Despite the emphatic declaration that right to privacy is a fundamental part of life and personal liberty, the RTI Act forms part of reasonable restrictions with prescribed process of fair and just procedure to provide enough opportunity to express views on disclosure.
The Supreme Court bench of nine Judges made it clear unanimously that the state cannot abuse its power to search, tap phones and knock the doors at midnight without legally prescribed reasonable procedure and justification, because right to privacy is a fundamental right being intrinsic part of right to life under Article 21.
The people now can challenge the state, which holds or owns or collects huge data of personal information about citizens, for selective disclosure or misuse of their data. In any dishonest and non accountable administration, the privacy of citizen becomes highly vulnerable. One more asthra was added to armory of common man under Articles 32 or 226. State has a duty to make a comprehensive law on the subject to ensure enforcement of this fundamental right. In separate judgments, the judges pointed out the necessity of an enactment. This is just a declaration, not a precise definition of the right to privacy with limitations, which is left to the Parliament. The elaborate judgment should have also contained detailed guidance to the legislature.
In District Registrar and Collector, Hyderabad v Canara Bank, a Bench of two judges of Supreme Court considered the provisions of the Indian Stamp Act, 1899 (as amended by a special law in Andhra Pradesh). Section 73 has empowered the Collector to inspect registers, books and records, papers, documents and proceedings in the custody of any public officer ‘to secure any duty or to prove or would lead to the discovery of a fraud or omission’. Chief Justice Lahoti took guidance from Kharak Singh case to find reasonable expectation of privacy, and also held that the state could not allow the customer’s privacy to be breached by nongovernmental individuals and thus statute insofar as it allowed the Collector to authorize any person to seek inspection would be unenforceable.
Justice Chandrachud said the significance of Canara Bank lies in its reaffirmation of the right to privacy as emanating from the liberties guaranteed by Article 19 and from the protection of life and personal liberty under Article 21. He referred to Canara Bank in which it was considered “That information provided by an individual to a third party (in that case a bank) carries with it a reasonable expectation that it will be utilized only for the purpose for which it is provided. Parting with information (to the bank) does not deprive the individual of the privacy interest. The reasonable expectation is allied to the purpose for which information is provided. ….while legitimate aims of the state, such as the
protection of the revenue may intervene to permit a disclosure to the state, the state must take care to ensure that the information is not accessed by a private entity. The decision in Canara Bank has thus important consequences for recognizing informational privacy.”
The landmark order in Justice Puttaswamy case also quoted important US decisions on informational privacy and suggested Union to come up with a robust regime of protection to the information of individuals from being accessed by state and also nonstate factors, to allay the fear of misuse. In the age of internet where huge information is shared by individuals in social media, their living habits and consumption trends are gathered from their online purchases and browsing, lands in the hands of commercial exploiters or power wielding state departments. The searches in the house, surveillance of the visitors and movements, telephone tapping etc of an ordinary citizen without following legal process could ruin his life and destroy his dignity. Everyone’s home is considered his castle and state cannot invade it.
Despite the emphatic declaration that right to privacy is a fundamental part of life and personal liberty, the right to information survives as the right of privacy of individuals was well taken care of with Section 8(1)(j) and 11 of the Right to Information Act, 2005. The RTI forms part of reasonable restrictions with prescribed process of fair and just procedure to provide enough opportunity to express views on disclosure. Section 8 which enlisted the limitations along with provisos, was rightly discussed by the Bench. The state argued that sufficient statutory protection to privacy was given in the RTI Act. The Bench responded saying such protection was not enough and a constitutional declaration was needed. Any information which does not relate to personal life, or has no relationship to any public activity or interest, or which would not cause unwarranted invasion of privacy of an individuals could only be given. If this part has statutorily guaranteed the right to privacy to a great extent in the context of information freedom, the law took care to provide relief by saying that if the CPIO is satisfied that ‘larger public interest’ justifies, he could release the information. Besides this, Section 8(2) offers two more relaxations, if ‘public interest’ in disclosure outweighs the harmto the protected interest, or if information asked was about an event happened 20 years back, the ‘privacy’ exception does notobstruct. The RTI Act is not allowing the unwarranted invasion of privacy.
As the erudite scholastic judgment rightly observed, the privacy right is not at all absolute and public interest overrides were rightly prescribed in the law so that transparency interests and good governance concerns are protected. The public servant’s privacy is limited to his ‘personal’ aspects only. That operates as major limitation and to that extent a major concession to transparency. But one has to look into what is happening in implementation of transparency regime. The public information officers (PIO) continue to deny access to information held by them. The misuse of Section 8(1)(j) of Right to Information Act, 2005 which codified privacy exception, by PIOs is rampant and most times reduced this Act into a mockery. To quote a few examples: The sub-registrar refuses to share the General Power of Attorney and Sale deed copies on the pretext that they are personal information or belonging to third party. This unwarranted protection result in fraudulent and multiple sale of same immovable property, leading to unending litigation.
Revenue department refuses the land records, boundaries and assignment details. It neither conducts survey nor reveals survey reports. Daksh, an NGO says ` 58 thousand crore is being spent on litigation in both civil and criminal cases by the people (State’s expenditure is additional). Around 66 per cent of litigation is about land. Litigation of this kind causes a loss of 1.3 per cent GDP. The poor still suffer as the litigation lingers on. Surprisingly, updating land records through transparent procedures will result in reduction of 2/3 rd of pending cases before judiciary. If land records are reformed, the judiciary also gets reformed. With effective transparency and easy access to people, the defects and disputes over land could be considerably reduced and the people’s participation ensures cleaning of titles resulting in good governance of property based economics.
In that survey it was also revealed that ambiguous status of land records was the main source of crime and destruction of families. All this can be redressed by strengthening the RTI regime. But widespread small corruption in lakhs of Government offices from village to state headquarters does not allow PIOs to share information sought. The excuse they profusely abuse is the clause of privacy – Section 8(1)(j). Some of the Post Offices have been allegedly indulging in frauds where the middleclass citizen’s money in savings or kisan vikas patra etc is swindled by a few office personnel hand in glove with some private fraudsters. Then they become guardians of privacy to refuse the information to facilitate frauds and cover them up. Genuine legal heirs are denied information of accounts about their deceased fore-fathers. Pension amount and PF account details are also denied to the concerned individuals or union representatives. Generally the spouses are denied the salary details of estranged partners. Does it mean public servants can abandon wives without maintenance and prevent disclosures to secure their privacy? The authorities should not ignore the public interest in securing evidence of earning of spouses for deciding maintenance matters in judicious manner. This is abuse of the exceptions of RTI Act by the public authorities in the name of privacy.
Another interesting denial is the educational qualifications of the public servants, even where the qualification is a condition for employment. Leaders claim to have got degrees but refuse to share details. The Supreme Court in Meriambam Prithviraj v Pukhrem Sharatchandra Singh decided by Justice Anil R Dave and Justice L Nageswar Rao on October 28, 2016 to disqualify an MLA from Manipur for falsely claiming to have MBA degree, on the grounds that people voted him on misrepresentation that he was a highly educated person.
When the caste is the basis of Constitutional reservations and where the revenue department sells false caste certificates, how can the public authorities claim caste information as ‘private’? Above all, surprisingly around 60% of RTI requests for details of disciplinary action against public servant for bribery or misappropriation or irregularities are denied on this ground. Most unfortunately a division bench of Supreme Court (Girish R Deshpande) and several CIC orders agreed with this view while DoPT jumped at to circulate an office memorandum asking all to deny any such information. This division bench order is mentioned in the recent judgment.
The state can neither invade privacy of individual citizens nor invoke privacy to deny the access to public information. Bribery is a not a family affair and the privacy a cover for corruption. It is difficult to implement a judicial declaration however erudite it may be in the absence of the legislative precision to the definition of privacy with specific limitations.
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