October 28, 2021

Right to Information Vs Right to Privacy

Introduction

Information is derived from the Latin word “Informa” and the formation which means to draw a pattern gathering true words and facts about the essentials. Information is the need of the people because somewhere this information affects the life of the people by affecting social, economic, political potential. By gathering such information people and government can take decision according to their will and need. It is also a kind of resource collected by government to frame the decision and policy with the safeguarding the interest of people.

This central legislation Act which is right to information 2005 framed for the citizens. On 11 may 2005 the Lok Sabha passed the Right to Information Act 2005. The Rajya Sabha passed it on May 12, 2005 and the President of India gave his consent on June 15, 2005 and came to be a law on October 12, 2005, and replaced as the Freedom of Information Act, 2002.
This Act came into force throughout the India now including the state of Jammu and Kashmir. This law is very broad and covers the reach of all information related to public interest, and this applicable in the every body of governance state, central and national interest.

According to constitution of India under Article 19 the right to information is mentioned , that enables Indians to enjoy their right to speak as often mentioned by the Supreme Court  the essential information  Right to receive and impart Information. The right to information is going through very decisive phase now days it is very essential to work on the safeguarding and growth of this right to information.

Right to Privacy

The right to privacy is that fundamental right in the constitution of India which is not carefully noticed or analysed. The growing infringement of right to privacy by the state on the name of good intention is increasing day by day but the judiciary taking essential steps for safeguarding privacy right. A landmark judgment in respect to this issue of right to privacy is Kharak Singh v. State of U.P[1]. in this case The Supreme Court gives the judgement that the right of privacy falls under the follow up of Article 21 of the Constitution and therefore it concluded that infringing and destruction the house and property of the person could be the violation of the personal liberty of the person. However, in Gobind v. State of Madhya Pradesh[2], the Supreme Court said the right to privacy and held that a violation of privacy can be possible under the influence of law.

The Supreme Court in Rajagopal v. state of Tamil Nadu[3] held that the right to be alone came up with the right to privacy. In this case the prisoner condemned the right to privacy. By referencing and interpreting the case law in United States of America and the United Kingdom, Justice B.P. Jeevan Reddy held that the right to privacy was not interpreted as a fundamental right; it can be inferred from Article 21 of the Constitution of India.

Another landmark case related to the right of privacy was the People’s Union of Civil Liberties v. the Union of India[4]. The case was related to the tapping the phone of the petitioner which is the crossing line of the privacy of that person and petitioner sued respondent for infringing his right to privacy by doing so , the state and authorised authority can’t do so unless it is not the matter of public emergency and public protection .it is also held that right to privacy must be protected as the fundamental right, with keeping in the mind few exceptions , fundamental rights of the people secured by the state only. Thus, such a laws and judgement does not protect the individual when there is the matter of private parties.

Importance

The Right to Privacy of an individual authorises him or her to protect their domain which includes all the concepts like body, property, secrecy, identity and feelings. The Right to Privacy gives the lawful authority to an individual that which and how much part of his or her domain has to be disclosed to others and what matters are kept to just themselves. Interestingly, it was not directly envisaged by the constitution makers.

Right to information is an instrument which enables the citizen to voice their opinion in an informed manner. The concept of ‘Participatory democracy’ is strengthened by Right to Information. People are now able to satisfactorily exercise their rights in a better manner as they are secured by fundamental rights.

In the current scenario, right to information is of utmost importance. Theoretically, both the rights i.e., Right to Privacy and Right to Information are complimentary in nature and at the same time they are in conflict as well. RTI makes an attempt to provide transparency by giving access to information. In contrast, right to privacy tries to protect the information in garb of violation of privacy. One commonality between both the rights is the fact that both are for preserve the fundamental rights of the citizens. The two rights play a crucial role in upholding the dignity of every individual. The judiciary has looked into the matter and interpreted Right to privacy in many ways

Judicial Pronouncement

After the independence, in M.P. Sharma v. Satish Chandra[1] case, the Supreme Court decided in positive of the practice of search and seizure when contrasted with privacy. Again, the question of privacy arose in 1962 in Kharak Singh v. State of UP[2] wherein the court upheld that the Right to Privacy is not a guaranteed right under the Indian Constitution and ruled in favour of the power of police surveillance with respect to history shelters. J. Subba Rao in the same case delivered a separate opinion and said, “It is true our constitution does not expressly declare a Right to Privacy as a fundamental right, but they said right is an essential ingredient of personal liberty (recognised in Article 21 of the constitution).”

More than a decade later in Gobind Singh v. State of Madhya Pradesh[3] upheld that there is a Right to Privacy under Article 21 of the Indian Constitution, but it is not absolute and subject to some restrictions. This was first time ever in the jurisprudence of independent India that privacy had won; it was a watershed year for the Right to Privacy in India. With the pace of time, the scope of privacy has expanded, and it has come to include personal quintessential data such as medical records and biometrics.

In 1997, in the case of PUCL v. Union of India[4], famously known as the telephone tapping case, the court questioned the tapping of phones of prominent politicians and ordered the government to adhere with the rules and regulations for tapping telephonic conversations i.e. the provisions under the Telegraph Act, 1858 (which deals with interception of calls) and Information Technology Act, 2008 (which deals with interception of electronic data). Justice K.S. Puttuswamy v. Union of India[5] case, considered whether M.P. Sharma and Kharak Singh cases are good law. The nine-judge bench in year 2017 took the decision that Right to Privacy is a fundamental right of an individual under the Indian constitution.

Analysis

This article aims at giving a crystal-clear picture pointing out the features, importance, conflict between the two most essential fundamental rights included in the constitution lately. Both of these rights can be viewed as the different sides of the same coin as they both play an important role but misuses of both can lead to the destruction of the an individual or any organisation. In the context of one’s liberty and dignity to lead his life put an emphasis on Right to Privacy but at the same time a person misusing its liberty calls for the Right to Information to hold that person accountable.

As it is very clear that both the rights plays an important role in enhancing the quality of democracy but it is often left unnoticed that what the hidden conflict between these rights is. Right to Information is an integral part of article 19(1) (a) that is Right to Freedom of Speech and Expression. Under RTI Act, 2005 any individual can exercise his rights and can file an application to know anything which is held by the government body in its hand. Many times, third party information can also be found out by using RTI which can be disputable. Indira Gandhi v. Raj Narain[1], SP Gupta v. Union of India[2], Indian Express Newspapers (Bombay) Pvt. Ltd. v. India[3] these cases have given new milestones to the RTI which broadly discuss about the scope and limitation of the act. RTI is a fundamental right and hence available to everyone equally be it a minister, professor or student.

Right to Privacy is one of the branches of right to life which is given under Article 21 of the Indian constitution. A person has the right to lead their life according to their will and wish and that is the core of Right to Privacy. Any personal information of an individual which government hold is subjected to secrecy and the government is no supposed to make that information public. Following number of the cases like M.P. Sharma v. Satish Chandrawas[4], Kharak Singh v. State of U. P.[5],  R. Rajagopal v. State of T. N.[6] (Autos hanker case) which proposes Right to Privacy being a fundamental right finally the Supreme Court in Justice K.S. Puttuswamy (Retd.) & Another v. Union of India[7] has recognised Right to Privacy as a fundamental right. Privacy on an individual is an essential element of his existence and the same is expected by the government that to keep the personal information private instead of making it public.

But the major question arises that with the existence of Right to Privacy how Right to Information can be exercised, there is no doubt that both the rights overlap each other. It is impossible to state that which right supersede the other hence this unresolved dispute is a point of debate in contemporary world. Both the rights are exclusive yet work hand in hand but there are numerous instances that the Right to Privacy is feared by the Right to Information and vice versa. Basically, this overlapping conflict arises when an individual demands the information from the government which the government is bound not to disclose to the public.

 The sensitive information like bank details, cell phone number, emails, social media activity cannot be provided under RTI hence limiting the RTI Act, 2005. There have been various instances where the personal details of an individual have been made public which curtails his Right to Privacy. Aadhar card being a confidential document has not been able to protect the data of the individual hence creating a chaotic environment in the society. This dispute should be handled by the government at the priority keeping in mind that every individual has the right to access both of these without any violation of others fundamental right. A grey area should be identified by the government for the smooth functioning of the government

The sensitive information can be-

  • Password
  • Address or resident proof
  • Facial image
  • Financial account details like bank account details
  • Fingerprints
  • Medical records
  • Personal property details of an individual
  • DNA proof

This information comes under the ambit of Right to Privacy and the authorities holding this information are not subjected to provide to other individual even exercising right under RTI.

Rights Are Not Absolute in Nature

It should be kept in mind before favouring any right that both of the mentioned right is not absolute. Under RTI Act, 2005 there is list of information which cannot be made public in order to ensure the official safety of the nation and maintenance of public interest. There is an exhaustive list which is mentioned as the exception under RTI Act, 2005. Section 8 discusses about the exception. Likewise, Right to Privacy has its own restriction. Individual’s Right to Privacy can be curtailed to prevent the crime, keep the society in order and prevent terrorism. There is some aspect of the personal life which is made public to ensure the given points. The e-mails between employee and employee can be monitored, the cell phone company tracking the phone to know the location is and absurd act and grave violation of the privacy. So, now the government has to think and lay down certain norms and restrictions to be followed under the Right to Privacy.

The balance must be found out between both the rights and a framework should be made so that both of the right must complement each other. This framework should be based on the ‘reasonability’. The information which are reasonable and does not affect the public interest must be provided under RTI and the information which posses the grave threat to one’s personal life must not be provided to the public. These two elements ‘reasonability’ and ‘public interest must be kept in mind.

Conclusion

The overall hustle to secure one’s right has always been a part of our system and is undetectable. But in the present scenario both, the Right to Privacy and Right to Information can work only in hand in hand. The overlapping should not harm the spirit of any right guaranteed to an individual. To ensure both the rights at the same time the balance between both the rights should be maintained and this unending debate must be provided with the guidelines so that each individual should lead its lie without the fear of compromising their right. At this crucial point of time the government should come up with some concrete steps to guarantee each individual his right to life with dignity.


[1]AIR 1975 SC 2299

[2] AIR 1982 SC 149

[3] (1985) 1 SCC 641)

[4]  AIR 1954 SC 300

[5]AIR 1963 SC 1295

[6] (1994) 6 SCC 632

[7](2017) 10 SCC 1


[1]AIR (1954) SC 300

[2]AIR (1963) SC 1295

[3]AIR (1975) SC 1378

[4]AIR (2003) SC 2363

[5]Justice K.S. Puttuswamy v. Union of India, Writ Petition (Civil) NO. 494 Of 2012.


[1] AIR (1963) SC 1295

[2] AIR (1975) SC 1378

[3] AIR (1995) SC 264

[4] AIR (2003) SC 2363

Author- Kanhaiya Singhal, Faculty of Law, PES University

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