Indian
Express: New Delhi: Thursday, October 18, 2012.
Recently, the
prime minister raised concerns about RTI applications encroaching on the right
to privacy. At this juncture, it may be worth remembering the case of “Auto
Shankar” and his diary. About 20 years ago, an auto driver called Gauri
Shankar, who had murdered more than six teenage girls, was convicted and sentenced
to death. Before the appeals process was exhausted, he started writing a diary,
which was to be published by a Tamil weekly. The “Auto Shankar” diary was said
to contain unflattering portrayals of several senior IAS and IPS officers who,
Shankar claimed, were his accomplices. To prevent the publication of the diary,
the inspector general of prisons sent a letter to the editor of the
publication, giving rise to an interesting contest between privacy and the
freedom of the press.
While ruling
on the case, the Supreme Court held, in no uncertain terms, that the
publication was thoroughly legitimate and the right to privacy was limited by
the right to freedom of speech and expression. It stated that privacy could not
be extended to public documents and is not available to public officials when
it comes to actions and conduct relevant to the discharge of their official
duties. The law that naturally flows from the judgment states that public
documents and authorities enjoy a conditioned and limited right to privacy.
Such an
outcome is replicated in other cases where privacy is pitted against a
competing interest, due to the nature of the adjudication. This includes cases
where state interests are involved, such as telephone tapping or the
declaration of the criminal records of electoral candidates, as well as cases
where individual interests are at stake, such as a disclosure to prevent the
transmission of AIDS, a DNA test to determine paternity or even the publication
of the photograph of a willful defaulter for the recovery of debts. If
constitutional adjudication can be pictured as a bout, the privacy right will
be the featherweight matched against the heavyweight; it may put up a fight but
it will ultimately get knocked out. In the absence of any constitutional
imperative to absolutely protect individual privacy, it falls to individual
statutes to protect it.
Such
protection of privacy is found in the Right to Information Act, 2005. Section
8(1) of the act contains a list of exceptions under which the information
requested in RTI applications may be refused. According to the 2010-2011 annual
report of the Central Information Commission (CIC), this provision was the part
of the act cited most frequently to turn down RTI applications; about one out
of every four applications were rejected under it.
Many of these
rejections are based on privacy protection clauses. For instance, Section
8(1)(j) prohibits the disclosure of “information which relates to personal
information”, or which would cause unwarranted invasion of an individual’s
privacy. Other provisions also provide a fairly robust privacy right, with
Section 8(1)(d) taking care of trade secrets and the commercial interests of a
third party and Section 8(1)(e) prohibiting disclosure of information held or
gathered in the course of a fiduciary duty. However, all three clauses are
subject to the rider that disclosure may be appropriate if it is determined
that it serves a larger public interest. This is the consistent position taken
by the act, which aims to promote transparency and accountability in the
working of public authorities.
Now let us
imagine that adverse orders are passed and these privacy protections are not
properly considered. Even in these cases, the public authority that relies on
such clauses to reject an RTI application and is then ordered by the CIC to
part with information, can always challenge the order of disclosure before a
high court. This process of case by case adjudication has already supplied us
with an impressive body of precedent, which serves as a guide for the
interpretation of various provisions of the legislation, helping block applications
that go against Section 8(1).
To conclude,
the pronouncements of the Supreme Court prescribe a thin right to privacy,
which is put on a further diet when public officials seek to utilise it or when
it is cited to block access to government records. However, the RTI Act
provides fairly robust privacy protection. Any attempt to strengthen privacy
protection by proposing amendments to the RTI Act is nothing less than a
solution in search of a problem.
The
writer is a partner in a Delhi-based law firm and visiting faculty at the
National Law University, Delhi, express@expressindia.com
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