Financial Express: Bangladesh: Monday, August 21, 2017.
The right to
privacy as a concept and an issue has been drawing the attention of citizens
all over the world - but more so in all the countries of South Asia. This
article deals with the on-going dynamics within the judicial parameter in
India.
The
Constitution Bench of the Supreme Court of India consisting of nine Judges is
currently hearing arguments about whether Article 21 of the Indian Constitution
contains within its connotations and denotations a guarantee of the right to
privacy of individuals - and also its scope.
The
controversy was recently generated through the submission made by the
Government of India in the context of a batch of petitions that has challenged
the constitutionality of Aadhaar (Unique Identification - UID) a couple of
years ago. According to media reports and the Commonwealth Human Rights
Initiative (CHRI), the current Attorney General of India (AGI) has apparently
conceded on behalf of the Government that while the right to privacy is a
fundamental right, it is a "wholly qualified right." This is being
interpreted as a climb down from the original argument made by his predecessor
in August 2015. At that time it was questioned whether there was a fundamental
right to privacy at all under the Constitution.
The current
AGI is said to have argued that "Since the right to privacy consists of
diverse aspects and is a sub-species of the right to liberty, every aspect of
the sub-species will not qualify as a fundamental right". Most
interesting! This suggests that right to privacy is not a homogeneous right and
is not only a combination of various aspects of privacy but also there is the
question as to whether they can all be collated together instead of the Courts
examining them individually as the occasion arises. The AGI's argument
symbolically underlines that different species of privacy exist and all of them
cannot be elevated to the status of a fundamental right. This is being
interpreted as an argument that where personal liberty exists as a right, it
also has to be subordinate to the right to life of others.
The counsel
for Maharashtra has put forward his opinion that "privacy" is only a
concept and that since 1975 several Benches of the Supreme Court had erred in
holding it to be a fundamental right. He is reported to have told this Supreme
Court Bench that privacy can become a fundamental right only through a
constitutional amendment. Such an approach will definitely create a new matrix
within the legal system.
THE
CONTROVERSY:
According to CHRI, the controversy over whether privacy is a fundamental right
or not arose on at least three occasions in India. On these occasions the
Constitutional Courts protected the right to privacy of judges and the
judiciary. In one of those instances, the right to privacy of an entire High
Court was claimed and upheld. In all these cases, information sought under the
Right to Information Act (RTI Act) was also at stake.
An
interesting reference may be made with regard to the Judge's Assets case
(2007-2010). At that time the Indian judiciary successfully protected its right
to privacy. In November 2007, Delhi-based transparency Advocate, Mr. Subhash
Chandra Agrawal asked the Central Public Information Officer (CPIO) of the
Supreme Court of India for some information, under the RTI Act. The request
mainly related to receiving - a) a copy of the Resolution adopted by the Full
Court of the Supreme Court of India that required all judges to submit details
of their assets to the Chief Justice of India; and b) whether judges were complying
with this requirement. Mr. Agrawal did not ask for a copy of the asset
declarations of the judges of the Supreme Court. His RTI queries were aimed at
getting a copy of the Full Court Resolution (which had not been made public
until then) and ascertaining whether judges were complying with the disclosure
requirement to which they had unanimously agreed.
The CPIO of
the Apex Court refused to disclose any information and the matter escalated to
the Central Information Commission (CIC). The CIC ruled in favour of disclosure
of the information. During the pendency of this case, the CPIO supplied a copy
of the text of the Resolution to the applicant, but rejected the second query
about compliance, on various grounds, one of which was the judges' right to
privacy.
Subsequently
the CPIO challenged the CIC's decision before the Delhi High Court - a first in
independent India where the highest Court of the land challenged the decision
of an administrative tribunal in a Court over which it exercises appellate
jurisdiction. The CPIO argued that the assets declarations of judges may be
lying with the Chief Justice of India (CJI) and that office is not covered by
the RTI Act.
Mr. Agrawal
eventually submitted a Special Leave Petition (SLP) before the Supreme Court
challenging the Delhi High Court's ruling. In July 2015, a three-judge Bench
led by the then Chief Justice of India dismissed the SLP without even admitting
it. According to media reports, the Bench is said to have made the following
observations while dismissing the petition: "We understand that we are
getting the reimbursement from public money for our treatment and we are
entitled for it as per the service conditions of judges... there should be some
respect for privacy and if such informations are being disclosed, there will be
no stopping... Today he is asking informations for medical expenses... Tomorrow
he will ask what medicines are purchased by the judges. When there will be a
list of medicines he can make out what type of ailment the judge is suffering
from. It starts like this. Where does this stop?"
Interestingly,
a couple of weeks later in August 2015, the Apex Court agreed with the then
Attorney General of India that it was doubtful whether a citizen of India has
the fundamental right to privacy under Article 21 of the Constitution. This was
hinted after he presented a convoluted interpretation of a couple of
Constitution Bench judgments from the 1950s and the 1960s on the subject.
In 2009, a
single-Judge Bench of the Delhi High Court ruled in favour of disclosure of
information about compliance of Judges with the assets disclosure Resolution.
Regarding the public disclosure of the contents of the assets declarations
(which the RTI applicant never sought in the first place), the Court said
judges were entitled to protection of their personal information and privacy.
In this case, repeatedly, the contents of the assets declarations of judges
(despite not being in question) were treated as personal information attracting
the protection of the right to privacy.
It may also
be mentioned that according to CHRI, the Madras High Court has also extended
the fundamental right of privacy under the Indian Constitution and the
exemption for personal information and privacy under Section 8(1)(j) of the RTI
Act to itself as an institution even though these protections are generally
meant for individuals only. This judgment has not been set aside by the Indian
Supreme Court, till date.
CONSTITUTIONAL
POSITION: It would be
pertinent here to point out that the right to privacy is not explicitly
mentioned in the Chapter on Fundamental Rights included in Part III of the
Constitution of India. However, the need for protecting the privacy of every
Indian has been recognised since 1895. This view exists in the first
Constitution of India Bill that was drawn up for self-governance. Subsequently,
although the right to privacy was proposed for inclusion in the Draft
Constitution, the Advisory Committee of the Constituent Assembly dropped it
based on objections raised by some members and experts. Nevertheless, the right
to privacy in India gradually emerged due to the jurisprudential development of
Article 21 from which successive Benches of the Supreme Court deduced this
right.
In this
context, it would also be fitting to note that Article 17 of the International
Covenant on Civil and Political Rights (ICCPR) also recognises the right to
privacy of every human being by stating that "No one shall be subjected to
arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation".
India acceded
to the ICCPR on April 10, 1979 during the post-Emergency Janata Party
government. Bharatiya Jan Sangh, the predecessor of the present-day Bharatiya
Janata Party (BJP), was part of this government and approved the Cabinet
decision to accede to the ICCPR. While acceding to the ICCPR, India did not
enter any reservation or declaration to Article 17 which mentions the right to
privacy. Having accepted Article 17 of the ICCPR unconditionally, India,
according to many rights activists, is now duty-bound to ensure the promotion
and protection of the right to privacy of every person. This view is sometimes
coming into conflict with the dynamics of right to information.
(The writer, a
former Ambassador and Chief Information Commissioner of the Information
Commission, is an analyst specialised in foreign affairs, right to information
and good governance.)
.JPG)
.JPG)
