Right to privacy versus right to information: Indian example

Dhaka,  Mon,  25 September 2017
Published : 20 Aug 2017, 19:32:48

Right to privacy versus right to information: Indian example

Muhammad Zamir
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.


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