RIGHT TO KNOW VS. RIGHT TO PRIVACY: PROBLEMS AND PRACTICALITIES

[Vol 1/ Issue 3/ Oct 2015] [ISSN 2394-9295]

Dr. Bhavish Gupta

Associate Professor

Amity Law School, Delhi

Email ID: bgupta1@amity.edu

ABSTRACT

The right to privacy and the right to information are both essential human rights in the modern information society. For the most part, these two rights complement each other in holding governments accountable to individuals. But there is a potential conflict between these rights when there is a demand for access to personal information held by government bodies. Where the two rights overlap, states need to develop mechanisms for identifying core issues to limit conflicts and for balancing the rights. This paper examines legislative and structural means to better define and balance the rights to privacy and information.

Right to information and privacy laws can both complement and conflict with each other, depending on the situation. It should again be emphasized that the RTI and privacy are not always conflicting rights. They are both laws 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

Keywords: Right to Information, Right to Privacy, Human Rights, Accountability, Fundamental Right.

INTRODUCTION

“Civilization is the progress toward a society of privacy. The savage‟s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men”.

Privacy is the recognition of the one‘s right to be let alone and have his personal space private. It is a modern concept to have right of privacy and its need. It is because of increasing individualistic society in which the focus has shifted from society to the individual. Earlier, the law only provided protection against physical harm to a person or his property. As civilization progressed, the personal, intellectual and spiritual aspects of the human personality gained recognition and the scope of the law expanded, and protection was given to these needs.

According to Black‘s Law Dictionary ―right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned .

Right to privacy is not enumerated as a Fundamental Right in the constitution of India. The scope of this right first came up for consideration in Kharak Singh‟s Case which was concerned with the validity of certain regulations that permitted surveillance of suspects. The minority decision of Subba

Rao J. deals with this right. In the context of surveillance, it has been held that surveillance, if intrusive and seriously encroaches on the privacy of citizen, can infringe the freedom of movement, guaranteed by Article 19(1)(d) and 21. Surveillance must be to prevent crime and on the basis of material provided in the history sheet. In the context of an anti-terrorism enactment, it was held that the right to privacy was subservient to the security of the State and withholding information relevant for the detention of crime can‘t be nullified on the grounds of right to privacy.

INTERNATIONAL TREATIES AND PRIVACY

In no country does the right to privacy is given the status of a specific and constitutionally valid legal right. Law of Privacy has evolved mainly through the judicial pronouncements. Despite there being lack of specific constitutional recognition, the right to privacy has long ago given a place in international charters on human rights such as Article 17 of the International Covenant on Civil and Political Rights, 1966 which India has ratified, reads that:

―No one shall be subjected to arbitrary or unlawful interference with his privacy, family, human or correspondence, or to lawful attacks on his honor and reputation and Everyone has the right to respect for his private and family life, his home and his correspondence. Article 8 of the European Convention on Human Rights, 1950 reads 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 with the exercise of this right, except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder and crime or for the protection of health or morals.

THE LAW ON PRIVACY IN INDIA

In India, the right of privacy is not an explicit fundamental right but has nonetheless gained a constitutional recognition. Privacy‘ is not among the various reasonable restrictions imposed on the right to freedom of speech and expression given under Article 19(2). However, this lacuna has not prohibited the courts from making out a constitutional right to privacy be it a creative understanding of the right to life under Article 21 and right to freedom of movement under article 19(1)(d).

The right of privacy in India has been derived out from two sources: the common law of tort and constitutional law. Under the common law, a private action for the damages for unlawful incursion of privacy is held to be maintainable. The printer and the publisher of a journal, magazine or book are to be held liable for any damage, if they publish any matter regarding the private life of an individual which includes his family, married life, procreation issue, parenthood, child bearing, education, etc. without his consent.

There are two exceptions to this rule:

1. That the right of privacy does not continue to exist once the publication made is of the matter of public record and;
2. When the matter published relates to the discharge of official duties by a public servant, an action is not held maintainable unless the publication is proved to be false or malicious.

Under constitutional law, the right to privacy is innate in the fundamental right to life and liberty guaranteed by Article 21 of the constitution. This would also include the right to be let alone. The

constitutional right of privacy flowing from article 21 must, however, be balanced as against the fundamental right given to the media to publish any matter which is in public interest.

The first few cases that presented the Indian Supreme Court with the opportunity to develop the law on privacy were cases of police surveillance. The court then examined the constitutional validity of such legislations that empowered the police officers to keep a secret watch on the movements of any individual. The first of such cases is Kharak Singh v State of U.P, which challenged the constitutional validity of Regulation 236 of the U.P. Police Regulations which permitted surveillance. The majority on the bench struck down the Regulation 236(b) which authorized such domiciliary visits as being unconstitutional but upheld the other provisions under that regulation. The majorities were defensive to the idea of recognizing a right to privacy and dismissed the claim on the ground that there could be no fundamental right to protect mere personal sensitiveness. This view was based on the conclusion that the infringement of a fundamental right must be both direct and tangible so that the freedom guaranteed under Article 19(1) (d) is not infringed by a watch being kept over the movements of a suspect.

It was, however, the minority view which was expressed by Justice Subba Rao which laid the foundation for the development of the law of Privacy in India. Justice Subba Rao held that, ―the concept of liberty‘ in Article 21 was broad enough to include privacy and that a person‘s house, where he lives with his family is his castle and that nothing is more deleterious to a man‘s physical happiness and health than a calculated interference with his privacy. The conclusion was that surveillance by domiciliary visits and other acts under Regulation 236 was ultra vires Article 19(1) (d) and Article 21.

In Govind v State of M.P. also a case of surveillance under the Madhya Pradesh Police Regulations, the Supreme Court acknowledged a limited right to privacy. Yet, the court upheld the impugned regulation which authorized domiciliary visits in it‘s entirely. This was on the ground that the object of the provision was the prevention of crime.

Malak Singh v State of P&H was yet challenge to the constitutionality of police powers of surveillance, this time under the Police Act and the Punjab Police Rules. The Supreme Court said that, ―the regulations that authorized surveillance for the prevention of crime and justified the maintenance of history sheets and surveillance registers as confidential documents are valid. The court observed that surveillance of persons who did not fall within the category mentioned under the impugned regulation, or for reasons unconnected with prevention of crime or excessive surveillance would entitle a citizen to the protection of the court. But the law on privacy was taken no further.

The Supreme Court in such cases touched upon the rights of the individual to privacy vis-à-vis invasions by journalists in Sheela Barse v Union of India, Prabha Dutt v Union of India and also in State v Charulata Joshi. In all these cases, journalists sought such permission from Supreme Court to interview and photograph prisoners. Although the issue of privacy is not directly dealt with, the court unreservedly recognized the right to privacy by holding that, the press has no absolute right to interview or photograph a prisoner but could do so only with the consent of prisoner.

In Naz Foundation Case (2009) 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.

RIGHT TO PRIVACY: PERMISSIBLE RESTRICTION

Intrusion into privacy may be by-

1. Legislative Provision- Legislative intrusion must be tested on the touchstone of reasonableness as guaranteed by the constitution and for that purpose the Court can go into proportionality of the intrusion vis-à-vis the purpose sought to be achieved.
2. Administrative/Executive order- So far as administrative or executive action is concerned it has to be reasonable having regard to the facts and circumstances of the case.
3. Judicial Orders- As to judicial warrants, the Court must have sufficient reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or seizure necessary for protection of the particular State interest.

In addition, as stated earlier, common law did recognize rare exceptions for conduct of warrantless searches could be conducted but these had to be in good faith, intended to preserve evidence or intended to prevent sudden anger to person or property.

LATER DEVELOPMENTS IN RIGHT TO PRIVACY

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. The recognition of right to privacy can also be seen in the

1. 43 of Information Technology Act which makes unauthorized access into a computer resource invoke liability. Today, each person is a press, taking in view the emergence of blog spots and social networking sites. Many a times, the right to privacy may come in conflict with the right to press the right to press is a right derived from article 19 (1) (a) in particular. The right to expression of a person may come in conflict with the right to privacy of another person. The question, where there is a conflict, which should prevail over the other, is well explained by bringing in the concept of public interest‘ and public morality‘. The publication of personal information of an individual without his consent or approval is justified if such information forms part of public records including Court records. Each case is distinct and each right is special. Any right derived from Article 19 can be derived from Article 21 too, under the wide interpretation of personal liberty‘. Though the Court generally applies the test of public interest‘ or public morality‘ in case of conflict between two derived rights, another interpretation is also possible. A right derived under Article 21 is superior to a right derived under Article 19, since the state enacting law in contravention of such right can be saved under the

reasonable restrictions under Article 19. 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 Directorate of Revenue and Anr v. Mohammed Nisar Holia cited the US Supreme Court judgment 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 persons and held that no authority shall be given untrammeled 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. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in case of this nature, the least that a Court can do is-to see that such right is not unnecessarily infringed.

RIGHT TO KNOW

The idea of Right to Information started taking shape in the 1970s only, with the liberal interpretation by the judiciary of various fundamental rights specifically the right to freedom of speech and expression. The legal position with regard to the right to information has developed through several Supreme Court decisions given in the context of the fundamental rights in Constitution of India, but more specifically in the context of the Right to Freedom of Speech and Expression Article 19, which has been said to be the obverse side of the Right to Know, and one cannot be exercised without the other. The interesting aspect of these judicial pronouncements is that the scope of the right has gradually widened, taking into account the cultural shifts in the polity and in society.

In the case of Bennett Coleman and Co v. Union of India in 1973, the majority opinion of the Supreme Court then put it, freedom of speech and expression includes within its compass the right of all citizens to read and be informed.‘ The 1981 judgment in Manubhai D. Shah v. Life Insurance Corporation reaffirmed the point:

The basic purpose of freedom of speech and expression is that all members should be able to form their beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people‘s right to know‘.

There have been numerous cases favoring disclosure of government information and transparency. As a result of a lack of clear legislation on this, people had to knock at the doors of courts every time they wanted to enforce this right. Courts have almost always responded positively. But this course at best restricted enforcement to the aware and the literate for their own limited concerns. The common citizen had neither the means nor the time and inclination to get into convoluted legal processes and even public interest litigation was a tool which could reach only a few. The movement for the RTI received a fresh impetus from a courageous and powerful grassroots struggle of the rural poor for the right to information to combat rampant corruption in famine relief works. This struggle was led by a people‘s organization, Mazdoor Kisan Shakti Sangathan (MKSS) that literally means organization for the empowerment of workers and peasants. The reverberations of

this struggle led to a nationwide demand for a law to guarantee the RTI to every citizen, with wide spread support from social activists, professionals, lawyers and media who are committed to transparent and accountable governance and people‘s empowerment. The MKSS movement in Rajasthan was a turning point in the RTI movement and showed that even illiterate, socially mute and exploited laborers could assert and get their other rights conceded by invoking the RTI. The movement spread to various parts of Rajasthan, leading to a nationwide movement for the RTI and related state legislations. Thus, it was states that took the first step by enacting RTI laws Tamil Nadu (1997) Goa (1997), Rajasthan (2000). The World Bank implemented the first phase of its new policy on Access to Information on July 01, 2010, to increase its effectiveness, efficiency, and accountability. This new policy draws on India‘s RTI law and the US FOI Law, and positions the Bank as a transparency leader among multilateral organizations. New information that will be available includes decisions of project concept review meetings, project supervision missions, and mid-term project reviews. It also includes a provision that will allow for the declassification of certain types of restricted information over time after 5, 10, or 20 years recognizing that sensitivity of the information declines over time. It also introduces the right to appeal.

Kishna Iyer, J, has very lucidly explained the field of this right in his article on Freedom of Information, where he says that: ―Speaking in the spirit of a democratic world order, It is basic that each one of us everywhere on the globe has a right to Know and a duty to shape the course of things, on a national and even planetary scale. For, there are no passengers on spaceship earth. Everybody‘s crew Indeed the philosophy of information freedom and open government is best spelt out in the premise of the U.S House Committee on Government operations, which approved the Freedom of Information Act, in 1966 .

In cases concerning the right to life and liberty under Article 21 of the Constitution the Courts have stressed the need for free legal aid to the poor and needy who are not either not aware of the procedures or not in a position to afford lawyers, and therefore unable to avail of the constitutional guarantees of legal help and bail. The Courts have said that it is the legal obligation of the judge or the magistrate before whom the accused is produced to inform him of that if he is unable to engage a lawyer on account of poverty or indigence; he is entitled to free legal aid. The most recent judgement enumerating in detail the procedural safeguards for arrest and custody were given in a recent case Most of these directions translate into the right of the accused or his kin to have access to information regarding his arrest and detention such as preparation of a memo of arrest to be counter-signed by the arrestee and a relative or neighbor, preparation of a report of the physical condition of the arrestee, recording of the place of detention in appropriate registers at the police station, display of details of detained persons at a prominent place at the police station and at the district headquarters, etc. Developments in administrative law further strengthened the right.

In State of U.P v. Raj Narain the respondent had summoned documents pertaining to the security arrangements and the expenses thereof of the then Prime Minister. The Supreme Court, in examining a claim for privilege of certain documents summoned the kept to itself the power to decide whether disclosure of certain privileged documents was in the public interest or not. The Court said, ―While there are overwhelming arguments for giving to the executive the power to determine what matters may prejudice public security, those arguments

give no sanction to giving the executive exclusive power to determine what matters may prejudice the public interest. Once considerations of national security are left out there are few matters of public interest which cannot be safely discussed in public . Justice K.K. Mathew went further to say, ―In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but 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 bearing.

The right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain or to justify their acts is the chief safeguard against oppression and corruption.

The Supreme Court in Reliance Petrochemicals Ltd. v. Proprietors Indian Express Newspaper Bombay Pvt. Ltd has held that the right to know emanates from the fundamental right to freedom of speech and expression. It was held that people have a right to know in order to be able to take part in a participatory development in industrial life and democracy. The rights to know is a basic right to which citizens of a free country aspire in the broader horizon of the right to life- in our context, under Article 21 of the Constitution. More recently, this right has acquired new dimensions. It puts greater obligation upon those who take the responsibility to provide information. The elected representatives could meaningfully claim their true and democratic nature of their representation only if a people who were fully informed had given them that mandate.

In Secretary, Ministry of I & B v. Cricket Association Bengal the Right to know was once again reiterated as an implicit part of the Right to Freedom of Speech and Expression as including the right to acquire information to disseminate it. Freedom of speech and Expression is necessary for self- expression, which is an important means to free conscience and self fulfillment. It enables people to contribute to debates of social and moral issues. It is the best way to find a truest model of anything. It has been held that these rights could be limited only by reasonable restrictions provided under a law, made for the purposes mentioned in Article 19

(1) & (2) of the Constitution.

CONFLICT BETWEEN: RIGHT TO INFORMATION & RIGHT TO PRIVACY

The Indian Constitution does not specifically recognize the right to privacy. But after the case of Kharak Singh

1. State of U.P the Supreme Court for the first time acknowledged the right to privacy which is inherent in the 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 gray area. This view was based on the finding that the infringement of a fundamental right must be both direct as well as tangible than the freedom guaranteed under article 19(1)(a), the right to freedom of speech and expression was not infringed upon by keeping a watch over the movement of a suspect.

In R. Rajagopal v. State of T.N. the apex Court held that, ―the right to privacy is a right to let alone‘. No one can publish anything concerning the above matters without his consent, whether truthful or otherwise whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in the action of damages. In Mr. X v. Hospital Z, it was held that where there is a clash of two fundamental rights, as in the instant case, namely, the appellant‘s right to privacy as a part of right to life and other person‘s right to lead a healthy life which is her fundamental right u/a 21, the right which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral consideration cannot be kept at bay and judges are not expected to sit as mute structures of clay as in Hail, known as Courtroom but have to be sensitive, ―in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day .

The word right‘ in Right to Information states that one can ask for information from the authority‘, that is

public authority‘. But apart from the public‘ information, there is also some private‘ information that we need to know. This is where the conflict lies, because why should anyone or any organization reveal its private information and why a person should say what he/she has or doesn‘t have to. The question that comes isn‘t that it is putting your nose in somebody‘s right to privacy‘ but to what extent an information remains

private‘, has to be explored.

Mr. Manmohan Singh, the then Prime Minister, said the citizens to know should definitely be circumscribed if it encroaches on an individual‘s privacy. He said ―there is a fine balance required to be maintained between right to information and the right to privacy, which stems out of the fundamental right of life and liberty. The citizen‘s right to know should definitely be circumscribed if disclosure of information encroaches upon someone‘s personal privacy. But where to draw a line is a complicated question .

One of the most contentious case where Mr. Ratan Tata went to Supreme Court to file case against the publication of the intercepts in which his conversation with one Ms. Neera Radia, she handles the corporate communication for the TATA group. Tata held that as Radia‘s phones were tapped by the government agencies particularly for investigating a possible offence, the recorded conversations can be used for that purpose alone. Ratan Tata also submitted his petition asking the Supreme Court to protect his right to privacy. The freedom of information laws at their core have the purpose of disclosure and exemptions are strictly construed, so it has been said that the public right to know prevails unless such disclosure would publicize any intimate details which are highly of personal nature. Thus the Radia tapes so far published were of public issues, but not regarding personal life of Mr.Tata. These conversations can be made available to any citizen under the RTI Act, because the only objection that one could raise would be on the ground of section 8(j) of RTI Act which states that ―the information which is a personal information, and 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 public authority is satisfied, unless the information officer is satisfied that the larger public interest justifies the disclosure of such an information. In that case an opening question that could be asked is, whether Tata‘s conversations would be revealed through an RTI, or whether his conversations would fall under the exemption of personal information found in section 8(j)? An interesting point to be noted is the structure of this

exemption. By the use of the word ―or the legislation suggests that any unwarranted invasion of an individual‘s privacy may trigger the exemption, even if the information relates to public activity or interest. But the added caveat says that, ―the larger public interest could justify the release of even purely private information. Thus, the Supreme Court of India was well within the law to allow disclosure of conversation details between Mr. Ratan Tata and Ms. Nira Radia.

Public and private information conflict has been a major area of discussion for the last few years. It is a Constitutional right which cannot be denied by the government. On the other hand civil rights are the protections and privileges of personal liberty given to all citizens by law. Examples of such civil rights and liberties are like the right to get redressed if one is injured by another‘s action, right to privacy, right of peaceful protest, the right to get a fair investigation and a trial if one is suspected of a crime.

An infringement upon one‘s privacy is only protected if the wrongdoer is the state and not a private entity. If the offender is an individual then there is no useful remedy except in the law of tort where one can claim the damages for intruding on his privacy and no more. In R. Rajagopal v State of TN the Apex Court held that,

―right to privacy is right to let alone‘ and that no one can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether admiring or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in the action of damages.

If taken into consideration the above noted landmark cases and the verdicts given by the Apex Court of India, one can definitely sense the contradiction in the right to know and the ways in which one can keep his secrets within him.

CONCLUSION

There is an inherent tension between the objective of right to information and the objective of protecting personal privacy. These objectives will often conflict when an applicant seeks access for personal information about a third party. The conflict poses two related challenges for lawmakers; first, to determine where the balance should be struck between these aims; and, secondly, to determine the mechanisms for dealing with requests for such information. The conflict between the right to personal privacy and the public interest in the disclosure of personal information was recognized by the legislature by exempting purely personal information under Section 8(1)(j) of the Act. Section 8(1)(j) says that disclosure may be refused if the request pertains 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. Thus, personal information including tax returns, medical records etc. cannot be disclosed in view of Section 8(1)(j) of the Act.

If, however, the applicant can show sufficient public interest in disclosure, the bar (preventing disclosure) is lifted and after duly notifying the third party (i.e. the individual concerned with the information or whose records are sought) and after considering his views, the authority can disclose it. The nature of restriction on the right of privacy, however, is of a different order. In the case of private individuals, the degree of protection afforded to be greater, whereas in the case of public servants, the degree of protection can be lower, depending

on what is at stake. This is so because; a public servant is expected to act for the public good in the discharge of his duties and is thus accountable for them.

Thus, access to information and protection of privacy are both rights intended to help the individual in making government accountable. Most of the time, the two rights complement each other. However, there are conflicts—for example, privacy laws often are improperly invoked by governments. And there are cases where the conflicts are legitimate. There is no simple solution to balancing the two rights, but most issues can be mitigated through the enactment of clear definitions in legislation, guidelines, techniques, and oversight systems.

Finally, Government should create appropriate institutional structures that can balance these rights and ensure that data protection and right to in- formation officials work together, even if they represent different bodies.