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OPEN GOVERNMENT AND THE RIGHT TO PRIVACY

INTRODUCTION

An Open Government is guided by the principles of transparency, accountability, participation, and collaboration. Openness in governments helps to keep a check on abuse of power by the government.


Article 19 of UDHR, 1948 recognizes the RTI “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.”

Consider our right to privacy. This is a fundamental right and an intrinsic part of Article 21, which protects the life and liberty of citizens under Part III of the Constitution. On 24 August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy and Anr. vs Union of India and Or’s. unanimously held that the right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 of the Indian Constitution.


OPEN GOVERNMENT AND RIGHT TO INFORMATION

. There are several aspects of open government

1.Presentation of documents by the government in the court of some litigation.

2.Official secrecy - Certain secrets and classified information that will not be shared with the public.

3.Access to information


People Right to know has 2 aspects:

1.How far the government should use criminal sanction to deter the flow of information

2. How far Government is under a positive obligation to make demand information to the public, not in the prohibited category.


It is not the only characteristic feature of democracy that it is elected by the people. This form of government is responsible to the electorate whose simple implication is that the electorate will have the right to know the policies and functions of the government and the latter is bound to comply with this demand. This is called the openness of democracy. This openness and citizens’ right to information suggest the same thing.


Again, openness and the right to information are synonymous with the freeness of society. People, in a democracy, send their representatives for the purpose of governing them and, if so, they have every right to know how or in what manner they are governed. In other words, the citizens want to know the standard or quality of governance.


Whether the government is good or bad can be determined from the facts and other aspects of administration. This is determining from the facts. Naturally, citizens can claim information. Refusal to release facts indicates that there is something hidden. When the government wishes to hide something that goes against the norm or process of good governance.


The 73rd and 74th Amendments to our Constitution also come within the purview of the right to information and good governance. These two amendments were made primarily for the decentralization of power to the grassroots level of society. These two amendments have added additional emphasis to the concepts- right to information, good governance, and democracy.


We find that the right to information is not only an important right, but it also is a vital right and in a broad sense, it is the backbone of democracy. The right to information establishes the fact that governance is for the welfare or betterment of people. In other words, it is good governance.


There are laws that are contradictory to the right to know in India and need to be amended in order to preserve the right to know. Sections 123, 124, and 162 of The Indian Evidence Act hold the disclosure of documents. Section 123 provides that any head of a department may refuse to provide information on affairs of state and only swearing that it is a state secret will entitle not to disclose the information. In a similar manner section, 124 states that no public officer shall be compelled to disclose communications made to him in official confidence. Section 162 provides the court not to inspect a document relating to matters of state.


The government stores a lot of personal information on individuals. This ranges from when an application is made under the RTI Act for disclosure of some information on an identifiable individual, there is a conflict between the RTI and the Right to privacy.

Personal information can be denied if it infringes an individual’s privacy. A good example is our medical records. Such information, the disclosure of which would invade someone’s privacy, is exempt from the RTI requirements. The information which is exempted from disclosure (Sections 8 and 9)


A section 8(1)(j) of the RTI Act, if the information is personal and would cause an unwarranted invasion of privacy and public interest, then it cannot be disclosed, unless the central public information officer or the state public information officer, or any appellate authority, is that the disclosure of this information would serve a larger public interest. The applicant asks for the personal information of an individual, where he or she has to justify the public interest of its disclosure and the information officer should be convinced of it.

The Right to information and the Right to privacy present us a contradiction. While the two rights look conflicting, complementary ways to confer individual rights and promote greater government accountability and transparency. However, this would require the country to work on the reconciliation of the two.


There need to be common definitions and internal consistency within the entire framework to limit conflict and establish a balance.


Perhaps, a “conflict resolution strategy’ can be adopted to harmonize the two rights. Even though Section 8(1)(j) of the RTI Act explicitly grants exemption from the disclosure of personal information, for example, it comes with the caveat mentioned above, the public interest may warrant the disclosure of such data to an applicant by a public authority, thereby nullifying the exemption and disregarding the Right to privacy.


By Priya Khanna, BBALLB Hons.

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