The aim of
this article is to explore how far the information, details and data of
individuals and organisations are protected under the laws of India,
especially under the Constitution of India. More emphasis is laid on the
protection available under the Constitution of India since it is the “basic
and ultimate source” from which all other laws derive their validity and
force. A law in violation of the provisions of the Constitution will be
unconstitutional and void, hence to retain its validity it must be in
conformity with the letter and spirit of the Constitution of India. This
article is an extension and in continuation of the previous article titled
“The unexplored dimensions of right to privacy”; hence it is advisable to read
it juxtaposing it with that article for proper appreciation.
Introduction
The compelling and much
needed mandate for providing protection to the information provided by various
interested parties has again set in motion the thought process and the
legislative wing of the Constitution of India is facing a situation where it
has to decide whether it should bring new amendments to the already existing
Information Technology Act, 2000
or to enact a separate law for the same. The choice between these
options is not the real issue to be addressed presently but is ancillary to a
more important and overlooked perspective relating to data protection. A law
on data protection must address the following Constitutional issues on a
priority basis before any statutory enactment procedure is set into motion:
(1) Privacy rights of
interested persons in real space and cyber space.
(2) Mandates of
freedom of information U/A 19 (1) (a).
(3) Mandates of right
to know of people at large U/A 21.
If these
issues are sidelined in the zeal of providing data protection then it may have
catastrophic results because the law(s) providing for data protection will be
vulnerable to the attack of unconstitutionality on the ground of violation of
Articles 19(1) (a) and 21 of the Constitution. Thus, the pre requisite for the
enactment of any law dealing with data protection is to keep in mind the
mandates of these rights.
Constitutional constraints
A law relating to data
protection should be in conformity with the following constraints, as imposed
by the sacred and inviolable Constitution of India:
(i) Right to privacy
U/A 21: The law of privacy is the recognition of the individual’s
right to be let alone and to have his personal space inviolate. The term
‘privacy’ denotes the rightful claim of the individual to determine the extent
to which he wishes to share of himself with others and his control over the
time, place and circumstances to communicate with others. It means his right
to withdraw or to participate as he thinks fit. It also means the individual’s
right to control dissemination of information about himself as it is his own
personal possession. Privacy primarily concerns the individual. It, therefore,
relates to and overlaps with the concept of liberty. The most serious
advocates of privacy must confess that there are serious problems of defining
the essence and scope of the right. Privacy interest in autonomy must also be
placed in the context of other rights and values.
The right to privacy as an independent and distinctive concept originated in
the field of Tort law, under which a new cause of action for damages resulting
from unlawful invasion of privacy was recognised. This right has two aspects
which are but two faces of the same coin: (1) the general law of privacy which
affords a tort action for damages resulting from an unlawful invasion of
privacy, and (2) the constitutional recognition given to the right to privacy
which protects personal privacy against unlawful governmental invasion. The
first aspect of this right must be said to have been violated where, for
example, a person’s name or likeness is used, without his consent for
advertising or non advertising purposes or for that matter, his life story is
written whether laudatory or otherwise and published without his consent. In
recent times, however, this right has acquired a constitutional status.
India is a signatory to the International Covenant on Civil and Political
Rights, 1966. Article17 thereof provides for the ‘right of privacy’. Article12
of the Universal Declaration of Human Rights, 1948 is almost in similar terms.
Article 17 of the International Covenant does not go contrary to any part of
our municipal law. Article21 of the Constitution has, therefore, to be
interpreted in conformity with the international law.
Information Technology and the Law of Privacy
Advances in computer technology and
telecommunications have dramatically increased the amount of information that
can be stored, retrieved, accessed and collected almost instantaneously. In
the Internet age, information is so centralized and so easily accessible that
one tap on a button could throw up startling amounts of information about an
individual. In terms of electronic information, a person should be able to
keep personal affairs to himself. Advances in computer technology are making
it easy to do what was impossible not long ago. Information in many databases
can be cross-matched to create profiles of individuals and to even predict
their behaviour. This behaviour is determined by individual’s transactions
with various educational, financial, governmental, professional and judicial
institutions. Major uses of this information include direct marketing and
credit check services for potential borrowers or renters. To the individual,
the result of all this information sharing is most commonly seen as increased
‘junk mail’. There are much more serious privacy issues to be considered. For
instance:
(i) Every time you log onto the
internet you leave behind an electronic trail. Web-sites and advertising
companies are able to track users as they travel on the Internet to assess
their personal preferences, habits and lifestyles. This information is used
for direct marketing campaigns that target the individual customer. Every time
you use your credit card, you leave behind a trail of where you shopped and
when, what you bought, your brand preferences, your favourite restaurant.
(ii) Employee’s privacy is under siege
as employers routinely use software to access their employee’s e-mail and
every move of the employee.
(iii) Field sales representatives have
their movements tracked by the use of location-based tracking systems in new
wireless phones.
Thus, the law of privacy has not kept
pace with the technological development. It must be noted that the right to
freedom of speech and expression and right to privacy are two sides of the
same coin. One person’s right to know and be informed may violate another’s
right to be let alone. These rights must be harmoniously construed so that
they are properly promoted with the minimum of such implied and necessary
restrictions. The law of privacy endeavors to balance these competing
freedoms.
(ii) Freedom of
information U/A 19(1) (a): The right to impart and receive information
is a species of the right to freedom of speech and expression. A citizen has a
Fundamental Right to use the best means of imparting and receiving
information. The State is not only under an obligation to respect the
Fundamental Rights of the citizens, but also equally under an obligation to
ensure conditions under which the Right can be meaningfully and effectively be
enjoyed by one and all. Freedom of speech and expression is basic to and
indivisible from a democratic polity. The world has moved towards
universalisation of right to freedom of expression. In this context reference
may be made to Article 10 of the European Convention on Human Rights. Article
10 of the Convention provides that everyone has a right to freedom of
expression and this right shall include freedom to hold opinions and to
receive information and ideas without interference by the public authorities
and regardless of the frontiers. Again, Article 19(1) and 19(2) of the
International Covenant on Civil and Political Rights declares that everyone
shall have the right to hold opinions without interference, and everyone shall
have the right to freedom of expression, and this right shall include freedom
to seek, receive and impart information of ideas of all kinds regardless of
frontiers, either orally, in writing or in print, in the form of art or
through any other media of his choice.
Similarly, Article 19 of Universal Declaration of Human Rights, 1948 provides
that everyone has the right to freedom of opinion and expression and this
right includes freedom to hold opinion without interference and to seek,
receive and impart information and ideas through any media and regardless of
frontiers. In the Indian context, Article 19(1) (a) of the constitution
guarantees to all citizens’ freedom of speech and expression. At the
same time, Article 19(2) permits the State to make any law in so far as such
law imposes reasonable restrictions on the exercise of the rights conferred by
Article 19(1) (a) of the constitution in the interest of sovereignty and
integrity of India, the security of the State, friendly relations with foreign
States, public order, decency, morality, contempt of court, defamation and
incitement of offence. Thus, a citizen has a right to receive
information and that right is derived from the concept of freedom of speech
and expression comprised in Article 19(1) (a).
It must, however, be noted that freedoms under Article 19, including Article
19(1) (a), are available only to citizens of India. An alien or foreigner has
no rights under this Article because he is not a citizen of India. Thus to
confer protection upon non-citizens one has to depend upon and apply Article
21 which is available to all persons, whether citizen or non-citizen.
(ii) Right to
know under Article 21: Article 21 enshrines right to life and personal
liberty. The expressions “right to life and personal liberty” are compendious
terms which include within themselves variety of rights and attributes. Some
of them are also found in Article 19 and thus have two sources at the same
time.
In R.P.Limited v Indian Express Newspapers
the Supreme Court read into Article 21 the right to know. The Supreme
Court held that right to know is a necessary ingredient of participatory
democracy. In view of transnational developments when distances are shrinking,
international communities are coming together for cooperation in various
spheres and they are moving towards global perspective in various fields
including Human Rights, the expression “liberty” must receive an expanded
meaning. The expression cannot be limited to mere absence of bodily restraint.
It is wide enough to expand to full range of rights including right to hold a
particular opinion and right to sustain and nurture that opinion. For
sustaining and nurturing that opinion it becomes necessary to receive
information. Article 21 confers on all persons a right to know which include a
right to receive information. The ambit and scope of Article 21 is much wider
as compared to Article 19(1) (a).Thus, the courts are required to expand its
scope by way of judicial activism. In P.U.C.L vU.O.I
the Supreme Court observed that Fundamental Rights themselves have no
fixed contents, most of them are empty vessels into which each generation must
pour its contents in the light of its experience. The attempt of the court
should be to expand the reach and ambit of the Fundamental Rights by process
of judicial interpretation. There cannot be any distinction between the
Fundamental Rights mentioned in Chapter-III of the constitution and the
declaration of such rights on the basis of the judgements rendered by the
Supreme Court. Further, it is well settled that while interpreting the
constitutional provisions dealing with Fundamental Rights the courts must not
forget the principles embodied in the international conventions and
instruments and as far as possible the courts must give effect to the
principles contained in those instruments. The courts are under an obligation
to give due regard to the international conventions and norms while construing
the domestic laws, more so when there is no inconsistency or conflict between
them and the domestic law.
Statutory perspective
The inherent and natural
conflict between right to know and right to privacy is also permeating various
statutory laws enacted from time to time. These laws, with their conflicting
contours, are:
(1) Right to
information in cases of venereal or infectious diseases: The welfare
of the society is the primary duty of every civilized State. Sections 269 to
271 of the Indian Penal Code, 1860 make an act, which is likely to spread
infection, punishable by considering it as an offence. These sections are
framed in order to prevent people from doing acts which are likely to spread
infectious diseases. Thus a person suffering from an infectious disease is
under an obligation to disclose the same to the other person and if he fails
to do so he will be liable to be prosecuted under these sections. As a
corollary, the other person has a right to know about such infectious disease.
In Mr X v Hospital Z
the Supreme Court held that it was open to the hospital authorities or the
doctor concerned to reveal such information to the persons related to the girl
whom he intended to marry and she had a right to know about the HIV Positive
status of the appellant. A question may , however, be raised that if the
person suffering from HIV Positive marries with a willing partner after
disclosing the factum of disease to that partner, will he still commit an
offence within the meaning of Section 269 and 270 of I.P.C. It is submitted
that there should be no bar for such a marriage if the healthy spouse consents
to marry despite of being aware of the fact that the other spouse is suffering
from the said disease. The courts should not interfere with the choice of two
consenting adults who are willing to marry each other with full knowledge
about the disease. It must be noted that in Mr X v Hospital Z(II)
a three judge bench of the Supreme Court held that once the division bench
of the Supreme Court held that the disclosure of HIV Positive status was
justified as the girl has a right to know , there was no need for this court
to go further and declare in general as to what rights and obligations arise
in such context as to right to privacy or whether such persons are entitled
to marry or not or in the event such persons marry they would commit an
offence under the law or whether such right is suspended during the period of
illness. Therefore, all those observations made by the court in the aforesaid
matter were unnecessary. Thus, the court held that the observations made by
this court, except to the extent of holding that the appellant’s right was not
affected in any manner by revealing his HIV Positive status to the relatives
of his fiancée, are uncalled for. It seems that the court has realized the
untenablity of the earlier observations and the practical difficulties which
may arise after the disclosure of HIV status.
(2) Right to
know about the information under the control of a public authority: In
our present democratic framework, free flow of the information for the
citizens suffers from several bottlenecks including the existing legal
framework, lack of infrastructure at the grass root levels and an attitude and
tendency of maintaining secrecy in the day to day governmental functioning. To
remove these unreasonable restrictions the Freedom of Information Act, 2002
has been enacted by the Parliament. The Act provides for freedom to every
citizen to secure access to information under the control of public
authorities consistent with public interest, in order to promote openness,
transparency and accountability in administration and in relations to matters
connected therewith or incidental thereto. The Act is in accord with both
Article 19 of the constitution as well as Article 19 of the Universal
Declaration of Human Rights, 1948.The act will enable the citizens to have an
access to information on a statutory basis. With a view to further this
objective, Section 3 of the Act specifies that subject to the provisions of
this Act, every citizen shall have the right to freedom of information.
Obligation is cast upon every public authority u/s 4 to provide information
and to maintain all records consistent with its operational requirements duly
cataloged, indexed and published at such intervals as may be prescribed by the
appropriate government or the competent authority. Information relating to
certain matters is exempted from disclosure u/s 8 of the Act. Further, Section
9 specifies the grounds for refusal to access in certain cases.
It must be noted that right to
receive information from public authorities, which includes judiciary, is not
an absolute right but is subject to statutory and constitutional restrictions.
For instance, freedom to speech and expression as provided under Article 19(1)
(a) of the constitution is subject to reasonable restrictions as provided
under Article 19(2). Similarly, right to know under Article 21 can be
restricted by a procedure established by law which is just, fair and
reasonable. On the statutory side, under the Freedom of Information Act, 2002,
a citizen is not entitled to an absolute freedom of information. In the
following cases information can be withheld from a citizen:
(i) Section 8(1), subject to
section 8(2), exempts from disclosure of information in certain cases, i.e.
where sovereignty and integrity of India may be prejudicially affected by the
disclosure or where public safety and order will be affected by such
disclosure or for the protection of trade or commercial secrets etc.
(ii) Section 9 empowers a
Public Information Officer to reject a request for information where such a
request is too general in nature or when it relates to information that is
contained in published material available to public or where it relates to
information which would cause unwarranted invasion of the privacy of any
person, etc.
(iii) Section 16 excludes the
application of the Act to the intelligence and security organizations as
Specified in the Schedule.
Besides the 2002 Act, there
may be other statutes also where information may be withheld from a citizen.
For instance, the report of an inquiry made against a judge of High Court
under the provisions of the Judges Enquiry Act, 1968 may be withheld from the
public by the Chief Justice of India. In Indira Jaising v Registrar
General, Supreme Court of India
an inquiry report was made by the committee to the CJI, in respect of alleged
involvement of sitting judges of the High Court of Karnataka in certain
incidents. The petitioner seeked the publication of the inquiry report. The
Supreme Court held that it is not appropriate for the petitioner to approach
this court for relief or direction for release of the report, for what the CJI
has done is only to get information from peer judges of those who are accused
and the report made to the CJI is wholly confidential. It is purely
preliminary in nature, adhoc and not final. The court further held that in a
democratic framework free flow of information to the citizens is necessary for
proper functioning, particularly in matters which form part of public record.
The right to information is, however, not absolute. There are several areas
where such information need not be furnished. Even the Freedom of Information
Act, 2002 does not say in absolute terms that information gathered at any
level, in any manner and for any purpose shall be disclosed to the public. The
inquiry ordered and the report made to the CJI being confidential and discreet
is only for the purpose of his information and not for the purpose of
disclosure to any other person. The court thus rejected the contention to
release the said report. The court, however, made it clear that if the
petitioner can substantiate that any criminal offence has been committed by
any of the judges mentioned in the course of the petition, appropriate
complaint can be lodged before a competent authority for taking action by
complying with requirements of law.
(3) Right to
information and Electronic governance: Digital technologies and new
communication systems have made dramatic changes in our lives. Business
transactions are being made with the help of computers. Information stored in
electronic form is cheaper and easier to store. Thus, keeping in view the
urgent need to bring suitable amendments in the existing laws to facilitate
electronic commerce and electronic governance, the Information Technology Act,
2000 was enacted by the Parliament. The aim of the e-governance is to make the
interaction of the citizens with the government offices hassle free and to
share information in a free and transparent manner. It further makes the right
to information a meaningful reality. In a democracy, people govern themselves
and they cannot govern themselves properly unless they are aware of social,
political, economic and other issues confronting them. To enable them to make
a proper judgment on those issues, they must have the benefit of a range of
opinions on those issues. This plurality of opinions, views and ideas is
indispensable for enabling them to make an informed judgment on those issues,
to know what is their true interest, to make them responsible citizens, to
safeguard their rights as also the interests of society and State. All the
constitutional courts of leading democracies have recognized and reiterated
this aspect. In U.O.I v Association for Democratic Reforms
the Supreme Court observed that the citizens of India have a right to know
every public act, everything that is done in public way by the public
functionaries. Public education is essential for functioning of the process of
popular government and to assist the discovery of truth and strengthening the
capacity of an individual in participating in the decision making process. The
right to get information in a democracy is recognized all throughout and it is
a natural right flowing from the concept of democracy. Thus e-governance and
right to information are interrelated and are two sides of the same coin. With
the enactment of the Information Technology Act, 2000 more and more
transparency is expected in governmental functioning by keeping people aware
of the State’s plan, policies, objectives and achievements. Section 7 of the
Act is an enabling section, which provides that if any law mandates that
documents, records or information are required to be retained for any specific
period, then, that requirement shall be deemed to have been satisfied if the
same is retained in e-form. This section can effectively be utilised for the
benefit of both government offices and citizens of India. The section must,
however, be understood and interpreted in the light of the “constitutional
constraints” as discussed above.
(4) Right to know and
trade secrets: An intellectual property right (IPR) has no value if it
cannot be asserted and protected. If an individual cannot protect what he
owns, he owns nothing. This is more so in case the right falls under the
“Trade Secret” category. The trade secret presupposes the existence of
valuable business information, which provides an additional benefit or
competitive advantage over the competitors. The right in trade secret remains
so long the owner can prevent its disclosure. The moment it is disclosed or
becomes public, the right in it ceases to exist. Thus, if properly protected,
trade secrets may last forever. It is believed that the formula for COCA-COLA
is locked in a vault with no person having access to it. This shows that
information, which provides a competitive edge over rivals, must be protected
on a priority basis. Thus, recognizing the importance of this right, the
countries all over the world provide protection to trade secrets. If trade
secrets were not legally protected, the companies would loose incentive for
investing time, money and labour in research and development, which is very
important for the overall development of the country. Further, the existence
of law also works as a deterrence for wrongdoers and discourages unfair
conduct of the business. In P.U.C.L. V U.O.I
the Supreme Court specified the grounds on which the government can withhold
information relating to various matters, including trade secrets. The Supreme
Court observed: “Every right- legal or moral- carries with it a corresponding
objection. It is subject to several exemptions/ exceptions indicated in broad
terms. Generally, the exemptions/ exceptions under those laws entitle the Govt
to withhold information relating to the following matters:
(1) International relations;
(2) National security (including defiance) and public
safety;
(3) Investigation, detection and prevention of crime;
(4) Internal deliberations of the Govt;
(5) Information received in confidence from a source
outside the Govt;
(6) Information, which, if disclosed, would violate
the privacy of the individual;
(7)
Information of an economic nature (including Trade Secrets) which, if
disclosed, would confer an unfair advantage on some person or concern, or,
subject some person or Govt, to an unfair disadvantage;
(8)
Information, which is subject to a claim of legal professional privilege,
e.g. communication between a legal adviser and the client; between a
physician and the patient;
(9) Information about scientific discoveries”.
Amendment or
Legislation
Since
the “main issues” has been discussed, it’s now time to deal with the
“ancillary issue” which requires an appraisal whether an amendment to the
Information Technology Act, 2000 should be made or a new enactment
specifically dealing with data protection should be enacted.
The Constitution is organic and living
in nature. It is also well settled that the interpretation of the Constitution
of India or statutes would change from time to time. Being a living organ, it
is ongoing and with passage of time, law must change. New rights may have to
be found out within the constitutional scheme. It is established that
fundamental rights themselves have no fixed content; most of them are empty
vessels into which each generation must pour its contents in the light of its
experience. The attempt of the court should be to expand the reach and ambit
of the fundamental rights by process of judicial interpretation. There cannot
be any distinction between the fundamental rights mentioned in Chapter III of
the Constitution and the declaration of such rights on the basis of the
judgments rendered by the Supreme Court.
Thus, horizons of constitutional law are expanding. In State of
Maharashtra v Dr Praful. B. Desaithe
Supreme Court observed: “It is presumed that the Parliament intends the court
to apply to an ongoing Act a construction that continuously updates its
wordings to allow for changes since the Act was initially framed. While it
remains law, it has to be treated as always speaking. This means that in its
application on any day, the language of the Act though necessarily embedded in
its own time, is nevertheless to be construed in accordance with the need to
treat it as a current law”. At this stage the words of Justice Bhagwati
in the case of National Textiles Workers Union v P.R.Ramakrishnan
need to be set out. They are: “We cannot allow the dead hand of the
past to stifle the growth of the living present. Law cannot stand still; it
must change with the changing social concepts and values. If the bark that
protects the tree fails to grow and expand along with the tree, it will either
choke the tree or if it is a living tree it will shed that bark and grow a
living bark for itself. Similarly, if the law fails to respond to the needs of
changing society, then either it will stifle the growth of the society and
choke its progress or if the society is vigorous enough, it will cast away the
law, which stands in the way of its growth. Law must therefore constantly be
on the move adapting itself to the fast-changing society and not lag behind”.
It is further trite that the law although may be constitutional when enacted
but with passage of time the same may be held to be unconstitutional in view
of the changed situation.
These changed circumstances may also create a vacuum in the legal system,
which has to be suitably filled up by the legislature. If the legislature
fails to meet the need of the hour, the courts may interfere and fill-in the
vacuum by giving proper directions. These directions would be binding and
enforceable in law until suitable legislation is enacted to occupy the field.
Thus, directions given by the court will operate only till the law is made by
the legislature and in that sense temporary in nature. Once legislation is
made, the court has to make an independent assessment of it. In embarking on
this exercise, the points of disclosure indicated by this court, even if they
be tentative or ad hoc in nature, should be given due weight and substantial
departure there from cannot be countenanced.
The courts may also rely upon International treaties and conventions for the
effective enforcement of the municipal laws provided they are not in
derogation with municipal laws.
Thus, for conferring
strong data protection to individuals and organisations, an amendment in the
Information Technology Act will be sufficient and is the need of the hour. It
must be appreciated that it is not the “enactment” of a law but the desire,
will and efforts to accept and enforce it in its true letter and spirit, which
can confer the most strongest, secure and safest protection for any purpose.
The enforcement of these rights requires a “qualitative effort” and not a
“quantitative effort”.
CONCLUSION:
The role model for governance
and decision taken thereon should manifest equity, fair play and justice. The
cardinal principle of governance in a civilized society based on rule of law
not only has to base on transparency but also must create an impression that
the decision-making was motivated on the consideration of probity. The
government has to rise above the nexus of vested interests and nepotism and
eschew window-dressing. The act of governance has to withstand the test of
judiciousness and impartiality and avoid arbitrary or capricious actions.
Therefore, the principle of governance has to be tested on the touchstone of
justice, equity and fair play. Though on the face of it the decision may look
legitimate but as a matter of fact the reasons may not be based on values but
to achieve popular accolade that decision cannot be allowed to operate.
The following are the “Data Protection Principles” which must be kept in mind
by the private individuals, private organisations, government or its agencies
while receiving the data:
(a) the data should be
processed fairly and lawfully,
(b) the data should be
obtained for specific and lawful purpose,
(c) the data should be
adequate, relevant and not excessive,
(d) the data should not be
kept for longer than necessary,
(e) the data should be
processed in accordance with the rights of data subjects, and
(f) measures should be taken
against unauthorized or unlawful processing.
On the other hand, the
“constitutional constraints” must be kept in mind while extending protection
to the information sought to be protected. An equilibrium must be maintained
between protection of information and data and these constitutional mandates.
Every citizen has a right to
impart and receive information as part of his right to information. The State
is not only under an obligation to respect this right of the citizen, but
equally under an obligation to ensure conditions under which this right can be
meaningfully and effectively enjoyed by one and all. Right to information is
basic to and indivisible from a democratic polity. This right includes right
to acquire information and to disseminate it. Right to information is
necessary for self-expression, which is an important means of free conscience
and self-fulfillment. It enables people to contribute on social and moral
issues. It is the best way to find a truest model of anything, since it is
only through it that the widest possible range of ideas can be circulated.
This right can be limited only by reasonable restrictions under a law for the
purposes mentioned in Article 19(2) of our constitution. Hence no restriction
can be placed on the Right to information on the grounds other than those
specified under Article 19(2). The said right cannot be denied by creating a
monopoly in favour of the government or any other authority.
Human history is witness to the fact that all evolution and all progress is
because of power of thought and that every attempt at thought control is
doomed to failure. An idea can never be killed. Suppression can never be a
successful permanent policy. It will erupt one day. The Constitution of India
guarantees freedom of thought and expression and the only limitation being a
law in terms of Article 19(2) of the constitution. Thought control is alien to
our constitutional scheme. Further, people at large have a right to know in
order to be able to take part in a participatory development in the industrial
life and democracy. Right to know is a basic right which people of a free
country aspire in the broaden horizon of the right to life in this age on our
land under Article 21 of the Constitution. That right has reached new
dimensions and urgency. That right puts greater responsibility upon those who
take upon the responsibility to inform.
