The Right to Information and Privacy: Balancing Rights and Managing Conflicts

Reading time : 12 minutes

ABSTRACT:

Protecting the peace and human wellbeing of a specific society is the main purpose of existing law. However, it’s problematic to mention exactly whether the real purpose of the law may be achieved through the established enforcement approaches like legislations, judgments, standing orders, circulars, regulations, etc. Thus, to make the handiest system, finding a solution to its issue is extremely essential.

Human rights are the universally accepted rights that should be granted to every person to color up their public and personal lives. The right to information is the essence of democracy; it empowers individuals to access information that’s being kept by the state. It ensures transparency because the government remains accountable to individuals within the way it carries out its functions. The right to privacy renders the citizens with a right to control the collection, access, and use of their personal information that’s within the hands of the state.

When there’s friction between the privacy of an individual and the Right to Information, there’s no yardstick to weigh which right should prevail over another. Both the valuable rights overlap extensively, and also 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 relates to regulations governing access to personal information by the govt. This paper attempts to bring a view on sections relevant to the RTI Act and corresponding provisions of the Indian Constitution related to Right to Information and Right to Privacy and comprehensive analysis of the conflicts between the two rights, features cases wherein the court has adopted methods of conceptual balancing to resolve such clashes.

INTRODUCTION:

The right to privacy and the right to information are both essential human rights within the Modern information society. For the most part, these two rights complement one another in holding governments accountable to individuals. But there’s a potential conflict between these rights when there’s a requirement for access to personal information held by government bodies. Where the two rights overlap, states need to develop system for identifying core issues to limitations conflicts and for balancing the rights.

Laws provide a fundamental right for a person to access information held by government bodies. On the other side, the right to privacy laws grants individuals a fundamental right to control the collection of, access to, and use of private information about them that’s held by governments and private bodies. However, the truth is more complex.

Privacy is increasingly being challenged by new technologies and methods. The technologies help the growing collection and sharing of personal information. Sensitive personal data (including biometrics and DNA makeup) are now collected and used normally. Public records are being disclosed over the online platform. In response to current circumstances, almost 60 countries have adopted comprehensive laws that give individuals some control over the collection and use of the data by public and private bodies.

At the same time, the public’s right to information is becoming widely accepted. RTI laws are now common around the world, with legislation adopted in nearly 90 countries. Access to information is being facilitated through new information and communications technologies, and Websites containing searchable government records have become even more widely available. International Bodies are developing conventions, and relevant decisions are being given by the international courts.

Right to Information and Right to Privacy is better considered as “two sides of the identical coin.” They complement each other; one promotes individuals’ right to protect themselves. Both are essential for better governance. The two notions, data, and privacy are interlinked. On one level, the protection of individual privacy is achieved through institutional and governmental transparency, as transparency of actions taken by the govt. or private sector, regarding the individuals, works to inspire belief.

RIGHT TO INFORMATION:

The right of access to information held by government bodies (RTI) provides that individuals have a basic right to demand information held by government bodies. It derives from the right of freedom of expression to “seek and receive information,” and is recognized worldwide as a human right. Under this right, any individual may request a public body; the body is legally required to aware and provide the required information unless there’s a legally compelling reason to refuse the request. The RTI is “requisite for the very exercise of democracy” (OAS 2003). Democracy is based on the consent of the people, and that consent turns on the government informing citizens about its moments and identifying their right to participate. The collection of information by governments is done on behalf of its people the society, and also the public is truly ready to participate in the democratic process when it has information about the activities and policies of the govt. . The RTI is additionally a vital tool for countering abuses, mismanagement, and corruption and for enforcing essential economic and social rights.

  • A right of a person, organization, or legal entity to demand information from public bodies, without having to show a legal interest in that information.
  • Duty of the relevant body to aware and provide the required information. This includes mechanisms for handling requests and specific periods for responding to requests.
  • Exemptions to allow the withholding of certain categories of info… These exclusions include the protecting security of national and international relations, personal privacy, commercial confidentiality, law enforcement and public order, information received in belief, and internal discussions.
  • Internal appeals mechanisms for requestors to challenge the withholding of info…
  • Mechanisms for external review of the withholding of info. This includes setting up an outside body or referring cases to an existing ombudsman or the court system.
  • Requirement for govt. bodies to affirmatively publish a level of information about their structures, rules, regulations, and activities. This can be often done using information and communications technologies.

History Of The Right To Information Act

It took to India 82 years to transition from an opaque system of governance, legitimized by the colonial Official Secrets Act, to one where citizens can ask for the right to information. The recent enactment of the RTI Act 2005 marks a big shift for Indian democracy, for the greater the access of citizens to information, the greater will be the responsiveness of government to group necessitate.

RTI is derived from our fundamental right of freedom of speech and expression under Article 19 of the Indian Constitution. If we don’t have information on how our Government and Public Institutions function, we cannot express any informed opinion on that. Democracy goes around the basic idea of Citizens being in the middle of governance. And the freedom of the press is a required element for a democracy to function. It’s thus obvious that the main reason for a free press is to ensure that Citizens are informed. Thus, it flows from this, that the Citizen’s Right to Know is supreme.

The Act and its rules define a format for requisitioning information, a period within which information must be provided, a method of delivering the information, some charges for applying, and some exemptions of information that will not be given to others.

RIGHT TO PRIVACY:

The quest for privacy is an inherent instant of all human lives. It’s a natural need of any person to establish individual boundaries with almost perfect seclusion. The concept of privacy in its broad sweep covers a variety of chances like non-disclosure of information, sexual affairs, business secrets, and no observance by others. It may be said that privacy is the antithesis of being public, if any private letters to one’s fiend are published in any platform by anyone without his implied or express permission then his privacy would come to be violated. Similarly, if one’s neighbor peeps into his house from outside then it would also constitute a violation of his right to privacy. Thus, privacy is a state of separation from others. Privacy in general means the right to be let lone.

The Indian Constitution didn’t guarantee the Right to Privacy as a fundamental right earlier. In our country, the sole credit goes to the judiciary for recognizing the concept of privacy consider neither the Constitution nor any other statute in our country defined this idea. This idea is quite in the primitive stage of its development. But its development is bound to have a tremendous effect on the individual’s living, however, if we go through various statutes of our country to understand the position of the concept of privacy, then we’d find several provisions which are enacted for protecting privacy. Ss 28,29,164(3) and 165of Crpc, 1973, section 509 of IPC 1860 and section18 of Easements Act,1882 may be taken as an example. Not only this, ancient law in Dharam Shastras also recognized the concept of privacy. The law of privacy has been well expounded within the commentaries of old Law.

Kautilya in his Arthashashtra has prescribed a clear procedure to ensure the right to privacy while ministers were consulted. But neither in ancient law nor within the present law has the term ‘privacy’ anywhere been defined.

It is a matter of pleasure that the emerging trend of the new constitutionalism by our judiciary justifies the necessity of a law trenching on one’s privacy-his dignity. Besides, Article 12 of the Universal Declaration of Human Rights, 1948, Art. 17 of the international covenant on Civil and Political Rights, 1966and Art. 8 of the ECHR have recognized and provided for the protection of this right to privacy. Further, the Nordic Conference of Jurists and Legal Experts also emphasized that the right to privacy is paramount to human happiness.

Right to Information v Right to Privacy- Balancing both rights:

As Right to Information and Right to Privacy is premised upon radically different normative foundations, and that they offer divergent theorems henceforth, it’s inevitable to come across clashes in between RTI is concentrated on ensuring the accountability of powerful institutions to individuals in the information age. It provides rights to individuals tools to obtain information about themselves that’s held by government bodies. RTI laws are the only means to access personal records but don’t apply to the private sector.

The government stores a huge amount of information about individuals in its dossiers supplied by individuals in applications made for getting various licenses, permissions adding passports, or through disclosures such as tax returns or for census data. Through the Right to information, an applicant can solicit government records containing information concerning identifiable individuals. In 1998, using Article 8, of the ECHR, as a basis, the European Court of Human Rights ruled that in cases where a lack of insufficient information could endanger their health, individuals can demand information from government bodies.

In many countries, like the United States and the United Kingdom, RTI laws are a primary tool utilized by privacy advocates to spot abuses and to campaign effectively against them. Hence using RTI to promote Privacy.

In some cases, this can involve the disclosure of data about public officials. In others, it’ll include disclosure of data concerning ordinary citizens. Considering one man’s freedom of information is another man’s invasion of privacy; a right to receive information to accomplish greater transparency in public life could affect the right to privacy of an individual. The provided data not only becomes available for legitimate users but also illegitimate users too. In each instance, the matter of the information can likely raise a privacy protection concern.

RTI Act has an exemption for personal information, but the term “personal information” is amorphous as the act doesn’t 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 a great many crucial matters citing privacy concerns, which altogether defeats the very purpose of the Act.

Balancing between Right to Information and Right to Privacy:

The primary ambition of the Indian Constitutional Scheme is based upon the “Balance of Rights” and not the “Demarcation of Rights” because it doesn’t provide any yardstick to measure which right should prevail over others. The principle of indivisibility of fundamental rights needed that both rights carry same of  weight. Neither right is used as a trump over the opposite 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 kind of challenging in practice.

To conciliate the two rights in majority cases becomes a constitutional challenge and it has to needs to be squared through the agency of judicial process to tussle with a large no. of nuances and subjectivities

Section 8(1)(j) of the RTI Act explicitly exempts disclosure of personal information, but it’s incidental to the public interest which may warrant disclosure of such information to an applicant by the public authority whereby conveying no exemption and, if need be, put away the right to privacy. However, the hurdle lies with demarcating the extent or bound to which personal information could also be disclosed. Though there’s no straitjacket course to select 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 a person to be disclosed having regard to the broader question of public interest for the good of the society at large. In case of strike between the two Fundamental Rights, judges are called upon to analyze the problem on a case-by-case basis. It’s a required task to resolve the conflicts between these two rights and maintain equilibrium between them to safeguard and promote the interest of human rights.

Aadhaar versus the right to privacy :

The Aadhar Act has deep-rooted issues attached to it when it comes to breach of security and ultimately privacy. There are other alternatives to implement Aadhaar which might make it a justified, clean, and clear program. The Government’s stance and defense in the matter are always focused towards the objective of evasion of corruption by implementing linkage unique identification to PAN, Income Tax matters, banks, etc. to avoid crimes such as tax frauds.

The Aadhaar scheme has more than lived up to its objectives. For example, the Aadhaar scheme has greatly assist inclusive finance by adding more than 29 cr. in new bank accounts and saved the Government over Rs. 34000 cr. through direct transfer of benefits (DBT). India must formulate stricter privacy control on the data collected.

In the present situation, the Aadhaar regime has several unanswered privacy concerns that would lead to an unfortunate and unnecessary setback to all regimes. Therefore, the call for comprehensive legislation for the protection of an individual’s right to privacy is imperative, especially in light of the dramatic increase in the number of internet users in India once a year. As in most cases, a judicious balance between protecting our fundamental rights and changing the lives and efficiencies of the majority of our citizens is that the crux. Finally, Government and judiciary will create a harmonious, win-win solution for all. However, the objective is of crucial importance, the privacy of citizens is of supreme importance as privacy is now a fundamental right in India.

JUDICIAL PRONOUNCEMENTS :

Allahabad HC in Nihal Chand v. Bhawan Diet took the initial step when it recognized an independent existence of the right to privacy as turn up from the customs and traditions of the people besides being a statutory right. It observed: ‘the right to privacy relay on social custom….is different from a right to privacy based on natural modesty and human morality, the latter isn’t confined to any class, creed, color, or race and it’s a birthright of any person and is sacred and should be observed. The right should not be exercised severely.

Then M.P. Sharma v. Satish Chandra (1954 AIR 300) was the initial case before the Supreme Court wherein it had a chance of considering the constitutional status of the RTP in the context of state power of search and seizer, but a very particular view of constitutional provisions was taken during this case. Unfortunately, the opportunity was missed and the right to privacy couldn’t be put into public law.

In Kharak Singh v. the State of U.P(AIR 1963 SC 1295 ) the petitioner was charged and tried for committing dacoity and he was subjected by the police to domiciliary visits and surveillance. While determining the validity of such surveillance and visits  by the police, the apex court inspect whether the right to privacy formed a part of personal liberty. It observed that personal liberty is a compendium of rights that go to make up the personal liberty of an individual and that the right to life in Art. 21 of our constitution is similar to that of the fourteenth and fifteenth amendments to the US Constitution. Furthermore, the Wolf v. Colorado decision held that the common law rule that a man’s house was his castle expounds a concept of personal liberty that failed to rest on a theory that no longer existed, and that the domiciliary visit was repugnant to personal liberty and thus unconstitutional.

In Pooran Mal v. Director of Instruction top, the court restricted the right to privacy to search and seizure.

In fact, in an exceedingly landmark judgment within the case of People’s Union for Civil Liberties v. Union of India, the Supreme Court held that “right to life and personal liberty includes the right to privacy and right to privacy includes telephone conversation within the privacy at home or office and thus telephone tapping violates Art. 21”.

In R. Rajagopal v. the State of T.N. popularly called the “Autoshanker case” the Supreme Court has expressly held the “right to privacy” or the right to be let alone is guaranteed by Art. 21 of the constitution. A citizen has the right to protect his or her own privacy, as well as the privacy of his or her family, marriage, procreation, motherhood, childbearing, and education, among other things. Nobody may publish anything about the aforementioned subjects without his permission, whether true or false, laudatory or critical. If he does so, he will be infringing on the rights of the person in question and will be liable in a damages action. However, their position could also have differed if he voluntarily puts into controversy or voluntarily invites or raised a controversy.

Ram Jethmalani and Ors. V. Union of India apex Court held:

“Right to privacy is an integral a part of the right to life, a cherished constitutional value and individual’s general must be allowed domains of freedom that are free for the general public scrutiny unless they act unlawfully.

CONCLUSION:

Access to information and privacy protection are both rights intended to assist individuals in holding the government accountable. Most of the time, the two rights balance each other out. However, there are conflicts; for example, governments frequently inadvertently invoke privacy laws. And there are some instances where the issues are legitimate. There is no easy way to achieve balance. There is no simple solution to balancing the two rights, but most problems can be mitigated by enacting clear definitions in legislation, guidelines, techniques, and oversight systems. It is critical that governments take care when writing laws to ensure that the definitions of personal information in access to information and data protection laws are consistent. It is critical that governments take care when drafting legislation to ensure that the definitions of personal information in the access to information and data protection laws are consistent.

Author: CHAITANYA PALISETTY, PES UNIVERSITY

Editor: Kanishka VaishSenior Editor, LexLife India.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s