Live
Law: New Delhi: Wednesday, 10 February 2016.
Government
agencies are using right of privacy to stonewall the requests for information.
Privacy of a person need to be protected but public interest is higher than the
private interests. Apex court and several High Courts’ 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 existed, both were making statements mutually
leveling 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
bed rooms 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 Right to Information Act, 2005 says: 8(1) 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 SC
pointed out that immovable property statements; show cause notices and
chargesheets are personal information. It is not correct proposition. They
cannot be said to be parts ‘right to privacy’ of the individuals who are
corrupt, chargesheeted, 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? Whether
privacy is a cover to protect criminals?
IT Returns
& Privacy
Delhi HC 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 assesse 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? Whether all
IT returns are private information or this rule will 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 pvt?
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 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
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. (Professor Madabhushi Sridhar is a
Columnist, Media Law Researcher and Central Information Commissioner.)