The Supreme Court’s Right to Privacy Judgment – VIII: Privacy and the Right to Information

In the aftermath of the Puttaswamy judgment, it was reported that a committee of MPs had written to the election commission, asking that the disclosure of the assets of candidates’ spouses should not be required. They made their request on the basis of Puttaswamy. This has led to (legitimate) worries that privacy can now be invoked to stifle or hobble the right to information.

For the reasons I advanced in the previous essay (dealing with the right to privacy and free speech), I believe that this concern is mistaken. To briefly recap the previous essay: the judgment(s) in Puttaswamy are concerned only with privacy as a fundamental right, that is, as a shield for individuals against intrusive State action. They do not deal with when and how privacy may be used as a sword to limit the amplitude of other rights, such as the right to freedom of expression, and its cognate right, the right to information. In a number of judgments at both the High Court and the Supreme Court level, Courts were engaged in balancing privacy against freedom of speech and the right to information even before Puttaswamy. The question then is whether Puttaswamy added anything to that debate – i.e., whether it granted privacy an even higher pedestal than it occupied before. As I argued in the last essay, it did not: Puttaswamy only stated that privacy is a fundamental right, clarified its contours, and indicated when the State might be justified in limiting it. Nothing more.

The Right to Information Act 

In the case of the right to information, the issue is even more straightforward, because the Right to Information Act already protects privacy. Section 8(j) of that Act exempts from disclosure:

“… 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 the larger public interest justifies the disclosure of such information.”

Section 8(j) lays down the uncontroversial proposition that as far as “personal information” goes (and the Section specifically makes this clear through the succeeding phrase – “which has no relationship to any public activity or interest“) – the presumption is against disclosure, unless a larger public interest exists. Section 8(j) requires information officers and Courts to interpret the scope of terms such as “personal information”, “public activity or interest”, “unwarranted invasion”, and to also create a jurisprudence balancing the right of individuals to protect their personal information against the larger public interest.

Does the judgment in Puttaswamy affect any of this? The only aspect that it might possibly impact is the meaning of the phrase “personal information.” But even here, a close reading of the judgment dispels that impression. The phrase “personal information” occurred and recurred multiple times through the separate opinion, but it was only Justice Bobde’s opinion that defined it in any meaningful way, and that too in the context of State surveillance (“…the non-consensual revelation of personal information such as the state of one’s health, finances, place of residence, location, daily routines and so on efface one’s sense of personal and financial security.”) Justice Kaul, who had a full section dealing with the concept of “personal information” (in the context of data collection) refrained from defining it either.

In fact, more importantly, the separate opinions in Puttaswamy specifically acknowledged the Right to Information Act as an example of how the legislature had balanced the two constitutional values of access to information, and the right to privacy. For example, Justice Chandrachud observed that “legislative protection is in many cases, an acknowledgment and recognition of a constitutional right which needs to be effectuated and enforced through protective laws… for instance, the provisions of Section 8(1)(j) of the Right to Information Act, 2005 which contain an exemption from the disclosure of information refer to such information which would cause an unwarranted invasion of the privacy of the individual.” (para 153) Justice Nariman cited Section 8(j) for the proposition that, in the Right to Information Act, the legislature had recognised the right to privacy (para 89). Both Justice Chandrachud and Justice Nariman cited the prior judgment of the Supreme Court in Bihar Public Service Commission vs Saiyed Hussain Abbas Rizwi, where Justice Swatenter Kumar had specifically held that “thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.”

The point, therefore, is this: the judgments in Puttaswamy acknowledge the fact that, in the Right to Information Act, the legislature has already struck a balance between two competing constitutional values: the right to privacy, and the right to information. This balance has been struck in the following manner: (1) define “personal information” in terms of that which has no relationship to any public interest or public activity; (2) presumptively protect personal information in cases where disclosure would amount to an “unwarranted interference in privacy”, and (3) override this presumption where the larger public interest requires it. To come back for a moment to the candidates’ spouses assets question: this disclosure does not fall within Section 8(j) because, given the social realities in India, spouses’ assets are often inseparable, and often deliberately so. In disclosing a spouse’s assets, there is, therefore, a definite relationship with a “public activity” (that is, candidature for public office), and even if not, a larger public interest exists.

Conclusion

The Right to Information Act contains a detailed and fine-grained legislative balancing act between the right to privacy and the right to information. Puttaswamy does not in any way override this balance, because the judgments in Puttaswamy expressly affirm and endorse it. Nor does Puttaswamy modify or change the balance, tilting it towards privacy: as we have seen, the issue of balancing privacy against public interest in the context of disclosure of information is not addressed in the judgment at all, and the definition of “personal information” is considered in only one opinion.

This is not to suggest, of course, that the existing jurisprudence under Section 8(j) is satisfactory. On the contrary, it has been seriously – and legitimately – criticised as providing far too much sanctuary to privacy, at the cost of the right to information. The purpose of this post, however, has been to show that that jurisprudence is entirely independent of the judgments in Puttaswamy. All that Puttaswamy does is recognise privacy as a fundamental right – or, in other words, all it does is affirm the fact, as already held before, that the Right to Information Act balances two constitutional values through Section 8(j). How that balance is to be achieved in concrete terms is the task of future benches.

Gautam Bhatia is a lawyer practicing in Supreme Court of India. This Article was first published in his blog Indian Constitutional Law And Philosophy.