Home / Opinion / Views /  Opinion | The paradox of our rights to information and privacy

The right to information (RTI) and the right to privacy (RTP) are two important rights upheld by the Supreme Court of India. For the most part, they are two sides of the same coin. They complement each other in giving Indian citizens the rights they value highly and holding the government accountable to the people. Many presume that when citizens invoke the RTI, then government bodies can seek shelter under the RTP. This is a myth that was recently exposed by the Supreme Court when it ruled that even the Chief Justice of India’s office will come under the Right to Information Act. The apex court stated that public interest should be upheld while disclosing any information under that law. Notably, the country’s top court had also said that judicial independence and accountability should go hand in hand, and that one cannot wear a garb of privacy as protection from information disclosure requirements under the RTI Act.

The country’s law on our right to information was enacted in 2005. However, since 1975, in multiple judgements, the Supreme Court has recognized the right to information as a fundamental right of citizens under Article 19(1)(a) of the Constitution on our freedom of speech and expression. This has been read together with Articles 14, 19 and 21 to guarantee our right to equality, right to freedom of speech and expression, and our right to life and liberty, respectively.

It was those judgements, together with the RTI movements by citizens, that culminated in the RTI Act of 2005. This was an Act of Parliament that set forth a practical regime and framework to grant citizens this right and replaced the erstwhile Freedom of Information Act, 2002.

Under the RTI Act, any citizen of India can request information from a “public authority", including the Chief Justice of India, and the relevant authority is required to reply within 30 days. The law also encourages the dissemination of public information through digital means to minimize the occasions on which citizens would need to take recourse to its provision that lets them lodge a formal request for information on some matter.

Consider our right to privacy. This is a fundamental right and an intrinsic part of Article 21, which protects the life and liberty of citizens under Part III of the Constitution. On 24 August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. unanimously held that the right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 of the Indian Constitution.

How does the RTP square with the RTI? Awkwardly, as we shall see.

The government stores a lot of personal information on individuals. This ranges from income tax returns and driving licence details to census data and medical information. When an application is made under the RTI Act for disclosure of some information on an identifiable individual, there is a conflict between the RTI and the RTP.

Personal information can be denied if it infringes an individual’s privacy. A good example is our medical records. Such information, the disclosure of which would invade someone’s privacy, is exempt from the RTI requirements. According to section 8(1)(j) of the RTI Act, if the information is personal and would cause an unwarranted invasion of privacy and serves no public interest, then it cannot be disclosed, unless the central public information officer or the state public information officer, or any other appellate authority, is of the opinion that the disclosure of this information would serve a larger public interest.

In terms of procedure, before an applicant asks for the personal information of an individual, he or she has to justify the public benefit of its disclosure and the information officer should be convinced of it. If the officer accepts the argument, public interest trumps the RTP.

Thus, together, the RTI and RTP present us a paradox. Can it be harmonized? While the two rights frequently look irreconcilable, they can, as stated earlier, act in complementary ways to confer individual rights and promote greater government accountability and transparency. However, this would require the country to work on reconciliation of the two.

There needs to be common definitions and internal consistency within the entire framework to limit conflict and establish a balance. Since this exercise involves specific legal provisions, it might even call for legislative efforts.

Perhaps, a “conflict resolution strategy’ can be adopted to harmonize the two rights. Even though Section 8(1)(j) of the RTI Act explicitly grants exemption from the disclosure of personal information, for example, it comes with the caveat mentioned above, public interest may warrant the disclosure of such data to an applicant by a public authority, thereby nullifying the exemption and disregarding the RTP.

However, challenging as it may be, it is still possible to demarcate the extent to which personal information may be disclosed in the general interest. As of now, there is no line of demarcation for disclosure and non-disclosure. This is a bridge that could resolve at least part of the RTI-RTP paradox.

K. Satish Kumar is a keynote speaker, an author, and global head of legal and chief data protection officer of Ramco Systems. These are the author’s personal views

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