A Balancing Act or A Partnership

Scope of Section 8(1)(j) of the RTI Act

“Knowledge is power,

Information is liberating,

Education is the premise of progress, in every society, in every family.”

-Kofi Anan

The world stands in need of liberation, especially in view of the recent developments cloaked in the form of Wiki-Leaks and the Radia-Gate. Accountability and transparency of a government is read interchangeably with efficiency and good governance. In a staunch democratic country like India, where power is entrusted to the three constitutional institutions-Judiciary, Executive and Parliament, information is the lynch-pin of the political process. Information is not just an individual’s necessity but the sine qua non for the functioning of a government. Right to information evolved through various judgments and culminated with the Right to Information Act 2005. The words of Justice Krishna Iyer in the Maneka Gandhi Case reverberate in the preamble of this Act, “A government that functions in secrecy not only acts against democratic decency but also buries itself with its own burial”.

Every public right is appended with the caution “your right ends where my nose begins”. In the context of right to information, a person‟s right to information ends when it begins to invade another’s right to privacy. Right to privacy has found its due recognition in the Indian legal framework, with the Supreme Court interpreting it as one of the facets of right to life, under Article 21 of the Indian constitution. The literal meaning of privacy is freedom from intrusion by the public, especially as a right.

In the case of Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court discussed protection of privacy.

“The philosophy underlying the privacy protection concern links personal autonomy to the control of data concerning oneself and suggests that the modern acceleration of personal data collection, especially by government agencies, carries with it a potential threat to a valued fundamental aspect of our traditional freedoms.”

It is evident that right to information often collides with right to privacy. This inherent tension between both these rights was duly recognized by the legislature by exempting purely personal information under the Section 8(1)(j) of the Act. From the plain reading of the Section, to qualify for this exemption the information must satisfy the following criteria-It must be personal information or cause unwarranted invasion of privacy.

The pertinent question now is- what constitutes “personal information”, since the definition of the same is not provided under the Act. According to the Oxford Dictionary, personal means, affecting or belonging to a particular person, involving the presence or action of a particular individual or concerning a person’s private rather than professional life.

The dilemma faced while interpreting “personal information” is whether it connotes to the personal information of the seeker or a third party. On one hand Sections 7(7) and 11 of the Act separately deal with third party information and on the other hand the logic that information sought by the seeker, about himself cannot invade privacy. The judgment given in the case of Rakesh Kumar v. Lok Sabha Secretariat provides that the Section must be read as a whole, with the conclusion that, “personal information” for the purpose of this Section is that of a third party. The question whether “personal information” is limited to natural persons was discussed in the case of Mahesh Kumar v. Govt of NCT Delhi where it was drawn from the meaning of “personal information” the exemption cannot be extrapolated to legal persons, such as Institutions and Corporate Organizations, thereby putting a check on the tendency of evading taxes and not furnishing information.

There are two conditions when the exemption does not apply: -public interest and information that cannot be denied to the Parliament or State Parliament.

The second condition is the proviso appended to the Section 8(1)(j). Hence the right of a person to get information cannot exceed the right of its master. The significance of this proviso was discussed in the case of Surupingh Hrya Naik v. State of Maharastra, where the Bombay High Court pointed out that generally, medical records maintained of a patient is exempted but at the same time it cannot be denied to the Parliament or State Parliament. By the very constitution and the plenary powers enjoyed by the legislature, such information cannot be denied.

The first condition to the non-application of the exemption leads us back to the genesis of the dichotomy. “Public interest” was interpreted in the case of BabuRam v. State of Uttar Pradesh, the Supreme Court said “Public interest in common parlance means an act beneficial to general public and an action taken for public purpose.” The volatile nature of information has become the cause of many leaks. It is crucial that it is the courts and not individuals that decide whether the public has the right to know. The laws made to regulate information will become rather redundant if information is made public even before it is disseminated.

An evident hiccup is encountered when the notion of, balancing between rights is contended, as the Act obviously favors right to information. The only answer to this is that this legislative piece never intended to use privacy as a shield, but as a mechanism to bring clarity to the process. Consider the rights of a voter, a voter must know enough about a candidate to make an informed choice but at the same time, information which could bring in scope for bias or prejudice should be removed, otherwise the substance of election process will be lost. The Supreme Court showed this unique partnership between the rights, while deciding that a prospective spouse has right to seek information about the latter’s disease. The Madras High Court painted a harmonious picture of the rights by saying “right to privacy fades out in front of right to information and larger public interest.” This interpretation is befitting as “Sunlight is the best disinfectant”