Lexology: - Sakshi Shairwal and Sanjampreet Singh: New Delhi: Tuesday, June 02, 2021.
In India, Right to Privacy and Right to Information are two of the most important rights assured to the citizens in order to ensure that they live their life with integrity as well as dignity. These two rights are fundamental for maintaining the quality of one’s life. The former allows privacy to people in their personal matters while the latter allows citizens to demand accountability from various government departments in matters of public importance.
The Supreme Court on 24th August 2017 had delivered a landmark judgment whereby it recognized that the Right to Privacy is a fundamental right guaranteed to us by the Constitution of India. Right to Privacy was held to be inherent in the Right to Life, enshrined in Article 14 of the Constitution. Right to Information, on the other hand, derives its constitutional mandate from Freedom of Speech and Expression guaranteed to all citizens by the virtue of Article 19(1)(a) of the Constitution. A legislation laying down various provisions for exercising this right was passed in 2005 which was titled The Right to Information Act, 2005. On the other hand, a specific Data Protection Act has not yet been enacted by the Indian Parliament (though a personal data protection bill has been proposed), however, the Information Technology Act has been amended in order to add some restrictions against disclosure of personal information.
Right to Information
The preamble expressly states that we, the people of India have given this Constitution to ourselves. A straight implication of this fact is that India, being a democracy, allows its citizens to take an active part in governmental affairs. People cast their vote to elect their representatives who then go on to form the government which is responsible for the administration of various public affairs. Various departments are formed under ministries in order to cater to the needs of different people. However, the participation of people does not end here. They are allowed to demand accountability from various ministers as well as governmental officers.
The enactment of The Right to Information Act, 2005 is a huge step in this direction. The fundamental freedom regarding of speech and expression invariably leads to the guarantee of obtaining information from public authorities. The Freedom of Information Act was passed in 2002; however, it did not recognize the ‘Right’ of people to obtain information. Consequently, it was replaced by the RTI Act.
How can citizens exercise this right?
The Act, through its 3rd section, guarantees the right to information to all the citizens of India. It says that “Subject to the provisions of this Act, all citizens shall have the Right to Information”. It is a constitutional right and government officers have an obligation to mandatorily provide any requested information unless it falls within any of the exceptions mentioned in the Act. All the public authorities come under the scope of this Act. Every such department has a designated Public Information Officer (PIO) who is responsible for dispensing such information.
If a person is aggrieved from the fact that insufficient or no information has been provided, he may contact and file a complaint with the Central or State Information Commission, as the case may be. The complaint is heard while giving an appropriate opportunity to both the parties to explain their side. The decision is then taken regarding whether the person complaining is entitled to receive the information or not.
In the case of Central Board of Secondary Education and Another v. Aditya Bandopadhyaya and Ors. [(2011) 8 SCC 497], the Supreme Court held that the Right to Information entitles the citizens only to access information, but not to seek any redressal.
Right to Privacy
Article 21 of the Constitution of India guarantees the Right to Life and Personal Liberty to all people. By extensive jurisprudence, it has been now established that the Right to Life includes living with dignity as well. Based on this axiom, it was held by the Supreme Court that the Right to Privacy (which is essential to maintain one’s dignity) is inherent in Article 21.
Thus, it was regarded as a Fundamental right. The encroachment of people’s private space with the compulsory use of Aadhar Cards in various sectors was stopped with this decision. Evidently, some things are personal to people which they might feel hesitant to be put into the public domain. For example, medical records of a person are his own personal property. Right to Privacy prevents such information from being exposed to the public by safeguarding the person’s private space.
Is Right to Privacy antagonistic to the Right to Information?
On the face of it, it seems that the Right to Privacy is antagonistic to the Right to Information and forces operating behind both the rights would work in opposite directions. Section 8(1) of the RTI Act enlists some exceptional circumstances wherein the information requested can be denied. Section 8(1)(j) exempts information of personal nature from disclosure. It states that the information of personal nature which has no relationship whatsoever with any public activity or interest and which can cause unwarranted invasion of privacy of the individual if disclosed can be denied unless the Public Information Officer (Whether State or Central) or the appellate authority thinks that the larger public interest justifies the disclosure of such information. It also states that any information which cannot be denied to the Parliament or any State Legislature; cannot be denied to any person.
The reason behind this is that any information which reaches parliament is in the public domain. The exemption given in this article is based on a ground of public policy which states that an individual’s information should not be exposed to such an extent that their Right to Privacy is invaded unnecessarily. However, it can also be clearly seen that if the public interest trumps the disclosure of information in importance, such information may very well be disclosed. Also, the privacy exception does not apply when the information is about an event which happened 20 years ago. The Right to Information has been expanded to such an extent that the apex court has ruled that even the office of Chief Justice of India comes under its ambit.
How does a conflict arise between both rights?
It is very well-known that the government is the custodian of a lot of personal information of various citizens. The income-tax returns of a person, his medical records, his biometric data etc are his private property of which government can have access. If such information is made subject to RTI, it can lead to a massive invasion in the privacy of an individual. On the other hand, it also needs to be ensured that a person doesn’t wear a garb of protection of privacy in order to shield himself against the disclosure of information which may be mandated by RTI. In cases where there is a dispute regarding whether the information should be protected under section 8(1)(j) or not, the applicant will have to satisfy the Public Information Officer that the information is for public interest and its disclosure will benefit public as a whole. If the officer is satisfied, the information may be provided. Here the public interest surges ahead of the Right to Privacy of the individual.
Thus, there is a possible paradox between these two rights. However, the question is whether these two rights are so opposing in nature to the extent that they cannot be reconciled? Many efforts have been made to harmonize these two provisions and it has met with a fair amount of success. These two rights can be complementary to each other and promote greater transparency and accountability from governmental authorities.
Understanding the relation between the two with the help of the recent order
Recently, Amita Pandove, an Information Commissioner in a case, S. Muthumalai v. Central Public Information Officer, Department of Posts (2020 SCCOnline CIC 946) provided a lot of clarity regarding the conflict between the two rights. In this case, the applicant had submitted a request to obtain information demanding the certified copies of the delivery sheet of an article along with the date, time and name of the postman who had delivered it to the authorities. The Central PIO had rejected the request citing Section 8(1)(j) of the RTI Act, 2005. The appellant had filed a second appeal under Section 19 of the Act citing unsatisfactory reply on the part of the PIO. He claimed that the PIO had wrongly invoked Section 8(1)(j) and had malafide intention. The first appellate authority had asked the appellant for the particular article number, however since the letter was transferred by the respondent, he was not in possession of the article number.
The Commission gave its decision in favour of the applicant. It said that the exemption under Section 8(1)(j) of RTI can only be claimed when the information which is sought is related to the personal information of the third party, the disclosure of which has no relation whatsoever with any public interest and if disclosed, would cause an unwarranted invasion of privacy of the concerned person. In this case, since the information did not satisfy the above criteria, the exemption was not applicable. It was also held that the Right to Information Act supersedes any departmental rules.
As regards the submission of the respondent that the delivery sheet contained several article numbers, the commission held that denying the true spirit of RTI Act would not be justified when the intended objective can be fully achieved by adopting safeguards. Thus, the Commission asked the respondent to furnish information to the appellant after redacting information related to the unconcerned article numbers.
Conclusion
There is a wide jurisprudence regarding relationship between the Right to Privacy and Right to Information. Various cases like Girish Ramchandra Deshpande v. Central Information Commissioner (MANU/SC/0816/2012), P.C Wadhwa v. Central Information Commission and Ors (LPA No. 1252 of 2009) and Union of India v. Association for Democratic Reforms and Anr. [2002 (3) SCR 294] have laid down rules regarding the adjudication of the fact that which of the rights, information or privacy trumps the other in certain situations. Thus, it can be said that Right to Information and Right to Privacy are not completely irreconcilable, but can work in harmony with each other.
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