Dhaka Tribune: Bangladesh: Monday, July 02, 2018.
Privacy as an
issue has been gaining attention not only in South Asia, but all over the world
The right to
privacy as a concept and an issue has been drawing the attention of citizens
all over the world in general and South Asia in particular. This dynamic is
taking place presently 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 denotations and connotations, and also scope, a guarantee
of the right to privacy of individuals.
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 attorney
general’s office of India (AGI) is supposed to have 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 AGI
office is supposed 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.
This argument
symbolically underlines that different species of privacy exist, and all of
them cannot be elevated to the status of fundamental rights.
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.
It may be
mentioned here that 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 Subhash Chandra Agrawal asked the
Central Public Information Officer (CPIO) of the Supreme Court of India for
some information, under the RTI Act, in a straightforward manner.
The request
mainly related to receiving 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 whether judges were complying
with this requirement.
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. 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 this 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.
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 information is being disclosed, there will be no stopping ... today he
is asking information for medical expenses ... tomorrow he will ask what
medicines are purchased by the judges … where does this stop?”
Interestingly,
after the apex court dismissed this SLP 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.
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.
Before
concluding, it would be pertinent 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 recognized since 1895.
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.
India has,
however, acceded to the International Covenant on Civil and Political Rights
(ICCPR) whose Article 17 recognizes the right to privacy of every human being
by stating: “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.”
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, however, sometimes coming
into conflict with dynamics of right to information.
(Muhammad
Zamir is a former ambassador and Chief Information Commissioner of the
Information Commission, and an analyst specialized in foreign affairs, right to
information, and good governance. He can be reached muhammadzamir0@gmail.com.)
.JPG)
.JPG)
