 8 of Right to Information Act, 2005, deals with restrictions that can be imposed on Right to access the Right to Information.
2. Both Right to Information (RTI) and Right to Privacy (RTP) are Complementary to
each other: - Conceptually, both Right to Information (RTI) and Right to Privacy (RTP) are Complementary and are in conflict with each other. Right to Information enhances access to Information while on the other hand, Right to Privacy veils it. Although, both functions as protector of liberty of the citizens against the affairs of the State. Right to freedom to isolation and secrecy furnishes the natives freedom handles the data collection, its access and use of their personal data which is in the hands of the State. Right to Information (RTI) endeavors maximum transparency in the functioning of the affairs of the State and provides access to reasonable information to their stake holders so that they can enrich their intellect about the Government policies.
On the other hand, Right to Privacy shields one’s personal information relating to their family life, their relationship and their physical & mental health from unsolicited encroachment. Both of these Rights are not lucidly described in the Constitution of India. They both are sine
qua non of Article 19 and Article 21 of the Indian Constitution. Also, both are complementary to each other as one promotes individual’s Right to protect themselves while the other advocates the State accountability. Both Rights are inter-related and exigent for good governance & rests on three pillars i. e. , Transparency, Accountability and Access to Information. Absence of even single pillar can decline the expected quality of good governance. So, the Right to Information would redraft the transparency of the Government. In case of S. P. Gupta Vs Union of India, it was held that, “No democratic Government can exist without the accountability and the basic postulate of accountability is that people should have information about the functioning of the Government.
” It is only, if people realize how Government is functioning & that how they can fulfill the role which democracy assigns to them and make democracy really effective participatory democracy. Conflict between Right to Information (RTI) and Right to Privacy (RTP): As two Rights are promised upon different normative foundations, hence potential conflict between them is inevitable. In case of collision or percussion among two rights, no criterion or standard exists to measure or to think about whatever freedom will succeed above the other. Many times, these two Rights overlap with each other and the existing structure is not able to safeguard the two without causing prejudice to other. The principle of indivisibility of Fundamental Rights requires that both rights are equally important and neither of them can be used as a trump over the other.
Thus, it is a big Constitutional challenge to seek a balance between these two Rights. Clause (1) (j) of Section 8 of RTI Act clearly excludes from divulgence of private details, yet it is conditional or ancillary to well-being of general people or commonwealth that will permit or explain divulgation or declaration of their facts to a petitioner or claimant by governmental or State body or agency through which no immunity or privilege is allowed or conferred, dismissing the liberty to confidentiality or Privacy. It is essential to settle the discord/ dissent or friction among two rights as well as to keep stability and balance amidst those with aim of shielding, preserving & encouraging the curiosity and feelings of individuals or personage. In case of Institute of Chartered Accountant of India Vs Shaunak H Satya & others, the
Hon’ble Apex Court held that, “Authorities shall maintain proper balance so that while achieving transparency demand for information does not reach unmanageable proportions affecting others public interests.”
3. Privacy exemption in Right to Information Act:
Right to Information Act provides exemption from disclosure of personal information. Thus, any potential infringement of Right to Privacy by the provisions of Right to Information Act is sought to be balanced by Section 8. Section 8 of Right to Information Act provides that, “No Information should be exposed if it creates unwarranted invasion of the privacy of the individual. It also states that there is no obligation to divulge particulars or facts that reveals private data/details and confession of those catalyzes or brings about needless & unjust encroachment or usurpation on one’s confidentiality until larger common benefit arises as well as makes justifiable to the declaration of such facts and details. “ But if the applicant can prove that there is substantial public interest in disclosing the information, the bar of preventing disclosure is lifted.
After duly informing the third party i. e. , whose information or whose records are to be sought and after considering the third-party views, the authorities can disclose the personal information. Thus, substantial public interest should prevail. In case of BPSC Vs Saiyed Hussain Abbas Rizwl, Hon’ble Justice Swatener Kumar observed that the well-being of the common people should be preferred maintaining proper balance so that while demanding for information does not reach unmanageable proportions affecting others public interests. No Information should be exposed if it creates unwarranted invasion of the privacy of the individual.
It also stated that there is no obligation to divulge facts that reveals private details and confession of those brings about unjust encroachment on one’s confidentiality until larger common benefit arises as well as makes justifiable to the declaration of such facts and details. Section 8 (1) (e) of Right to Information Act, 2005 exempts disclosure of information available to a person in his fiduciary relationship, until capable body or agency is of the opinion
that larger common benefit arises as well as makes justifiable to the declaration of such facts and details. Section 8 of Right to Information Act contains ten categories of information which are exempted from disclosure. Among them six categories which are described in clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption, while information enumerated in clauses (d), (e), (j) get only conditional exemption that is subject to overriding power of the competent authority under Right to Information Act in larger public interest to direct disclosure of such information. The information referred to in clause (i) relates to an exemption for a specific period with an obligation to make the said information public after such period. Thus, Section
8 of Right to Information Act lays down certain qualified exemptions, which are subject to
public interest test.
4. What is not open to disclosure:
Under Section 8 of RTI Act, requests for information can be rejected, if it falls under general and ambiguous clause of exemptions, which are as follows: - (a) National security or sovereignty: -Information which relates to India’s National security, if released shall be harmful to the public at large therefore; such information should not be released. (b) National Economic Interests: - Disclosure of information relating to currency or exchange rates, taxes, interest’s rates, supervision or regulation of banking, foreign investment etc. should not be released as it can cause harm to the National economy. (c) Relations with Foreign States: - One such information that can easily offend and damage International Interests of India should not be disclosed as the relationship between Countries can often be sensitive.
(d) Law enforcement and Judicial procedure or proceedings: -During investigation of Judicial proceedings, certain information’s need to be protected. Such information, if disclosed, the case could be jeopardized. (e) Cabinet papers and other decision-making documents: -Cabinet papers include records of comments of the Council of Ministers, Secretaries and other officers are abdicated, but once
a decision is made, the public has a right to access the relevant information to understand the policy making process. (f) Trade secrets and Commercial interests: -Companies should be able to protect their trade secrets and also to take care to minimize the harm caused to a company’s competitive commercial interest while disclosing information. (g) Personal Privacy: -The Right to Privacy requires that the Government should try to protect personal information of the individuals from the public disclosure, unless there is some overriding interest to disclose it. (h) Individual Liberty or safety: - One such information, which can put an individual’s liberty or safety at risk, should not be disclosed. Hence, the information can legitimately be kept secret only where disclosure of such information would be likely to cause serious harm to public interests.
These exemption provisions can serve a useful purpose.
5. Elements of Right to Information:
Access to data is a impressive as well as effective instrument/gadget for opposing & resisting exploitation, misuse, mishandling, malpractices, deception and fraud with intent to administering indispensable commercial, gainful, general as well as communal freedoms. Certain successive components are appearing in Right to Information Act: - (1) A legitimate Right of person, association or corporate body requests from the
governmental or state body to deliver facts and details without showing a legitimate concern concerning those facts and details. . (2) Responsibility and obligation of appropriate & suitable authority to respond the request of the person concerned. (3) Worldwide application process/ system for petitioner or pleader claiming the retaining of facts. (4) Procedure for outside scrutiny of the concealing and detaining details & facts.
For this object it involves the installation of an independent agency & introduction of trials to the tribunals or courts or authorized officials (5) Certain essential conditions or prerequisites for the governmental or state agencies positively circulating certain details concerning their formation, framework, norms and functions. Generally, it could be done using telecom. (6) Exclusion or immunity to retain certain details secret and confidential. These excuses involve • Protection or rampart of the National security and international relations; • The security of the National Economic Interests; • Productive Confidentiality; • Secrecy of the well-being of the individual; • Legal requirements; • Law and order in the society • Details requiring confidentiality and • National Discussion.
6. Third Party Information:
Generally, a Public Authority does not reject written request made to them for providing Information simply on ground that it relates to third party. On satisfaction, the Public Authority may obtain the consent of the third party for furnishing such Information as requested to them. Freedom to life covers within its range Privacy right as well as Right to live with dignity i.e., freedom to encourage active and hygienic lifestyle in order to live life happily and benefiting all facilities physically. The acknowledgement and declaration of the fact that the expected couple is infected by AIDS is not infringing one’s secrecy as well as privacy rights in any manner. In case of clash amongst privacy rights & freedom to have hygienic lifestyle, the Right
assisting and satisfying substantial well-being of the general public would prevail only. There is also a significant agreement that the details and facts concerning top level government official bodies are no more confidential or secret even if it may reveal private matters concerning their lives.
7. Conclusion:
Thus, both the Rights i. e. Right to Privacy and Right to Information intended to help in safeguarding the Liberty of the citizen against the State by making accountability of the Government its agencies. In the case of Mr. Amarjeet Vs U. P. S. C (Union Public Service Commission), the court held that the citizens have Right to know about charges against candidates who are contesting election and all details of their assets and liabilities since they desire to offer themselves for Public Service. A Public Servant cannot claim exemption from disclosing of charges against them and also details of their assets and liabilities. Thus, Right to Information adds accountability of the Government and its agencies. Both the Rights are intended to safeguard the Rights of the citizens.
Hence, Government agencies must handle and treat the claimant in a amicable way and well-being of the general society should be the essential basis and thus, confession & admission must be framed accordingly. Ex-Prime Minister Mr. Manmohan Singh has said that, “Citizen’s liberty to acknowledge need to be limited and determinate in case it intrudes & trespasses one’s secrecy. He further observed that a fine balance necessarily to be preserved amongst two rights i. e. , Privacy rights and right to facts details that flows from essential freedom to life. But, where to set a limit is complex and hard problem. ”