Privacy & the Public

This article was first published in The Statesman on Saturday, December 7, 2019. | KK Paul

Privacy & the Public

Undoubtedly, the RTI Act in its original form was one of the most liberal pieces of legislation aimed at enhancing transparency and democratic values. As such, in order to fulfil their perceived role effectively, the CIC and the ICs had been given a status which would enable them to have the power to review the functioning of the government’s public information officials and give suitable directions to serve public interest as understood by the rule of thumb definition.

Ever since the recognition, of the right to privacy being an intrinsic part of the right to life and personal liberty under Article 21, by the Supreme Court, a state of uncertainty had prevailed in its relationship with the right to information. The situation has now been clarified to an extent, albeit in a different context, yet doubts remain. Even though there was unanimity in the nine-judge bench, adjudicating on the matter of privacy, there were six different judgments, the majority judgment signed by four judges besides five separate but concurring judgments.

The judges having adopted different routes to reach the same conclusion, supported their rationale with some very rich illustrations which are bound to act as guiding principles for cases in future. Some of these are, the need to introduce a data protection regime in the country; privacy cannot be surrendered when one is in public life; necessity of prior consent for making public an individual’s personal details like health records; and the right to preserve personal reputation along with informational privacy etc. It was also recognized that the right to privacy was not absolute and allowed certain restrictions corresponding to the legitimate aim of the state proportionate to the objectives it sought to achieve.

On the other hand in a landmark judgment just last month, the Supreme Court, rooting for public interest, ruled that the office of the Chief Justice of India was very much in the ambit of the Right to Information Act, 2005. It was mentioned that since the office of Chief Justice of India and other judges comes under the Supreme Court under Article 124 and the apex court is a public authority under Section 2(h) of RTI Act, the former inevitably becomes public authority under the Act. The Supreme Court dismissed the argument that Supreme Court and Chief Justice are two distinct and separate public authorities.

Now, the point at issue is how the right to privacy, which has been given the status of a fundamental right, will find a balance with RTI. According to the rule of thumb principle, followed till now, whenever there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest. But now, in order to maintain the balance between the two, as also to ensure the independence of the judiciary, a very ingenious test has been devised to determine as to what constitutes public interest.

Pertinently a distinction has been made between something in public interest and in the interest of public. The test is to see whether the release of information is based on “compelling requirement for upholding the democratic values”. As such material distinction has to be made between matters which affect political, moral and material welfare of the public on the one hand and on the other is the information being sought for the sake of public entertainment, curiosity or amusement. In order to further elaborate this concept of public interest under Section 8 of the RTI Act, the following considerations for the test have been laid down by the Supreme Court: a) Nature and content of the information; b) consequences of non-disclosure; dangers and benefits to the public; c) type of confidential obligation; d) beliefs of the confidant; reasonable suspicion; e) party to whom information is disclosed; f) manner of acquisition of information; g) public and private interests; and h) freedom of expression and proportionality.

But so far as application of RTI to judicial independence is concerned, a separate rationale has been adopted, where it is mentioned that the whole bulwark of preserving our Constitution is trusted upon the judiciary, when other branches have not been able to do so. In light of the same, the judiciary needs to be protected from attempts to breach its independence. Further, it has been emphasised that transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important. As such the right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of the judiciary. Thus while the RTI Act has been made applicable to the judiciary at the same time, the latter have been placed on a different footing.

In light of the aforesaid principle, a number of exceptions have been listed which according to some opinions, may lead to somewhat of a dilution in the provisions of the Act. These are in the nature of personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, which are to be treated as personal information. Similarly, professional records, ACRs, disciplinary proceedings, etc. have all been classified as personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income- tax returns, details of investments, lending and borrowing, etc. are all a part of personal information.

Such personal information is entitled to protection from unwarranted invasion of privacy for which conditional access would be available only when stipulation of the larger public interest is satisfied. In the end, it is mentioned that the list is indicative and not exhaustive meaning thereby that its contents could be further enlarged. This, to a large extent may restrict the amplitude of public interest, in case made applicable to matters other than those of the judiciary. Undoubtedly, the RTI Act in its original form was one of the most liberal pieces of legislation aimed at enhancing transparency and democratic values.

As such, in order to fulfil their perceived role effectively, the CIC and the ICs had been given a status which would enable them to have the power to review the functioning of the government’s public information officials and give suitable directions to serve public interest as understood by the rule of thumb definition. With their downgraded status, doubts have arisen whether it would now be possible for them to make interventions on behalf of the public as effectively as it used to be. In the circumstances, one can only say that despite the very comprehensive judgment from the Supreme Court, the pendulum appears to be swinging the other way.

(The writer is a former Governor and a Sr. Advisor at the Pranab Mukherjee Foundation)