To curtail state surveillance, data theft and security, manipulation, hacking of personal information and blackmail
A great debate is on in the country regarding right to privacy in view of Aadhar getting a legal status and decision of Govt. making it mandatory for welfare schemes and linking it with IT Returns, thereby getting control over vast pool of information of its citizens .This has opened up possibility of state surveillance, data theft and security , manipulation, hacking of personal information and blackmail etc. Above all the IT Returns which were treated by SC as belonging to domain of personal information and hence outside purview of RTI Act 2005 will now be open to tracking without consent.
The constitution does not mention right to privacy specifically. The Supreme Court has derived this right from Article 21 and some other provisions in the constitution including the Directive Principles.
- In Kharag Singh’s case 1963, the majority view held that the constitution does not specifically provide for right to privacy and it can not be said to be implied in Article 19 and 21. Though the police surveillance of domiciliary visits of a person was held to be void. Minority view held that it is inherent in Art 21.
- In Govind V/s State of M.P., a regulation providing for surveillance by police found to be valid by the Supreme Court because it provided for a procedure established by law. The Supreme Court accepted a limited right to privacy inherent in Article 21 and 19, subject to restrictions under Article 19(5). It held that the right to privacy is part of the personal liberty, freedom of movement and speech, but it cannot be declared as an absolute right. This will be subject to public interest.
- In R.Rajgopal V/s State of Tamilnadu, Supreme Court held that right to privacy is implicit in right to personal life and liberty under Article 21. Every citizen has a right to safeguard his privacy and that of his family, marriage, pro-creation, motherhood, childbearing and education. Right to privacy has several aspects including the right of re-productive autonomy, which includes the right of a woman to abort or right not to reproduce.
PUCL V/S Union of India 1997
Here right to privacy was declared unequivocally to be part of right to life and personal liberty, part of Article 21. It cannot be curtailed, except in accordance with the procedure established by law. In Maharashtra V/s Madhukar Narayan, it held that even a prostitute has a right to privacy. In this way, right to privacy is part of Article 21 and not an independent constitutional right in itself.
Scope: Balance and Guidelines
The broad contours and scope of this right has not been defined by SC and left on case to case basis. In R.Rajgopal V/s State of Tamilnadu, the Court has laid down certain propositions. It has tried to balance right to privacy and freedom of speech in the following manner:-
- Right to privacy is part of Article 21. It is right to be let alone. Every citizen has a right to protect privacy of his own, his family, marriage, pro-creation, motherhood, childbearing and education. Nobody can publish anything whether true or false regarding these affairs without the consent of the person concerned.
- Such publication is permissible if it is a matter of public records including court records. The moment matters come to the public domain, Media and press can comment upon it. however, with one exception, namely a woman subjected to offence of sexual harassment, kidnap or abduction should not be subject to the indignity of publication of her name.
- The public official also enjoys right to privacy in matters, which do not pertain to the official discharge of their duties. The matters pertaining to official duties, proceeding under Contempt of Court and Parliamentary Privileges are exceptions to the right to privacy of public servants and hence no suit for damages in such cases.
- A government legal authority and other agencies under Article 21 of the constitution cannot maintain a suit for damages for violation of their right to privacy or damages for defaming them.
- The Official Secrets Act or similar legal provisions having force of law, do not bind the press or media.
- 6. There can be no prior restriction upon the press or media.
All these principles are only illustrative and not exhaustive. Based on this, the press can publish the biography of a convicted criminal without his consent. Surveillance per se means violation of right to privacy. The right has been derived by interpretation of Article 21.
- Telephone tapping violates Article 21 :
In R.M.Malkani V/s State of Maharashtra, here Supreme Court has ruled that telephonic conversation is protected against tapping,. However, this right was clearly vindicated in PUCL V/s Union of India 1997. The right to privacy is part of right to life and personal liberty, therefore, even personal conversation of a person will form part of right to privacy . Conversation is part of personal life of a man. Right to tape the conversation on telephone, either in home or office, is an interference and violation of privacy. Conversations are often personal, intimate and confidential. Telephone conversation is part of modern day life. Tapping of telephone is a serious invasion of privacy. Telephone tapping would violate Article 21 if not permitted under the procedure established by law.
The procedure has to be just, fair and reasonable.
Telephone talks are part of freedom of speech and expression under Article 19(1)(A) and hence can be curtailed by reasonable restrictions under Art 19(2) only. This right includes freedom of expression of one’s views, belief and opinion freely by word of mouth or by any other means. While talking on phone, a person is exercising his freedom of speech and expression, therefore, telephone tapping if not covered by restrictions under Article 19(2), it will violate Article 19(1)(A).
When permitted under law- substantive protection : The telephone tapping in India is permitted under Section 5(2) of the Indian Telegraph Act, 1885. This provides for circumstances and grounds when telephone tapping can be ordered. However, no rules of procedure has been prescribed for making such an order under sec 7 of the Act by GOI. The Act has been found to be valid by the Supreme Court, an authority can pass an order for interception of a telephone under Section 5(2) in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order or for prevention of a crime. These are the grounds mentioned under Section 19(2).
Section 5(2) requires the occurrence of a public emergency or public safety interest for tapping , based upon above conditions, only an order of telephone tapping can be passed, but the procedure for tapping has to be fair, just and reasonable. Without such a procedure, the rights under Article 19(1)(A) and 21 cannot be protected.
Procedural safeguards by SC: In the absence of rules for tapping under the Act of 1885 , the Supreme Court has issued procedural guidelines for telephone tapping under the Telegraph Act. The order for such tapping shall be made by Home Secretary, Govt. of India/State Home Secretaries. In emergencies, power can be delegated to the officers of Home Department not below the rank of Joint Secretary. A Review Committee comprising of Cabinet Secretary, Law Secretary and Secretary, Telecommunication, within a week at national level to ensure that Section 5(2) is not violated. Similar Committee at State Level also to be headed by Chief Secretary .
There should be Clear authentication and authorization in favor of the person who will do the tapping, draw the minutes and submit before the Review Committee every day. It will draw also its minutes to order for further recording. These directions will remain in force till Central Govt. makes rules, under Section 7 of the Act.
Substantive and procedural safeguards : Thus, the court has ensured that there is a substantive (Section 5(2)) and procedural safeguards for telephone tapping to ensure right to privacy. Supreme Court has held that Section 17 of the ICCP, to which India is signatory, provides for right to privacy and this is not against Article 21. Similarly, UDHR Section 12 provides for right to privacy. Both these have been used to confer right to privacy on Indian citizens by Supreme Court.
In 2010 the Supreme Court upheld the validity of sec 65 of new Information Technology Act 2000 in the matter of recording of electronic records and laid down detailed procedural guidelines to be followed to ensure right to privacy and held that violation of sec 65 of IT Act entails malicious exercise of power – an exercise of power not permitted under law.
- Now a constitutional Bench is seized with the right to privacy in case of Aadhar card data security, declaring it to be mandatory by Govt. in welfare schemes and IT returns particularly when IT Returns have been held to be personal information outside ambit of RTI Act and falling within 8(1)j of RTI Act to avoid disclosure . Court has held right to privacy to be covered under Art 21 but not an absolute right. The constitutional bench will decide the contours of restrictions.
Right to Privacy of the public servant : The relationship between fundamental right to privacy and the Right to Information Act, 2005 is interesting . It is held by Courts that public servants have a limited right to privacy as compared to a citizen due to the vary nature of public service. A public servant has a very limited personal domain. There is a debate as to what forms part of personal domain of a public servant, what information can be disclosed or prohibited from disclosure under law , how the right to privacy and right to information are made compatible and to what extent . There is no general rule , it has been left to case to case basis
In Girish Ram Chandra Deshpandey case, the Bombay High Court and Supreme Court have given rulings to deny information about memos, complains, departmental enquiries , or conduct and assets of public servants, quoting section 8(1)(j) on the ground that these are part of personal information of a public servant . Under section 8(1)(j) of RTI Act an information can be denied to any citizen if that information pertains to a fiduciary relationship except on the ground of larger public interests, if that information leads to threat to life and personal safety of any person , if that is personal information not related to public interest or activity or which may entail unwarranted invasion of the privacy of the person.
However, information, which cannot be denied to the Parliament or a legislature, cannot be denied to a citizen. Information relating to an event more than 20 years old may also not be denied. In public interest, or if larger public interest requires the restrictions on disclosure may be waived, even exemptions under Official Secrets Act may also be over looked in providing information.
Thus, if the information sought is a personal information but having no relationship to any public activity or interest or if its disclosure leads to unwarranted invasion of privacy of an individual , then it can be denied.
The personal information could be given if it relates to public activity or public interest, does not lead to unwarranted invasion of privacy of individual or, if it is in larger public interest or if it can be given to Parliament or state legislature or if its disclosure outweighs non disclosure in public interest or if relates to an event prior to 20 years or more .
In Girish Desh Pandey case the information was denied by CIC with regard to details of salary, promotion transfer orders, memos, show causes, returns of assets and liabilities, report of investment, gifts, movable and immovable property, copy of a charge sheet, proceedings of disciplinary enquiry of a public servant on the ground of it being personal information and no exemptions of sec 8(1)j being applicable. These were denied on the grounds of invasion of privacy and having no relationship to any public activity or interest. Bombay HC upheld this decision of CIC.
The Bombay High Court’s decision was upheld by the Supreme Court which held that disclosure of such personal information may cause unwarranted invasion of privacy. However, in larger public interest, such information could be disclosed but it cannot be claimed as a matter of right.
After this the DOPT GOI issued a circular whereby complaints and departmental actions are treated as personal information under section 8(1)(j) of RTI Act. Thus, the copies of complains, disciplinary proceedings, IT returns, ACRs and property returns are described as personal information not available under RTI Act.
Similarly, Income Tax Returns are also personal information and exempt from disclosure under section 8(1)(j) of RTI Act unless in larger public interest.
However , following points are still unanswered:
- Relationship of information with public activity or public interest.
- Meaning of information having public interest under section 8(1)(j).
- Information that cannot be denied to Parliament or legislature.
- Information older than 20 years and its relationship with 8(1)(j).
Limited protection to a public servant : The ratios of decisions of SC in R. Rajgopal, PUCL vs Union of India 1997 and Maneka Gandhi cases prescribing triple tests for a law affecting personal liberty under Art 21 including privacy, due procedure for telephone tapping, decision in ADR vs Union of India 2002 and PUCL vs Union of India 2003 regarding disclosure of assets and finances, education and criminal records of contesting candidates in an election, do not offer such protection to public servants and a public servant enjoys only a limited protection of his right to privacy . .
In R. Rajgopalvs State of Tamil Nadu, Supreme Court held that right to privacy is implicit in right to life and personal liberty under article 21 but matters of public records are not covered under right to privacy. The right to privacy covers and protects personal intimacies of the home, family, marriage, motherhood, procuration and child wearing., it is right to be let alone, no one can publish about these aspects without the consent of the person concerned except when a person voluntarily discloses it. However, this rule is subject to the exception of public recordswhereupon the press and media can legitimately comment except in cases of the female victim of sexual assault, kidnapping or abduction to avoid the indignity of her name.
In case of public officials, the right to privacy or remedy of action for damages is not available with regard to their official acts and duties. Thus, the information which is part of the public records except in case of female victims of sexual crimes is not part of the right to privacy. The memos or disciplinary actions or official conduct of a public servant cannot be treated as private information and information related to public activity is not private/personal information hence can be disclosed and not covered by right to privacy.
Privacy and assets information: After amendment to Representation of People’s Act and passing of Lok Pal Act , the assets and properties owned by a public servant may not be his personal domain. If there is sufficient public interest in disclosure, it can be disclosed as the nature of protection available to a public servant under the right of privacy is of a limited degree because he has to perform a public function being a public servant as compared to an ordinary individual. However, the RTI Act makes no difference between an ordinary individual and a public servant. The information about asset disclosure of a public servant may be made available under 8(1)(j) only in public interest. Information can be disclosed only in the cases of three exceptions provided in 8(1)(j).
In Suroop Singh Nair vs State of Maharashtra, Bombay High Court held that the information which cannot be denied to the Parliament or to the state legislature as per section 8(1)(j), the same cannot be denied to a citizen. In Union of India vs ADR 2002 and Union of India vs PUCL, 2003, Supreme Court affirmed that the voters have a right to know the asset statements of contesting candidates, the Lok Pal Act required every public servant to declare their assets. However, IT returns are outside the purview of RTI Act.
The asset declaration of spouse and children by Lokpal Act has been taken away in case of public servants by an amendment to Lokpal Act on the ground of violation of their privacy ( of spouse ) though the same is not available to contesting candidates who have to file affidavits regarding assets of their spouse and dependent children or their ratio of benefits in those assets,.
Law of privacy and asset declaration: This right to information about the assets was extended by Lokpal Act, 2013 in case of the public servants also, although the Income tax returns are outside the purview of RTI Act.
In UOI Vs ADR Supreme Court held that article 19(1) (a ) includes voters’ right to know about the candidates’ antecedents, criminal antecedents and educational qualifications etc.
Now the law is that the information regarding assets or education of the candidates cannot be treated as personal information – (Union of India vs PUCL). In this case Supreme Court also held the contesting candidates have to disclose the assets and liabilities of their spouse also and it will not violate the right of privacy of the spouse. The right to privacy of individual is subordinate to the right of information of the citizen. The right to know the candidates would be meaningless if the information about the assets and liabilities of spouse is not given because of the social order in India. There is unity of interests in the property of spouses.
In DP Jangra v SIC case Punjab and Haryana High Court has held that assets of public servants is a matter of public interest and not exempt under section 8(1)J.Similarly, Uttarakhand High Court in Om Prakash case held the details of assets of a public servant are not private and their disclosure has a relationship with public activity or interest. Since the object of 8 (1)((J) is transparency and curbing corruption, therefore, the disclosure of their income and assets meets the criteria of public interest, it is not personal information .
Law of privacy and LokpalAct: The Lokpal Act required under section 44(1) that every public servant shall declare all the assets and liability within a period of 30 days from his joining of office, assets and liabilities of his spouse, dependent children and assets of his spouse and children in which he is in beneficiary. However, in 2016 section 44 was amended whereby mandatory declaration of assets of spouse and children were done away with and now it is up to the Government to prescribe the manner and form of disclosure of the assets and liability by a public servant.
Privacy and Power of Search and Seizure
With regard to the privacy of the records of a person with financial institution, Supreme Court held that it must pass the triple test of reasonableness under article 14, 19 and 21 as laid down in Menka Gandhi’s case. A law intruding or affecting personal liberty under Art 21 must meet the triple tests namely, a procedure, test of article 19 and test of article 14. Privacy relates to the life of citizen and not to the place , therefore it is irrelevant as to where the records are kept and hence search and seizure has to go through these tests. Privacy of financial records and telephonic conversations except under reasonable procedure is protected.
Privacy in Sexual Identities
In Naz Foundation vs Union of India the court accepted the right to privacy of a citizen’s sexual relations as protected under 21 and it can not be interfered by the state except only in case of compelling public interest and this decision decriminalized all consensual sexual relationships even under article 377. Thus, the privacy has emerged as fundamental rights through various decisions of Supreme Court.
Privacy and Departmental Enquiry
Kerala High Court in Centre for Earth Science Studies vs A Sebastian held that disclosure of information regarding departmental enquiry against the public servant is not prohibited under RTI because a departmental enquiry is an open trial. Similarly, ACRs are not personal documents. Delhi High Court in UPSC vs RK Jain also upheld the criteria of public interest, larger public interest .Personal information is part of right to privacy, and protected from unwarranted invasion except in larger public interest. Larger public interest involves a large section of public having impact on economy, moral values of society , environment, national safety etc.
Privacy and IT Returns
IT returns are considered as personal information. However, in PUCL vs Union of India, Supreme court expanded the domain of freedom of speech and expression to include right to know and therefore it observed that the disclosure of IT returns of public servants namely MPs and ministers will be guided by the elements of the public interest and larger public interest. A citizen has right to know about every public act.
Right to Know the Conduct of Public Servant
A public servant is a 24 hour public servant and therefore his conduct even in private is not a private conduct, hence the conduct of a public servant can be disclosed. However, the medicalrecords of a public servant is covered by the right to privacy of the public servant.
Transaction of a Public Servant
People have a right to know every public act everything done in public way by a public functionary right to know is not absolute but claiming security as ground for secrecy must have relationship with public safety. The activity of a pubic servant is a public activity.
Thus there are three plain rules of RTI Act, 2005. The personal information which has no relationship to any public activity or public interest or causes unwarranted invasion of the privacy, will be protected. The information which cannot be denied to the parliament or a State legislature or an information relating to an event more than 20 years cannot be denied.
The right to know and right to privacy of a public servant is subject to the standards and tests prescribed in R Rajagopal case. There is a difference between public and private employees, the assets of a public servant though personal information would be disclosed under RTI Act and the information about departmental enquiry can be shared. The privacy of a public servant is limited to his personal affairs but his conduct in public service cannot be inaccessible to a citizen. The complaints and the service records may be personal information but cannot be prevented from disclosure.
Although RTI Act 2005 does not distinguish between private citizen and public servants, the right to privacy of a public servant has a lower degree of protection than a private citizen.
By Ravi Srivastava