It is quite interesting how two of the most cherished rights, The Right to
Information and The Right to Privacy, though being poles apart, and
contradictory and antagonistic to each other, still exist together,
complementary to each other, in the Indian Legal System. Both are two essential
rights for the survival of a human being in the rapidly advancing, modern and
technical world - where, the protection of an Individual's privacy and Security
are becoming a matter of concern.
Though not explicitly mentioned under the Constitution of India, it was through
various judgements of the apex court, held that, both the rights are a part of
the fundamental rights - wherein, The Right to Information stands as a part of
Article 19(1)(a) - Right to freedom of speech and expression, and The Right to
Privacy holds a position under the provision, which is also known as the Heart
of the Indian Constitution - Article 21: Right to Life.
The privacy of the individual is being increasingly challenged by new
technologies and trends in the society. In such a circumstance, where, it
becomes of significance to choose between two essential rights - which one do we
choose and how?
This paper deals with third party information, which includes personal
information. For a biological person, the protection of Right to Privacy is
available under Article 21 of the Constitution of India. Though such protection
is not available to other kinds of Third party information, legal right
conferred by RTI Act and other Statutes are available to those third parties.
This aspect is as important Right to Privacy. The lacuna present in RTI Act with
reference to this type of personal information is also present and equally
effecting the interests of third parties in the other types of third party
information. The problem needs to be plugged in both the cases.
In this paper, an attempt has been made to underline the importance of both the
rights, i.e., The Right to Information and The Right to Privacy, and the various
conflicts concerning their relationship, and possible solutions to the issues
concerned, after an analysis.
The Right to Information
- What is Information?
"Information is the resolution of uncertainty; it is that which answers the
question of "what an entity is" and thus defines both its essence and nature
of its characteristics. Information relates to both data and knowledge, as
data represents values attributed to parameters, and knowledge signifies
understanding of a concept."
According to Section 2(f)1 of The Right to Information Act, 2002,
"Information" means any material in any form, including records, documents,
memos, e-mails, opinions, advices, press releases, circulars, orders,
logbooks, contracts, reports, papers, samples, models, data materials held
in any electronic form and information relating to any private body which
can be accessed by a public authority under any other law for the time being
Information, basically, is everything that can be related to anything. It is
something of some value, which might be beneficial to someone. Every citizen
has a right to impart and receive information as part or his right to know.
Right to know cannot be separated from a democratic polity. Right to
information is necessary for self expression, which is an important means of
free conscience and self-fulfilment. It enables people to contribute on
social and moral issues and it is the best way to find a truest model of
anything, since it is an only through it that widest possible ideas can be
- Why is it necessary?
First of all, what is the meaning of the word "Democracy"? Democracy basically
means, "the people's rule" - it is made by the people and for the people. And
if, in a democracy, the people are such an important element, then, how can a
democracy survive, if the people themselves do not know what is going around
them, and what their elected representatives are doing? In a democracy, the
people have the right to ask, or question their government, or in simple terms,
they have the right to seek information.
Information is essential to resolve many issues, to take decisions, and to
increase knowledge in different areas. It has indispensable function in the
growth of societies in any nation.
India is a democratic country, and as per the Preamble to the Right to
Information Act, 2005,2 "democracy requires an informed citizenry and
transparency of information which are vital to its functioning and also to
contain corruption and to hold Governments and their instrumentalities
accountable to the governed." Informed citizens are better equipped and prepared
to keep a constant vigil on the instruments of the governance and hold the
government more accountable to the people. Information empowers and enables
people; pushes them towards exercising their legal, social, economic and
political rights. Almost every society has recognised the same by way of putting
in place the mechanisms for free flow of information and ideas so that people
can access them whenever it is required without too many procedural, or
Genesis of the RTI Act, 2005
Dr. Manmohan Singh, the then Prime Minister of India, when bringing to light
India's first significant step towards anti-corruption � The Right To
Information Bill, said:
" The passage of the Bill will see the dawn of a new era in our processes of
governance, an era of performance and efficiency, benefits of growth will flow
to all sections of the society, eliminate the scourge of corruption, and will
bring the common man's concern to the heart of all processes of governance and
fulfil the hopes of the founding fathers of our Republic."3
The Right to Information Bill having been passed by both the Houses of
Parliament, received the assent of the President on 15th June 2005. It came on
the Statute Book as THE RIGHT TO INFORMATION ACT, 2005 (22 of 2005). The basic
objective of this Act is to harmonise the conflicting public interests, that is,
ensuring transparency to bring in accountability and containing corruption on
the one hand, and at the same time ensure that the revelation of information, in
actual practice, does not harm or adversely effect other public interests which
include efficient functioning
of the governments, optimum use of limited fiscal resources and preservation of
confidentiality of sensitive information, on the other hand; Institute of
Chartered Accountants of India vs. Shaunak H. Satya4.
As per the Preamble to the Right to Information Act, 2005, "The Right to
Information Act, 2005, is an Act to provide for setting out the practical regime
of the right to information for citizens to secure access to information under
the control of public authorities, in order to promote transparency and
accountability in the working of every public authority, the constitution of a
Central Information Commission and State Information Commissions and for matters
connected therewith and incidental thereto.
The right to information derives its origin from the Constitution of India,
1950, as one of its sources. The right to information is a recognised
Fundamental right under "Article 19(1)(a)"5 of the Constitution of India,
1950, which states that, "All citizens have the right to freedom of speech and
In the case of Bennett Coleman & Co. & Ors vs Union
Of India & Ors 6 , the Hon'ble Supreme Court of India read the right to
Information as an integral part of the purpose of Article 19.
In the case of U.P. vs Raj Narain7 , the Hon'ble Supreme Court held:
"In a Government of responsibility like ours, where the agents of the
public must be responsible for the conduct there can be but a few secrets. The
people of this country have a right to know every public act, everything that is
done in a public way by their public functionaries. They are entitled to know
the particulars of every public transaction in all its bearings."
In Indira Gandhi vs Raj Narain8, the Court explicitly stated that, "it is not in
the interest of the public to 'cover with a veil of secrecy the common routine
business - the responsibility of officials to explain and to justify their acts
is the chief safeguard against oppression and corruption." In the
1981 judgement of Manubhai D. Shah vs LIC9, it was held that, "The basic purpose
of freedom of speech and expression is that all members should be able to form
their beliefs and express them freely to others, and this implies, a person's
right to know." Indian Express Newspapers
(Bombay) Pvt. Ltd. vs Union of India 10 .
The Apex court in the case of S.P.Gupta vs Union of India & ors.11, said that,
"Now, if secrecy were to be observed in the functioning of the Government and
the processes of Government were to be kept hidden from the public scrutiny, it
would tend to promote and encourage oppression, corruption, misuse or abuse of
the authority for it would be all shrouded in the veil of secrecy without any
public accountability. Unnecessary secrecy in Government leads to defective
decision making. But if there is an open Government with means of information,
available in the public domain, there would be a greater exposure to the
functioning of the government and it would help to assure the people of a better
and more efficient administration." In People's Union for Civil Liberties vs
Union Of India12 the court held that, "exposure to public scrutiny is one of the
known means for getting clean and less polluted persons to govern the country."
In Kuldip Nayar v. UOI13, Y.K. Sabharwal, C.J., held that, "Secrecy becomes a
source of corruption - Sunlight and transparency have the capacity to remove
In Secretary General, Supreme Court of India, vs Subhash Chandra Agarwal14, the
Hon'ble High Court at Delhi, held that, "The CJI is a public authority under the
RTI Act and information so given by CJI of the assets in public information.
Declaration of assets by the SC Judges, is "information" under Section 2(f) of
the Act and the contents of asset declaration are to be treated as personal
information, and may be accessed in accordance with the procedure prescribed
under section 8(1)(j). Lastly, the CJI, if he deems appropriate, may in
consultation with the Supreme
Court Judges, evolve uniform standards, devising the nature of information,
relevant formats, and if required, the periodicity of the declaration to be
From the above cases mentioned, it can be very well understood that, every
person, or every citizen has "the right to know". And this right has been
implicitly guaranteed by the constitution of India. Also, as per Section 3 of
the Right to information Act, 2005, "All citizens shall have the right to
Information." The Right to Information is the bed rock of democracy and paves
the way of transparency and accountability in governance of the affairs of the
state and ensure effective participation of the people in democratic society.15
- Why is the RTI Act, 2005, successful?
For the first time in the history of independent India, there is a law which
casts a direct accountability on the officials for non-performance. If the
concerned official does not provide information within the stipulated period of
time, a penalty of Rs 250 per day of delay, can be imposed by the Information
Commissioner on that particular concerned official. If the information provided
is false or subject to negligence, a penalty of a maximum of Rs 25,000/- can be
imposed. A penalty can also be imposed for providing incomplete or for rejecting
your application for malafide reasons. This fine is deducted from the officer's
personal salary. And, it can be said that this Act, justifies a person's right
to information, and makes sure, the convenience in enforcement of the same.
Also, every citizen of this country is a beneficiary to this Act.
- However, the Right to Information is not an absolute right.
Nothing can be absolute - everything is bound to certain limitations or
restrictions - as, in a phase of complete absoluteness, things often go haywire.
It can be very well said that, with an absolute power in hand, comes also the
power to misuse or abuse the same. Therefore, there must always be a balance
between a "right" and a "no right".
Not all the Information related to the Government can be disclosed, just because
a person seeks such information under the RTI Act, as it might put
the larger public interest at a stake, and may endanger the life or physical
safety of any person or the nation as a whole. There will always be area of
information that should remain protected in public and national interest. For
example : When we talk about the war, there should be some secrecy or
confidentiality to be maintained of a particular nation, so that, the counter
nation or opposition does not make any ambiguous plan to destroy the nation.
Similarly, It can be said that the Citizens of the country are at the trigger
side of a gun, and are the sole beneficiary of this Act, while the gun is the
Right to Information, and the Public authorities are at the other end of the
gun, and hence, the public authorities cannot avoid this bullet called an RTI
Application, and they, however, have to provide the information sought by the
citizens. But, however, the right to information of a citizen of a country,
cannot be forced on any Public Authority, if they are not in a position to
provide such an information, as sought. Few exemptions are provided to these
public authorities under Section 816 of the RTI act, 2005, under which they can
deny the disclosure of the information sought by the Appellants.
- Third party information 17 :
As per Section 11 of the Right to
Information Act, 2005, Third party information, is basically the information
related to an individual, which a public authority holds in its hands, but
cannot disclose it to a person other than the person, for whom the permission
has been granted for the disclosure of such information, by the third party
itself. When a person seeks information which relates to a person other than
himself, it is basically known as third party information. And in such a case,
the concerned public authority official, who has got such request of disclosure
of information, provided it holds such information with itself, must on the
receipt of such request, ask the third party, of whom the information relates
to, whether such information relating to him can be disclosed or not. This
provision under the RTI Act, helps provide a protection to the data of a person,
and hence, protecting the person's Right to Privacy as well.
The Right to Information Act is a strong weapon in the hands of the media and
the press. The restrictions imposed on such right under the Constitution, the
Act itself, any other law and by judicial interpretation seem to be reasonable
and strike a good balance between people's right to know and secrecy maintained
by the State. But the question arises regarding how far the Right to Information
Act, 2005, has succeeded in achieving its above-mentioned objective. Efforts
made to generate mass awareness of the RTI Act are lacking.
- Misuse of the Act:
The experience of the past years has shown that there
are cases wherein frivolous applications are being filed in the name of
transparency. Some of the instances when provisions of the RTI Act are being
- To know the secrets of competitors (third party)
- To harass the Public authority or bring disrepute to a public
servant with the intention of settling a score.
- For promotion of self-interest like a survey or research; tender or
other business interest; blackmailing; derailing investigating; service
matter- appointment , transfer, promotion, vigilance enquiry, etc.;
- It has the potential for being misused for spying activities.
- The Act does not have strict penal provisions. The fee charged for
information and the manner of payment is not uniform, there is also
confusion about the head of accounts to which the application and other
fees are to be credited.
The Right to Privacy
- What is Privacy?
"Privacy", in general sense, means, "the quality or state of being apart from
company or observation" or "freedom from unauthorised intrusion"18. Privacy is a
boundary wall, that a person makes in his life, beyond which, he does not wish
another person's interference. Privacy enables a person to create barriers and
manage boundaries to protect himself from unwarranted interference in his life,
which allows him to understand who he is and how he wants to interact with the
world surrounding him.
Privacy helps a person establish boundaries to limit who
has access to his body, place and things related to him, as well as his
communications and information. Privacy of a person may include his day-to-day
activities, his personal information, and things which are private, and hence,
sensitive to him. Privacy, basically means, "the right to be let alone" or "the
option to limit the access others have to one's personal information".
is an important way, in which one seeks to protect himself and the society,
against the arbitrary and unjustified use of power, by limiting what can be
known about him and done to him, by another person, while protecting him from
others who may wish to exert control.
Privacy is essential to know, who we are as human beings, and we make decisions
about it every single day. It gives us a space to be ourselves without a single
question from another person, and allows us to think freely without any
prejudices and discrimination, and it is an important element of giving us
control over "who knows what, about us".
In a case, titled, Karby vs Hal Roach19, it was held that, "privacy is the right
to live one's life in seclusion without being subjected to unwarranted and
undesired publicity." Even in the American Law, there has not been much
development in the area of protecting a person's privacy, and could not give any
explicit position to the right to privacy, in any of its statutes as, Justice
Blackman, in the case of Roe vs Wade20, observed that, the US constitution did
not explicitly mention any right of privacy.
Stanley vs Georgia21, was a United
States Supreme Court decision that helped to establish an implied "right to
privacy" in U.S. law, in the form of mere
possession of obscene materials. Griswold vs Connecticut22 and Meyer vs
Nebraska23 are some other cases, which brought about the development of the
right to privacy in the American Law.
However, we can conclude that, Privacy is something, that is like a shield to an
individual, that protects him, his dignity, and things related to him, which he
considers to be private and sensitive, and doesn't wish to share with the
- What is The Right to Privacy?
The Right to privacy is an aspect of human dignity. Privacy helps an individual
protect his individuality, or what is his personal and can be distinguished from
what is not and can be accessed. People describe themselves by exercising power
over information that is about them and a free country does not ask its people
to answer for the choices they make about what information they choose to share
and what they choose to keep undisclosed. At the same time, this does not mean
that public policies cost people their individuality, their choices, on the
pretext of protecting them.
The Right to Privacy is not an explicit right given under the Constitution of
India, 1950, but rather, it is a right which is implicit in the Article 2124 of
the Constitution. Article 21 of the Indian Constitution, reads as, "No person
shall be deprived of his life and personal liberty, except by the procedure
established by law". This Article under the Constitution of India, also known as
the heart of the Indian Constitution, within its wide ambit, covers the Right to
Privacy as well. The Right to Privacy is a universal concept and can be very
well found under various International Laws as well as covenants. Every
individual maintains a private life and right to privacy aims on identifying and
conferring the right of a person to be left alone, create his own private space,
which is free from the intervention of a third person. For example, Article 12
of The Universal
Declaration of Human Rights (1948)25 states that, "No one shall be
subjected to arbitrary interference with his privacy, family, home or
correspondence or to unlawful attacks on his honour and reputation."
Article 8 of European Convention on Human Rights26, 1950, states that, "Everyone
has the right to respect for his private and family life, his home and his
correspondence; there shall be no interference by a public authority except such
as is in accordance with law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the
country, for the protection of the rights and freedoms of others."
In the case of Kharak Singh vs The State of U.P.,27 The Supreme Court,
for the first time, recognised that, there is a right of privacy implicit in the
Indian Constitution, under Article 21. The Court held that the Right to Privacy
is an integral part of the Right to Life, but without any clear cut laws, it
still remains in the grey area.
In the case of Gobind vs State of M.P28, a case of surveillance, the Supreme
Court, held that, "�..Depending on the character and the antecedent of the
person subjected to surveillance as also the object the limitation under which
surveillance is made, it cannot be said surveillance by domiciliary visit would
always be unreasonable restriction upon the right of privacy. Assuming that the
fundamental right explicitly guaranteed to a citizen of have penumbral zone and
that right is itself a fundamental right that fundamental right must be subject
to restriction on the basis of compelling public interest."
In the case of R.Rajagopalan vs State of Tamil Nadu29, it was held that, "The
right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of this country by Article 21. It is a "right to be let alone". A
citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child-bearing and education among other matters. No one
can publish anything concerning the above matters without his consent whether
truthful or otherwise and whether laudatory or critical. If he does so, he would
be violating the right to privacy of the person concerned."
In the case of People's Union for civil liberties (PUCL) vs UOI, The court laid
down regulations in interception provisions in the country like such orders were
to be issued by the home secretaries only, necessity of the information was the
considered, etc. Further it capped two months onto the life of an interception
In the case of Selvi and ors. vs State of Karnataka and others30, the Apex Court
stated the difference between physical and mental privacy.
In the case of Maneka Gandhi v. Union of India31, it was held that, "the right
to privacy `is an essential ingredient of personal liberty' and that the right
to `personal liberty is `a right of an individual to be free from restrictions
or encroachments on his person, whether those restrictions or encroachments are
directly imposed or indirectly brought about by calculated measures."
In the Naz Foundation Case (2009)32 Delhi HC gave the landmark
decision on consensual homosexuality. In this case S. 377 IPC and Articles 14,
19 & 21 were examined. Right to privacy held to protect a "private space in
which man may become and remain himself". It was said individuals need a place
of sanctuary where they can be free from societal control- where individuals can
drop the mask, desist for a while from projecting on the world the image they
want to be accepted as themselves, an image that may reflect the values of their
peers rather than the realities of their nature.
In the case of Justice K. S. Puttuswamy (Retd.) and Anr. vs Union Of India And
Ors.33, the Supreme Court of India, which held that, the right to privacy is
protected as a fundamental constitutional right under Articles 14, 19 and 21 of
the Constitution of India. The nine-judge bench in this case, unanimously held
that "the right to privacy is protected as an intrinsic part of the right to
life and personal liberty under Article 21 and as a part of the freedoms
guaranteed by Part III of the Constitution34".
The bench further stated in this
case that privacy has two roles: normative and descriptive. Privacy in the
normative sense affiliates to moral principles, eternal values and essentials
pertaining to human dignity, autonomy and self worth. In the descriptive sense,
it refers to a bunch of entitlements and claims vindicated on the normative
basis and rendered implementable being supported by constitutional mandate. If
the State denies it to any person, he/she may approach the highest court of the
land to vindicate and enforce the right.
In one of the most controversial cases ever, Ratan Tata went to Supreme Court
against the publication of intercepts of his conversation with
Neera Radia who handles the corporate communication for the group. Tata holds
that as Radia's phones were tapped by government agencies especially for
investigating a possible offence the recorded conversations should have been
used for that purpose alone. Ratan Tata has submitted his petition before
Supreme Court asking to protect his right to privacy. But given that freedom of
information laws have at their core the purpose of disclosure, exemptions are
strictly construed, and it has been said that the public right to know should
prevail unless disclosure would publicise intimate details of a highly personal
nature. The Radia tapes so far published public issues, but not personal life of
Tata. These conversations would be available to every citizen under the RTI Act
because the only objection that one could raise would be on the ground of
8(1)(j) of RTI Act."35
However, The Constitution, thus, recognizes the right to privacy as an implicit
part of Article 21 of the Indian Constitution.
- However, the Right to Privacy is not an absolute right.
As already discussed above, no right is an absolute right, as, with
absoluteness, comes also the power to misuse or abuse the same. Everything comes
with certain restrictions and limitations. Similarly, the Right to Privacy is
also bound to certain restrictions. For example, the right may be lawfully
restricted for the prevention of crime, disorder, or protection of health or
moral; or protection of rights and freedom of others. Although the right to
privacy is a part of fundamental right guaranteed under the Constitution, but
specific laws can over ride this where larger public interest is involved. For
example, the restriction imposed in Section 19-L of the Rajasthan Panchayat Raj
Act, 1994 does not outrage the dignity of the individual. The object of this
provision is to control population growth and family planning and such type of
interference is necessary in a democratic society in the economic welfare of the
The Consonance between two Fundamental Rights:
Conflict management and creating harmony
- The Conflict & Solution
The two fundamental rights guaranteed under the Constitution of India, that
herein we refer to, are : The Right to Information and The Right to Privacy.
Both these rights happen to be fundamental rights, but if we observe their
nature, they are rather contradictory. Then how can one choose between them,
when they are so contradictory, but even the absence of one of these rights
could make a person suffer. Both the Right to Information and the Right to
Privacy are essential for a person to survive in this modern world, where,
everyday, something new is invented, some new technology or some extraordinary
ideologies - how will a person be able to protect himself without his
fundamental rights in his hand?
In most of the cases, both these rights happen to be complementary to each other
- Both are focused on ensuring the accountability of powerful institutions to
individuals in the information age. Right to privacy, once incorporated as a
fundamental right, is wide enough to encroach into any sphere of activity. The
conferment of such a right has become extremely difficult with the advancement
of technology and the social networking sites. But the other side of the picture
is that right to privacy of a person includes the right to seclude personal
information. The extent to which the realm of privacy of each person should
remain is subjective, which might differ from person to person. But, the
complication or the clash between these two rights arises, when one demands the
disclosure of some information, that is private, personal & sensitive to
another, but it is in the hands of some governmental body.
The right to privacy may come in conflict with the investigation of police in
several aspects. Narco-analysis, polygraph test and brain mapping tests, in
application, make unwarranted intrusion into the right to privacy of a person.
The Supreme Court was acknowledging the individual right to privacy by declaring
these tests inhuman and unconstitutional.
The Supreme Court in the case of Directorate of Revenue and Anr v.Mohammed Nisar Holia37 cited the US Supreme Court judgement which
held 'thermal imaging', a sophisticated sense enhancing technology which when
kept outside the residential house of a person can detect whether the inmate has
kept narcotic substance within as infringement on the right to privacy of the
said person. The Court discouraged the unnecessary infringement of the right to
privacy of a person and held that no authority shall be given untrammelled power
to infringe the right to privacy of a person, the Court held while reversing the
conviction for non-compliance of statutory requirement of search and seizure.
It can be very well said that The Right to Information Act, 2005, is an
important piece of legislation, which guarantees the citizens to have an access
to the information that is in the hands of these public authorities. There is no
conflict of interest so far as information relates to various functionalities of
the government is concerned, since, it is considered necessary to allow the
citizens to seek information and know the facts and figures of various public
But when there is such a concerning conflict between two essential
rights, it is necessary that there is an intervention of the government to
develop some strategies and mechanisms to limit these conflicts between the two
rights and balance the both. Some structural and legislative means and
modalities need to be explored to harmonise right to information and right to
Dr Manmohan Singh, the then Prime Minister of India, voicing concern over
frivolous and vexatious use of RTI Act, said that :
"There is a fine balance required to be maintained between the right to
information and the right to privacy, which stems out of the fundamental right
to life and liberty. The citizens' right to know should definitely be
circumscribed if disclosure of information encroaches upon someone's personal
privacy. But where to draw the line is a complicated question."39
In the case of Mr. 'X' vs Hospital 'Z'40, the supreme court held that, it was
open to hospital authorities or the doctor concerned to reveal such information
to the person related to the girl whom he intended to marry and she had right to
know about the HIV status of the appellant. A three- judge bench of the supreme
court held the disclosure of HIV-positive status justified as a girl has right
to know, there was no need to for this court to go further and declare in
general as to what right and obligation arise in such context as to right to
privacy. Generally, the medical report of a person suffering from AIDS is not
supposed to be disclosed.
But, the Supreme Court has held that if a prospective
spouse has an apprehension that the other prospective spouse is suffering from
AIDS, the former has a right to seek information about the latter's disease from
the hospital whether blood reports of the latter are available. This right is
part of the right to life and, therefore, guaranteed under Article 21 of the
Constitution. Since "right to life" includes right to lead a healthy life as to
enjoy all the faculties of the human body in their prime condition, the
disclosure that the prospective spouse is a HIV (+) can not be said to have in
any way either violated the rule of confidentiality or the right to privacy.
In Union of India vs Association for Democratic Reforms & Anr (2002)41 found
that citizens have a right to know about the assets of those who want to be
public servants (stand for elections).
On the other hand, there have also been cases that defended a public
official's/representative's right to privacy. In Girish Ramchandra Deshpande vs.
Central Information Commissioners42, 11 of 15 queries were rejected on grounds
of protecting a public servant's privacy. These questions included request to
copies of memos, show-cause notices and censure/punishment awarded to the public
servant. There were also demands for the details of assets and gifts received by
this public servant.
Choosing one between the two Fundamental rights is quite a complex task, as both
the rights are essential to the human beings. When the question of harmonising
the contradicting rights arises, it should be made sure that whatever the answer
is, it should give justice to the larger public interest.
No wonder, the Right to Privacy comes out as an excellent shield for an
Individual's individuality and sense of freedom, but when there's a larger
public interest is involved that is in contradiction to such right of an
Individual, it should always be the public interest that should be chosen over
an Individual's right to privacy, but if "public interest" reasonably justifies
the disclosure, i.e., the public interest outweighs the need for protection of
personal information, the authority concerned can disclose the information.
Conceptually, RTI and the right to privacy are both complementary and in
conflict. While RTI increases access to information, the right to privacy veils
it instead. At the same time, they both function as citizen rights safeguarding
liberty against state overreach. The Supreme Court in a judgment passed in the
case of Babu Ram Verma vs State of Uttar
Pradesh43 has interpreted that the expression "public interest" in common
parlance means an act beneficial to the general public and an action taken for
public purpose. Though the word 'personal' has not been defined in the Act, but
according to the Concise Oxford Dictionary (10th edition), the word 'personal'
means affecting or belonging to a particular person, involving the presence or
action of a particular individual or concerning a person's private rather than
Moreover, where there is a clash of two fundamental rights, namely the right to
privacy, which is part of the right to life, which is a fundamental right
guaranteed under Article 21 of the Constitution of India, the right which would
advance the public morality or public interest would alone be enforced for the
reason that moral considerations can not be kept at bay and the persons deciding
the issues shall have to be sensitive in disclosure of such issues.
This research paper discusses about the clash between two fundamental rights
guaranteed to the citizens of India, under the Part III of the Constitution of
India, 1950, namely, The Right to Information, implicitly a part of Article
19(1)(a) and The Right to Privacy, which is a part of Article 21, "Right to
Life", which is also known as the heart of the Indian Constitution. While the
Right to Information helps create a transparency in the functionalities of the
government, the Right to Privacy helps in creating a line of difference between
"The Public" and "The Private", and "What Information should be disclosed" and
"What Information shouldn't be".
It should be noted that the Right To Information and Privacy are not always
conflicting rights, and are designed, in part, to ensure the accountability of
the state. The important issue is how the legislation and the implementing and
oversight bodies balance the two rights.44 In order to keep the conflicts at
bay, a balance must be established between the Right to Information and the
Right to Privacy.
Although, there is no simple solution to balancing the two rights, but most
issues can be alleviated through the enactment of clear definitions in
legislation, guidelines, techniques, and oversight systems. Since no rights are
absolute including the right to privacy, I would like to submit that the public
authorities should deal with the written requests for information under the Act
with an applicant friendly attitude and when there would be a conflict between
the privacy of an individual and the right to information of citizens, the
latter should get proper importance as it serves larger public interest and,
therefore, disclosure be made accordingly. Also, The power of disclosing
information is to be exercised cautiously, and more responsible officials should
be made the CPIOs.
Finally, I would like to submit that both the rights being equally essential,
should co-exist in the system of governance, while managing a safe balance
between the two, which would decrease the conflicts and bring about, a harmony,
in the system.
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Award Winning Article Is Written By: Prof.Dr.Taru Mishra & Mr.Abhishek Pandey
Authentication No: MY313826625340-18-0523