Introduction
In the scheme of rights accorded to Indian citizens, the right to privacy is still at a relatively nascent stage of recognition. Black’s Law Dictionary defines the term ‘right to privacy’ as a generic term encompassing various rights recognized to be inherent in the concept of ordered liberty, and that such rights prevent government interference in intimate personal relationships or activities, freedoms of the individual to make fundamental choices involving himself, his family, and his relationship with others.1 It promotes non-interference in an individual’s affairs.
At the time of writing this article, the Supreme Court is hearing arguments to decide on the existence of a right to privacy in the context of the Aadhaar and WhatsApp matters. Hopefully, the ruling of the Supreme Court will provide clarity regarding the scope of this right and the corresponding obligations/limitations on the government. Up until now in India, there have been some landmark cases that have accommodated the right to privacy within the ambit of Article 21 of the Constitution of India.
In the case of R. Rajagopal v. State of Tamil Nadu (1994)2, Justice Reddy studied the right to privacy in the context of the publication of a prisoner’s biography without his consent. Justice Reddy analysed that this right has two aspects to it: one is under tort law that disallows general invasion into privacy, and the other relating to constitutional recognition granted to this right that protects individuals from unwarranted governmental intrusion and surveillance. He observed that “our system of government demands constant vigilance over exercise of governmental power by the press and media amongst others.”3
The Right to Information Act, 2005 (RTI Act) gave the people of this country a similar power. It permits people to access government information in order to further the goals of transparency and accountability. Access to information is vital for creating an informed citizenry. However, there is a provision in this Act that permits the government to refuse disclosure of information to a citizen in certain seemingly ambiguous circumstances. In this article, I propose to analyse the case law surrounding this aspect of privacy balanced with the right to information.
Analysis
Section 8 of the RTI Act is titled ‘Exemption from Disclosure of Information’. The sub sections lay down circumstances in which information can be denied to a citizen. These include disclosures which would affect the country’s sovereignty and integrity, which have been specifically forbidden by a Court or Tribunal, which were received in confidence from a foreign government, or which would endanger the life and safety of an individual, amongst others. Section 8(1)(j) is relevant in this context. It reads as follows:
“Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen- 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.”
In the case of Centre of Earth Science Studies v. Dr. Mrs. Anson Sebastian (2010)4, the respondent requested access to documents pertaining to a domestic enquiry against another employee, and confidential reports of six others as well. Before the High Court of Kerala, the appellant claimed immunity under Section 8(1)(j) of the RTI Act. Justice Nair began by understanding the meaning of ‘personal information’. Certain information which, while confidential, is related to a public activity or interest cannot be strictly construed as ‘personal information’. Information that, if released, would cause unwarranted invasion of privacy is what is believed to be protected under this Section.
Applying this understanding to the facts of the case, it was held that a domestic inquiry is an open trial, and the Confidential Reports are essentially performance appraisals which, if disclosed, would not cause an invasion of privacy. Therefore, this case became a landmark for upholding the essence of the Right to Information, while at the same time maintaining its balance with privacy.
In UPSC v. R.K. Jain (2012}5, a similar situation arose wherein the respondent sought access to disciplinary records, amongst other things, of one Mr. G.S. Narang. While denying the request, in the judgment dated 13.07.2012, an exhaustive analysis was done to understand the ambit of the exemption that can be granted under Section 8(1)(j). The following principles were laid down:
The information sought must relate to “Personal Information”, as understood above, of a third party. Therefore, if the information sought does not qualify as personal information, the exemption would not apply;
Such personal information should relate to a third person, i.e., a person other than the information seeker or the public authority; AND
(a) The information sought should not have a relation to any public activity qua such third person, or to public interest. If the information sought relates to public activity of the third party, i.e. to his activities falling within the public domain, the exemption would not apply. Similarly, if the disclosure of the personal information is found justified in public interest, the exemption would be lifted, otherwise not; OR (b)The disclosure of the information would cause unwarranted invasion of the privacy of the individual, and that there is no larger public interest involved in such disclosure.
In the following case of Girish Ramachandra Deshpande v. Central Information Commission (2012)6, the request was similarly denied. The case was pertaining to the disclosure of a third person’s Income Tax Returns and records of his service career. The request for disclosure of ITRs was summarily dismissed as it had no relationship with a public activity or interest. Regarding the release of copies of memos, show cause notices, and any censure/punishment awarded, however, the Commission considered this under the ambit of “personal information” as well.
Had previous rulings on the subject been followed, it would have been seen that employment records are not “personal information” in the sense of deserving/requiring protection under the Right to Privacy of 8(1)(j). The performance of an employee, especially one who holds a government office, is not strictly a matter between the employer and employee. Thus, in my opinion, this case was wrongly decided.
In A.D. Sharma v. Municipal Corporation Delhi (2013)7, while denying the petitioner the authority to inspect the private property of a third party individual, the Central Information Commission referred to a previous Delhi High Court case (Secretary General, Supreme Court of India v. Subhash Chandra Agarwal, 2010)8. In paras 110-115 of that judgment, the Court analysed the interplay between Right to Information and Right to Privacy, stressing on the necessity of showing a larger public activity or interest in order to warrant an invasion of an individual’s privacy.
They also pointed out that the nature of restriction on the right to privacy of a public official can be higher than that on an individual, as the official is expected to act for public good and be accountable in discharge of his duties. This point was similarly elaborated in Thalappalam Service Co-op Bank Ltd. and Ors. v. State of Kerala and Ors. (2013)9.
In the case of R.K. Jain v. UPSC (2013), the appellant requested for records of documents, memos, note sheets etc. pertaining to one Ms. Jyoti Balasundaram. Following the decision of the Court in Girish Ramachandra Deshpande v. Central Information Commission (2012) and Arvind Kejriwal v. Central Public Information Officer (2010), the Supreme Court decided that the information requested for does not warrant disclosure in any larger public interest.
Conclusion
A perusal of the trend shows that in most cases where the defense of Section 8(1)(j) is taken, the request for release of information is denied. The disclosure of information, even that which has nothing to do with the personal life and activities of the individual, is becoming quite restrictive. The jurisprudence is developing such that the scope of ‘personal information’ is widening, thereby obstructing release of information in the apprehension of causing an unwarranted invasion of privacy. This is not a healthy sign for a democracy.
At the same time, the right to privacy is not trivial by any means and definitely requires protection. The need of the hour is to determine, once and for all, the extent of this right and its balance with other rights and obligations. The best way forward would be to call for a fresh reading of Section 8(1)(j), which would hark back to the previous case of Centre of Earth Science Studies v. Dr. Mrs. Anson Sebastian (2010)10, read with the principles laid down in UPSC v. R.K. Jain (2012)11
By Riddhi Joshi, Symbiosis Law School, Pune