Indian Constitution guarantees six fundamental rights: the right to equality,
the right to freedom, the right against exploitation, the right to freedom of
religion, cultural and educational rights, and the right to Constitutional
remedies. Being a democratic country, it also guarantees the right to
information derived from the right to freedom of speech and expression to
promote transparency and accountability.
Thereby empowering citizens to seek any
information from the government about its functions, policies, and other related
documents to inspect its work. Additionally, it helps citizens determine whether
the vested duties are discharged accordingly. Consequently, it checks corruption
which is constantly growing in society. This constant vigilance makes the
government accountable and productive.
Constitution also guarantees the right to privacy derived from the right to
life. The right to privacy is a fundamental right that completes the actual
purpose of the right to life; reasonably, one cannot be expected to only lead a
life without having the freedom to enjoy it to the fullest in one's own private
space with their priorities. This right enables every individual to lead a
private life without any interference from an outsider. Though the right to
information and privacy are not absolute rights, they ensure that the government
is accountable to every individual in a democratic country like India.
India has transformed itself into a digital economy to face the advanced world.
This digitalised age made everything easy and rapid. However, it also had
another face of growing insecurities as data pooling is one of the features of
this age, which endangers privacy. Therefore, the right to information and
privacy became pivotal rights in the contemporary world. Nevertheless, these two
rights often contradict each other. If one of the rights is guaranteed, the
other will be at stake, so the Indian Constitution always tries to balance
fundamental rights rather than granting them absolutely.
Nonetheless, one cannot ignore that the growing technological world is
intervening in an individual's private space where one is always kept under
surveillance. CCTV cameras and other monitoring objects constantly watch us.
Therefore, there is an urgent need to develop the right to privacy.
This paper is trying to answer whether we can balance the right to information
with developing the right to privacy.
Right to information
The right to information is recognised as the 'most important basic human right'
at the international level scilicet, the Universal declaration of human rights,
the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural rights, and also recognised at many
other regional levels.
Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of
speech and expression, including the right to information. Indian democracy
became a responsible, interactive, and participative democracy after enacting
the right to information act.
Subsequently, it helps the citizens eliminate
corruption, bringing good governance to society. The idea of freedom of speech
and expression started to expand in the 1930s; in the case of Srinivas v State
(1931), the court pronounced that freedom of speech and expression not
only includes propagating one's views but also propagating and publishing
Many other states, including Goa, Tamil Nadu, Delhi, Karnataka, Madhya Pradesh,
Rajasthan, Jammu and Kashmir, and Maharashtra, recognised that Article 19(1)(a)
includes not only the right to communicate but also the right to receive the
information communicated and had enacted similar laws prior to the passage of
the Right to Information Act.
Right to information is essential because:
'without adequate information, a person cannot form an informed opinion, and
democracy is mockery without an informed citizenry.' Furthermore, the Supreme
court also opined that freedom of speech and expression includes the right to
read and to be informed.
Eventually, in the case Raj Narayan v. Uttar Pradesh
(1975), Supreme Court clearly stated that the right to information is a
fundamental right derived from Article 19(1)(a) of the Constitution.
Consequently, on 15th June 2005, the landmark right to information act was given
assent by the then president A.P.J. Abdul Kalam and came into force on 12th
October 2005. This act was enacted to enable citizens to access information
under the control of public authorities, hence promoting transparency and
accountability in government functions.
Right to privacy
Earlier, the right to life was subjected only to battery in tort law; later, its
scope gradually broadened. Now it meant the right to enjoy the life that is
right to be let alone, the right to liberty which secures the exercise of
extensive privileges, and the term property was extended to every form of
possession (tangible and intangible). Similarly, protection against bodily
injury was also raised from battery to assault (now, putting under threat is
also a bodily injury).
Consequently led to the evolution of the right to
privacy. The right to privacy is a broader concept, including protection from
intrusions into family and home life, sexual and reproductive rights control,
and communications secrecy.
Till 2018 Indian Constitution has not ultimately recognise the right to privacy.
It was later included as a part of Article 21 of the Constitution, which is the
right to life. In the cases R. Rajagopal v. State of Tamil Nadu
People's Union for Civil Liberties (PUCL) v. Union of India
State of Maharashtra v. Bharat Shanti Lal Shah
(2004), the Supreme court
debated recognising the necessity of the right to privacy. It acknowledged it to
be a fundamental right. In 2015 a three-judge bench, a constitution bench, was
set up to decide whether the right to privacy is a fundamental right.
it was referred to a nine-judge bench which unanimously declared the right to
privacy as a fundamental right. This nine-judge bench also passed a landmark
judgment on the case K.S. Puttuswamy v. Union of India
(2017), upholding the
fundamental right to privacy under Article 21 of the Constitution of India.
Justice S.A. Bobde further held that 'other fundamental rights also guarantee
the right to privacy along with Article 21:
Art 19(1), 20(3), 25, 28, and 29,
and in the current situation, these rights are aided and made relevant by
exercising the right to privacy and this is not a comprehensive list. Future
technological and sociological advancements may well reveal that there are
additional constitutional sites in'. Subsequently, the right to privacy was
not clearly defined, and Indian Judiciary dealt with its scope on a case-to-case
The interplay between the rights
Right to information versus Right to privacy
The right to information and the right to privacy are contradictory rights.
These are the two sides of the same coin whereby enforcing one right overturns
the other. Thus, the right to information restricts individuals from accessing
the information intruding on the privacy of any individual unless it is
necessary for the greater public good. Thereby allowing individuals to
exercise the right to privacy. The same was reflected in the following judgments
given by the supreme court:
In the case Union of India v. Association for the Democratic Reforms
Supreme Court directed the Election Commission to collect information from the
candidates competing in the elections either for parliament or state legislature
and from their spouses and dependants about their assets and
However, this was later contested in the case of PUCL v. Union
(2003), where it was argued that disclosing information about the
assets and liabilities of the spouses of candidates would violate their right to
privacy. However, the Supreme Court ruled that this would advance the right to
information of the voter and the citizenry.
However, the Supreme Court ruled that this would advance the right to
information of the voter and the citizenry. Accordingly, the Supreme court
ruled that when there is a conflict between the right to information and
privacy, the former prevails as it serves the larger public interests.
Whereas, in the case Girish Ramachandra Deshpande v Central Information
Commissioner & Ors
(2013), SC held that disclosure of the information regarding
public servant's emoluments and assets, including income-tax returns and details
of gifts received by him, breaches the right to privacy of the public servant as
it is no way related to the greater public good, thereby it is exempted under
Sec 8(1)(j) of the right to information act.
This was again reiterated in
the case Canara Bank v. C.S. Shyam
(2018), wherein the court refused to disclose
the personal information of a Canara bank employee as it was outside the scope
of exercising the right to information; moreover, it was not serving any public
interest. Therefore, as per the Jurisprudence, it is clear that when there
is a breach of the right to privacy, it overweighs the right to information if
it is in no way related to the greater public good.
The same was laid in the balancing act under Sec 8(1)(j) of the right to
information act. Which reads as follows:
'Notwithstanding anything contained in this act, there shall be no obligation to
give any citizen,�
- Information which relates to personal information the disclosure of which
has no relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information Officer or the
appellate authority, as the case may be, is satisfied that the larger public
interest justifies the disclosure of such information.'
However, the words like "personal information," "public activity," "unwarranted
invasion," or even "public interest" were not defined by the right to
information act, which is due to the lack of privacy laws in India.
Consequently, many definitions are not accurate and precise in jurisprudence.
These vague terms have retained the disparity between the rights as the law does
not classify them.
Thus, it leaves to the judges' discretion to classify the information to be in
the interests greater public good or not on a factual basis. While this may
invite the biases of the judges misleading the purpose of the act of maintaining
the privacy of the individuals while exercising the right to information.
Restricting the right to privacy to unearth the truth
One can find situations where the right to a fair trial and privacy competes.
This was soon balanced in a matrimonial dispute case Deepti Kapur v Kunal
(2020), wherein the husband submitted a Compact Disk (CD) to support
his claims against his wife, which the family court considered. Later, the
wife moved to the Delhi High Court, claiming that the conversation between her
and her so-called friend was recorded without her knowledge or consent, which
breached her right to privacy.
Therefore, the CD is not admissible. The court examined the husband's position,
who is entitled to present evidence to prove cruelty on the wife's part and to
prove the dissolution of marriage on the ground specified under the family law
and held that the right to a fair trial precedes the right to privacy. Though
this breaches the right to privacy, one needs to compromise it to bring justice
Indian Jurisprudence upholding Privacy
Whenever there is a conflict between the rights Judiciary tries to balance them.
In the case K S Puttaswamy v. Union of India
(2017), a contention was
raised stating that the Aadhar card violates citizens' right to privacy.
Supreme court of India held that 'the right to privacy safeguards one's freedom
to make personal choices and control significant aspects of their life. In
addition, it noted that personal intimacies (marriage, procreation, and family),
including sexual orientation, are at the core of an individual's dignity'.
Moreover, the Supreme court has recognised that the right to self-determine
sexual orientation is an aspect of the right to privacy and a natural human
The enactment of the Citizenship Amendment Act triggered many protests all over
India. The Uttar Pradesh government suspecting vandalism had displayed banners
in Lucknow with all the information about the protestors, including their
personal data. The administration has lodged a complaint demanding to pay for
the public demolition; otherwise, the property will be confiscated. The High
Court held that the state's action had intruded on the right to privacy of the
Individual Privacy At Stake In The Globalised World
Technological progress has threatened one's right to privacy by data pooling.
Nowadays, the commercial world holds all the private data of individuals. Vast
data is being stored by the government and multi-national companies, where the
data is encrypted unless we consent. Here they protect our data from being
accessed as long as we give consent to others to access our information. Once we
consent to disclose our information to a person, that person has the right to
access our personal information.
Nevertheless, every user must agree to all the terms and conditions before
accessing the app, and we all end up permitting without going through it.
Though we allow the app at first, we do not know what all the consequences we
must face after that unless we are well versed with the digital language. Once
we accept the given terms and conditions, they have the right to access and
transmit our data; and can be put to various uses without our knowledge or
consent. There is no clue where our data is being transferred. Therefore, the
digital world seems to be securing our data. Indeed, it violates our privacy by
using our personal information.
Furthermore, in the case K S Puttuswamy v Union of India
Supreme court has recognised that Informational privacy is an aspect of the
right to privacy. Every individual has the right to control their data and be
able to control their existence on the internet. Accordingly, the unauthorised
use of such information violates the right to privacy of that individual.
Moreover, the collected personal information is shared among the companies to
track human behaviour and make partners. Our individual choices are tracked
without consent, violating our right to personal preference. This technological
world constantly puts us under surveillance as one can find CCTV cameras at
every corner in public spaces, and digital monitoring enables the master to
watch anyone constantly without permission.
Our day-to-day activities are continuously monitored, indicating that technology
invades our privacy. Moreover, in 2015, the Supreme court of India directed all
the state governments to install CCTV cameras inside the prisons to reduce
custodial deaths and torture. However, it has violated the prisoners' right to
privacy, especially the female inmates who spend most of their time inside the
While dealing with the right to privacy, Justice R.F. Nariman opined that
privacy is relatable to a person's body, informational privacy relatable to a
person's mind, and privacy of choice are the three dimensions of privacy.
Eventually, the digital economy has invaded all three dimensions of privacy,
which triggers the urgent need to develop this right. Though privacy is not
absolute in India, it should not be ignored as it is a fundamental basic right.
Dr. Tehilla Schwartz Altshuler opined that 'as the right to freedom of speech
and expression was developed, so too privacy must grow and develop � from the
right of individuals to trade in their data, into a collective right of defence
against autonomy traps, in the context of elections and mind control.'
Many countries are trying to develop their privacy policies to tackle these
issues. More than 100 countries around the world have enacted their new privacy
laws. For example, Argentina has enacted privacy laws in which one can only
access private information when they have informed consent from the subject.
Informed consent means "mentioning the reason behind gathering data,
consequences of refusing to provide data or proving inaccurate information,
their right to access, correct or delete data."  Except for basic
information such as name, occupation, date of birth, and address, these laws
apply to even browser cookies.
Furthermore, one can request the deletion of data anytime. Similar laws are
enacted in countries like Brazil, Australia, Canada, and others to secure their
citizens' private data. Moreover, this does not violate the right to information
as the person empowered by law can get informed consent and exercise his right.
Right to information and privacy are of equal worth as human rights; however,
they diverge their paths to achieve their objective of bringing accountability
which results in good governance. Whenever these rights conflict, Judiciary
tries to maintain parity between the rights by defining privacy on a
However, this will not bring a balance between the rights. The government has
also enacted a balancing act to achieve a balance between these rights, which
turned out to be ineffective as the sections of the act were unclear and vague.
Moreover, the Constitution did not define privacy and was meant to be determined
on a case-to-case basis. Therefore, to bring harmony, the Indian Government
should clearly define the rights and limitations by making strict rules and
regulations, enabling citizens to exercise their rights without violating
Since the technological world has endangered privacy, many countries have
enacted strict privacy laws to protect their citizens' personal information.
These laws enable citizens to exercise their right to information with informed
consent. Similarly, the Indian government should also implement stronger privacy
laws that are accurate in encrypting private information. Eventually, this helps
the country develop citizens' right to privacy by balancing their right to
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- Supra 1.
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and Managing Conflicts", 4 HLR (2011).
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- Supra 2.
- K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1.
- Supra 2.
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Privacy", SCC Blog, https://www. scconline.com/blog/post/2020/11/20/interplay-between-right-to-information-and-right-to-privacy/
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- Union of India v. Association for the Democratic Reforms, 2002 SCC 10
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2013 AIR BOMR 1 230.
- Canara Bank v. C.S. Shyam, (2018) 11 SCC 426.
- Right to information act, 2005, (Act 22 of 2005).
- Supra 14.
- Deepti Kapur v Kunal Julka, 2020 SCC Online Del 672.
- K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1.
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- Supra 32.
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