RIGHT TO INFORMATION VIS VIS RIGHT TO PRIVACY

RIGHT TO INFORMATION VIS -À-VIS RIGHT TO PRIVACY Prof Dr. T. S. N. Sastry Coordinator, Dept. of Law University of Pune

Introduction “DEMOCRACY EXPECTS OPENNESS AND OPENNESS IS CONCOMITANT OF A FREE SOCIETY AND THE SUNLIGH IS A BEST DISINFECTANT” Dinesh Trivedi, M. P, and others V. Union of India (1997) 1 SCJ 697 2

Right to Information is the most important right in any democracy. It is this right, that only helps to assess the status of a polity, whether it is a democracy or otherwise. The concept of Information is a very old concept in the Indian context is concerned. In the modern era, the right to information is only two end half centuries old, which has underwent a chequred history. 3

Brief History The Efforts of Andres Chydenius led his Majesty Adolphus Frederick, the King of Sweden to Promulgate the World’s First Freeom of Writing and the Press Oridnance in 1776. Among the constitutions it was the US is the First Country to add to its constitution through the First Amendment. 4

History…. These efforts were only to protect the Freedom of the Press and other writings. It was the movement for the rights of the citizens and the recognition of municipal movements which were recognised by international law and gave birth to fundamental human rights in 1945 in the Charter of the UN helped to crystallize this right as part of the Human rights Philosophy. 5

Right to Information as a Human Right At the International level, Right to Information and its aspects find articulation as inalienable fundamental human right in most important basic human rights documents, namely, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. 6

Right to Information as a Human Right At a more regional level, there are numerous other human rights documents, which include this fundamental right. For example, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, the African Charter on Human and People's Rights, etc. The Commonwealth has also formulated principles on freedom of information. 7

Right to Information as a Human Right According to Art. 19 of the UDHR: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 19 of the UDHR was given legal status by the binding provisions of the ICCPR, 1966. 8

Right to Information as a Human Right Article 9 (2) states that: Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Article 19 (2) states that : Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 9

Right to Information as a Human Right In 1993, the UN Commission on Human Rights appointed a Special Rapporteur to monitor and report on the international implementation of the right to freedom of opinion and expression. The Report of the Special Rapporteur explained the term Right to information as follows: 10

Meaning of Right to Information “imposing a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems. " In the year 2000, the Special Rapporteur’s report considered by UN and adopted a set of principles of Right to Information. 11

UN Principles of Freedom of Information Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information; "information" includes all records held by a public body, regardless of the form in which it is stored. Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest, for example, operational information about how the public body functions and the content of any decision or policy affecting the public; 12

UN Principles of Freedom of Information As a minimum, the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information; the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government 13

UN Principles of Freedom of Information A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing; a complete list of the legitimate aims which may justify non disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest; 14

UN Principles of Freedom of Information All public bodies should be required to establish open, accessible internal systems for ensuring the public's right to receive information; the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s); 15

UN Principles of Freedom of Information The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself; The law should establish a presumption that all meetings of governing bodies are open to the public 16

UN Principles of Freedom of Information The law should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions; the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it; 17

UN Principles of Freedom of Information Individuals should be protected from any legal, administrative or employment related sanctions for releasing information on wrongdoing, viz. the commission of a criminal offence or dishonesty, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty or serious failures in the administration of a public body. 18

Judicial Recognition Inter-American Court of human Rights in 1998 in Marcel Claude Reyes et. al. , V Chile (Case No. 12, 108 Report. No. 60/03 Inter. American C. H. R. OEA/Ser. L/V/IL. 118, Doc. 70 expressly recognised the Right to Information as a fundamental human right. European Court of Human Rights in Tarasag a Szabadsagjogokert V Hungary in a land mark decision recognised the right to freedom of expression as a part of the European Convention of Human Rights under Art. 10 (2009) Rev. 2, 2003 at 222) 19

Regional Standards Article 13(1) of the American Convention on Human Rights, 1969 states that: "Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. " 20

Regional Standards Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 states that: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises…The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. " 21

Regional Standards Article 11(1) of the 2000 Charter of Fundamental Rights of the European Union explicitly guarantees the right to receive and impart information and ideas without interference by public authority and regardless of frontiers Article 9 of the African Charter on Human and People's Rights, 1981 states that: (1) Every individual shall have the right to receive information. (2) Every individual shall have the right to express and disseminate his opinions within the law. 22

Regional Standards In 2002, the African Union's African Commission on Human and Peoples' Rights adopted a Declaration of Principles in a Resolution which recognised that "public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information". 23

Regional Standards The Asian Nations declared in 2000 declared that they will take the necessary steps to make the public aware of the nuances of Right to information as a fundamental human rights as per the provisions of the UDHR and ICCPR and take steps to enact legislations in their respective countries to develop the transparency of the public bodies in making right to information a reality. 24

India and Right to Information A glimpse into the ancient past of India amply specifies that right to information was recognised as an essential right of the individual. The ancient texts such as the Vedas, Vedangas, smiritis, suritis, the epics and other texts have imposed an obligation on the King always to disclose the information about the administration to the public to the extent that is necessary to lead a peaceful life. 25

India and Right to Information In a strict legal parlance the right to information in ancient and medieval times became a part and parcel of the concept of “Dharma” However, the second half of the medieval century to till recent times, the frequent foreign invasions of the kingdoms and the colonial rulers started hiding the information from the public on the garb of Official Secrets Act 1923. 26

Right to Information and Constitution 27 Right to information is not explicitly stated by the constitution as a fundamental right. However, during the course of time, through interpretation the Judiciary in no uncertain terms recognised it as a fundamental rights and formed it as part of Art, 19 and 21 of the constitution of India. From Bennett Coleman and Co & Union of India(1973) till the PUCL V. Union of India (2004) it expanded the meaning and gave it to the people of India as a part of the Constitutional Jurisprudence.

Right to Information and Constitution 28 Ø The SC held that Freedom of speech and Expression is a conjoint part of Art. 19 (1) (A) and 21 of the Constitution. Ø In State of UP V Raj Narayain (AIR 1985 SC 865) the court held that Art. 19 (1)(a) NOT ONLY GUARANTEES FREEDOM OF SPEECH AND EXPRESSION, IT ALSO ENSURES AND COMPREHENDS THE RIGHT OF THE CITIZENS TO KNOW, THE RIGHT TO RECEIVE INFORMATION REGARDING MATTERS OF PUBLIC CONCERN.

Right to Information and Constitution 29 The Judicial Pronouncements, the International Standards, The Regional Regulations, The Legislative Dictums of the counter parts, Compelling ethos of the Jurisprudence of Human Rights, the Voice of the Citizens, The Forums of Discussions had finally led the Government of India to transform the polity from the cudgels of secrecy to transparency by recognising the Right to Information of the billion citizens of the major democracy of the world and showed the way through an enactment in 2005.

Right to Privacy 30 The law of privacy is a recognition of the individual's right to be let alone and to have his personal space inviolate has a chequred history. Privacy law has evolved largely through judicial pronouncement. Despite the lack of specific constitutional recognition, it had a place in the jurisprudence of Human Rights.

Right to Privacy 31 Art. 12 of the UDHR, No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 17 of the International Covenant on Civil and Political Rights, 1966 to which India is a signatory, reads as follows:

Right to Privacy As a Human right 32 1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to lawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Article 8 of the European Convention on Human Rights reads as follows: 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 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.

Right to Privacy and USJudiciary 33 The Earliest Decision on Right to Priv. Albert v. Strange of England (1849) 1 Mac & G 25 : 41 All ER 1171) led the Judiciary in America to quickly evolve the concept of Right to Privacy as part of the fundamental rights of the American Constitution. The most well-known American cases on privacy are Griswold v. Connecticut and Roe v. Wade. In Griswold(381 US 479 (1965) the constitutionality of a law which prohibited the use of contraceptives was challenged. Upholding the notion of privacy,

Right to Privacy and US Judiciary 34 Justice Douglas held : ". . . 'governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms, namely the Right to Privacy. ” IN Roe v. Wade (410 US , the Supreme Court held that although the American Constitution did not explicitly mention any right of privacy, the Supreme Court itself recognised such a right as a guarantee of certain "zones or areas of privacy" and "that the roots of that right may be found in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights and in the concept of liberty guaranteed by the Fourteenth Amendment" 113 (1973).

Right to Privacy in India 35 the right to privacy is not a specific fundamental right but has gained constitutional recognition. The right to privacy in India has derived itself from essentially two sources: the common law of torts and the constitutional law. Under the constitutional law, the right to privacy is implicit in the fundamental right to life and liberty guaranteed by Article 21 of the Constitution. The constitutional right to privacy flowing from Article 21 must, however, be read together with the constitutional right to publish any matter of public interest, subject to reasonable restrictions.

Right to Privacy in India 36 In Kharak Singh v. State of U. P(1963) Justice Subba Rao had brought the concept into Indian legal purview. According to him “… the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty……”

Right to Privacy in India 37 In Govind V. State of Madhya Pradesh(1975) Justice Mathew further held, “Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right of privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest. ” The Supreme court in People’s Union for Civil Liberties V. Union of India (1991) finally recognised it as a fundamental right. The Court stated:

Right to Privacy in India 38 “We have, …. . No hesitation in holding that right to privacy is a part of the right to “Life” and “Personal Liberty” enshrined under Art. 21 of the Constitution, Once the facts of a given case constitute a right to privacy, Art. 21 is attracted. The said right cannot be curtailed except according to procedure established by law. ” In Rajagopal V. State of Tamil Nadu (1995) finally expanded the tenets of the right to privacy and held that : the right to privacy is implicit in the right to life and liberty guaranteed to the citizen of this

Right to Privacy in India 39 Country by Art. 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among others. ” It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen” The court has made it clear that the principles advocated in the case are only broad based and they are neither exhaustive nor all–comprehending, indeed no such enunciation is possible or advisable.

Right to Privacy in India 40 It also pointed out that as Justice Mathew held in Govind’s case, this right has to go through a case-bycase development. The concepts of privacy are still in the process of evolution. From the above, it is clear that until and unless there is a major public interest is involved and that too such interest is not hampering the life and liberty in any way the privacy of the individual, then only the law can interfere in imposing restrictions on the right to privacy.

Right to Information Vis-A Vis Privacy 41 The RTI Law has also recognised the concept of Life and Liberty which encompass the right to privacy. According to Section 8 (g) information, disclosure of which would endanger the life or physical safety of person or identify the source of information or assistance given in confidence for law enforcement or security purposes; and Sub clause (F) which reads:

Right to Information Vis-A Vis Privacy 42 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 he 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.

Right to Information Vis-A Vis Privacy 43 Basing on the construction of the sentence in the law, many started misusing the law. For example, recently the Delhi High Court (2009) held that the Supreme court Judges are bound to declare the properties of theirs and their family members. The court arrived at the above basing on the law of the rules of the Supreme Court that the Judges should declare their assets to the CJI. Further, the judgment clearly indicates the judicial politics that are in vogue whenever a judge is not consider for the post of higher judiciary.

Right to Information Vis-A Vis Privacy 44 As rightly held by the Supreme Court, no person or agency has a right to compel to declare the properties public of an individual or his dependents. Even the Legislative dictum that one has to declare the properties to their higher authorities or the legislatures is not in tune with the right to privacy. Asking a person to declare the properties, is nothing but encourach into the Private life of an individual. This is perhaps to enter into the privacy indirectly than directly entering to know the way a person spends out of his earnings.

Right to Information Vis-A Vis Privacy 45 The Legislation to that extent the wording empowering only to the public acts and not to private acts. Why the situation is come into forefront is because of lack of morals , ethics and not discharging the duties that are casted with each right. It is unfortunate psychology of India, one cannot settle the scores directly may use the law for their personal purposes.

Right to Information Vis-A Vis Privacy 46 As rightly said by the Supreme Court, the privacy concept is a holistic concept which covers the individual from various perspectives and should not be used to settle the personal scores of the individuals. Every body is taking cudgels of the Right to Information more for its misuse than its restrictive use in a right direction to clean size the Administrative malfunctioning or misappropriation of authority.

Right to Information Vis-A Vis Privacy 47 When a person intrudes into the private property, why can’t we question the misuse of the office by the Hon’ble members of Legislatures, who are covered under the legislatures supremacy of Privileges? Recently when a person wanted to know the properties of former emperors who have been recognized theoretically at the time of framing the constitution of India, under Art. 363 (1), the Central Public Information Officer expressed is inability since the constitution bars the jurisdiction.

Right to Information Vis-A Vis Privacy 48 Article 363 (1) provides that notwithstanding anything in this Constitution, neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement or similar instrument entered into or executed before the commencement of this Constitution by any Ruler of an Indian State. Further, it is surprising that Under Section 87 -B of the CPC nearly 250 former sovereigns of the erstwhile princely kingdoms are not accessible to sue under any law in India until the state permits.

Conclusion 49 This being the situation, let us not jump merrily that RTI is a tool for everything, especially to intrude into the Privacy of the Individual. If any suspicion is there, about the earning of a person, there are other agencies in the country which may be approached. These agencies are constituted only for such purposes to prevent misuse of the Officials. Let us not think that the Politics of the polity lost their moral ethical standards, that every organ of the state has fallen in its standards. Using the RTI sparingly, certainly will yield results that a democracy is need to function.

Thank You All 50