CONSTITUTIONAL LAW

RIGHT TO INFORMATION AND RIGHT TO PRIVACY

MADE BY CHRISTY ALEX BA.LL.B(4TH SEM)

SUBMITTED BY Dr. ASAD MALIK

CONTENTS
INTRODUCTION Right to privacy and Right to Information RIGHT TO INFORMATION IN INDIA a) History Of The Right To Information Act b) The Need For The Right To Information c) Applicability d) Definition: Information e) Definition: Right To Information f) Maintenance And Publication Of Records g) Exemptions h) Constitutional Avenues Remain Open. i) Right To Information As A Fundamental Right: Supreme Court On The Right To Information. CASES REFERRED: Bennett Coleman and Co. v. Union of India, AIR 1973 SC 106, Indira Gandhi v. Raj Narain AIR 1975 SC 2299 SP Gupta v. Union of India AIR 1982 SC 149, Peoples Union for Civil Liberties v. Union Of India 2003(001) SCW 2353 SC Indian Express Newspapers(Bombay) Pvt. Ltd.vs India (1985) 1 SCC 641) Manubhai D. Shah vs Life insurance Corporation AIR 1981 Guj 15 Prabha Dutt Vs. Union of India AIR 1982 SC 6 D.K.Basu vs State of West Bengal AIR1997SC610. State of U.P Vs. Raj Narain AIR 1975 SC 865. PUCL v. Union of India(2003) 4 SCC 399. Kuldip Nayar v. UOI AIR 2006 SC 3127. Dev Dutt v. UOI AIR 2008 SC 2513. Secretary General, Supreme Court of India, vs. Subhashchandra Agarwal(2009), Poorna Prajna Public School Vs. Central Information Commission and others, (2009) LEGISLATIONS IN INDIA 1) Right To Information Act, 2005

2) Official Secrets Act 1923 3) The Prevention of Corruption Act 1988 4) The Securities and Exchange Board of India Act, 1992 CRITICISMS

RIGHT TO PRIVACY CASES REFERRED: a) Roe v. Wade 410 U.S. 113 (1973) b)Stanley v. Georgia381 U.S. 479 (1965) c)Griswold v. Connecticut381 U.S. 479 (1965) d) Meyer v. Nebraska262 U.S. 390 (1923) Concept of Privacy in India Judicial pronouncements Right To Privacy not an Absolute Right CASES REFERRED: a) M.P. Sharma v. Satish Chandrawas1954 AIR 300, b) Kharak Singh v. State of U.P. AIR 1963 SC 1295 c) Wolf v. Colorado 338 U.S. 25 (1949) d) Pooran Mal v. Director of Instruction [1974] 1 S.C.C. 345 e) Govinda v. State of Madhya Pradesh AIR 1961 MP 320 f) People's Union for Civil Liberties v. Union of India(2004) 1 SCC 712 g)R. Rajagopal v. State of T.N.(1994) 6 SCC 632 h) State of Maharashtra v. Madhulkar Narain AIR 1991 SC 207 i) T.Sareetha v. T.Venkata Subbaiah AIR 1983 AP 356 j)Mr. MX of Bombay Indian Inhabitant Vs. M/s ZY AIR 1997 Bombay 406 k) Mr. X Vs. Hospital Z 2003 (1) SCC 500 l)Sharda v. Dharampal, AIR 2003 SC 3450 m) Teeku Dutta v. State. AIR 2004 Del205 n)Ram Jethmalani and Ors.V. Union of India (2011), 0)Govind v. State of Madhya Pradesh (1975) 2 SCC 148 p)M. Vijaya v. The Chairman, Singaren Collieries AIR 2001 AP 502 q)Peoples Union for Civil Liberties (PUCL) v. Union of India AIR 2003 SC 2363 Right to Information v Right to Privacy- Balancing both rights. Conclusion Bibliography

ACKNOWLEDGEMENT Firstly, I would like to express my profound sense of gratitude towards the almighty for providing me with the authentic circumstances which were mandatory for the completion of my project.

Secondly, I am highly indebted to Prof. Asad Malik of Faculty of Law, Jamia Millia Islamia University, New Delhi for providing me with constant encouragement and guidance throughout the preparation of this project.

My cardinal thanks are also for my parents, friends and all teachers of law department in our college who have always been the source of my inspiration and motivation without which I would have never been able to unabridged my project.

Christy Alex

INTRODUCTION Right to privacy and Right to Information 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. The two forms of protection against the Leviathan state that have the aim of restoring the balance between the citizen and the state: On first inspection, it would appear that the right of access to information and the right to protection of personal privacy are irreconcilable. Laws provide a fundamental right for any person to access information held by government bodies. At the same time, right to privacy laws grant individuals a fundamental right to control the collection of, access to, and use of personal information about them that is held by governments and private bodies. However, the reality is more complex. Privacy and RTI are often described as two sides of the same coinmainly acting as complementary rights that promote individuals rights to protect themselves and to promote government accountability. The relationship between privacy and RTI laws is currently the subject of considerable debate around the globe as countries are increasingly adopting these types of legislation. To date, more than 50 countries have adopted both laws. Privacy is increasingly being challenged by new technologies and practices. The technologies facilitate the growing collection and sharing of personal

information. Sensitive personal data (including biometrics and DNA makeup) are now collected and used routinely. Public records are being disclosed over the Internet. In response to this set of circumstances, more than 60 countries have adopted comprehensive laws that give individuals some control over the collection and use of these data by public and private bodies. At the same time, the publics right to information is becoming widely accepted. RTI laws are now common around the world, with legislation adopted in almost 90 countries. Access to information is being facilitated through new information and communications technologies, and Web sites containing searchable government records are becoming even more widely available. International Bodies are developing conventions, and relevant decisions are being issued by international courts. Availability, legislation, and judicial decisions have led to many debates about rules governing access to personal information that is held by public bodies. As equal human rights, neither privacy nor access takes precedence over the other. Thus it is necessary to consider how to adopt and implement the two rights and the laws that govern them in a manner that respects both rights. There is no easy way to do this, and both rights must be considered in a manner that is equal and Balance.

RIGHT TO INFORMATION The right of access to information held by government bodies (RTI) provides that individuals have a basic human right to demand information held by government bodies. It derives from the right of freedom of expression to seek and receive information, 1 and is recognized worldwide as a human right.2Under this right, any person may make a request to a public body; the body is legally required to respond and provide the information, unless there is a legally compelling reason to refuse the request. The RTI is are requisite for the very exercise of democracy (OAS 2003).3 Democracy is based on the consent of the citizens, and that consent turns on the government informing citizens about its activities and recognizing their right to participate. The collection of information by governments is done on behalf of its citizens, and the public is only truly able to participate in the democratic process when it has information about the activities and policies of the government.4The RTI is also an important tool for countering abuses, mismanagement, and corruption and for enforcing essential economic and social rights. The following elements are typically found in national RTI laws: A right of an individual, organization, or legal entity to demand information from public bodies, without having to show a legal interest in that information.
1 2

See the Universal Declaration of Human Rights(UDHR),art.19 For a detailed overview of international standards on RTI, see Mendel (2008)and Banisar (2006) 3 In 2006, the Inter-American Court of Human Rights ruled that the States actions should be governed by the principles of disclosure and transparency in public administration that enable all persons subject to its jurisdiction to exercise the democratic control of those actions ,and so that they can question, investigate and consider whether public functions are being performed adequately. Access to State held information of public interest can permit participation in public administration through the social control that can be exercised through such access (Marcel Claude Reyes et al.v.Chile, judgment of September 19,2006) . 4 See, for example ,ACHPR (2002);and the Joint Declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression, November 26,1999.

 A duty of the relevant body to respond and provide the information. This includes mechanisms for handling requests and time limits for responding to requests. Exemptions to allow the withholding of certain categories of information. These exemptions include the protection of national security and international relations, personal privacy, commercial confidentiality, law enforcement and public order, information received in confidence, and internal discussions. Exemptions typically require that some harm to the interest must be shown before the material can be withheld. Internal appeals mechanisms for requestors to challenge the withholding of information. Mechanisms for external review of the withholding of information. This includes setting up an external body or referring cases to an existing ombudsman or to the court system. Requirement for government bodies to affirmatively publish some types of information about their structures, rules, and activities. This is often done using information and communications technologies.

RIGHT TO INFORMATION IN INDIA

History Of The Right To Information Act

It has taken India 82 years to transition from an opaque system of governance, legitimized by the colonial Official Secrets Act, to one where citizens can demand the right to information. The recent enactment of the Right to Information Act 2005 marks a significant shift for Indian democracy, for the greater the access of citizens to information, the greater will be the responsiveness of government to community needs. Right To Information is derived from our fundamental right of freedom of speech and expression under Article 19 of the Constitution. If we do not have information on how our Government and Public Institutions function, we cannot express any informed opinion on it. Democracy revolves around the basic idea of Citizens being at the center of governance. And the freedom of the press is an essential element for a democracy to function. It is thus obvious that the main reason for a free press is to ensure that Citizens are informed. Thus it clearly flows from this, that the Citizens Right To Know is paramount. The Act and its rules define a format for requisitioning information, a time period within which information must be provided, a method of giving the information, some charges for applying and some exemptions of information which will not be given. The Need For The Right To Information

In recent years, there has been an almost unstoppable global trend towards recognition of the right to information by countries, intergovernmental organizations, civil society and the people. The right to information has been recognized as a fundamental human right, which upholds the inherent dignity

of all human beings. The right to information forms the crucial underpinning of participatory democracy - it is essential to ensure accountability and good governance. The greater the access of the citizen to information, the greater the responsiveness of government to community needs. Alternatively, the more restrictions that are placed on access, the greater will be the feelings of 'powerlessness' and 'alienation'. Without information, people cannot adequately exercise their rights as citizens or make informed choices. The free flow of information in India remains severely restricted by three factors: a. The legislative framework includes several pieces of restrictive legislation, such as the Official Secrets Act, 1923; b. The pervasive culture of secrecy and arrogance within the bureaucracy; and c. The low levels of literacy and rights awareness amongst India's people. The primary power of RTI is the fact that it empowers individual Citizens to requisition information. Hence without necessarily forming pressure groups or associations, it puts power directly into the hands of the foundation of democracy- the Citizen.

Applicability

The Act applies both to Central and State Governments and all public authorities. A public authority (sec. 2(h)) which is bound to furnish information means any authority or body or institution of self-government established or constituted (a) by or under the Constitution, (b) by any other law made by Parliament, (c) by any other law made by State Legislature, (d) by a notification issued or order made by the appropriate Government and includes

any (i) body owned, controlled or substantially financed, (ii) non-government organization substantially financed - which, in clauses (a) to (d) are all, directly or indirectly funded by the appropriate Government.

Definition: Information

The Act defines information in sec. 2(f) as any material in any form, including the records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any law for the time being in force. Sec. 2(i) defines the word record as including (a) any document, manuscript and file, (b) any microfilm, microfiche and facsimile copy of a document, (c) any reproduction of image or images embodied in such microfilm and (d) any other material produced by a computer or any other device.

Definition: Right To Information

The right to information is defined in sec. 2(j) as a right to information accessible under the Act which is held by or under the control of any public authority and includes a right to (i) inspection of work, documents, records, (ii) taking notes, extracts or certified copies of documents or records, (iii) taking separate samples of material, (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

Maintenance And Publication Of Records

Sec. 4 makes it a duty of public authorities to maintain records for easy access and to publish within 120 days the name of the particular officers who should give the information and in regard to the framing of the rules, regulations etc. Subsection (3) of sec. 4 states that for the performance of subsection (1), all information shall be disseminated widely and in such form and manner, which is easily accessible to the public. Sec. 6 permits persons to obtain information in English or Hindi or in the official language of the area from the designated officers. The person need not give any reason for the request or any personal details. Sec. 7 requires the request to be disposed of within 30 days provided that where information sought for concerns the life or liberty of a person, the same shall be provided within 48 hours. Under sec. 7(7) before any decision is taken for furnishing the information, the designated officer shall take into consideration the representation, if any, made by a third party under sec. 11. A request rejected shall be communicated under sec. 7(8) giving reasons and specifying the procedure for appeal and the designation of the appellate authority. Sec. 7(9) exempts granting information where it would disproportionately divert the resources of the public authority or would be detrimental to the safety and preservation of the record in question.

Exemptions

Sec. 8 exempts from disclosure certain information and contents as stated in Sub-clauses (a) to (j) thereof. Sub-clause (b) exempts information, which is expressly forbidden by any court of law or tribunal or the dispute of which may constitute contempt of court. Sub-clause (g) exempts information the disclosure of which would endanger life, or physical safety of any person or identify the

source of information or assistance given in confidence for law enforcement or security purpose. Sub-clause (h) exempts information, which could impede the process of investigation or apprehension or prosecution of offenders. Subclause (i) exempts Cabinet papers. It is important to note that the Act specifies that intelligence and security organizations are exempted from the application of the Act. However, it is provided that in case the demand for information pertains to allegations of corruption and human rights violations, the Act shall apply even to such institutions.

Constitutional Avenues Remain Open

Under the Act, where a citizen has exhausted the remedy of appeal or second appeal, the finality given to the orders of the commissioners and appellate authorities is only for the purposes of the Act and the citizen has a right to approach the High Court under Art. 226 or where it refers to a fundamental right, he may even approach the Supreme Court under Art. 32. Right To Information As A Fundamental Right: Supreme Court On The

Right To Information. The right to information is a fundamental right flowing from Art. 19(1)(a) of the Constitution is now a well-settled proposition. Over the years, the Supreme Court has consistently ruled in favour of the citizens right to know. The nature of this right and the relevant restrictions thereto, has been discussed by the Supreme Court in a number of cases: The development of the right to information as a part of the Constitutional Law of the country started with petitions of the press to the Supreme Court for enforcement of certain logistical implications of the right to freedom of speech

and expression such as challenging governmental orders for control of newsprint, bans on distribution of papers, etc. It was through these cases that the concept of the publics right to know developed. The landmark case in freedom of the press in India was Bennett Coleman and Co. v. Union of India, 5, the right to information was held to be included within the right to freedom of speech and expression guaranteed by Art. 19 (1) (a). In Indira Gandhi v. Raj Narain6, 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 SP Gupta v. Union of India7, the right of the people to know about every public act, and the details of every public transaction undertaken by public functionaries was described. In Peoples Union for Civil Liberties v. Union Of India 8the court held that exposure to public scrutiny is one of the known means for getting clean and less polluted persons to govern the country. This principle was even more clearly enunciated in a later case in Indian Express Newspapers(Bombay) Pvt. Ltd.vs India 9where the court remarked, 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 peoples right to know. Another development on this front was through a subsequent case of

5 6

AIR 1973 SC 106 AIR 1975 SC 2299 7 AIR 1982 SC 149 8 2003(001) SCW 2353 SC 9 (1985) 1 SCC 641)

Manubhai D. Shah vs Life insurance Corporation 10which it was held that if an official media or channel was made available to one party to express its views or criticism, the same should also be made available to another contradictory view. In the area of civil liberties, the courts have built up the right to have a transparent criminal justice system free from arbitrariness. In Prabha Dutt Vs. Union of India11 the Court held that there excepting clear evidence that the prisoners had refused to be interviewed, there could be no reason for refusing permission to the media to interview prisoners in death row. Repeated violations of civil rights by the police and other law enforcement agencies have compelled the courts to give, time and again, directions to the concerned agencies for ensuring transparency in their functioning in order to avoid violations like illegal arrests and detention, torture in custody and the like. 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 forarrest and custody were given in a recent case of D.K.Basu vs State of West Bengal 12. In State of U.P Vs. Raj Narain13. The Court said, While there are overwhelming arguments for giving to the executive the power to
10 11

AIR 1981 Guj 15 AIR 1982 SC 6 12 AIR1997SC610 13 AIR 1975 SC 865

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.(emphasis added) 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. In PUCL v. Union of India14 the SC laid down the following points: 1. Fundamental Rights of voters to know antecedents of a candidate; 2. Ambit of Fundamental Rights can be expanded by judicial interpretation; 3. Article 19 includes citizens right to know the antecedents of a candidate; 4. Disclosure in Income Tax Returns not sufficient; 5. Having accepted the need to insist on disclosure - ought to provide for public declaration;
14

(2003) 4 SCC 399

6. Declaration will promote integrity in public life; 7. Declaration must be a matter of public record; 8. Declaration to public does not affect privacy In Dev Dutt v. UOI15 Katju, J. discussed transparency & good governance and stated that: Right to information is a new component of Natural Justice. Confidential reports of public servants required to be communicated and that Departmental instructions are not necessary. Natural Justice is not stagnant but an expanding concept. Transparency is conducive to fairness and Secrecy leads to arbitrariness. In Kuldip Nayar v. UOI16Y.K. Sabharwal, C.J. Secrecy becomes a source of corruption - Sunlight and transparency have the capacity to remove it. In Secretary General, Supreme Court of India, vs. Subhashchandra Agarwal 17High Court of 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 u/s 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. The Delhi HC directed that the CPIO, Supreme Court of India, shall release the information sought by the respondent of the declaration of assets.

15 16

AIR 2008 SC 2513 AIR 2006 SC 3127 17 (2009),

In Poorna Prajna Public School Vs. Central Information Commission and others, 18it was held that: Information defined in Section 2(f) means details or material available with public authority. The later portion of Section 2(f) expands the definition to include details or material which can be accessed under any other law. Minutes of the Managing Committee meeting are not covered under section 2(f) of the RTI Act. Section 2(f) of the RTI Act also includes information relating to any private body, accessible by public authority under any law for the time being in force. Therefore, if a public authority has a right and is entitled to access information from a private body, under any other law, it is information as defined in Section 2(f) of the RTI Act. LEGISLATIONS IN INDIA 1) Right To Information Act, 2005 All information that relates to the working of Government and the use of

public funds is critical. Designated officers for release of information responsible for releasing

information to the public; Complaint Mechanism: The CIC or SIC is responsible for receiving and

inquiring into complaints by individuals; Proactive disclosure: Governmental bodies are required to proactively

release specified types of information, Act lays down clearly what is public, and in doing so protects the privacy

of both citizens and public figures. Any public official is permitted to disclose any information (exemptions

included) if public interest outweighs the protected interest. 2) Official Secrets Act 1923 Prior to the Right to Information Act, the Official Secrets Act was established to protect sensitive governmental documents
18

(2009)

and communications; 3) The Prevention of Corruption Act 1988 In the context of the Prevention of Corruption Act information related to a public figures assets and financial transactions is critical. The Prevention of Corruption Act enables law enforcement to investigate governmental officials on allegations of corruption; 4) The Securities and Exchange Board of India Act, 1992 Information relating to finances of companies is critical to the Act. By enforcing transparency and disclosure of information the Act ensures that companies are fairly portrayed to the public, and are unable to manipulate markets. In turn dilutes the privacy of companies; Criticisms The Act has been criticized on several grounds. It provides for information on demand, so to speak, but does not sufficiently stress information on matters related to food, water, environment and other survival needs that must be given pro-actively, or suo moto, by public authorities. The Act does not emphasize active intervention in educating people about their right to access information - vital in a country with high levels of illiteracy and poverty -- or the promotion of a culture of openness within official structures. Without widespread education and awareness about the possibilities under the new Act, it could just remain on paper. The Act also reinforces the controlling role of the government official, who retains wide discretionary powers to withhold information. The most scathing indictment of the Bill has come from critics who focus on the sweeping exemptions it permits. Restrictions on information relating to security, foreign policy, defence, law enforcement and public safety are standard. But the Right to Information Act also excludes Cabinet papers, including records of the council of ministers, secretaries and other officials;

this effectively shields the whole process of decision-making from mandatory disclosure. Another stringent criticism of the Act is the recent amendment that was to be made allowing for file noting except those related to social and development projects to be exempted from the purview of the Act. File noting are very important when it comes to the policy making of the government. It is these notes that hold the rationale behind actions or the change in certain policy, why a certain contract is given or why a sanction was withheld to prosecute a corrupt official. Therefore the governments intention to exempt the file noting from the purview of the Act has come in for stringent criticisms.

RIGHT TO PRIVACY The quest of privacy is an inherent instant of all human beings. As a matter of fact it is a natural need of an individual to establish individual boundaries with almost perfect seclusion. The concept of privacy in its broad sweep covers a number of prospects like non-disclosure of information, sexual affairs, business secrets and no observance by others. It may be said that the privacy is antithesis of being public, if any private letters to one's fiend are published by anyone without his express or implied permission then his privacy would come to be violated. Similarly if one's neighbour peeps into in his house from outside then it would also constitute violation of his right to privacy. Thus privacy is a state of isolation and separation from others. Privacy in general means the right to be let alone. This Expression was used by Justice Cooley in 1888. This abbreviated meaning of privacy was followed by Samuel Warren and Loues Brandeis in 1890 in one of their articles.' They were of view that object of privacy is to protect 'inviolate personality'. They elaborated the proposition and said that in early times the law gave remedy only for interference with life and property, for trespasses vi et armis. Then the right to life served only to protect life from battery in its various forms; later there came recognition of spiritual nature and his feelings and his intellect. Gradually the scope of these legal rights came to mean the right to enjoy life and the right to be let alone. Once an American Court observed that privacy is the right to live one's life in seclusion without being subjected to unwarranted and undesired publicity.19 Similarly, the common law jurists have described the idea of privacy as an idea of being private or secluded. Prof. Nizer states that the right to privacy is the individual's rights to a secluded and anonymous existence.20Dr. Winfield
19 20

Karby v. Hal Roach Studies, 1942 53 Cali. App. 207, 127 Michigan Law Review, 1939, P. 526.

opines that violation of privacy is the unauthorized interference with another's seclusion of himself, his family or his property from the public gaze.21 A panel to U.S. President's Office of Science and Technology in 1967 defined privacy as the right of the individual to decide for himself how much, he will share with others his thoughts, his feelings and the parts of his personal life. L.Luskey in his article "Invasion of Privacy: A Classification of Concepts" has described privacy as an interest which someone has, that is to say a person would be better off for being a private state.22 As per the conclusions of the Nordic conference of Jurists on the Right to Respect for Privacy, held in May, 1967, privacy is not made of one particular interest only. This consists of many interests and hence the right to privacy should be meant as the right of the individual to protect his life against: 1) the interference with his private, family and home life, 2) the interference with his physical or mental integrity or his moral or intellectual freedom, 3) the attacks on his honour or reputation, being placed in a false light, 4) the disclosure of irrelevant, embarrassing facts relating to his private life, 5) the use of his name, identity or likeness, 6) the interference with his correspondence, 7) the spying, prying, watching and besetting 8) misuse of his communication, written or oral, 9) the disclosure of information on given or received by him in circumstances of professional confidence. A.F. Westin regarded privacy as the claim of individuals, groups or institutions to determine for themselves when, how and to what extent, information about

21 22

Seventh Edn 1963 at page 726 (1972) 78 Cal. Law Rev. 698

them is communicated to others.23 Thus privacy is the acquisition or transmission of private information about an individual or individuals without his or their knowledge or consent and if the private information is communicated unwillingly or by coercion then this would be a case of intrusion of privacy. American Law so far could not give any explicit position to the right to privacy in any of its statute as Justice Blackman in Roe v. Wade24 observed that the US constitution did not explicitly mention any right of privacy. However, Judiciary recognized this right of personal privacy and declared that such a right already exists in the Constitution Stanley v. Georgia25, Griswold v. Connecticut26, Meyer v. Nebraska27 are some of the cases decided by the US Courts in which they found the traces of right to privacy, in different constitutional amendments as well as in the form of touching from a distance of the Bill of Rights. It is submitted that privacy is such an essential component of human dignity without which human dignity cannot be maintained and enjoyed.28

CONCEPT OF PRIVACY IN INDIA The Indian Constitution does not guarantee the Right to Privacy as a fundamental right. In our country the sole-credit goes to the judiciary for recognizing the concept of privacy because neither the Constitution nor any other statute in our country defined this concept. Still a lot more has to be done for the recognition and protection of privacy by law in India. As a matter of fact this concept is quiet in primitive stage of its development. But its development is bound to have tremendous effect on the individual's living,
23 24

'Privacy and Freedom', 1970 p.7 410 U.S. 113 (1973) 25 394 U.S. 557 (1969) 26 381 U.S. 479 (1965 27 262 U.S. 390 (1923 28 Shriniwas Gupta, 'Right to Privacy is an Aspect of Human Dignity', LAWYER (Madras) Vol. 17 (1986) pp 67-73

However if we go through various statutes of our country to understand the position of the concept of privacy, then we would find several provisions which have been enacted for protecting privacy. Ss 28,29,164(3) and 165 of Cr. P.C., 1973, S 509 of IPC 1860 and S. 18 of Easements Act, 1882may be taken as example. Not only this ancient law in Dharam Shashtraas also recognized the concept of privacy. Really the law of privacy has been well expounded in the commentaries of old Law. Kautilya in his Arthashashtra has prescribed a detailed procedure to ensure right to privacy while ministers were consulted. But neither in ancient law nor in the present law has the term privacy anywhere been defined, nor any judicial pronouncement has so far come to make the position clear. It is the matter of pleasure that the emerging trend of the new constitutionalism by our judiciary justifies the need of a law trenching on one's privacy-his dignity. Besides, Art. 12 of the Universal Declaration of Human Rights, 1948, Art. 17 of the International covenant of Civil and Political Rights, 1966and Art. 8 of the European Convention of Human Rights have recognized and provided for the protection of this right to privacy. Further the Nordic conference of Jurists and Legal Experts also emphasized that the right to privacy is paramount to the human happiness.

JUDICIAL PRONUNCEMENTS Allahabad high Court in Nihal chand v. Bhawan Deit took first step when it recognized an independent existence of the right to privacy as emerging from the customs and traditions of the people besides being a statutory right. It observed :'the right to privacy based on social custom....is different from a right to privacy based on natural modesty and human morality, the latter is not confined to any class, creed, colour or race and it is a birth right of any human

being and is sacred and should be observed. The right should not be exercised inan oppressive way'. Then M.P. Sharma v. Satish Chandrawas29 the first case before the Supreme Court wherein it had an opportunity of considering the constitutional status of the right to privacy in the context of state power of search and seizer, but a very narrow view of constitutional provisions was taken in this case. Unfortunately the opportunity was missed and the right to privacy could not be put into the public law. In Kharak Singh v. State of U.P.30 the petitioner was charged and tried for committing dacoity and he was subjected by the police to domiciliary visits and surveillance. While determining the validity of such visits and surveillance by the police, the apex court examined whether the right to privacy formed a part of personal liberty. It observed that personal liberty is a compendium of rights that go to make up the personal liberty of an individual and that the right to life in Art. 2 1 of our constitution is similar to that of fourteenth and fifteenth amendments to the US Constitution. Further the court relied on Wolf v. Colorado31 held that the common law rule that event man's house was his castle, expounded a concept of personal liberty which did not rest upon a theory that had ceased to exist and that the domiciliary visit was repugnant to personal liberty and hence unconstitutional. In Pooran Mal v. Director of Instruction32 apex the court restricted the right to privacy to search and seizure. Once again in Govinda v. State of Madhya Pradesh33 this question was raised before the Supreme Court as to whether domiciliary visits and surveillance were constitutionally valid and the court speaking through
29 30

1954 AIR 300, AIR 1963 SC 1295 31 338 U.S. 25 (1949) 32 [1974] 1 S.C.C. 345 33 AIR 1961 MP 320

Mathew, J observed that fundamental rights have been enshrined in our constitution, only to secure such considerations that are favourable to the pursuit of happiness of the individual and that personal dignity and privacy should be examined with care and if at all can be denied only when a very significant interest seems to be superior. However, in this case he did not hold that right to personal liberty embraces right to privacy. He said: "Assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right to privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute". In fact in a landmark judgment in the case of People's Union for Civil Liberties v. Union of India34 the Supreme Court held that "right to life and personal liberty includes the right to privacy and right to privacy includes telephone conversation in the privacy at home or office and thus telephone tapping violates Art. 21". In R. Rajagopal v. State of T.N35.popularly known as "Autoshanker case" the Supreme Court has expressly held the "right to privacy" or the right to be let alone is guaranteed by Art. 21 of the constitution. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing 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 of the person concerned and would be liable in an action for damages. However, position may be differed if he voluntarily puts into controversy or voluntarily invites or raised a controversy.
34 35

(2004) 1 SCC 712 (1994) 6 SCC 632

This rule is subject to an exception that if any publication of such matters is based on public record including court record it will be unobjectionable. If a matter becomes a matter of Public record, the right to privacy no longer exists and it becomes a legitimate subject for comment by press and media among others. Again, an exception must be carved out of this rule in the interests of decency under Art.1(g)(2) in the following cases viz-a-viz female who is the victim of a sexual assault, kidnapping, abduction or a like offence should not further be subjected to the indignity of her name and the incident being published in press or media. The second exception is that the right to privacy or the remedy of action for damage is simply not available to public officials as long as the criticism concerns the discharge of their public duties; not even then the publication is based on untrue fact and statements unless the official can establish that the statement had been made with reckless disregard of truth. All that the alleged condemner needs to do is to prove that he has written after reasonable verification of facts. In State of Maharashtra v. Madhulkar Narain36 it has been held that the 'right to privacy' is available even to a woman of easy virtue and no one can invade her privacy. A police Inspector visited the house of one Banubai in uniform and demanded to have sexual intercourse with her. On refusing he tried to have her by force. She raised a hue and cry. When he was prosecuted he told the court that she was a lady of easy virtue and therefore her evidence was not to be relied. The court rejected the argument of the applicant and held him liable for violating her right to privacy under Art. 2 1 of the Constitution. There are many aspects of privacy found in the Indian socio-legal system but the right to privacy in the light of conjugal rights require special attention. The

36

AIR 1991 SC 207

question of relation between the right to privacy and conjugal right arose for the first time in T.Sareetha v. T.Venkata Subbaiah37 ' Andhra Pradesh High Court observed that sexual the cohabitation is an inseparable ingredient of a decree for restitution of conjugal rights. The appeal for suppression of identity before court was made in 1997 in the case of Mr. MX of Bombay Indian Inhabitant Vs. M/s ZY38 in proper cases and in the interests of the administration of justice, can always permit the plaintiff or the petitioner or the party before it to suppress its identity at proper stage and to prosecute or defend the proceedings in the assumed name. Though the Court did not say anything in this case about right to privacy but there is clear indication for need to protect the right to privacy of HIV infected persons". In case of Mr. X Vs. Hospital Z39 person was found to be a HIV positive and the information was disseminated by the doctor to his prospective wife. The person preferred a suit against the doctor for breach of right to privacy and damages as well. Doctor patient relationship though basically commercially is professionally a matter of confidence and therefore, doctors are normally and ethically bound to maintain confidentiality. In such a situation public disclosure of even true private facts may amount to an invasion of the "right to privacy" which may sometimes lead to clash of one person's "right to be let alone" with another person's "right to be informed". In Sharda v. Dharampal, 40it was observed that DNA evidence should not be collected from suspects as a matter of routine. To do so cause an unnecessary privacy intrusion. As a further privacy safeguard, DNA evidence should be collected from a suspect only if a judge authorizes the collection.
37 38

AIR 1983 AP 356 AIR 1997 Bombay 406 39 2003 (1) SCC 500 40 AIR 2003 SC 3450

In Teeku Dutta v. State.41R.C. Jain J. held that "no party to legal proceedings can be subjected to any scientific test such as DNA test for the purpose of collecting evidence against his or her will as it infringes upon his or her right to privacy. Ram Jethmalani and Ors.V. Union of India 42Supreme Court held: Right to privacy is an integral part of right to life, a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner.

RIGHT TO PRIVACY NOT AN ABSOLUTE RIGHT The right to privacy is an essential component of right to life envisaged by Art. 21. The right however is not absolute and may be lawfully restricted for the prevention of crime, disorder, or protection of health or moral; or protection of rights and freedom of others. With the growth of terrorism and related activities each country is trying to do its best curbing this trend. As a result, various Governments are taking suo moto actions and in the name of a preserving law and order, the states are violating the right of privacy of the citizens. Recently, all the cellular phone lines were jammed by the State during the twing bomb blasts in Mumbai and just a few days back the Government of India ordered all the Internet Service Providers (ISP's) to black access to Yahoo! Groups, a popular discussion forum where likeminded people exchange ideas and thoughts. This led to wide ranging fury and anger amongst the citizens as they felt that their freedom was being curbed and that their right to privacy had been violated. The Government took such an action because it

41 42

AIR 2004 Del205 (2011)

alleged that such a discussion forum was encouraging anti-social elements to promote terrorist activities in India. Today, there are cases where in organisations; all the e-mails of the employees are monitored. It is an absolute abuse of the right to privacy. Further to recently all the cell phone companies activated the tracking system wherein wherever the cell phone user goes his mobile phone shows the name of the area. This makes one feel as if he is being tracked or shadowed. It is a fit case of unreasonable restriction on the freedom of movement. The Indian government is currently considering the idea of enacting a detailed law on data protection under the initiative of the Ministry of Communication and Information Technology. A detailed enactment in respect of the right to privacy is the need of the hour. Otherwise every Indian citizen will be like a prisoner in his own backyard. In Govind v. State of Madhya Pradesh43 it was held "Assuming that the fundamental right explicitly guaranteed to a citizen has penumbral zones and that the right to privacy is itself a fundamental right, and it must be subject to restriction on the basis of compelling public interests." The code further observed that" if there is a conflict between fundamental rights of two parties that right which advances public morality would prevail. The right to privacy in any event will necessarily have to go through a process of case by case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy, it is an emanation from them which one can characterise as a fundamental right but the right is not absolute. In M. Vijaya v. The Chairman, Singaren Collieries44 upon' a detailed

43 44

1975) 2 SCC 148 AIR 2001 AP 502

discussion of the competing rights of a private party and public right with reference to right to privacy of a person suspected of suffering from AIDS the court held at if there is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and duty of the state to identify HIV infected persons for the purpose of stopping further transmission of the virus, in the interests of the general public, it is necessary for the State of identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional. As under Art. 47 of the constitution, the state is under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, will not be in breach of Art 21 of the constitution of India. Furthermore in Peoples Union for Civil Liberties (PUCL) v. Union of India45 Supreme Court discussed whether declaration of assets of an elected candidate is infringement of his right to privacy or it is in favour of voters right to information. In the instant case P. Venkatararnrna Reddy J. observed: "Privacy primarily concerns the individual. It therefore, relates to an overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values". Concluding, The norms of privacy should be determined and measured to a common standard because a right without description is a right without protection.. It may be hoped that when an appropriate case comes before the Apex court, it would make an overall review arid reconsider the existing position regarding the right to privacy.

45

AIR 2003 SC 2363

Right to Information v Right to Privacy- Balancing both rights . Dr Manmohan Singh opined 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,"46 RTI is focused on ensuring the accountability of powerful institutions to individuals in the information age. It provides rights to individuals tools to obtain Information about themselves that is held by government bodies. RTI laws are the only means to access personal records but are not applicable to the private sector. In 1998, using Article 8, of the European Convention on Human Rights, as a basis, the European Court of Human Rights ruled that in cases where a lack of information could endanger their health, individuals may demand information from government bodies. In many countries, like United States and United Kingdom, RTI laws are a primary tool used by privacy advocates to identify abuses and to campaign effectively against them. Hence using RTI to promote Privacy. AREA OF CONFLICT. Third party informationA public authority should not straightway reject a written request for information simply on the ground that it relates to a third party. The public authority if satisfied may obtain consent from the third party for disclosure.

46

Times of India , dated Oct 12 , 2012, RTI should be circumscribed if it encroaches on privacy.

Right to life includes right to lead a healthy life as to enjoy all the faculties of the human body in their prime condition, and the disclosure that the prospective spouse is a HIV(+) can in no way be said to violate the rule of confidentiality or the right to privacy. Clash of two Fundamental rights, namely right to privacy and the right to live a healthy life the right which would advance the public interest would alone be enforced. Elected officialsthere is also significant agreement that information about elected or highranking public officials is less restricted, even when it relates to their personal lives. The European Court of Human Rights (2004) said, the public has a right to be informed i.e., certain circumstances can even extend to aspects of the private life of public figures, particularly where politicians are concerned. In Hungary, the Constitutional Court ruled in 1994 that there are narrower limits to the Constitutional protection of privacy for government officials and politicians appear in public than to that of the ordinary citizen In India, the Supreme Court ruled that the criminal records of persons running for Parliament should be made public. A recent case ruled that medical information could be released if there was a sufficient public interest, however, ordinarily personal information including tax returns, medical records etc. cannot be disclosed in view of Section 8(1)(j) of the Act. In India, a review of the data of National Rural Employment Guarantee Scheme found that millions of rupees were being siphoned off because fake identity cards in the names of children and public employees were created and used. In most developed countries, like in the U.S, there is sensitivity about individuals receiving social support, so personal information held by government bodies is not generally made public.

Public Registers- An increasing controversy relates to access to information in public registers, such as birth, marriage, and death registers; electoral registers; land records; lists of license holders & similar records. Misuse of the Privacy Exemption- Not all arguments for privacy made by officials is legitimate. Former U.K. Cabinet Secretary Sir Richard Wilson said I believe that a certain amount of privacy is essential to good government. Both the RTI and privacy are internationally recognized human rights with long histories and important functions. The rights must be decided on a caseby case basis with a view toward the relative importance of various interests. The important issue is how the legislation and the implementing and oversight bodies balance the two rights. CONCLUSION both the rights are intended to help the individual in making government accountable and transparent. Most issues can be mitigated through the enactment of clear definitions in legislation, guidelines, techniques, and oversight systems. Due diligence would ensure that the access to information and data protection laws have compatible definitions of personal information. Appropriate institutional structures and public interest tests should be created to balance these rights and ensure that data protection and right to information work together in harmony. The public authorities should deal with the applicants in a friendly manner and public interest should be the core & the disclosures should be made accordingly.

BIBLIOGRAPHY
1 )H.M. Seervai, Constitutional law of India, Vol.2, 2007, Universal law publishing co. 2) J.N. Pandey, The Constitutional law of India, 4th ed 3 ) M.P. Jain, Indian Constitutional law, 5th ed., Wadhwa publishing co.