Case for harmonising the right to information with the right to informational privacy

There is a theoretical harmony between the right to information and the right to informational privacy which has not been translated into praxis in the Indian democratic polity, owing to a prioritisation of the right to privacy over that to information in recent jurisprudence.  

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THE right to informational privacy is a judicially recognised facet of the broader right to privacy, along with the right to decisional autonomy, and bodily and mental privacy by the landmark judgment of Justice K.S. Puttaswamy (Retd.) & Anr. versus Union of India & Ors. (2017).

The right to informational privacy has been a contested and is an inadequately protected right in India, which exemplifies the fraught relationship between the citizen and the State from the vantage point of the Indian democratic discourse. The study of the right to informational privacy becomes an intriguing subject of study because it is a fundamental right that is routinely used by the State as a defence to encroach upon another fundamental right – the right to information ('RTI'). We argue this to be an artificial friction between the two rights as opposed to a theoretical disharmony.

Also read: RTI & privacy: Need to find a confluence | Perspective

Theoretical harmony

The authors' proposition is that RTI and the right to privacy aren't at loggerheads. We argue that the constituent elements of these two rights are not just harmonious with one another, but are also mutually reaffirming.

Our argument is that at its base, RTI and the right to privacy both emanate from fundamental rights. The former flows from the right to free speech and expression, as was recognized by Justice K.K. Matthew in State of U.P. versus Raj Narain (1975).

Rather, the RTI is also an enabling right. Unless one knows the relevant information, one cannot articulate informed opinions about the subject at hand. This is how RTI equips a person with the wherewithal to speak out. Hence, it is logically deductible that RTI is a positive right, since it enables active citizenship, which heralds a fuller and more meaningful life.

On the other hand, the right to privacy is the 'right to be left alone'. That your life, liberty and property is intact and a sanctified subject matter of your self-enjoyment lies at the base of the fundamental right to privacy. This way, the right to privacy is at its base a negative right, which implicitly issues an injunction against the State's encroachment upon a citizen's life, liberty and property. However, recent jurisprudence after Puttaswamy suggests that privacy is also a positive right insofar as the protection of one's identity is concerned.

Holistically seen, the right to privacy and RTI are two sides of the same coin. The former inter alia furthers the ethos of Article 21 of the Constitution and the latter enables the enjoyment of freedoms under Article 19 of the Constitution. Cumulatively seen, RTI also rationalises Article 14 of the Constitution insofar as it enables information to be democratically accessible so that there is equality in access.

The effect of the entrenched and democratic right to information is that there is no invariable exclusion of a certain class of citizens from equitable access to public information by virtue of their social standing. Thus, we can see that the interface between the fundamental rights to information and privacy breeds the golden triangle of Articles 14, 19 and 21.

A logical extension of the argument that the right to informational privacy and RTI are mutually affirming is that RTI could well be a mechanism to bolster the right to privacy itself.

To illustrate, a counter-intuitive logic dictates that upon denial of RTI claims of 'personal information' related to a public activity of a public official, an 'active citizen' may resort to extra-judicial mechanisms like that of surveillance to extract that impugned information. This would squarely constitute a manifest infringement of the fundamental right to informational privacy, because, unlike an RTI claim, an act like surveillance is without any checks and balances.

Also read: Balancing Act: Right to Information v. Right to Privacy

Dissonance between theory and praxis

In India, the right to informational privacy and RTI squarely clash insofar as 'personal information' is sought via an RTI claim. In the RTI Act, 2005, there is a specific provision viz, Section 8(1)(j) that governs this palpable conflict. It reads as follows –

Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information which relates 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 unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. (emphasis supplied by authors)

Upon a plain reading, there are three requirements to be satisfied under this section, which are as follows-

1. a) That the information sought has a direct nexus to public affairs and,
2. b) That the 'larger public interest' justifies its disclosure because it directly pertains to public affairs. Thus, the second requirement essentially flows from the first.
3. c) The proviso to section 8(1)(j) mandates that information that is denied to the public must be commensurately be denied to the Parliament or state legislature as well. A plain reading of this postulates an 'equality in privilege' between the individual citizen and the legislature.

Thus, one can see that there are significant statutory safeguards against the invasion of privacy of an individual whose 'personal information' has a direct nexus with the greater public interest. Despite such a fine balance struck between the right to informational privacy and RTI by the Parliament, RTI is routinely insubordinated to the right to informational privacy by the judiciary. It is argued that the fountainhead of such judicial indiscretion is the Supreme Court's judgment in Girish R. Deshpande versus CIC (2012).

Also read: Supreme Court Ruling Comes in Handy to Constrict the Fundamental Right to Information 

Looking back at Girish R. Deshpande

Issue: The pointed issue before the court was whether the information pertaining to a public servant with respect to his assets and liabilities was qualified to be personal information as defined under section 8(1)(j) of the RTI Act?

Holding: The court held that the information sought (assets/liabilities, income tax returns, office memos, disciplinary notices and gifts received) amounted to personal information and thus couldn't be furnished. This case is significant for the proposition that 'personal information in the course of employment' of a public official is private and not liable to be disseminated via the RTI Act.

Analysis: It is argued that this case falls foul of all three requirements of section 8(1)(j) insofar as the court simply reasons that the information sought was a matter between the employer and employee, for it being a part of the organisational structure.

It is not beyond imagination that internal office memos directing the disbursal of State funds or an alteration in the list of welfare scheme beneficiaries could amount to a 'correspondence between the employer and employee' within an 'organisational structure', that is, the bureaucracy, and thus could be denied on that ground.

Girish R. Deshpande has thus inaugurated a slippery slope, which is the antithesis of transparency and accountability. This case also overlooks the fact that the employer is 'we the people' who gave to ourselves the Constitution. The fact that bureaucrats are public servants was flagrantly disregarded in this impugned judgement.

The authors disagree with the court's reasoning that the petitioner lacked a bona fide interest, since the premise of RTI itself is that having a locus standi is not a condition precedent (See the Preamble of the RTI Act).

We concede that income tax returns and salary might not have a direct nexus with public affairs per se, but the determination of a 'larger public interest' was found wanting in this judgment.

The Supreme Court's judgment in Union of India versus ADR & Anr.(2002) is instructive here insofar as it mandates the disclosure of assets of prospective public servants in the 'larger public interest'. It is then a logical postulation that if citizens have a right to know about the assets of those who want to become public servants, their right to get information about those who are public servants cannot be lesser.

Moreover, R. Rajagopal versus State of Tamil Nadu (1994) held that the right to privacy as a defence to information sought is simply not available with respect to the acts and conduct of public servants relevant to the discharge of their official duties. The information sought in Girish R. Deshpande was to excavate corruption and to ensure good governance in the department of the Regional Provident Fund Commissioner under the Union Labour Ministry. This indubitably had a direct nexus to public affairs. The court failed to appreciate that corruption detrimentally impacts 'official duties', which was the central issue in this case.

Lastly, Girish R. Deshpande amounts to a judicial amendment of the law itself insofar it detaches the proviso of section 8 (1)(j) from the main section.

One of the co-authors has argued that the interpretation of this proviso mandates that the information commissioner, while denying the sought 'personal information', must make it explicit that the same information would be denied to the Parliament and state legislatures as well.

According to this logic, it seems that the 'information with direct nexus to public affairs' which was sought from a state official in Girish R. Deshpande is so sacrosanct that even the Parliament would be denied the same information. Can a public servant in the State machinery be above the State and its constituents – the citizenry?

It is simply unfortunate that Girish R. Deshpande is being used as a precedent in subsequent Supreme Court judgements like Thalappalam ser. Coop. bank ltd. versus State of Kerala (2013), Central Public Information Officer, Supreme Court of India versus. Subhash Chandra Agarwal (2019), Chief Information Commissioner versus High Court of Gujarat (2020) and Canara Bank versus C.S. Shyam (2017).

Hence, it can be concluded that Girish R. Deshpande fails to account for Supreme Court precedents and disregards the proviso of section 8(1)(j) in toto, thereby opening a sinister black hole in the quest for good governance.

This is the dissonance between theory and practice, providing sufficient reason to declare Girish R. Deshpande as per incuriam.

Also read: How the Supreme Court's flawed judgment in Girish Ramchandra Deshpande case has led to denial of information under Section 8(1)(j) of the RTI Act

Privacy jurisprudence

The evolution of privacy jurisprudence traces its provenance to the watershed case of Govind versus State of MP (1975). Not only did Justice K.K. Mathew, in a unanimous verdict, emphatically recognise privacy as a fundamental right, he also laid out the compelling State interest/narrow tailoring test for an infringement of privacy.

Thus, such placement of privacy on the highest possible pedestal when none existed before was analogous to a deluge on a drought land.

This narrow-tailoring approach was implicitly upheld in PUCL versus Union of India (1996), which furthered the Govind jurisprudence insofar as it mandated that privacy restrictions must be narrowly tailored if they are to be constitutional. The post-PUCL line of Supreme Court judgments, including District Registrar & Collector, Hyderabad versus Canara Bank (2004), Directorate of Revenue versus M.N. Holia (2007) and State of Maharashtra versus B.S.L. Shah (2008), all captured the essence of the narrow tailoring test.

Since Puttaswamy was argued against the backdrop of this narrow tailoring rest in privacy restrictions, naturally the nine-judge Constitution bench grappled with this 'narrow tailoring test'. Even though this test isn't articulated into a distinct prong by the bench, it is implicit in the proportionality prong insofar as it requires the proposed action to be necessary in a democratic society and to be proportionate to the need of interference, which requires the law to be narrowly tailored.

We argue that for there to be harmony between RTI and the right to informational privacy, there must be an equality of deference between the right to informational privacy of State officials and ordinary citizens. This is because, if the right to privacy of a State official is higher than that of the citizen, then it would militate against both – the regime of RTI and the privacy jurisprudence as it stands today. To substantiate, I will demonstrate that section 8(1)(j) of the RTI Act encapsulates the Puttaswamy test of limitation on privacy, and that Girish R. Deshpande, by employing a flawed interpretation of the impugned section, transcends it. The consequence of this was that the right to informational privacy of the State official was placed over and above that of an ordinary citizen.

Also read: Will the Right to Information Act Become the Right to Denial of Information Act?

We will now show how section 8(1)(j) encapsulates the Puttaswamy test by way of correlation. The discernible majority opinion in Puttaswamy postulates the following test –

(i) The action must be sanctioned by law: The correlative of this is the fact that section 8(1)(j) being a duly enacted law on the statute book, validly sanctions the act of seeking personal information subject to its stipulations.

(ii) The proposed action must be necessary in a democratic society for a legitimate aim: This correlates to the fact that there is no obligation to disclose personal information if it enjoys no direct relationship with any public activity or interest. Put differently, the proposed action, which is the RTI claim, necessitates the disclosure of personal information, so long as there exists a direct nexus to fulfil the legitimate statutory aim of transparency and accountability.

It is to be noted that even if the personal information enjoys a direct nexus with a public activity/interest, the sought information can be denied on grounds of constituting an unwarranted invasion of the individual's privacy. This can be on the ground of decency and morality, and the State may employ the Article 19(2) restriction in such a situation. Hence, this is an additional safeguard amounting to a 'narrowly tailored' RTI plea.

(iii) The extent of such interference must be proportionate to the need for such interference: This can be correlated by examining the proximity of nexus between personal information and public interest. The moment this nexus is severed or becomes bleak, the RTI plea will fall foul of the proportionality standard.

(iv) There must be procedural guarantees against abuse of such interference: This fourth prong was added by Justice S.K. Kaul in Puttaswamy, and it can be correlated to section 8(1)(j) by looking at its proviso, which is an internal aid of interpretation. The requirement of denying the same information to the Parliament as the citizen can provide procedural guidance to the subjective interpretation undertaken by the Information Commissioner, of whether the larger public interest justifies the disclosure of information.

For instance, would the Information Commissioner in Girish R. Deshpande have denied information about the assets/liabilities and 'gifts' received by a suspected corrupt public official to a Member of Parliament, if she sought such information by way of a starred question? If yes, then on what grounds? Does the apex sovereign policy making body of India not have the right to know about its own officials?

Hence, it can be concluded that section 8(1)(j) of the RTI act is accommodative of the fundamental right to informational privacy and strengthens it, instead of brazenly impinging upon it.

Moreover, a recognition of this mutual affirmation between section 8(1)(j) and the privacy safeguards of Puttaswamy would entail not only a practical harmony between the right to information and privacy, but also a meta-harmony between socio-economic rights and civil-political rights. This is because a civil-political right like RTI can act as a conduit to democratise socio-economic rights by ensuring that they actually permeate amongst the intended beneficiaries.

Also read: Officials misusing Section 8 of RTI Act to deny information

Therefore, for a statutorily sanctioned RTI regime to carry on its instrumental task of ensuring that socio-economic rights and benefits are equitably distributed to deserving beneficiaries, there must not be any legal roadblock in the process. This piece has demonstrated that by integrating the fundamental right to informational privacy with section 8(1)(j), RTI can be meaningfully and effectively exercised, notwithstanding any unwarranted privacy challenge. This way, the much sought-after bonhomie between RTI and informational privacy will ultimately herald social justice.