Written by Anushka Jain
The government’s push to make Aadhar an integral part of the Indian’s daily life has seen a lot of opposition. At the core of almost all of this opposition is the question of an individual’s right to privacy (RTP). On August 24th, 2017, a Supreme Court bench of the nine senior-most judges declared that the RTP is a fundamental right. With it being in the limelight, we must understand its relationship to another important aspect of Indian democracy; the right to information (RTI) act.
The RTI Act of 2005 has given individuals access to ideally all government data, except those subject to restrictions under Section 8(1)(J) of the RTI Act. It is when one looks at these restrictions that the relationship between the two starts to emerge.
“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.
Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
Section 8(2) offers two more relaxations; if ‘public interest’ in disclosure outweighs harm to the protected interest, or if information asked was about an event happened 20 years ago, the privacy exception does not hold. With (or despite) the recognition of privacy as a fundamental right, multiple facets of privacy are shrouded in confusion and subject to conjecture.
The Denial of Information
According to RTI activist and former central information commissioner Shailesh Gandhi, “in the absence of a definition of privacy, the public information officers (PIO) of the country become judges by themselves. They have to decide which ones are, and which ones aren’t breaches of an individual’s privacy under the RTI.”
The effect doesn’t end there, according to Mr. Gandhi; the misunderstanding leads to denial and censure of data which should be provided by the RTI act.
Several examples exist where a public official’s/representative’s right to privacy has been excused for greater public interest. For instance, the ruling in the Union of India vs. Association for Democratic Reforms & Anr (2002) found that citizens have a right to know about the assets of those who want to be public servants (stand for elections). Similarly, the judgement of R. Rajagopal vs. State of Tamil Nadu (1994) found that –
“In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.”
On the other hand, there have also been cases that defended a public official’s/representative’s right to privacy. In Girish Ramchandra Deshpande vs. Central Information Commissioners (2012), 11 of 15 queries were rejected on grounds of protecting a public servant’s privacy. These questions included request to copies of memos, show-cause notices and censure/punishment awarded to the public servant. There were also demands for the details of assets and gifts received by this public servant. The ruling in this case and several others set the precedent against disclosing information related to the disciplinary actions taken against public servants. In fact, the department of personnel training issued a circular directing Public Information Officers against their disclosure. Thus crucial information remains withheld where 66% of all RTI’s are filed to find about the disciplinary action taken against (different) public servants.
Another example emerges right from the Prime Minister’s office (PMO).
The Prime Minister’s Office rejects the maximum number of RTI applications compared to other government departments. Recently, the PMO rejected an RTI application on the grounds of it violating privacy; all it had asked had been that if the Prime Minister had an Aadhaar card or not!
Confronting this Dilemma
The right to privacy, as implied in the RTI Act, is not only the protection of personal information from release as a response to the RTI application, it is also a decision by the PIO whether that information would be presented to or denied in the parliament or a state legislature. Information revealed to the legislature and the parliament automatically come into the public domain. In the above-mentioned cases, as well as with several others, it’s clear that this clause is not considered, which restricts the ordinary citizens’ benefits from the RTI.
The absence of a definition of privacy, along with stricter structures to check that the RTI Act is followed lawfully, is still strongly felt. The interaction between the RTP and the RTI is crucial to the accountability which the government must have to the people. This gaping loophole needs to be better understood, defined and tackled, as fast as possible.