This article is written by Kunal Jain, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Right to privacy and right to information in India are the two most important rights to ensure that people can live their lives with dignity and integrity. These two rights are fundamental in maintaining the quality of life of an individual. While the right to privacy allows people privacy to their personal issues/affairs, the latter allows citizens to hold various government departments accountable for important public affairs. Most of the time, these two rights complement each other in holding the government accountable to individuals. But there is a conflict between these rights when there is a demand for access to personal information held by government bodies.
The relationship between right to privacy and right to information laws is currently considered the most important subject of debate around the world as various countries are adopting different types of concepts in relation to these laws and are making different legislations.
In India, in August 2017 the Supreme Court of India issued a landmark judgment recognizing the basic rights guaranteed by the Constitution of India as the right to privacy. The right to privacy was considered to be inherent in the right to life as stated in Article 21 of the Constitution of India. On the other hand, the right to information acquires the constitutional right of freedom of expression guaranteed to all citizens under Article 19(1)(a) of the Constitution. A bill stipulating various provisions for exercising this right was passed in 2005 and named the Right to Information Act, 2005.
What is known as the right to privacy?
If we try to understand privacy in the layman’s terms it can be stated as “No unwarranted public interference’’ it generally means to be free and alone without unnecessary public interference as one’s personal information is considered to be his personal property and he/she has the right to not disclose any such personal information. It may be said that privacy is the reversal of being public, if any private letter of one’s friend is published by anyone without his/her express or implied permission then his/her privacy would be violated.
The right to privacy is recognized internationally as well and the concept is present under various declarations and conventions which can be seen as:
- Article – 12 of the UDHR (Universal Declaration of Human Rights):
There should not be any arbitrary interference in anyone’s privacy, family, home or correspondence nor should there be an attack upon the reputation and honour of any individual.
- Article – 17 of ICCPR (International Covenant on Civil and Political Rights):
There should be no arbitrary interference in anybody’s privacy, family or home.
Every individual has a right to respect, his private and family life.
In India, earlier right to privacy was not granted as a fundamental right to its citizens, the sole credit goes to the judiciary for interpreting the concept of right to privacy because neither the Constitution nor any other legislation defined this concept. We can see the evolution of this concept through different cases which made it a fundamental right after several years of interpretation.
The first case was;
M.P. Sharma vs. Satish Chandrawas, before the Supreme Court of India, this case was in relation to search and seizure of documents of Dalmia group of companies, a search was carried out in 34 places belonging to the group and some of the private documents were also searched and evaluated due to which a writ petition was filed before the Supreme Court that the aggrieved parties’ fundamental rights were violated, here the court had the opportunity of considering the constitutional status of the right to privacy in the context of state’s power of search and seizure, but a very narrow view of constitutional provisions was taken in the case. The Supreme Court stated that the right to privacy is not a fundamental right and cannot be put into the domain of public law.
Furthermore in the case of;
Kharak Singh vs. State of Uttar Pradesh The petitioner was charged and tried for committing dacoity and he was subjected to domiciliary visits and surveillance by the police. The Petitioner filed a writ petition claiming that his fundamental rights under Articles 19 and 21 were violated, while determining the validity, the Supreme court also examined whether the right to privacy formed a part of Article 21 under personal liberty. Here the apex court while giving its judgment made the domiciliary visits unconstitutional and also stated that the right to privacy is not a fundamental right and right to movement under Article 19 infringes with physical restrictions.
Then a phase of cases came up where the Courts started recognizing the right to privacy and a judgment in the case of PUCL vs. Union of India, where the Supreme Court held that right to life and personal liberty includes the right to privacy and right to privacy includes telephone conversations as private at home or office and thus telephone tapping would be violative of Article 21.
In the year 2017, the Supreme Court in the landmark judgment of Justice K.S. Puttaswamy vs. Union of India, also known as the Aadhar case. It was in this case that the Right to privacy was first recognised as a fundamental right given under the constitution of India. The court held that the right to privacy is an integral part of the right to life and personal liberty as guaranteed under Article 21 of the Constitution. Due to this judgment, the Supreme Court interpreted that Aadhar is not violative of right to privacy and this judgment overruled the above other judgments where it was said that right to privacy is not a fundamental right.
Right to privacy has now be granted the status of fundamental right but is not an absolute right overall and is subject to certain restrictions or limitations that are:
- National Security and Public Safety.
- Public Interest.
- Scientific or Historic Research.
- Criminal Offences, etc.
Concept of data protection
Data protection generally is a set of policies and procedures that you can use to ensure the privacy, availability and integrity of data, sometimes known as data security or information privacy. In the digital age, data plays a huge role in our everyday lives, it’s present in lots of obvious ways. When we are shopping online for example and have to type in our name and address. Data collection can also be less visible, for example, take data brokers, we have probably never heard of them, but these businesses specialize in creating in-depth profiles of individuals for advertisers. A single profile may draw on up to 1,500 data points, this can include a person’s sexuality, browsing history, political affiliation and even medical records. Data protection is concerned with the ways in which third parties handle the information they hold about the public as to how it is collected, processed, shared, stored and used.
We can say that privacy and data protection are connected to each other, whereas data protection can also be termed as a part of privacy that holds a bigger place in an individual’s life. Data protection is defined more specifically than privacy but however, it depends on the legal structure of different countries and how it is applied in consonance with the privacy laws prevailing in the countries.
In India, the right to privacy was recognized after the Aadhar judgment under which the concept of data protection also came up. As India does not have a particular data protection law to protect data and information shared or received in any form, they can be interpreted through a mixture of legislations, rules or guidelines. The most important and prominent is the Information Technology Act, 2000 which is considered as the primary law dealing with cybercrime and electronic commerce, under this legislation and rules only the information exchanged through an electronic form is governed and not the non-electronic forms. However, the scope of this law is limited and majorly protects the sensitive personal data and information collected through computer resources through corporate entities. There is no legislation on data localization which is the major concern and reason for the ban of Chinese applications, in order to address this a comprehensive data protection law is needed. This has been brought up in the discussions related to the Personal Data Protection Bill, 2019 which was presented in the Lok Sabha and after some debates were given to a Joint Parliamentary Committee to examine the bill and give its report. The Salient features of the bill are:
- Application of the Act to processing of personal data.
- Categorizing the kinds of personal data into three major heads – Personal Data, Sensitive Personal Data and Critical Personal Data.
- Obligations and limitations of the data collectors.
- Restrictions on the transfer of Personal data outside India.
- Exemptions or safeguards to Government agencies and other laws in relation to the processing of personal data.
- Offences and penalties against the prohibited acts under the law.
- Amendments to other laws as needed.
What is the right to information?
The right of access to information held by the government bodies provides that individuals have a basic human right to demand information held by the government bodies. It can be inferred from the right to expression to seek and receive information, and it is recognized as a human right throughout the world. Under this right, any person can claim information from a public body, and that body is legally bound to disclose such information unless there is a legal reason not to disclose such information. In a democratic country, RTI is an important tool for countering abuse, mismanagement and corruption to enforce essentials of economic and social rights.
In India, right to information can be derived from the fundamental right of freedom of speech and expression which is guaranteed under Article 19. Several incidents have proved that the right to information is an integral part of the Constitution of India and is a recognized right for all its citizens. As RTI is a constitutional right it has also been incorporated in legislation and is known as the Right to Information Act, 2005 which now deals with the disclosure of information by the government bodies for the needs of the community or individuals public interest. This has provided the appointment of designated officers to release information to the public, a complaint mechanism, a proactive disclosure by the government for specified types of information and this act also protects the privacy of both citizens and public figures. The development of the right to information can also be seen through various Supreme Court judgements also, as in the case of Bennett Coleman and Co. vs. Union of India, the right to information was held to be included within the right to freedom of speech and expression guaranteed by Article 19(1)(a). Then in the case of SP Gupta vs. Union of India, the right of the people to know about every public act and the details of every public transaction undertaken by public functionaries were described.
Thus, the right to information has been recognized and accepted as a law in India and is considered as a fundamental right through which the public can call for information by the government or public authorities which are in the interest of the public.
Conflicts between both the rights
It is very well-known that the authorities are the custodians of numerous non-public records of various citizens. The income-tax returns of a person, his clinical records, his biometric facts and so forth are his personal belongings of which authorities could have access. If such records are made subject to RTI, a large invasion with respect to the privacy of an individual. On the other hand, it additionally aims to ensure that no one puts on a facade of safety or privacy with the intention to protect himself against the disclosure of data which can be mandated through RTI. In instances wherein there may be a dispute concerning whether or not the data needs to be protected under Section 8(1)(j) or not, the applicant will have to satisfy the Public Information Officer that the data is for public interest and its disclosure will benefit the public as a whole. If the officer is satisfied, the data can be provided. Here, the general public interest surges in advance of the right to privacy of the individual. Thus, there may be a likely paradox among these rights. However, the question is whether or not these rights are so opposing in nature to the quantity that they can’t be reconciled? Many efforts have been made to harmonize these provisions and it has met with a fair amount of success. These rights may be complementary to each other and promote extra transparency and accountability from governmental authorities.
Both the rights are intended to help individuals in holding the government accountable and transparent. Most of the issues can be solved by following a defined and tested system that works as a due diligence mechanism for the protection of private information and regulation of public information. Right to privacy and right to information both are fundamental rights recognized by the Constitution of India and are interpreted in a way that provides protection to the citizens of India. These rights have evolved in the era of technological advancements which has laid down the need for a law in regards to personal data protection, also which is under the process and would be brought before the Indian citizens very soon with effective provisions.
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