The Wire: New Delhi: Friday, July 27, 2018.
After several
weeks of speculation regarding the recommendations of the committee of experts
on data protection, headed by Justice B.N. Srikrishna, it appears that a copy
of the committee’s proposed legislation has finally leaked to the Caravan. One
of the issues covered by the Caravan, in its report on the draft Bill, is the
recommendation of the expert committee to amend the Right to Information Act,
2005. As per the Caravan’s reporting, the committee has recommended amending
the existing Section 8(1)(j) of the RTI Act in a manner that supposedly tilts
the law in favour of privacy and against disclosure of information.
In its
present form, Section 8(1)(j) of the RTI Act reads as follows:
“(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: Provided that the information,
which cannot be denied to the Parliament or a State Legislature shall not be
denied to any person.”
The above
provision hasn’t been very popular with RTI activists because it is vague and
there was some concern that the Supreme Court judgment in Puttaswamy would
further muddy the waters.
The
proposed amendments to Section 8(1)(j), as reported in the Caravan, will allow
for the disclosure of personal information, only if the following principles
are fulfilled:
“(a) the
personal data relates to a function, action or any other activity of the public
authority in which transparency is required to be maintained having regard to
larger public interest in the accountability of the working of the public
authority;
(b) if such
disclosure is necessary to achieve the object of transparency referred to in
clause (a); and
(c) any harm
likely to be caused to data principal by the disclosure is outweighed by the
interest of the citizen in obtaining such personal data having regard to the
object of transparency referred to in clause (a).”
Presuming
that the language of the proposed amendment reported by the Caravan is
accurate, it would mean that the committee of experts has proposed deleting the
word ‘privacy’ entirely from Section 8(1)(j) of the RTI Act, 2005 (the only
provision in the law which contained the phrase privacy). That is not an
insignificant amendment. Post the Puttaswamy judgment of the Supreme Court
recognising the fundamental right to privacy, some RTI activists did express concern
that the judgment would make it easier for public information officers to
invoke Section 8(1)(j) to deny RTI applications because the court failed to lay
down the contours of the right to privacy. Former information commissioner
Shailesh Gandhi has been writing extensively on the conflict between the RTI
Act and privacy, calling for the law to declare a proper definition of privacy.
The concerns
expressed by Gandhi and others are valid because the Puttaswamy judgment
grounds the fundamental right to privacy in the concepts of ‘autonomy and
dignity’, both of which are vague. For example, it is quite easy to argue that
educational records of a person are intrinsic to their dignity and sense of
worth. In many countries, educational records are considered private and are
not shared without the permission of the person concerned. In India,
examination results are often published for public viewing. Such publication is
to ensure transparency and accountability. But does it affect the dignity of
students and violate their right to privacy? That’s a difficult question.
Ideally, the
Supreme Court should have identified the balance between the right to
information and right to privacy, but even when it discussed possible
exceptions to privacy, it limited its analysis to cases of national security or
the requirement of social welfare programmes. The reason for its silence on the
effect of privacy on transparency was the fact that nobody argued the issue
before the court.
The court’s
silence on the appropriate balance between privacy and transparency under the
RTI Act was disconcerting because the wide contours of the right to privacy as
outlined by the court gave public information officers (PIO), or for that
matter information commissioners, the option of deciding the scope of dignity
and autonomy while invoking the privacy exception to deny information requests.
If the phrase
‘privacy’ is proposed to be deleted from the RTI Act, it saves the legislation
from some of the complexities that would have followed from the Puttaswamy
judgment, but that does not mean that the right to privacy no longer applies in
the context of the RTI Act. The amendments still protect personal information
from disclosure by requiring that PIOs follow a three-step test that appears to
be based on the European proportionality test that was endorsed by the Supreme
Court in the Puttaswamy case.
The
proportionality test requires a structured analysis while evaluating any
measure that curbs a legal right. The first prong requires an assessment of
whether a measure aimed at curbing a right has a legitimate policy objective.
The second prong requires as assessment of whether the measure curbing the
right is in fact suitable to achieve that aim. The third prong of the test
requires that the measure limiting the right is the least onerous way of
achieving the legitimate aim and that competing interests have been assessed.
The
proportionality test can be applied across the law in various situations and is
a means of ensuring a more transparent decision-making process. While English
and European courts are required by their governing legislation to follow this
test, the Indian parliament is yet to incorporate this test into Indian
legislation. The Indian Supreme Court of course isn’t that shy and has
incorporated this test into Indian jurisprudence, although it is questionable
whether past Indian judges have actually understood the proportionality test as
conceptualised in Europe.
The test
proposed by the Committee of Experts requires a three-fold test: first whether
personal data in question has implications for transparency and accountability
of a public authority, second whether disclosure of the personal information is
required to achieve transparency and third whether disclosure of the personal
information outweighs the harm that would be caused to the citizen while
keeping in mind the competing objective of transparency.
There is
little doubt that this test proposed by the Committee of Experts requires PIOs
and information commissioners to conduct a more structured analysis while
dealing with requests for personal information. The existing test in Section
8(1)(j) requires balancing the information request with ‘public interest’,
which is a phrase that is regrettably vague and which ends up vesting too much
discretion in the hands of the PIO. Will the end results of the proposed test
differ significantly from the existing test in Section 8(1)(j)? I don’t think
so, but the advantage of the test proposed by the Committee of Experts is that
it will force more transparency in the decision-making process. If a PIO fails
to reason decision in terms of this particular test, the final order can be set
aside on appeal.
Prashant
Reddy T. is an assistant professor at the National Academy of Legal Studies and
Research (NALSAR), Hyderabad where he teaches intellectual property law and
administrative law. He is co-author of Create, Copy, Disrupt: India’s
Intellectual Property Dilemmas (OUP).
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