Right to Information V. Right to Privacy

“Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing.” – Justice P. N. Bhagwati

Democracy that encourages participation requires accountability and transparency in administration as a matter of necessity. Any citizen needs information to survive in the societal framework of civilization and preserve the democratic equilibrium. Information is oxygen. In India, the Right to Information (RTI) was established by decisions of the courts, which allowed it to stand out as a Fundamental Right under Article 19 (1) (a).

“On one hand, the right to know was first introduced to the Indian people through judicial pronouncements and is now protected, promoted, and defended by the RTI Act. On the other hand, the right to informational privacy is a fundamental right that is routinely used by the State to bypass the right to information (‘RTI’). The Supreme Court has recognized the importance of both rights under the Indian Constitution and has affirmed their protection through Article 19(1)(a) – Right to freedom of speech and expression – and Article 21 – Right to life.”

However, when they are faced with the necessity to choose between these two fundamental rights, how do they make that decision? These two invaluable rights share extensive overlap, and the existing framework lacks the capacity to separate them without causing harm to one or the other. The argument is that the Right to Information (RTI) and the Right to Privacy (RTP) are not conflicting but complementary. But the courts have not been able to implement this in practice.

THE CONFLICT BETWEEN THE TWO RIGHTS

“In India, the right to informational privacy and RTI squarely clash insofar as ‘personal information’ is sought via an RTI claim, which according to Section 8(1)(j) cannot be disclosed, except in cases of public interest. However, the provisio to the section says that “the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” A plain reading of this postulates an ‘equality in privilege’ between the individual citizen and the legislature. The RTI Act, however, does not define “personal information”, “public activity”, “unwarranted invasion”, or even “public interest”. This has resulted in exceedingly imaginative invocation of this exemption.

There has been an unfortunate tendency among Public Information Officers (PIOs, to keep various categories of information, especially related to the functioning of public servants, secret from the public under section 8(1)(j). Categories of information where tension between the RTI and the RTP has surfaced from time to time, and could potentially be exacerbated after the Puttaswamy judgement, include assets and liabilities of public servants, income tax returns, performance evaluation of public servants, educational qualifications and degree related information.

Citizens have the right to “inspection of works, documents, records; taking notes, extracts, or certified copies of documents or records” that are kept by “public authorities,” which can be any organisation that is owned, managed, or significantly funded by the relevant government, according to the RTI Act of 2005.”“Records, documents, memos, emails, opinions, advice, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any electronic form, and information relating to any private body which can be accessed by public authority under any other law currently in effect” are all considered information under the Act.

These clauses can raise concerns like; who may be able to access personal medical information stored in government-run healthcare facilities and research initiatives? Whether the right to information encompasses such information? It could happen that some institutionally designated PIOs might be unsure of the legality or the consequences of turning down requests from third parties for private data of patients or research subjects because the RTI Act stipulates severe penalties for PIOs who fail to comply with a valid request for information.

BALANCING RIGHT TO INFORMATION AND RIGHT TO PRIVACY

The central aim of the Constitution of India revolves around achieving a “Balance of Rights” rather than distinctly delineating them, because there exists no definitive yardstick to determine the supremacy of one right over another. The principle of the indivisibility of fundamental rights mandates alternative mechanisms for resolving conflicts. This presents a practical challenge. Finding a harmonious equilibrium between the Right to Information and the Right to Privacy often proves to be a constitutional dilemma, where judicial intervention is required.

Section 8(1)(j) of the RTI Act explicitly excludes the disclosure of personal information. However, exceptions may arise in cases where public interest warrants disclosure. Hence, the challenge lies in precisely defining the boundaries within which personal information may be revealed. There exists no universal formula. In instances of conflicts between these fundamental rights, judges are tasked with a case-by-case analysis. While the Right to Information facilitates access, the Right to Privacy establishes boundaries. Both rights carry equal weight, with neither prevailing as a trump card over the other.

Corruption and conflicts of interest can complicate the understanding of these rights, and therefore, it is important to establish a harmonious relationship between the Right to Information and the Right to Privacy.

CONCLUSION

There is a complex interplay between Right to Information and Right To Privacy, both integral facets of the Indian Constitution. It is important to acknowledge the non-absoluteness of either right. A crucial concern is that while safeguarding these rights, it should be kept in mind that these two rights are not conflicting, rather thy can complement each other. For creating this balance, there should be establishment of clear definitions, guidelines and methodologies. This approach can lay a foundation for informed policy making and can harmonise the dual-objectives of transparency and privacy in a democratic country like India.

Author: Yukta Chordia, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing