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11 chapter 5 - SDSDS
BA LLB (HONS.)
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CHAPTER–V
PROTECTION OF PERSONAL AND OFFICIAL
INFORMATION UNDER RIGHT TO
INFORMATION ACT
1. Introduction : In the year 2005, RTI was enacted, keeping in view the past pronouncements by Hon'ble Apex Court and various High Courts 1 any Information can be asked Subject to the provisions of RTI Act, 2005. No doubt, some restrictions are imposed, due to protection of personal information of a party, copyright protection and security etc. Section 3 of the Act dealing with Right to information specifies that subject to the provisions of this Act, all citizens shall have the right to information, meaning thereby that information‘s which are exempted and excluded under Right to Information Act, 2005 cannot be asked. 2. Protection of Personal Information Examination of the said Sub-section shows that it consists of three parts. The first two parts stipulate that personal information which has no relationship with any public activity or interest need not be disclosed. The second part states that any information which should cause unwarranted invasion of a privacy of an individual should not be disclosed unless the third part is satisfied. The third part stipulates that information which
- Sec. Chapter on Role of Judiciary and RTI.
causes unwarranted invasion of privacy of an individual will not be disclosed unless public information officer or the appellate authority is satisfied that larger public interest justifies disclosure of such information. As observed by S. Ravindra Bhat, J. the third part of Section 8(1)(j) reconciles two legal interests protected by law i. right to access information in possession of the public authorities and the right to privacy. Both rights are not absolute or complete. In case of a clash, larger public interest is the determinative test. Public interest element sweeps through Section 8(1)(j).Unwarranted invasion of privacy of any individual is protected in public interest, but gives way when larger public interest warrants disclosure. This necessarily has to be done on case to case basis taking into consideration many factors having regard to the circumstances of each case. 2 Section 8(1)(j) deals with exemptions from disclosure of Personal Information on the ground of unwarranted invasion of the privacy of individual but if CPIO, SPIO or Appellate Authority justified the disclosure of information only then the disclosure of personal information is permitted. The satisfaction of CPIO/SPIO is must, keeping in view the Right to Privacy in India. Infact, in many countries the concept of Right to Privacy has been fused with data protection, which interpretates privacy in terms of management of personal information and involves the establishment of rules governing the collection and handling of personal data such as credit information and medical records. The security and privacy of E-mail,
- In Subash Chand Agarwal case decided on 2 September, 2009 – by Delhi High Court.
accordingly under the legislations read with (sec. 8(1)(j) of the Act then. On the other hand if personal information is to be disclosed in public interest even then CPIO, SPIO and Appellate Authority must test the information accordingly and comply the Section 11 of the Act by sending written notice to the 3rd party. Section 8(1)(j) is a guiding provision for not to disclose the personal information only when satisfied that there is unwarranted invasion of Privacy of Individual. 3. Test of Privacy under Section 8(1)(d), (e) and (g) of Right to Information Act, 2005 Right to Privacy is very wide issue which covers other areas Like Protection of Intellectual Property Rights, 4 Breach of confidence and Bodily Privacy. 5 Under Sections 8(1)(d)(e) and (g). It is pertinent to me ntion here that under Cl(1)(j) of Section 8, the meaning of privacy is not precisely given or explained by way of any explanation to its widest meaning but includes other areas of privacy. Author is of the view that while protecting the personal informatio n i. privacy. PIO's and Appellate Authorities have to test privacy right in the light of Cl(1)(d),(e) and (g) of Section 8. In India, we are Lacking on the issue of privacy because there is no comprehensive legislation. To protect privacy as mentioned in Cl(1)(j) of Section 8. Some sources should be recognized, so that PIO's and Appellate Authority can decide the Right to Privacy. According to Right to Information Act, 2005, the purview of Privacy under section
- Copy Right Act, Patent Laws, Trade Mark Act and Design Act,
- State is bound to protect life and personal liberty of Individual under Art. 21 of Constitution of India
8(1)(j) includes Cl(1)(d),(e) and (g) also. It may be said that Right to Privacy (Intellectual Property Right, Bodily Privacy & Breach of Confidence) has been recognized by the parliament by incorporating Section 8 Cl(d)(e) and (g) of the Act. 4. Procedure for Protection of Personal Information The issue of protection of personal/confidential information is very important than disclosure of information. The plenary interpretation of the Sections 11 and 8(1)(j)(d)(e)(g), is crystal clear that in case if PIO's intended to disclose any confidential information which may be personal on record shall with in five days ( according to Sections 11 and 2(n) public authority is a 3 rd party ) from the receipt of request gives a written notice and invite the third party to make a submission (within 10 days) in writing or orally, regarding whether the information should be disclosed and on submission of objection by third party that shall be kept in view while taking a decision about the disclosure of Information. Against the decision of CPIO for disclosure of inf ormation if 3 rd party is not satisfied then can file Appeal under Section 19Cl(3) to Appellate Authority. If again the 3rd party is not satisfied with the decision of CIC or SIC for disclosure of personal/confidential information then 3rd party can file a writ petition under Article 226 of Constitution of India in the High Court for the protection of personal/confidential information by citing international conventions on UDHR, 1948.
information must at least take the view of the HOD. 9 (Under section 123 and 124 of Indian Evidence Act, 1872). A Public Authority as a 3rd party is, therefore, entitled to protect from disclosure an information which relates to it and which it has considered confidential. The disclosure of such an information by the PIO is possible only after hearing the party and taking into account the objections, if any, raised by it to the intended disclosure. The PIO can order disclosure only if the public authority decides that public interest in disclosure outweighs any possible harm or injury to the interest of such Public Authority as third party. A Public Authority being a 3rd party, therefore, cannot be denied its right to object to any intended disclosure by the PIO if it is of the view that the disclosure is likely to cause any harm or injury to its interest. If the interpretation of the RTI law is to be accepted, it would mean that even when the Government is litigating vis-à-vis another person, that person will have the right to access all information about how the Government is seeking to defend its position in the legal proceeding without having any corresponding right to access similar information of the opposite party. On any scale of equity, this will appear to be biased against the public authority. Before the enactment of the Right to Information Act, 2005, such public authorities received protection to its position and the information held by it was exempt from disclosure in any suit or legal proceeding, under several provisions of
- Observed by CIC in Milap Chorana v. C.B.D., decided on 27-7-
the Indian Evidence Act, 1872. Now, with the advent of the Right to Information Act, 2005 it is, arguably, no more possible for such public authority to hold its side of information and evidence from being directly accessed by the opposite party except for exemptions contained in Right to Information Act, 2005. In normal course, the Government as well as the opposite party would have produced their evidences and arguments before the court of law, who would have then decided how to allow the evidence to be shared between the parties and at what stage. Now, private litigants are choosing to invoke Right to Information Act, 2005 in order to equip themselves in advance about the position taken or likely to be taken by the public authority in an ongoing litigation in order to counter it .It will need to be examined whether such interpretation of the Right to Information Act, 2005 is possible i. to allow a party to a litigation to access the other party‘s evidence and stated position in order to build his own case against that position. The point for consideration is whether the public authority can hold confidentially its side of the information and the internal deliberations it may have had in order to put up its case before a court and whether it is obliged to disclose all this information to the very person whom it intends contesting in the court of law. A public authority is duty-bound to defend its officers‘ bona-fide interest as well as its own interest in any litigation with the opposite party, and if it is forced to submit to that opposite party‘s demand for all information
8 of the European Convention on Human Rights defines this right by protecting Personal Information : In Govind v. M. case , it has been held in this context that police surveillance of a person, by domiciliary visits and other acts, to be valid must be supported by law and must be unobstructed and reasonable for the purpose of prevention of crime by potential offenders 11 Justice Bhagwati in Francis Coralie Mullin case observed The Fundamental Right to life is the most precious human right and forms the are of all other rights. The word life however does not mean mere animal existence. 12 Regarding domiciliary visits at night, the majority was of the view that an unauthorized intrusion into a person‘s home and the disturbance caused to him thereby is violative of common law right of a person which is an ultimate essential of ordered liberty which is the violation of Art 8 of European Convention On Human Rights, 19 50. Sometimes causes disclosure of Personal Information. There are provisions of punishment to offenders, who infringe the Right to Privacy i. Defamation, Trespass to land, Obscenity and outraging the modesty of a woman in criminal law by publishing Personal Information. These rights are protected by the State. Trial in a camera of a rape case, is also a procedure enshrined in Section 327(2) of Criminal Procedure Code, 1973. It has been held by Hon‘ble Supreme Court in Madhulkar v. State of
- 1975 SCC 148-157.
- AIR 1981 SC 746.
Maharashtra case 13 that the woman of easy virtue have also a Right to Privacy for Protection of her reputation and Personal Information. Right to Privacy is availed to a victim against the offender in offences like tress pass to land, obscenity and outraging the modesty of a woman. It is not mentioned as a crime, but to protect the weaker section by the State. In Raj Gopal v. Tamil Nadu case , 14 t he Supreme Court affirmed that the Right to Privacy is implicit in the right to life and liberty guaranteed to the citizens of this country under Article 21. It is a Right to be Let Alone so as to enjoy life without any interruption and interference by other person. The court further observed.: A citizen has a right to save the Privacy of his own, his family, marriage, procreation, motherhood, child bearing and education. None can publish anything concerned with the above matters without his consent, whether truthful or otherwise whether laudatory or critical. If he does so he would be violating the Right to Privacy i. disclosing the Personal Information of the person concerned and would be liable in action for damages. In People’s Union for Civil Liberties vs. U.O. case 15 the petitioner had challenged the constitutional validity of section 5 of the Indian Telegraph Act, 1885 wh ich authorises the central government or State government to
- AIR 1991 SC 208.
- AIR 1994 SCC 514. 15 AIR 1997 SC 568.
to Madras for treatment. The patient required surgery, and there was a shortage of blood. The appellant agreed to donate blood. His blood sample taken by the respondent hospital, showed him HIV positive, this was in June 1995. In August the same year, the appellant proposed to his fiancée Ms Y. for marriage, she accepted the proposal and the marriage was scheduled for a date in December. The marriage however, was called off because the hospital where the blood test was performed disclosed the results. Why, when, how and to whom the disclosure was made, has been not clear. Cancellation of the marriage and the disclosure of his HIV positive condition obviously caused a lot of embarrassment and agony to the appellant. He was ostracised by the community and had to leave his home State. He approached the Consumer Disputes Redressal Commission, claiming damages against the hospital for the violation of Right to Privacy. The case was dismissed, he then approached to the Hon‘ble Supreme Court. It was argued by the appellant that ―duty of care‖ in the medical profession includes confidentiality and since this was violated by the hospital so it was liable to pay damages. After going into the ethics of confidentiality based on the Hippocratic oath and the National and International codes of medical ethics, the court ruled that The duty to maintain secrecy is not absolute duty which could be imposed on any party in any manner. The argument that the respondents were under a duty to maintain confidentiality formulated by the Indian Medical Council cannot be accepted as the proposed
marriage carried with it the health risk to an identifiable person who had to be protected from being infected with the communicable disease from which the appellant suffered. The right to confidentiality, if any, vested in the appellant was not enforceable in the present situation. The argument as regarding to the Right to Privacy was also not accepted. The Court observed: Having regard to the fact that the appellant was found to be HIV positive, its disclosure would not be violative of either the rule of confidentiality or the appellant’s Right to Privacy as Ms Y, with whom the appellant was likely to be married, by disclosing such disease she too would have been infected with the dreadful disease if marriage had taken place and been consummated. 18 The court emphasised that mental and physical health of the spouses is very important in a marriage and that is the reason why a spouse is entitled to obtain divorce if the other party is suffering from any communicable diseases. The right to marry, according to the court, is not absolute and remains suspended until the afflicted person is cured. It might however, be pointed out that the mental and physical diseases are mentioned in the matrimonial laws, on the basis of which divorce could be claimed by the one spouse from the other spouse. It would not be out of context to mention that in this case a new aspect of Right
- Ibid.
with commercial and professional blood donors, improper mode of taking blood from donors absent of the blood testing facilities, reuse of infected syringes and innumerable other unhygienic and callous conditions, a large number of AIDS cases are reported which in -fact are not due to ―undisciplined sexual impulse.‖ The judgment, on the whole, is not justiciable due to the fact that the persons suffering from communicable diseases would avoid blood testing altogether. The appellant may not have even known about his health status at the time of proposing marriage. Had he known, he might neither have given his blood, nor probably proposed marriage. It is not unlikely way, it is very likely, that after having discovered the fact, he would have either discussed the problem with his fiancée or cancelled the marriage under some other pretext, in which case there would have been no publicity. But danger to the life of spouse enjoys top priority in comparison to above said reasons. As regards breach of confidentiality, it is not known as to what were the circumstances that lead to disclosure of this information by the hospital to others. The hospital could have, in a strict Privacy, shared the information with the appellant, who, being a doctor himself, would have taken all precautions, including reconsidering his decision to marry. By making the appellant‘s HIV positive status public, irreparable harm has been done to his self esteem. The above said case law on the subject of Privacy assumes significance in varied manner depending upon the subject in which the Right to Privacy enjoys relevance. At
the same time the Right to Privacy was recognized in India particularly in the context of recognition of Easementary Right and enjoyment of the property. At least two centuries back many times it was also observed that customary right directly or indirectly dealt with the Right to Privacy 19. It was so particularly in the case of women who used to live under Purdah System and remain confined with in their houses due to which their Privacy was considered to be the most important aspect. Subsequently, with the advancement of the society the Right to Privacy was recognized under some other subject like criminal law. Where in courts could impart punishment to the wrong doer, in case of invasion of Privacy by the other party. After the enactment and enforcement of Constitution of India in the year 1950, the Fundamental Rights guaranteed to citizens could also take into account Right to Privacy, if not directly at least in an incidental manner. Accordingly, Right to Life and Personal Liberty recognized under Article 21 of Constitution of India was provided. By presuming that the personal liberty would also mean and include the rights of the citizen to enjoy the life in any manner as desired by the concerned party or any sort of interference in the form of invasion of Privacy would also be interpretated.. So it could be convincingly said that Right to Privacy is well recognized in India since ancient times. In 1993, The Human Rights Commission was formed in our country on the guidelines of various conventions. Human Right Commission also helped a lot to develop the concept
19 Section 18 of Indian Easement Act, 1882, Customary Easement - An Easement may be acquired in virture of a local custom. Such Easements are Called Customary easements.
notwithstanding any other provisions under the Right to Information Act, 2005 information need not be furnished when any of the clauses (a) to (j) apply. Right to Information is subject to exceptions or exclusions stated in section 8(1) (a) to (j) of the Right to Information Act, 2005. Sub-clauses (a) to (j) are in the nature of alternative or independent sub clauses but the operation of these sub- sections are different. Author analyzed sub-clauses of section 8(1) (a) to (j), and the latest law in this regard, pronounced by Hon'ble Supreme Court and Central Information Commission. 11. Section 8 (1) (a) and (f) Section 8 deals with exemptions from disclosure of informations. Sections 8 (1) (a) and (f) may be relevant for the present context. Section 8 (1) (a) of the Act says not withstanding anything contained in this Act, there shall be no obligation to give any citizen, - information, disclosure of which prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the State, relation with foreign State or lead to incitement of an offence. Section 8 (1)(f) of the Act specified not withstanding any thing contained in this Act , there shall be no obligation to give any citizen, - information received in confidence from foreign Government. The principle of granting exemption by sub-clause (1) (a) and (f) appears to maintain the confidentiality for security, economic interest and relation with certain foreign affairs of a country and the communications between such
countries for the purpose of maintaining healthy diplomatic relations between the countries. PIO's are empowered to decide whether the information falls under clause (a) and (f), if they asserted in favour then information is exempted from disclosure. 12. Section 8(1)(b) and (c) Exemptions under Cl(1)(b) and (c) are based upon existing law and the disclosure for publication is forbidden plenary. The basic issue is who has to decide that the information falls under Cl(1)(b) and exempted, the Cl(1)(b) is silent in this regard. PIO's and Appellate authorities are empowered to decide whether the information is forbidden under Contempt of Court, Court of law and Tribunal. So, if publication is forbidden under existing law given in Cl(b) that can not be disclosed. It is pertinent to mention here that if disclosure of information is in public interest then that should be disclosed. Similarly under cl(c) there is a Constitutional embargo on disclosure of information which causes breach of privilege of parliament. So, it can be gathered and said that where mandatory provisions and court of law forbids publication and disclosure of information that cannot be disclosed. By applying doctrine of public interest in publication/disclosure of information under cl(2), inspite of exemptions, matter can be disclosed only when public authority thinks that there is a public interest in disclosure. It is equally important that public authorities can not override the Constitutional provisions in this
11 chapter 5 - SDSDS
Course: BA LLB (HONS.)
University: Dr. Ram Manohar Lohiya National Law University
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