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Balancing The Right To Information With Developing The Right To Privacy

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.[1]

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.[2]

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 of Madras (1931), the court pronounced that freedom of speech and expression not only includes propagating one's views but also propagating and publishing other's views.[3]

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.[4]

Right to information is essential because: 'without adequate information, a person cannot form an informed opinion, and democracy is mockery without an informed citizenry.'[5] Furthermore, the Supreme court also opined that freedom of speech and expression includes the right to read and to be informed.[6]

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.[7]

Consequently, on 15th June 2005, the landmark right to information act was given assent by the then president A.P.J. Abdul Kalam[8] and came into force on 12th October 2005.[9] This act was enacted to enable citizens to access information under the control of public authorities, hence promoting transparency and accountability in government functions.[10]

Right to privacy

Earlier, the right to life was subjected only to battery in tort law; later, its scope gradually broadened.[11] 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).[12] Similarly, protection against bodily injury was also raised from battery to assault (now, putting under threat is also a bodily injury).[13]

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.[14]

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 (1994)[15], People's Union for Civil Liberties (PUCL) v. Union of India (1994)[16], and State of Maharashtra v. Bharat Shanti Lal Shah (2004)[17], 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.[18]

Later 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.[19] 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'.[20] Subsequently, the right to privacy was not clearly defined, and Indian Judiciary dealt with its scope on a case-to-case basis.

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.[21] 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 (2002), 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 liabilities.[22]

However, this was later contested in the case of PUCL v. Union of India (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.[23] 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.[24]

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.[25] 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,
  1. 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.'[26]

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.[27] 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 Julka (2020), wherein the husband submitted a Compact Disk (CD) to support his claims against his wife, which the family court considered.[28] 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 to society.

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.[29] 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'.[30] 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 right.

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 protestors.[31]

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.[32] 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 (2017), the 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.[33]

Moreover, the collected personal information is shared among the companies to track human behaviour and make partners.[34] 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.[35]

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 prison.[36]

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.[37] 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.'[38]

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.[39] 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." [40] 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.

Conclusion
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 case-to-case basis.

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 others' rights.

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 information.

End-Notes:
  1. Right to Information Act 2005, India, available at: https://rti.gov.in/rticorner/studybypwc/Executive%20Summary. pdf (visited on June 12, 2022)
  2. Nandini Chhabra, "striking balance between right to privacy and right to information: critically studying the Indian scenario", volume II Issue III ISSN: 2583-0538, IJIRL, 3 (2018)
  3. Srinivas v State of Madras, AIR 1931 Mad 70.
  4. Rout Chintamani, "right to information act: An endeavour for deepening democracy", 2, IJSERHLA, 66 (2014).
     
  5. Ibid.
  6. Bennete Coleman and co v. Union of India, AIR 1973 SC 106; Maneka Gandhi vs Union of India, (1978) 1 SCC 248.
  7. Raj Narayan v. Uttar Pradesh, (1975) AIR 865.
  8. Sharma, Prashant, "The right to information act in India: the turbid world of transparency reforms", LSE THESES ONLINE(2012), http://etheses.lse.ac.uk/579/ (Visited on June 10, 2022).
  9. Supra 1.
  10. Right to information act, 2005, (Act 22 of 2005).
  11. "Evolution of the Right to Privacy", LawTeacher, https://www.lawteacher.net/free-law-essays/ Constitutional-law/evolution-of-the-right-to-privacy-Constitutional-law-essay.php) (Visited on July 21, 2022).
  12. Warren, Samuel D., and Louis D. Brandeis. "The Right to Privacy." vol. 4, no. 5 HLR 193(1890).
  13. Ibid.
  14. David Banisar, "The Right to Information and Privacy: Balancing Rights and Managing Conflicts", 4 HLR (2011).
  15. R.Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
  16. People's Union for Civil Liberties (PUCL) v. Union of India, 1994 SCC (6) 632.
  17. State of Maharashtra v. Bharat Shanti Lal Shah, (2004) 2 SCC 476.
  18. Supra 2.
  19. K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1.
  20. Supra 2.
  21. Devika sharma, "Interplay between Right to Information and Right to Privacy", SCC Blog, https://www. scconline.com/blog/post/2020/11/20/interplay-between-right-to-information-and-right-to-privacy/ (Visited on July 11).
  22. Union of India v. Association for the Democratic Reforms, 2002 SCC 10 111
  23. PUCL v Union of India, AIR [2003] SC 2363.
  24. Girish Ramachandra Deshpande v Central Information Commissioner & Ors, 2013 AIR BOMR 1 230.
  25. Canara Bank v. C.S. Shyam, (2018) 11 SCC 426.
  26. Right to information act, 2005, (Act 22 of 2005).
  27. Supra 14.
  28. Deepti Kapur v Kunal Julka, 2020 SCC Online Del 672.
  29. K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1.
  30. Ibid.
  31. In-Re Banners Placed on Road Side in The City of Lucknow Vs. State of U.P., 2020(4) ADJ386.
  32. Tehilla Shwartz Altshuler, "Privacy in a digital world", TechCrunch, https://social.techcrunch.com /2019/09/26/privacy-queen-of-human-rights-in-a-digital-world/ (Visited on June 13).
  33. Supra 29.
  34. Supra 32.
  35. Ibid.
  36. Soumya Tiwari, "No Privacy for Prisoners in India", The RMLNLU Law Review Blog, https://rmlnlulawreview .com/2020/08/01/no-privacy-for-prisoners-in-india/ (Visited on July 14, 2022).
  37. Supra 29.
  38. Supra 32.
  39. Masha Komnenic, "Privacy Laws Around the World", Termly, https://termly.io/resources/infographics /privacy-laws-around-the-world/ (Visited on August 22, 2022).
  40. PrivacyPolicies.com Legal Writing Team, "What's Data Privacy Law In Your Country? ", Privacy Policies, https://www.privacypolicies.com/blog/privacy-law-by-country/ (Visited on June 20, 2022).

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