2. This case concerns the balance , which is required between two important fundamental rights i.e. right to information and right to privacy. Often these two rights are seen as conflicting, however, we need to reiterate that both rights are two faces of the same coin. There is no requirement to see the two facets of the right in a manner to further the conflict, what is herein required is to provide balancing formula which can be easily made applicable to individual cases. Moreover, due to the fact of infancy in privacy jurisprudence has al so contributed to the meticulous task we are burdened herein.
34. The purport of the Section 8(1)(j) of the Act is to balance privacy with public interest. Under the provision a two steps test could be identified wherein the first step was whether there is a reasonable expectation of privacy? And whether on an ultimate balancing analysis, does privacy give way to freedom of expression. We should acknowledge that these two tests are very difficult to be kept separate analytically.
36. From t he aforesaid we can note that there are certain factors which needs to be considered before concluding whether there was a reasonable expectation of privacy of the person concerned. These non – exhaustive factors are;
1. The nature of information.
2. Impact on private life.
3. Improper conduct.
4. Criminality
5. Place where the activity occurred or the information was found.
6. Attributes of claimants such as being a public figure, a minor etc and their reputation.
7. Absence of consent.
8. Circumstances and purposes for which the information came into the hands of the publishers.
9. Effect on the claimant.
10. Intrusion’s nature and purpose.
These non-exhaustive factors are to be considered to come a conclusion whether the information sought is private or does the persons has a reasonable expectations of privacy. In any case we can conclude that there are certain information which are inherently private and are presumptively protected under the privacy rights. These information include age, gender, sex, sexual preferences etc. These instances need to be kept in mind while assessing the first requirement under the aforesaid test.
42. Coming to the aspect of transparency, judicial independence and the right to information act, we n eed to note that there needs to be a balance between the three equally important concepts. The whole bulwark of preserving our Constitution, is trusted upon judiciary, when other branches have not been able to do so. As a shield, the judicial independence is the basis with which judiciary has maintained its trust reposed by the citizens. In light of the same, the judiciary needs to be protected from attempts to breach its independence. Such interference requires calibration of appropriate amount of transparency in consonance with judicial independence.
43. It must be kept in the mind that the transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold. We may note that right to information should not be allowed to be used as a tool of surveillance. While applying the second step the concerned authority needs to balance these considerations as well.
44. In line with the aforesaid discussion, we need to note that following non – exhaustive considerations needs to be considered while assessing the ‘public interest’ under Section 8 of the Act –
a. Nature and content of the information
b. Consequences of non – disclosure; dangers and benefits to public
c. Type of confidential obligation.
d. Beliefs of the confidant; reasonable suspicion
e. Party to whom information is disclosed
f. Manner in which information acquired
g. Public and private interests
h. Freedom of expression and proportionality.