Balancing Act: Right to Information v. Right to Privacy by Anjali Bhardwaj and Amrita Johri
By Anjali Bhardwaj and Amrita Johri
An important aspect in the evolving debate on privacy, when viewed through the lens of public accountability, is balancing the right to privacy and peoples’ right to information.
The Right to Information Act (RTI) Act, which is used every year by millions of citizens to hold the government accountable, includes provisions to harmonize the two fundamental rights of right to information, and right to privacy. Section 8(1)(j) of the RTI Act states that, “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:”
The RTI Act, however, does not define “personal information”, “public activity”, “unwarranted invasion”, or even “public interest”. This lack of definitions is exacerbated by the fact that there is no privacy law in India yet, and therefore most of these definitions are not well settled in jurisprudence. This has resulted in exceedingly imaginative invocation of this exemption. There has been an unfortunate tendency among Public Information Officers (PIOs), supported by the adjudicators, to keep various categories of information, especially related to the functioning of public servants, secret from the public under section 8(1)(j).
The recent judgement of the Supreme Court, declaring privacy to be a fundamental right (Justice K. S. Puttaswamy and Anr. vs Union Of India And Ors.), has caused some concern among RTI users about a potential chilling effect on peoples’ ability to access certain kinds of information under the RTI Act.
There are apprehensions that the judgement is likely to be quoted by PIOs to deny citizens critical information.
Categories of information where tension between the RTI and the RTP has surfaced from time to time, and could potentially be exacerbated after the Puttaswamy judgement, include assets and liabilities of public servants, income tax returns, performance evaluation of public servants, educational qualifications and degree related information.
Assets and Incomes:
There have been confusing signals emerging from the judiciary on disclosing under the RTI Act, the assets and incomes of public servants. On the one hand, candidates standing for elections are required to declare their assets and liabilities to the Election Commission, which in turn displays them on its website. The Supreme Court mandated this through two orders. In Union of India v. Association for Democratic Reforms (2002), the Supreme Court directed the Election Commission to call for information from all candidates seeking election to Parliament or a State Legislature, and from their spouses and dependants, about their assets. The order stated that: “………there are widespread allegations of corruption against the persons holding post and power. In such a situation, question is not of knowing personal affairs but to have openness in democracy for attempting to cure cancerous growth of corruptions by few rays of light.” Similarly, in PUCL v. Union of India (2003), while examining the plea that contesting candidates should not be required to disclose the assets and liabilities of their spouses as it would violate the right to privacy of the spouses, the SC held that the fundamental right to information of a voter and citizen is promoted when contesting candidates are required to disclose the assets and liabilities of their spouses. The Supreme Court ruled that when there is a competition between the right to privacy of an individual and the right to information of the citizens, the former has to be subordinated to the latter right, as the latter serves a larger public interest.
However, in Girish Ramchandra Deshpande v. Central Information Commissioner & Ors., (2013), while dismissing a Special Leave Petition (SLP), the Supreme Court upheld the denial of information regarding a serving public servant’s emoluments and assets, including income-tax returns and details of gifts received by him. The Supreme Court held that these were exempt under section 8(1)(j) of the RTI Act as this information was private information, the disclosure of which had “no relationship to any public activity or public interest”.
One of the few recognised ways that a public servant can be convicted for corruption, under the Prevention of Corruption Act 1988, is if his or her assets are disproportionate to known sources of income. Given that often ill-gotten wealth is held in the name of family members, public disclosure of the income and assets of public servants and their spouses and dependent children is essential for people to help identify those public servants whose assets or lifestyles are disproportionate to their declared sources of income.
Again, it is widely acknowledged that there is huge tax evasion in India and thousands of crores of rupees due to the public exchequer are neither declared and paid by the tax payer, nor detected and recovered by tax authorities. The government has, for many years, been seeking help from people in identifying tax evaders.
More recently, there has also been recognition of the fact that the life styles and possessions of people can give a good clue to whether they are evading taxes. In a recent press report, the Income Tax department has reportedly revealed that: “There are more than 150,000 luxury cars priced upwards of Rs 30 lakh in Delhi alone. But government tax data shows the entire country has just 150,000 people who have declared annual income above Rs 50 lakh. This is the conundrum facing the income tax department…”. The support of the public can be very useful in identifying those whose lifestyle and possessions are incompatible with their declared income. But this is only possible if the public has access to income tax returns of others. The plea that it will reveal the identity of wealthy people and make them susceptible to criminal extortion or even threats of kidnapping and ransom, is not very convincing. The lavish lifestyles led by the rich people provide adequate information to potential extortionists and kidnappers, without them needing to research income tax records. Besides, criminals could easily bribe functionaries in the tax department to get a list of high worth individuals. Clearly, secrecy cannot be the main or even a significant defence against these types of threats.
However, income tax returns have been categorized as personal information, and access to them has been routinely denied to citizens.
Invoking the right to privacy to deny information related to assets of public servants and income tax returns of citizens is extremely problematic given the publicly admitted high levels of corruption and widespread tax evasion in India.
As per media reports, a Parliamentary standing committee is requesting the Election Commission to revise the requirement of spouses of candidates to make public details of their income, property etc invoking the Puttaswamy judgement.
Evaluation of professional performance
Making sure that meritorious public servants are promoted and appointed to important positions and deviant ones are punished is critical for good governance. In a democracy, where governments are ultimately answerable to the citizens, people have a right to monitor this aspect and demand accountability.
The ability of the public to monitor the suitability of critical appointments, at the state and central levels, requires that people have access to information regarding the performance, experience and appraisals of public servants. Transparency in performance assessments would certainly support efforts towards accountable and honest governance.
This is especially so for, in many cases, like the one relating to the controversy about the appointment of P. J. Thomas as the central vigilance commissioner (Centre for PIL Versus Union of India 2011), the matter was first brought to the notice of the courts through public interest litigation by members of the public.
In Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013), the Supreme Court, however, dismissed a SLP and upheld the decision of the CIC, of a single judge, and of a division bench of the Delhi High Court denying information regarding copies of memos of censure or show cause notices, and enquiry reports regarding a public servant. The SC held that these were exempt under section 8(1)(j) of the RTI Act as the performance of an employee in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Although this judgment is a dismissal of a SLP and therefore there has been ongoing debate on the legitimacy of citing it as a precedent, especially as it did not examine previous judgments such as R Rajagopal v State of Tamil Nadu (1994) and also did not make a reference to some of the exceptions to the exemptions provided for in the RTI law, it has nevertheless been quoted widely across the country to deny people information about the performance of public servants.
Again, in R.K. Jain vs. Union of India & Anr., (2013), the Supreme Court adjudicated on a matter where an RTI applicant had requested for copy and inspection of a particular file that contained information regarding adverse entries in the annual confidential report (ACR) and follow up action, if any, pertaining to a public servant. The Supreme Court cited the judgment of Girish Ramchandra and upheld the decision of the PIO, CIC and the High Court that the asked for information was exempt from disclosure under section 8(1)(j).
Undeniably, there can be discomfort among individual officers if their professional performance assessments are made public, but the discomfort of a few poorly performing officers cannot be allowed to override critical public interest.
Following the Puttaswamy judgement, the Supreme Court in Canara Bank vs. C.S. Shyam on August 31, 2017, in a judgment by Justice Agarwal and Justice Sapre, (Justice Sapre was also one of the nine judges on the constitution bench which held privacy to be a fundamental right) denied information on transfer and posting of clerical staff on the grounds that it is personal information and hence exempt under section 8(1)(j).
Privacy issues relating to examinations, selections and degree related information
In the Indian situation, there is a pressing and larger public interest for disclosing corrected answer sheets and documents related to selection of candidates for jobs. For one, there has been a lot of dissatisfaction with the examination and selection systems. Recent scams relating to the selection of teachers in Haryana and the Vyapam scam in Madhya Pradesh relating to the selection of various categories of professionals, has dramatically highlighted the unsatisfactory state of affairs. The Supreme Court had to directly intervene in the examinations leading to entry into medical colleges and even set up a committee headed by a retired Chief Justice of India to oversee the process. Greater transparency in the examinations and selection process could go a long way in preventing such scams.
The Delhi High Court, in Union Public Service Commission v. N Sugathan (2011), held that the qualifications and experience of examinees applying for a job cannot be considered to be private and an applicant to a public post deserves to know why he or she has not been selected and another has. However, this order was subsequently overturned by the Supreme Court.
In another matter (Central Board of Secondary Education & Anr. v.. Aditya Bandopadhyay & Ors., 2011) in relation to examinations, the Supreme Court held that corrected answer sheets cannot be disclosed to anyone other than the examinee herself. Although, ordinarily no private information is required to be given in an answer sheet and, in fact, usually it is expressly forbidden in order to prevent an examiner from identifying individual examinees, the Court felt that the making such answer sheets public might be an unwanted invasion of the privacy of the examinees.
The Delhi University has approached the Delhi High Court in a matter related to disclosure of degree related information of the batch of students who graduated in 1978, the year Prime Minister Modi completed his undergraduate degree as per his affidavit available on the website of the Election Commission of India. The university has invoked section 8(1)(j) stating that such information is personal in nature and has also sought exemption under 8(1)(e) which relates to information held in a fiduciary capacity. If the High Court decides in favour of non-disclosure, it will mean that citizens cannot ask about the educational qualifications of doctors treating their children, engineers in charge of building public infrastructure, etc.
Everything considered, given the extent of corruption and abuse of power in our country, there is clearly an overwhelming need to allow people access to information that would result in greater accountability. How this is impacted by the recent privacy judgement, would depend on how it is practically applied and interpreted in the times to come.
Anjali Bhardwaj and Amrita Johri are RTI activists and associated with the National Campaign for Peoples’ Right to Information