The Hans India: New
Delhi: Tuesday, February 09, 2016.
It is most unreasonable to say that the caste
information is private or personal information. If the caste certificate is
fake or manipulated, there is public interest in knowing it and probing it. If
it is genuine, there is no need to hide. We are not a casteless society.
Reservations have given enormous life to castes
and we are still being divided by caste. It cannot be personal information,
especially when some mischievous elements are using corruption prevalent in
system to get false caste certificates to enjoy reservation benefits
Government agencies are using right of privacy
to stonewall the requests for information. Privacy of a person needs to be
protected but public interest is higher than private interests. Apex court and
several High Court verdicts also offered this protection to individuals working
in public offices, at the cost of people’s right to information.
In a common capital where two Chief Ministers
exist, both are making statements mutually levelling serious criminal
allegations. When one Chief Minister’s
voice was tapped in an episode of offering a bribe to a legislator to buy his
vote, he and his State raised a hue and cry over ‘privacy.’ The ‘trap’ was
countered by ‘tap’ allegation. The people do not know what happened
thereafter.
They believe that investigation is going on and
on. The issue here is not which Chief Minister was correct. Whether privacy is
so fundamental that it can even prevent law enforcing machinery from
investigation? Whether public interest has any role to deny privacy.
Can ACB enter bedrooms of the official or
personal residences of the Chief Ministers in India, where there are several
established instances of stuffing currency notes in beds, cots, and walls of
these private rooms? Should ACB officers stop at the drawing room and sincerely
protect the privacy of the Chief Minister?
Let us read what the Section 8(1) of the Right to Information Act, 2005, says:
“Notwithstanding anything contained in this Act, there shall be no obligation
to give any citizen (j) 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.”
Besides “larger public interest defence”
mentioned above, there are two more general provisos to this right of privacy:
1. If that personal Info could be given to Legislature, it can be given to
citizen also (Proviso to Sec 8(1); 2. If the public interest in disclosure is
comparatively better than public interest in protection [Section 8(2)].
The Supreme Court in Girish Ramachandra
Deshpande v CIC , held: “Income tax returns, immovable property statements,
show cause notices, charge-sheet and service records of an employee are
personal information whose disclosure has no relationship to any public
activity or interest. They may not be disclosed unless there is a clear
overriding public interest in disclosure.” (2 Judge Bench of SC [(2013) 1SCC
212] SLP (Civil) No. 27734 of 2012, decided on 03/10/2012) This is more or less similarly coached in
language of Section 8(1) (j).
The Supreme Court pointed out that immovable
property statements; show cause notices and charge sheets are personal
information. It is not correct proposition. They cannot be said to be parts of
the ‘right to privacy’ of the individuals who are corrupt, charge sheeted, and
received show cause notices and admonition for misconduct.
Those public servants will be either suspended
or dismissed or their increments are cut. How could they be private information
of those persons whose corruption or irresponsibility of misconduct is proved?
Is privacy is a cover to protect criminals?
IT returns & privacy
The Delhi High Court held in Naresh Trehan vs
Rakesh Kumar Gupta and related matters, W. P. (C) 85/2010 24/11/2014 –
(SB) “33. … where the nature of income
tax returns and other information provided for assessment of income is
confidential and its disclosure is protected under the Income Tax Act, 1961, it
is not necessary to read any inconsistency between the Act and Income Tax Act,
1961.
And information furnished by an assessee can be
disclosed only where it is necessary to do in public interest and where such
interest outweighs in importance, any possible harm or injury to the assessee
or any other third party… 37. The CIC
had proceeded on the basis that the income tax authorities should disclose
information to informers of income tax departments to enable them to bring
instances of tax evasion to the notice of income tax authorities.
In my view, this reasoning is flawed as it
would tend to subvert the assessment process rather than aid it. If this idea
is carried to its logical end, it would enable several busy bodies to interfere
in assessment proceedings and throw up their interpretation of law and facts as
to how an assessment ought to be carried out.”
The question is why the tax paid by an
individual to the government as income tax or some other tax be considered as
‘confidential’? What is the reasoning? Are all IT returns are private
information or will this rule apply to a particular case? It is against the
rule of law to make it a general rule. IT returns are private only when there
is no public interest in its disclosure. Information Commissioner has to
examine this public interest in each and every case.
Caste certificate is private?
According to another order of Delhi HC, the
copy of caste certificate of an employee is personal information and cannot be
disclosed unless there is an overriding public interest and that too only if
that employee consented to the disclosure as third party. (Harish Kumar vs
Provost Marshal –cum-Appellate Authority & Ors., LPA No. 253/2012, on
30/03/2012 – (DB) [(2012) ILR 5 Delhi 41]
It is most unreasonable to say that the caste
information is private or personal information. If the caste certificate is
fake or manipulated, there is public interest in knowing it and probing it. If
it is genuine, there is no need to hide. We are not a casteless society.
Reservations have given enormous life to castes and we are still being divided
by caste.
It cannot be personal information, especially
when some mischievous elements are using corruption prevalent in system to get
false caste certificates to enjoy reservation benefits. Poor and deprived
sections are further deprived by this corruption.
Delhi HC held Union of India vs R Jayachandran,
W.P. (C) 3406/2012, on 19/02/2014:
“Passport details, copies of birth certificate and copies of record of
educational qualifications are personal information the disclosure of which
would cause unwarranted invasion of the privacy of the individuals unless there
is an overbearing public interest in favour of disclosure.”
In Union Public Service Commission vs R K Jain,
LPA No. 618/2012, on 06/11/2012 – (DB) [196 (2013) DLT 170, held: “An RTI applicant seeking personal
information of a third party has the obligation of proving that disclosure
would serve the public interest better than keeping the information
confidential. 111… The protection of privacy principle, on the other hand,
holds in part at least that individuals should, generally speaking, have some
control over the use made by others, especially government agencies, of
information concerning themselves.
Thus, one of the cardinal principles of privacy
protection is that personal information acquired for one purpose should not be
used for another purpose without the consent of the individual to whom the
information pertains. The philosophy underlying the privacy protection concern
links personal autonomy to the control of data concerning oneself and suggests
that the modern acceleration of personal data collection, especially by
government agencies, carries with it a potential threat to a valued and
fundamental aspect of our traditional freedoms…Public servants & privacy
protection.
In Secretary General, Supreme Court of India, v
Subhash Chandra Agarwal (2010), Delhi High Court says: 114… The nature of
restriction on the right of privacy, however, as pointed out by the learned
single Judge, is of a different order; in the case of private individuals, the
degree of protection afforded to be greater; in the case of public servants,
the degree of protection can be lower, depending on what is at stake.
This is so because a public servant is expected
to act for the public good in the discharge of his duties and is accountable for
them…” (3-judge Bench) This is a saving
ruling. Public interest should override in all these so called private
information cases.