Why the right to privacy is incompatible with the right to information

With the Digital Personal Data Protection Act, 2023 receiving presidential assent, it is only one step away from being brought into force by the government. Once the amendment to the Right to Information Act, 2005, is notified, government offices around the country can deny all personal information contained in government records.

With the partial deletion of the wording in Section 8(1)(j) of the Right to Information Act, citizens requesting information will no longer be able to argue that the information has a nexus to public activity or that the disclosure is justified in the larger public interest.

Any attempt to rollback these amendments, even if the process takes a decade, has to begin with building a consensus on one core issue: that it was a mistake for the Supreme Court to declare informational privacy a fundamental right in the 2018 Puttaswamy case. It was ultimately this declaration of informational privacy as a fundamental right that provided the government with bulletproof legal cover for the amendment to Section 8(1)(j).

Exceptions to fundamental rights are typically narrow and the “public interest” exception in Section 8(1)(j) to personal records became too broad an exception once the right to informational privacy was declared a fundamental right by the Supreme Court. Hence the deletion of the “public interest” exception was legally justified.

If the balance is to be restored in favoured of the Right to Information Act, the transparency movement needs to push back against the right to informational privacy and argue that the fundamental right to privacy is fundamentally incompatible with the right to information.

Privacy and right to information

Over the last week I have seen many privacy activists argue that the fundamental right to privacy and fundamental right to information can co-exist. I disagree with this assessment for the reasons provided below.

At the heart of the right to informational privacy is the requirement of the “informed consent” of the person whose information is to be accessed. The right to information, however, does not work if the government has to secure consent from every citizen before releasing their information under the Right to Information Act.

Take, for example, a typical “social audit” pioneered by groups like the Mazdoor Kisan Shakti Sangathan: bureaucrats responsible for the distribution of rations are required to provide their records to representatives of the citizens. These citizens then check the records in public view to see if rations were being pilfered by bureaucrats through “ghost beneficiaries” – fictional citizens who exist only in public records.

This information is then painted on the “transparency wall” of the village so that it can be viewed by all citizens in the village. The most efficient way to weed out “ghost beneficiaries” is to allow for both the names and addresses of all beneficiaries to be disclosed. With time, the transparency walls, at least in Rajasthan, were digitised on the Jan Soochana portal and were supposed to become a template for the future.

The moment the right to privacy requires the “informed consent” of each citizen before their address can be disclosed, the right to information is held hostage to the “gatekeeping function” of the bureaucrat who will now be vested with the job of securing the consent.

Since privacy activists consider even addresses to be private information, the addresses of beneficiaries cannot be released until the bureaucrat secures the “informed consent” of the citizen. This opens the door for a corrupt bureaucrat to create “ghost beneficiaries” who then mysteriously refuse to provide “informed consent”. There is no way, then, for civil society representatives to weed out these “ghost beneficiaries” and demand accountability.

It is for this same reason that the slogan of privacy activists that they “want privacy for the citizen and transparency for the state” and that “protection of privacy for individual citizens and transparency of public authorities are two sides of the same coin” does not work.

Guaranteeing transparency in state activities is often contingent on the disclosure of personal information of citizens and public officials. The social audits are one such illustration of fixing accountability on the state by accessing personal information of other citizens.

Bodily right, not information privacy

Another example of achieving transparency of the state by accessing personal information of citizens is the legal requirement for all candidates standing for elections to Parliament and state legislatures to publicly disclose their assets, educational qualification and other such details.

This legal requirement was justified by the Supreme Court on the grounds of the right to information without paying any attention to privacy because at the time informational privacy was not a fundamental right. If the court were to re-consider this issue today, it would likely reach a different conclusion because fundamental rights are enjoyed by everybody, including public officials who are also entitled to assert their fundamental rights by virtue of their citizenship.

Many of the above warnings against declaring informational privacy as a fundamental right did not pick up much traction in the public debate leading up to the Supreme Court declaring privacy as a fundamental right. One of the reasons there was such little pushback was the tendency of many (not all) in the privacy camp to de-legitimise opponents by accusing them, amongst other things, of being government stooges and implying that opponents of the right to privacy were against gay rights.

Their logic being that the recognition of privacy as a fundamental right was instrumental in getting the courts to legalise homosexuality in India but the aspect of privacy implicated in the debate on legalising homosexuality was not the right to informational privacy. Rather, the battle against Section 377 relied on aspects of privacy that dealt with bodily integrity and privacy of homes.

While policy debates on Indian Twitter are essentially a blood sport, there should be concern about many on the Left who aim to delegitimise any criticism by operating in the same manner as the organised troll armies of the ruling party. Instead of “tukde tukde gang” or “anti-national”, they like labelling opponents as “Nazis” or “fascists”.

Delegitimising opposing arguments through name calling and ad-hominem attacks, as opposed to countering their arguments on merits, has a chilling effect on any public debate on social media and this has a large effect on the public discourse since English media in India unfortunately takes its cues from social media. Social media is already intimidating for many people wanting to participate in a public debate without having to face the threat of labels.

Opposing the elevation of informational privacy to the level of a fundamental right does not mean opposing the right to privacy itself. India could have still had a data protection law without declaring privacy a fundamental right. Except, this version of privacy protection would have had to yield to the fundamental right to information whenever required by public interest. The moment a right is elevated to the level of a fundamental right, it substantially reduces the flexibility of the legislature in drafting laws and tilts the balance of power in favour of the judiciary.

For a country as unequal as India, where power is concentrated in the hands of a few, the only hope of countering corruption in public life is to build a more transparent society by democratising access to information. That cannot be done when the powerful are able to shield critical information by invoking the fundamental right to privacy.

The writer is a lawyer.