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The Interplay And Consonance Between RTI And Right To Privacy

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

  1. 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 in force.

    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 circulated.
  2. 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 otherwise, hassles.
  3.  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 expression".

    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 it."

    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 made."

    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
  4. 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.
  5. 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.
  6. 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.
  7. 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 misused are:
    1. To know the secrets of competitors (third party)
    2. To harass the Public authority or bring disrepute to a public servant with the intention of settling a score.
    3. 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.;
    4. It has the potential for being misused for spying activities.
    5. 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

  1. 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".

    Privacy 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 outside world.
  2. 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 order.

    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.
  3. 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 country.36

The Consonance between two Fundamental Rights:

Conflict management and creating harmony
  1. 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 authorities.

    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 privacy.38

    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 professional life.

    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. End-Notes:
  1. Section 2, RTI Act, 2005 :
  4. Institute of Chartered Accountants of India vs. Shaunak H. Satya, AIR 2011 SC 3336 : (2011) 8 SCC 781 : JT 2011 (10) SC 128: (2011) 9 SCALE 639.
  5. Article 19(1)(a) - " All citizens shall have the right to freedom of speech and expression. "
  6. Bennett Coleman & Co. & Ors vs Union Of India & Ors 1973 AIR 106, 1973 SCR (2) 757
  7. State Of U.P vs Raj Narain & Ors 1975 AIR 865, 1975 SCR (3) 333
  8. Indira Gandhi vs Raj Narain AIR 1975 SC 2299
  9. Manubhai D. Shah vs LIC AIR 1981 Guj 15, (1981) 0 GLR 206
  10. Indian Express Newspapers (Bombay) Pvt. Ltd. vs Union of India (1985) 1 SCC 641
  11. S.P.Gupta vs Union of India & ors AIR 1982 SC 149
  12. People's Union for Civil Liberties vs Union of India 2003(001) SCW 2353 SC
  13. Kuldip Nayar vs Union of India AIR 2006 SC 3127
  14. Secretary General, Supreme Court of India vs Subash Chandra Agarwal LPA No.501/2009
  15. The Right to Information and Privacy : Balancing Rights and managing conflicts, 2011, David Banisar
  16. Section 8, RTI Act:
  17. Section 11, third party information:
  19. Karby vs Hal Roach, 1942 53 Cali. App. 207, 127
  20. Roe vs Wade, 410 U.S. 113 (1973)
  21. Stanley vs Georgia, 394 U.S. 557 (1969)
  22. Griswold vs Connecticut, 381 U.S. 479 (1965)
  23. Meyer vs Nebraska, 262 U.S. 390 (1923)
  24. Article 21, Right to life :
  25. The Universal Declaration of Human Rights (1948) : declaration-human-rights/
  26. The European Convention on Human Rights (1950) : Convention_ENG.pdf
  27. Kharak Singh vs State of UP, 1963 AIR 1295, 1964 SCR (1) 332
  28. Gobind vs state of M.P., 1975 AIR 1378, 1975 SCR (3) 946
  29. R. Rajagopalan vs State of Tamil Nadu, 1995 AIR 264, 1994 SCC (6) 632
  30. Selvi and ors. vs State of Karnataka and ors., Criminal Appeal No. 1267 of 2004
  31. Maneka Gandhi vs Union of India, AIR 1978 SC 597
  32. Naz Foundation vs Govt. of NCT of Delhi, WP(C) No.7455/2001
  33. Justice K.S.Puttuswamy(Retd.) and Anr. vs UOI and ors., WP (C) No. 494 OF 2012
  34. Point no. 2(iii), Justice K.S.Puttuswamy(Retd.) and Anr. Vs UOI and ors., WP(C) No. 494 of 2012
  36. rti_&_protection_of_individual_privacy_bk_chakraborty.pdf
  37. Directorate of Revenue and Anr v. Mohammed Nisar Holia, Appeal (crl.) 311 of 2002
  38. David Banisar, The Right to Information and Privacy: Balancing Rights and Managing Conflicts‟ (The International Bank for Reconstruction and Development/ The World Bank , 2011)
  39. Economic times, October 12, 2012, "RTI should be circumscribed if it encroaches on privacy: Prime Minister Manmohan Singh"
  40. Mr 'X' vs Hospital 'Z', Appeal (civil) 4641 of 1998
  41. Union of India vs Association for Democratic Reforms & Anr , 2002 (3) SCR 294
  42. Girish Ramchandra Deshpande vs. Central Information Commissioner,SLP (C) No. 27734 of 2012
  43. Babu Ram Verma vs State of Uttar Pradesh, (1971) 2 Serv. L.R.659

Award Winning Article Is Written By: Prof.Dr.Taru Mishra & Mr.Abhishek Pandey
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