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By Venkatesh Nayak*
According to media reports, the three-Judge Supreme Court Bench hearing the Aadhaar-related (UID) batch of petitions has decided that these petitions and the issue — whether people have a fundamental right to privacy and what is its scope and ambit — should be decided by a Constitution Bench. The pleadings of the Attorney General of India (AGI) appear to have prevailed over those of the Petitioners who argued that the right to privacy is undoubtedly a fundamental right. The AGI cited Constitution Bench judgements of the Court which are 5-6 decades old to argue that the right to privacy was recognised by Benches of lesser strength and therefore the matter should be authoritatively decided once and for all. Last week I commented on the incredulity (if not the fallacy) of the AGI’s arguments. Those comments as well as the core issue of the right to privacy and the legality of Aadhaar became the subject of a major debate on a TV Channel as well.
The second judgement cited by the AGI, namely, Kharak Singh vs State of UP and Ors [AIR 1963 SC 1295] was decided by a 6-Judge Bench including the then Chief Justice of India- B P Sinha.
Later judgements of the Apex Court explicitly recognising the right to privacy as a deemed fundamental right were delivered by 2 or 3-Judge Benches each.
However, the major premise of Kharak Singh was overruled in Mrs. Maneka Gandhi vs Union of India & Anr [AIR 1978 SC 597] — also known as the “Passport Case” by a seven-Judge Bench including the then Chief Justice of India- M H Beg. At least 3 of these Judges, namely, Justice Y V Chandrachud (as he the was), Justice P N Bhagwati (as he then was) and Justice V R Krishna Iyer referred to the reasoning about the nature of the fundamental rights given in R. C. Cooper v. Union of India [(1973) 3 S.C.R. 530] Rustom Cavasjee Cooper, also famous as the “Bank Nationalisation Case” was decided by an 11-Judge Bench.
So will the Aadhaar petitions and the issue of whether people in India have a fundamental right to privacy will have to be decided by a 13-Judge Bench? All eyes, particularly those of the young and techno-savvy generations whose right to privacy is most at stake, will be on the Supreme Court as it trudges the judicial path to make a determination.
The Statement of Objects and Reasons attached to the RTI Bill which was tabled in Parliament in December 2004 explains that the proposed legislation was to “provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India”. So RTI is a deemed fundamental right within the meaning of Article 19(1)(a) which guarantees the right to freedom of speech and expression. According to Article 19(2) reasonable restrictions may be imposed on free speech and expression and therefore on RTI on the following grounds only – “sovereignty and integrity of India, “the security of the State”, “friendly relations with foreign States”, “public order, decency or morality”, “or in relation to contempt of court, defamation or incitement to an offence”.
Further, Article 13 of the Constitution prohibits Parliament and State Legislatures and Governments at the Central and State level from taking any action to curtail or abridge or take away fundamental rights guaranteed under Part III of the Constitution.
According to Article 19(2) of the Constitution, “privacy” is not a ground for imposing reasonable restrictions on RTI under Article 19(2) of the Constitution. Therefore in my humble opinion, the action of the Supreme Court in recommending that the claim of privacy to the status of a fundamental right is open for authoritative determination can lead to the further conclusion that Section 8(1)(j) is an unreasonable restriction on RTI. Privacy cannot be permitted to be a ground for denying access to personal information as it is neither a fundamental right nor a reasonable restriction on the rights contained in Article 19(2) of the Constitution until the Apex Court makes an authoritative determination.
1) In the matter of Central Public Information Officer, Supreme Court of India vs Subhash Chandra Agrawal [(2011)1 SCC 496] famous as the “Supreme Court Judges’ Assets Case” a two-Judge Bench of the Supreme Court framed three questions for a Constitution Bench in November 2010. It requested the Chief Justice of India (CJI) to constitute a Constitution Bench to decide on three questions out of which the third is: “Whether the information sought for is exempt under Section 8(1)(j) of the RTI Act?”
In his RTI application the Respondent No 1 had sought to know whether judges of the Supreme Court have been submitting their returns of income and assets to the CJI. Question #3 framed by the Court relates to the disclosability of this information under the RTI. To the best of my knowledge, this Constitution Bench has not been constituted till date. So in my humble opinion until the Apex Court rules in favour of the right to privacy as a fundamental right, Question #3 framed in this case will become superfluous.
2) In the matter of The Registrar, Supreme Court of India vs Subhash Chandra Agarwal & Ors., {[2015]129 SCL 373 (Delhi)} the Respondent No. 1 who is a noted RTI activist sought details of the funds reimbursed to judges of the Supreme Court on medical expenses. The Delhi High Court ruled against such disclosure. When the Special Leave Petition was presented before the Supreme Court, a three-judge bench, including the CJI, dismissed the SLP in July 2015. While the daily order itself does not contain any reasoning for the dismissal, media reports indicate that the Judges verbally opposed disclosure of such information as it would amount to believe it or not — “unwarranted invasion of their privacy”.
The CJI is reported to have remarked that allowing the SLP would open up a Pandora’s box and lead to an invasion of the judge’s personal rights. The Counsel for the Petitioner activist was reportedly advised to respect the privacy of judges. Earlier the Central Information Commission had ordered disclosure of this information.
3) In the matter of Thalappalam Ser Coop Bank Ltd & Ors vs State of Kerala & Ors [2013(12) SCALE 527] the Apex Court pointed to the importance of protecting the right to privacy which it then thought was guaranteed under Article 21 of the Constitution which protects life and personal liberty from arbitrary interference observed as follows:
“46. Right to privacy is also not expressly guaranteed under the Constitution of India. However, the Privacy Bill, 2011 to provide for the right to privacy to citizens of India and to regulate the collection, maintenance and dissemination of their personal information and for penalization for violation of such rights and matters connected therewith, is pending. In several judgments including Kharak Singh Vs. State of UP and others AIR 1963 SC 1295, R Rajagopal alias RR Gopal and another Vs. State of Tamil Nadu and others (1994) 6 SCC 632, People’s Union for Civil Liberties (PUCL) Vs. Union of India and another (1997) 1 SCC 301 and State of Maharashtra Vs. Bharat Shanti Lal Shah and others (2008) 13 SCC 5, this Court has recognized the right to privacy as a fundamental right emanating from Article 21 of the Constitution of India. Right to privacy is also recognized as a basic human right under Article 12 of the Universal Declaration of Human Rights Act, 1948… Article 17 of the International Covenant on Civil and Political Rights Act, 1966, to which India is a party also protects that Right…
“50. Recognizing the fact that the right to privacy is a sacrosanct facet of Article 21 of the Constitution, the legislation has put a lot of safeguards to protect the rights under Section 8(j), as already indicated. If the information sought for is personal and has no relationship with any public activity or interest or it will not sub-serve larger public interest, the public authority or the officer concerned is not legally obliged to provide those information…
52. Registrar is also not obliged to disclose those information if those information fall under Section 8(1)(j) of the Act. No provision has been brought to our knowledge indicating that, under the Cooperative Societies Act, a Registrar can call for the details of the bank accounts maintained by the citizens or members in a cooperative bank. Only those information which a Registrar of Cooperative Societies can have access under the Cooperative Societies Act from a Society could be said to be the information which is “held” or “under the control of public authority”. Even those information, Registrar, as already indicated, is not legally obliged to provide if those information falls under the exempted category mentioned in Section 8(j) of the Act…”
Now that the Apex Court is not sure if privacy is a fundamental right, one basis for rejecting access to information under the RTI Act, namely, Section 8(1)(j) becomes invalid until the Constitution bench finds that it is a fundamental right. To this extent Thalappalam’s findings appear to have been set aside. Information Commissions are advised to desist from citingThalappalam to reject access to information under RTI on grounds of privacy.
4) In the matter of Girish Ramchandra Deshpande vs. Cen. Information Commr & Ors [( 2013 ) 1 SCC 212] the Supreme Court refused to order disclosure of the service related records of a civil servant such as, copies of memos, chargesheets issued in disciplinary proceedings, immovable property returns, income tax returns, details of investment made, details of gifts received etc. on grounds of protecting the officer’s fundamental right to privacy. In its order, the Apex Court observed as follows:
“13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
“14. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.
“15. The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Girish Ramchandra Deshpande which public authorities, Information Commissions and many High Courts (with honourable exceptions like the Kerala High Court) have used as the standard for refusing access to personal information of public servants, is called into question. Information Commissions are advised to desist from citing Girish Ramchandra Deshpande to reject access to information under RTI on grounds of privacy because the very basis of that order has now become unreliable.
5) In the matter of Bihar Public Service Commission vs Saiyed Hussain Abbas Rizwi & Anr, [(2012)13 SCC 61] The Supreme Court once again explained the link between the right to privacy guaranteed under Article 21 and Section 8(1)(j) of the RTI Act in the following words:
“11. The scheme of the Act contemplates for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. It was aimed at providing free access to information with the object of making governance more transparent and accountable. Another right of a citizen protected under the Constitution is the right to privacy. This right is enshrined within the spirit of Article 21 of the Constitution. Thus, the right to information has to be balanced with the right to privacy within the framework of law…
24. Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Bihar Public Service Commission is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
6) In the matter of Shailesh Gandhi etc. vs the Central Information Commission & Ors, the Bombay High Court ruled against the disclosure of the income tax returns of a prominent politician in Maharashtra citing Section 8(1)(j) of the RTI Act (see 1st attachment). Citing several cases relating to the right to privacy including the Bihar Public Service Commission case the Court observed as follows:
“22. Since the right to privacy has been recognized as a fundamental right to which a citizen is entitled to, therefore, unless the condition mentioned in Section 8(1)(j) is satisfied, the information cannot be provided. Hence the burden on the Applicant is much more onerous than may be a routine case. As indicated in the earlier part of this judgment the reason mentioned in the original application as supplemented by the grounds in the First Appeal hardly make out a case of public interest. Hence in the instant case, the said burden cannot said to have been discharged by the Petitioner. Hence the finding of the First Appellate Authority as well as the CIC that the Petitioner has not made out any case for disclosure of the information on the ground of public interest cannot be faulted with”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Shailesh Gandhi is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
7) In the matter of Naresh Trehan vs Rakesh Kumar Gupta, and a batch of related petitions [216(2015) DLT 156] the Delhi High Court set aside the CIC’s order, directing the Income Tax Department to disclose the income tax returns of the Petitioner. Relying on several judgements and precedents including the Bihar Public Service Commission case decided by the Supreme Court in 2013, the Court observed as follows:
“25. Indisputably, Section 8(1)(j) of the Act would be applicable to the information pertaining to Dr Naresh Trehan… and the information contained in the income tax returns would be personal information under Section 8(1)(j) of the Act. However, the CIC directed disclosure of information of Dr Trehan also by concluding that income tax returns and information provided for assessment was in relation to a “public activity.” In my view, this is wholly erroneous and unmerited. The act of filing returns with the department cannot be construed as public activity. The expression “public activity” would mean activities of a public nature and not necessarily act done in compliance of a statute. The expression “public activity” would denote activity done for the public and/or in some manner available for participation by public or some section of public. There is no public activity involved in filing a return or an individual pursuing his assessment with the income tax authorities. In this view, the information relating to individual assesse [sic] could not be disclosed”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Naresh Trehan is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
8) In the matter of Union Public Service Commission vs R K Jain [196 (2013) DLT 170] a Division Bench of the Delhi High Court including the Chief Justice refused to order disclosure of orders and documents relating to disciplinary proceedings against a civil servant sought by the Respondent under the RTI Act relying on the Girish Ramchandra Desphande. Both the CIC and a Single judge Bench of the Court had ruled in favour of disclosure. The Court observed as follows:
“11. … The ratio of the dicta aforesaid of the Supreme Court is that the disciplinary orders and the documents in the course of disciplinary proceedings are personal information within the meaning of Section 8(1)(j) and the disclosure of which normally has no relationship to any public activities or public interest and disclosure of which would cause unwarranted invasion of the privacy of an individual. Though the appellant UPSC is not the employer of Shri G.S. Narang, information pertaining to whom is sought by the respondent, but his employer had sought the advice/opinion/recommendation of the appellant UPSC in the matter of disciplinary proceedings against the said Shri G.S. Narang and we fail to see as to how it makes a difference whether the information relating to disciplinary proceedings is sought from the employer or from the consultant of the employer. What is exempt in the hands of the employer would certainly be exempt in the hands of consultant of the employer also. The advice given by the appellant UPSC would necessarily pertain to the disciplinary action against Shri G.S. Narang. Section 8(1)(j) exempts from disclosure personal information, irrespective of with whom it is possessed and from whom disclosure thereof is sought.
“13. We therefore, following the dicta in Girish Ramchandra Deshpande, set aside the judgment dated 13th July, 2012 of the learned Single Judge and allow the writ petition preferred by the appellant UPSC, consequently setting aside the order dated 12th January, 2011 of the CIC”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by R K Jain is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
9) In the matter of The Registrar General vs R M Subramanian and the Registrar, [(2013) 5 MLJ 513] the Madras High Court claimed the right to privacy for itself as a judicial institution – in all probability a first in the history of the jurisprudence on the issue in India. The Court was ruling on the demand of the RTI applicant for disclosure of the minutes of the meetings of the Judges of the High Court including the Chief Justice in relation to allegations of wrongdoing against some judicial offcers. A Division Bench of the Court observed as follows:
“55. It is to be pointed out that ‘Right to Privacy’ is recognised as basic human right in Article 12 of Universal Declaration of Human Rights, 1948 and Article 17 of International Covenant on Civil and Political Rights, 1966. Added further, the concept of ‘Right to Privacy’ is an essential component of right to life under Article 21 of the Constitution of India.
“56. Under two contingencies, the exemption under Section 8of the Right to Information Act, gets attracted viz., (i) If the information is personal in nature and has no nexus or relationship to any public activity or interest; and (ii) furnishing of the same would cause an unwarranted invasion of the privacy of an individual…
“94. That apart, if the copies of the Minutes dated 16.12.2010 and 07.03.2011 are supplied to the 1st Respondent/Petitioner, then, the interest of the administration of the High Court will get jeopardised and also it will perforce the Petitioner/High Court to furnish the informations sought for by the concerned Applicants/Requisitionists as a matter of usual course without any qualms or rhyme or reasons/restrictions. In effect, to uphold the dignity and majesty of the Hon’ble High Court being an Independent Authority under the Constitution of India, some self-restrictions are to be imposed as regards the supply of internal/domestic functioning of the Hon’ble High Court and its office informations in respect of matters which are highly confidential in nature inasmuch as it concerns with the Intricate, Internal Discussions and Deliberations, Notings, Jottings and Administrative Decisions taken on various matters at different levels and as such, they are exempted from disclosure under Section 8(e)(i)(j) [sic] of the Right to Information Act, 2005. Even otherwise, they are not open to litigants/public without restrictions. No wonder, it can be fittingly observed that if Impartiality is the Soul of Judiciary, then, Independence is the Life Blood of Judiciary. Also that, without Independence, Impartiality cannot thrive/survive.
“95. In short, if the informations sought for by the 1st Respondent/Petitioner are furnished, then, it will prejudicially affect the confidential interest, privacy and well being of the High Court, in the considered opinion of this Court.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by The Registrar General is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
10) In the matter of Joint Registrar (Judicial)-cum-Public Information Officer vs State Information Commission & Ors., [AIR 2010 Pat 176] the Patna High Court refused to permit the disclosure of the name of the agency which conducted the examination for the recruitment of Additional District and Sessions Judges holding that the information attracted Section 8(1)(j) of the RTI Act. Overturning the decision of the Bihar State Information Commission which ordered disclosure of the information, the Court observed as follows:
“26. Now it is to be seen whether the Petitioner can withhold the supply of name of agency which conducted the examination of Additional District & Sessions Judge in the year, 2002. It would appear from bare perusal of Section 8(1)(j) of the R. T. I. Act that information which is personal in nature and the disclosure of which will have no relationship with any public activity or interest, need not be disclosed. It is also not obligatory to disclose such personal information which would cause unwarranted invasion of the privacy of an individual, unless and until the public interest demands the disclosure…
“31. The High Court in order to maintain both transparency and confidentiality entrusted the work of conducting the examination of Additional District & Sessions Judge to an agency. The disclosure of the name of the agency in essence would lead to the disclosure of the name of the examiners, the persons employed in the agency and those who are directly, or indirectly involved in the process of examination. Such information would cause an inroad into the privacy of not only the examiners, but also evaluators, invigilators, tabulators, superintendent etc., who are integral part of examination conducting agency and may pose danger to their lives. If such disclosure is permitted to the public, then no agency would even like to conduct the examination at all.
“35. Neither the Parliament nor the State Government has enacted any law whereby it was made obligatory to disclose the name of the agency conducting the examination. The Respondent No 2 while allowing the application of Respondent No 4 did not specify, as to how disclosure of the name of agency would foster the cause of public interest. The mere use of the term ‘public interest’ will not make it public interest, unless cause is shown. Such interest of public has to be real and is to be judged on the objective basis.
“36. In the back drop of the aforesaid discussions, I am of the view that it is not obligatory for the Petitioner, namely Joint Registrar (Judicial)-cum-Public Information Officer, High Court of Judicature at Patna to’ disclose the name of the agency, which has conducted Additional District & Sessions Judge examination in the year, 2002 in view of exemption provided under Section 8(1)(j) of the R. T. I. Act, 2005. The Respondent No. 2 erred in holding that the protection under Section 8(1)(j) of the R. T. I. Act, 2005 was not available to the Petitioner and it was obligatory upon it to supply the name of the agency which conducted the examination”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Joint Registrar (Judicial)-cum PIO is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
11) In the matter of Asian Education Charitable Society & Ors. vs State of Uttarakhand & Ors., and a batch of related petitions [AIR 2010 Utr 72] the Uttarakhand High Court correctly refused to treat private schools as public authorities under the RTI Act, but when ahead to deny access to information through their regulatory authority, namely the State Department of Education on grounds of privacy (see 2nd attachment). The Court observed as follows:
“12. But can the Public Information Officer compel the petitioners to furnish information to citizen or to any other public authority, even though such an information is not already on record of the Public Information Officer?
“In other words, can the Public Information Officer compel the petitioners to furnish certain information from the records of the petitioners’ office, even though such an information has not been furnished under any provisions of law by the petitioners before this public authority? The answer to this would be in negative, as it would be an invasion on the privacy of these Institutes, or individual and the Institutes not being a public authority, as it has already been held above, cannot be compelled to furnish information. Moreover, in case such an “information” is not already there with such this Public Authority, it cannot be an information “which is held”, by the public authority and therefore, it would not be covered under the definition of “right to information” given under Section 2(j) of the Act…”
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Asian Education Society is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
Thanks to the latest decision of the Supreme Court, a major chunk of the jurisprudence under the RTI Act relating to the right to privacy has become unstable. How soon will stability return depends upon how soon the Constitution Bench of the Apex Court is constituted and will dispose of the matter. All said, in my humble opinion, the AGI has contributed to the creation of more problems than solving existing ones.
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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, Delhi
According to media reports, the three-Judge Supreme Court Bench hearing the Aadhaar-related (UID) batch of petitions has decided that these petitions and the issue — whether people have a fundamental right to privacy and what is its scope and ambit — should be decided by a Constitution Bench. The pleadings of the Attorney General of India (AGI) appear to have prevailed over those of the Petitioners who argued that the right to privacy is undoubtedly a fundamental right. The AGI cited Constitution Bench judgements of the Court which are 5-6 decades old to argue that the right to privacy was recognised by Benches of lesser strength and therefore the matter should be authoritatively decided once and for all. Last week I commented on the incredulity (if not the fallacy) of the AGI’s arguments. Those comments as well as the core issue of the right to privacy and the legality of Aadhaar became the subject of a major debate on a TV Channel as well.
How large is the Constitution Bench likely to be?
The first of the judgements cited by the AGI, namely, MP Sharma & Ors vs Satish Chandra, District Magistrate, Delhi & Ors [AIR 1954 SC300] was decided by an 8-Judge Bench including the then Chief Justice of India- M C Mahajan.The second judgement cited by the AGI, namely, Kharak Singh vs State of UP and Ors [AIR 1963 SC 1295] was decided by a 6-Judge Bench including the then Chief Justice of India- B P Sinha.
Later judgements of the Apex Court explicitly recognising the right to privacy as a deemed fundamental right were delivered by 2 or 3-Judge Benches each.
However, the major premise of Kharak Singh was overruled in Mrs. Maneka Gandhi vs Union of India & Anr [AIR 1978 SC 597] — also known as the “Passport Case” by a seven-Judge Bench including the then Chief Justice of India- M H Beg. At least 3 of these Judges, namely, Justice Y V Chandrachud (as he the was), Justice P N Bhagwati (as he then was) and Justice V R Krishna Iyer referred to the reasoning about the nature of the fundamental rights given in R. C. Cooper v. Union of India [(1973) 3 S.C.R. 530] Rustom Cavasjee Cooper, also famous as the “Bank Nationalisation Case” was decided by an 11-Judge Bench.
So will the Aadhaar petitions and the issue of whether people in India have a fundamental right to privacy will have to be decided by a 13-Judge Bench? All eyes, particularly those of the young and techno-savvy generations whose right to privacy is most at stake, will be on the Supreme Court as it trudges the judicial path to make a determination.
Privacy protection under Section 8(1)(j) of the RTI Act could become unconstitutional
Section 8(1)(j) of The Right to Information Act, 2005 (RTI Act) states that a public authority has no obligation to disclose personal information of an individual if by so doing it would cause unwarranted invasion of the privacy of that individual or if the disclosure has no relationship to any public activity or public interest. Section 8(1)(j) is the most frequently used of exemption clauses by public authorities to reject RTI applications across the country.The Statement of Objects and Reasons attached to the RTI Bill which was tabled in Parliament in December 2004 explains that the proposed legislation was to “provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India”. So RTI is a deemed fundamental right within the meaning of Article 19(1)(a) which guarantees the right to freedom of speech and expression. According to Article 19(2) reasonable restrictions may be imposed on free speech and expression and therefore on RTI on the following grounds only – “sovereignty and integrity of India, “the security of the State”, “friendly relations with foreign States”, “public order, decency or morality”, “or in relation to contempt of court, defamation or incitement to an offence”.
Further, Article 13 of the Constitution prohibits Parliament and State Legislatures and Governments at the Central and State level from taking any action to curtail or abridge or take away fundamental rights guaranteed under Part III of the Constitution.
According to Article 19(2) of the Constitution, “privacy” is not a ground for imposing reasonable restrictions on RTI under Article 19(2) of the Constitution. Therefore in my humble opinion, the action of the Supreme Court in recommending that the claim of privacy to the status of a fundamental right is open for authoritative determination can lead to the further conclusion that Section 8(1)(j) is an unreasonable restriction on RTI. Privacy cannot be permitted to be a ground for denying access to personal information as it is neither a fundamental right nor a reasonable restriction on the rights contained in Article 19(2) of the Constitution until the Apex Court makes an authoritative determination.
What happens to the RTI matters decided by the Supreme Court taking recourse to the right to privacy?
The Supreme Court’s advice to the Chief Justice of India to refer the Aadhaar matters to a Constitution Bench jeopardises several other matters that were presented before the Court. Here is a sampler:1) In the matter of Central Public Information Officer, Supreme Court of India vs Subhash Chandra Agrawal [(2011)1 SCC 496] famous as the “Supreme Court Judges’ Assets Case” a two-Judge Bench of the Supreme Court framed three questions for a Constitution Bench in November 2010. It requested the Chief Justice of India (CJI) to constitute a Constitution Bench to decide on three questions out of which the third is: “Whether the information sought for is exempt under Section 8(1)(j) of the RTI Act?”
In his RTI application the Respondent No 1 had sought to know whether judges of the Supreme Court have been submitting their returns of income and assets to the CJI. Question #3 framed by the Court relates to the disclosability of this information under the RTI. To the best of my knowledge, this Constitution Bench has not been constituted till date. So in my humble opinion until the Apex Court rules in favour of the right to privacy as a fundamental right, Question #3 framed in this case will become superfluous.
2) In the matter of The Registrar, Supreme Court of India vs Subhash Chandra Agarwal & Ors., {[2015]129 SCL 373 (Delhi)} the Respondent No. 1 who is a noted RTI activist sought details of the funds reimbursed to judges of the Supreme Court on medical expenses. The Delhi High Court ruled against such disclosure. When the Special Leave Petition was presented before the Supreme Court, a three-judge bench, including the CJI, dismissed the SLP in July 2015. While the daily order itself does not contain any reasoning for the dismissal, media reports indicate that the Judges verbally opposed disclosure of such information as it would amount to believe it or not — “unwarranted invasion of their privacy”.
The CJI is reported to have remarked that allowing the SLP would open up a Pandora’s box and lead to an invasion of the judge’s personal rights. The Counsel for the Petitioner activist was reportedly advised to respect the privacy of judges. Earlier the Central Information Commission had ordered disclosure of this information.
3) In the matter of Thalappalam Ser Coop Bank Ltd & Ors vs State of Kerala & Ors [2013(12) SCALE 527] the Apex Court pointed to the importance of protecting the right to privacy which it then thought was guaranteed under Article 21 of the Constitution which protects life and personal liberty from arbitrary interference observed as follows:
“46. Right to privacy is also not expressly guaranteed under the Constitution of India. However, the Privacy Bill, 2011 to provide for the right to privacy to citizens of India and to regulate the collection, maintenance and dissemination of their personal information and for penalization for violation of such rights and matters connected therewith, is pending. In several judgments including Kharak Singh Vs. State of UP and others AIR 1963 SC 1295, R Rajagopal alias RR Gopal and another Vs. State of Tamil Nadu and others (1994) 6 SCC 632, People’s Union for Civil Liberties (PUCL) Vs. Union of India and another (1997) 1 SCC 301 and State of Maharashtra Vs. Bharat Shanti Lal Shah and others (2008) 13 SCC 5, this Court has recognized the right to privacy as a fundamental right emanating from Article 21 of the Constitution of India. Right to privacy is also recognized as a basic human right under Article 12 of the Universal Declaration of Human Rights Act, 1948… Article 17 of the International Covenant on Civil and Political Rights Act, 1966, to which India is a party also protects that Right…
“50. Recognizing the fact that the right to privacy is a sacrosanct facet of Article 21 of the Constitution, the legislation has put a lot of safeguards to protect the rights under Section 8(j), as already indicated. If the information sought for is personal and has no relationship with any public activity or interest or it will not sub-serve larger public interest, the public authority or the officer concerned is not legally obliged to provide those information…
52. Registrar is also not obliged to disclose those information if those information fall under Section 8(1)(j) of the Act. No provision has been brought to our knowledge indicating that, under the Cooperative Societies Act, a Registrar can call for the details of the bank accounts maintained by the citizens or members in a cooperative bank. Only those information which a Registrar of Cooperative Societies can have access under the Cooperative Societies Act from a Society could be said to be the information which is “held” or “under the control of public authority”. Even those information, Registrar, as already indicated, is not legally obliged to provide if those information falls under the exempted category mentioned in Section 8(j) of the Act…”
Now that the Apex Court is not sure if privacy is a fundamental right, one basis for rejecting access to information under the RTI Act, namely, Section 8(1)(j) becomes invalid until the Constitution bench finds that it is a fundamental right. To this extent Thalappalam’s findings appear to have been set aside. Information Commissions are advised to desist from citingThalappalam to reject access to information under RTI on grounds of privacy.
4) In the matter of Girish Ramchandra Deshpande vs. Cen. Information Commr & Ors [( 2013 ) 1 SCC 212] the Supreme Court refused to order disclosure of the service related records of a civil servant such as, copies of memos, chargesheets issued in disciplinary proceedings, immovable property returns, income tax returns, details of investment made, details of gifts received etc. on grounds of protecting the officer’s fundamental right to privacy. In its order, the Apex Court observed as follows:
“13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
“14. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.
“15. The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Girish Ramchandra Deshpande which public authorities, Information Commissions and many High Courts (with honourable exceptions like the Kerala High Court) have used as the standard for refusing access to personal information of public servants, is called into question. Information Commissions are advised to desist from citing Girish Ramchandra Deshpande to reject access to information under RTI on grounds of privacy because the very basis of that order has now become unreliable.
5) In the matter of Bihar Public Service Commission vs Saiyed Hussain Abbas Rizwi & Anr, [(2012)13 SCC 61] The Supreme Court once again explained the link between the right to privacy guaranteed under Article 21 and Section 8(1)(j) of the RTI Act in the following words:
“11. The scheme of the Act contemplates for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. It was aimed at providing free access to information with the object of making governance more transparent and accountable. Another right of a citizen protected under the Constitution is the right to privacy. This right is enshrined within the spirit of Article 21 of the Constitution. Thus, the right to information has to be balanced with the right to privacy within the framework of law…
24. Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Bihar Public Service Commission is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
What happens to the RTI matters decided by High Courts taking recourse to the right to privacy?
Several High Courts have also decided against the disclosure of personal information under the RTI Act by favouring the protection for personal privacy guaranteed under Article 21 of the Constitution read with Section 8(1)(j) of the Act. All these judgements and orders will now be called into question as they are based on Supreme Court rulings cited above. Here is a sampler:6) In the matter of Shailesh Gandhi etc. vs the Central Information Commission & Ors, the Bombay High Court ruled against the disclosure of the income tax returns of a prominent politician in Maharashtra citing Section 8(1)(j) of the RTI Act (see 1st attachment). Citing several cases relating to the right to privacy including the Bihar Public Service Commission case the Court observed as follows:
“22. Since the right to privacy has been recognized as a fundamental right to which a citizen is entitled to, therefore, unless the condition mentioned in Section 8(1)(j) is satisfied, the information cannot be provided. Hence the burden on the Applicant is much more onerous than may be a routine case. As indicated in the earlier part of this judgment the reason mentioned in the original application as supplemented by the grounds in the First Appeal hardly make out a case of public interest. Hence in the instant case, the said burden cannot said to have been discharged by the Petitioner. Hence the finding of the First Appellate Authority as well as the CIC that the Petitioner has not made out any case for disclosure of the information on the ground of public interest cannot be faulted with”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Shailesh Gandhi is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
7) In the matter of Naresh Trehan vs Rakesh Kumar Gupta, and a batch of related petitions [216(2015) DLT 156] the Delhi High Court set aside the CIC’s order, directing the Income Tax Department to disclose the income tax returns of the Petitioner. Relying on several judgements and precedents including the Bihar Public Service Commission case decided by the Supreme Court in 2013, the Court observed as follows:
“25. Indisputably, Section 8(1)(j) of the Act would be applicable to the information pertaining to Dr Naresh Trehan… and the information contained in the income tax returns would be personal information under Section 8(1)(j) of the Act. However, the CIC directed disclosure of information of Dr Trehan also by concluding that income tax returns and information provided for assessment was in relation to a “public activity.” In my view, this is wholly erroneous and unmerited. The act of filing returns with the department cannot be construed as public activity. The expression “public activity” would mean activities of a public nature and not necessarily act done in compliance of a statute. The expression “public activity” would denote activity done for the public and/or in some manner available for participation by public or some section of public. There is no public activity involved in filing a return or an individual pursuing his assessment with the income tax authorities. In this view, the information relating to individual assesse [sic] could not be disclosed”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Naresh Trehan is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
8) In the matter of Union Public Service Commission vs R K Jain [196 (2013) DLT 170] a Division Bench of the Delhi High Court including the Chief Justice refused to order disclosure of orders and documents relating to disciplinary proceedings against a civil servant sought by the Respondent under the RTI Act relying on the Girish Ramchandra Desphande. Both the CIC and a Single judge Bench of the Court had ruled in favour of disclosure. The Court observed as follows:
“11. … The ratio of the dicta aforesaid of the Supreme Court is that the disciplinary orders and the documents in the course of disciplinary proceedings are personal information within the meaning of Section 8(1)(j) and the disclosure of which normally has no relationship to any public activities or public interest and disclosure of which would cause unwarranted invasion of the privacy of an individual. Though the appellant UPSC is not the employer of Shri G.S. Narang, information pertaining to whom is sought by the respondent, but his employer had sought the advice/opinion/recommendation of the appellant UPSC in the matter of disciplinary proceedings against the said Shri G.S. Narang and we fail to see as to how it makes a difference whether the information relating to disciplinary proceedings is sought from the employer or from the consultant of the employer. What is exempt in the hands of the employer would certainly be exempt in the hands of consultant of the employer also. The advice given by the appellant UPSC would necessarily pertain to the disciplinary action against Shri G.S. Narang. Section 8(1)(j) exempts from disclosure personal information, irrespective of with whom it is possessed and from whom disclosure thereof is sought.
“13. We therefore, following the dicta in Girish Ramchandra Deshpande, set aside the judgment dated 13th July, 2012 of the learned Single Judge and allow the writ petition preferred by the appellant UPSC, consequently setting aside the order dated 12th January, 2011 of the CIC”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by R K Jain is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
9) In the matter of The Registrar General vs R M Subramanian and the Registrar, [(2013) 5 MLJ 513] the Madras High Court claimed the right to privacy for itself as a judicial institution – in all probability a first in the history of the jurisprudence on the issue in India. The Court was ruling on the demand of the RTI applicant for disclosure of the minutes of the meetings of the Judges of the High Court including the Chief Justice in relation to allegations of wrongdoing against some judicial offcers. A Division Bench of the Court observed as follows:
“55. It is to be pointed out that ‘Right to Privacy’ is recognised as basic human right in Article 12 of Universal Declaration of Human Rights, 1948 and Article 17 of International Covenant on Civil and Political Rights, 1966. Added further, the concept of ‘Right to Privacy’ is an essential component of right to life under Article 21 of the Constitution of India.
“56. Under two contingencies, the exemption under Section 8of the Right to Information Act, gets attracted viz., (i) If the information is personal in nature and has no nexus or relationship to any public activity or interest; and (ii) furnishing of the same would cause an unwarranted invasion of the privacy of an individual…
“94. That apart, if the copies of the Minutes dated 16.12.2010 and 07.03.2011 are supplied to the 1st Respondent/Petitioner, then, the interest of the administration of the High Court will get jeopardised and also it will perforce the Petitioner/High Court to furnish the informations sought for by the concerned Applicants/Requisitionists as a matter of usual course without any qualms or rhyme or reasons/restrictions. In effect, to uphold the dignity and majesty of the Hon’ble High Court being an Independent Authority under the Constitution of India, some self-restrictions are to be imposed as regards the supply of internal/domestic functioning of the Hon’ble High Court and its office informations in respect of matters which are highly confidential in nature inasmuch as it concerns with the Intricate, Internal Discussions and Deliberations, Notings, Jottings and Administrative Decisions taken on various matters at different levels and as such, they are exempted from disclosure under Section 8(e)(i)(j) [sic] of the Right to Information Act, 2005. Even otherwise, they are not open to litigants/public without restrictions. No wonder, it can be fittingly observed that if Impartiality is the Soul of Judiciary, then, Independence is the Life Blood of Judiciary. Also that, without Independence, Impartiality cannot thrive/survive.
“95. In short, if the informations sought for by the 1st Respondent/Petitioner are furnished, then, it will prejudicially affect the confidential interest, privacy and well being of the High Court, in the considered opinion of this Court.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by The Registrar General is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
10) In the matter of Joint Registrar (Judicial)-cum-Public Information Officer vs State Information Commission & Ors., [AIR 2010 Pat 176] the Patna High Court refused to permit the disclosure of the name of the agency which conducted the examination for the recruitment of Additional District and Sessions Judges holding that the information attracted Section 8(1)(j) of the RTI Act. Overturning the decision of the Bihar State Information Commission which ordered disclosure of the information, the Court observed as follows:
“26. Now it is to be seen whether the Petitioner can withhold the supply of name of agency which conducted the examination of Additional District & Sessions Judge in the year, 2002. It would appear from bare perusal of Section 8(1)(j) of the R. T. I. Act that information which is personal in nature and the disclosure of which will have no relationship with any public activity or interest, need not be disclosed. It is also not obligatory to disclose such personal information which would cause unwarranted invasion of the privacy of an individual, unless and until the public interest demands the disclosure…
“31. The High Court in order to maintain both transparency and confidentiality entrusted the work of conducting the examination of Additional District & Sessions Judge to an agency. The disclosure of the name of the agency in essence would lead to the disclosure of the name of the examiners, the persons employed in the agency and those who are directly, or indirectly involved in the process of examination. Such information would cause an inroad into the privacy of not only the examiners, but also evaluators, invigilators, tabulators, superintendent etc., who are integral part of examination conducting agency and may pose danger to their lives. If such disclosure is permitted to the public, then no agency would even like to conduct the examination at all.
“35. Neither the Parliament nor the State Government has enacted any law whereby it was made obligatory to disclose the name of the agency conducting the examination. The Respondent No 2 while allowing the application of Respondent No 4 did not specify, as to how disclosure of the name of agency would foster the cause of public interest. The mere use of the term ‘public interest’ will not make it public interest, unless cause is shown. Such interest of public has to be real and is to be judged on the objective basis.
“36. In the back drop of the aforesaid discussions, I am of the view that it is not obligatory for the Petitioner, namely Joint Registrar (Judicial)-cum-Public Information Officer, High Court of Judicature at Patna to’ disclose the name of the agency, which has conducted Additional District & Sessions Judge examination in the year, 2002 in view of exemption provided under Section 8(1)(j) of the R. T. I. Act, 2005. The Respondent No. 2 erred in holding that the protection under Section 8(1)(j) of the R. T. I. Act, 2005 was not available to the Petitioner and it was obligatory upon it to supply the name of the agency which conducted the examination”.
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Joint Registrar (Judicial)-cum PIO is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
11) In the matter of Asian Education Charitable Society & Ors. vs State of Uttarakhand & Ors., and a batch of related petitions [AIR 2010 Utr 72] the Uttarakhand High Court correctly refused to treat private schools as public authorities under the RTI Act, but when ahead to deny access to information through their regulatory authority, namely the State Department of Education on grounds of privacy (see 2nd attachment). The Court observed as follows:
“12. But can the Public Information Officer compel the petitioners to furnish information to citizen or to any other public authority, even though such an information is not already on record of the Public Information Officer?
“In other words, can the Public Information Officer compel the petitioners to furnish certain information from the records of the petitioners’ office, even though such an information has not been furnished under any provisions of law by the petitioners before this public authority? The answer to this would be in negative, as it would be an invasion on the privacy of these Institutes, or individual and the Institutes not being a public authority, as it has already been held above, cannot be compelled to furnish information. Moreover, in case such an “information” is not already there with such this Public Authority, it cannot be an information “which is held”, by the public authority and therefore, it would not be covered under the definition of “right to information” given under Section 2(j) of the Act…”
Now that the Apex Court has publicly stated that it is not sure whether privacy is a fundamental right in India, the precedent set by Asian Education Society is called into question. Information Commissions are advised to desist from citing this case to reject access to information under RTI on grounds of privacy because the very basis of that judgement has now become unreliable.
Thanks to the latest decision of the Supreme Court, a major chunk of the jurisprudence under the RTI Act relating to the right to privacy has become unstable. How soon will stability return depends upon how soon the Constitution Bench of the Apex Court is constituted and will dispose of the matter. All said, in my humble opinion, the AGI has contributed to the creation of more problems than solving existing ones.
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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, Delhi
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