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Regulatory paradox: Govt bodies can't shelter under privacy laws when RTI is invoked

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The government should also clearly formulate policies as to what all information can be disclosed under RTI and information which can be protected under RTP.

Regulatory paradox: Govt bodies can't shelter under privacy laws when RTI is invoked
The Right to Information (RTI) and the Right to Privacy (RTP) are two main fundamental rights of the Constitution of India. It is quite frequently said that the RTI and the RTP are two sides of the same coin and they complement each other making the government accountable to the citizens of India. It is also a myth that the government bodies can shelter under RTP when RTI is invoked. There is no opaqueness under the RTP as stated by the Supreme Court of India recently in its judgment about Chief Justice of India coming under the RTI. In the same judgment, the apex court had also stated that the public interest should be upheld while disclosing information under the RTI. There is no watertight compartment between judicial independence and accountability. In fact, both judicial independence and judicial accountability go hand in hand. One cannot wear the garb of privacy to protect their offices from disclosing information as required under the RTI. This was very interesting judgment by the Supreme Court of India lauded by many RTI enthusiasts and advocates.
Right to Information Act, 2005
The birth of RTI Act, 2005 was after prolonged fight by its activist to bring in a separate law. RTI Act was brought in after scrapping the erstwhile Freedom of Information Act, 2002. However, even before the law came into force, the Supreme Court had already recognised RTI as a fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The apex court in its various judgments had upheld the Right to Information as one of the pillars of democracy.
RTI is a tool to control corruption and hold the government accountable and restrain the government from arbitrary use of its power. The government is run on public money and hence it is the right of the general public to enquire about the way the government is run or the way its money is spent. The act also encourages dissemination of information to the public at large through digital means so that there will be minimum recourse to request for information formally.
Right to Privacy
Right to Privacy is derived from Article 21 of the Constitution of India. The law recognises that every individual has a private side and the right to privacy gives the right to that person to keep the private side to himself and not be given away to the public. The right to privacy was upheld as a fundamental right by a nine-judge bench of the Supreme Court in Justice KS. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. The bench of the apex court unanimously held that the right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India.
Right to Privacy under the RTI Act, 2005
As per section 8(1)(j) of the RTI Act, if the information is personal causing unwarranted invasion of the privacy and serves no public interest, then the information cannot be disclosed unless the Central Public Information Officer or the State Public Information Officer or any other appellate authority is of the opinion that the disclosure of the information serves larger public interest. This statutory provision clearly protects the personal information of an individual especially when the said personal information is in the control of the government authority. The personal information cannot be sought by a third party as such information is exempted from disclosure under the right to privacy. A good example can be the medical records of the individual lying with the government authority. The medical details cannot be sought under the RTI Act. However, if there is a piece of information with the government authority and the applicant is seeking such information under the RTI Act, and it can also be proved that the disclosure of such information is warranted under the public interest, then the government authority cannot withhold such an information being disclosed under the RTI Act.
Assuaging the paradox
Clearly there seems to be a paradox between RTI and RTP. It looks like the government authority can take shelter under RTP and shy away from disclosing the information. Moreover, there is also a statute in the form of section 8(1)(j) of the RTI Act, which provides an exemption from disclosure of personal information under the RTI. There is no watertight segregation between the two. There is a dwindling thin line and this line must be brought out clearly by the applicant in the form of public interest. Public interest may warrant disclosure of such personal information to the applicant by the public authority disregarding the RTP. But the challenge lies in demarcating the two. The challenge lies with the applicant. So before an applicant seeks to know the personal information of an individual, he has to first justify the public benefit of the information to be disclosed. The responsibility clearly lies with the applicant. The requirement under public interest will force the information officer, to disclose the personal information and he should be convinced that this does not infringe the RTP. The government should also clearly formulate policies as to what all information can be disclosed under RTI and information which can be protected under RTP. The RTI and the RTP are hence, two sides of the same coin which uphold the fundamental rights of the citizens.
K Satish Kumar is a keynote speaker, author, the Global Head of Legal and Chief Data Protection Officer of Ramco Systems. Among the many awards he has received, the coveted are “Top 50 Legal Leaders 2019” by Legal IP Gorilla in Singapore, “GC PowerList India 2018” by London based Legal 500, “Legal Counsel of the Year -2018” by INBA. He is actively involved in many pro bono activities through Chennai Lawyers. The author can be reached at getksk@gmail.com. The views expressed are personal.
Read his columns here.