Government should codify privacy rights in the form of legislation to avoid any clash with the RTI
The nine-judge bench of the Supreme Court, which delivered the sterling judgement affirming that the right to privacy is a fundamental right, deserves full praise. But it has also raised fears that the State may use the judgement to further dilute the right to transparency. Over the years, there has been a fierce resistance from government employees to furnish details of their movable/immovable assets and to put them online for the public. The banks declaring non-performing assets, the sharing of financial information with a view to curbing tax evasion and disclosure of offshore tax havens of the rich and powerful, may now clash with the need to protect privacy.
While celebrating the restoration of the right to privacy, it is important to ensure that information required to be made public under the Right to Information (RTI) Act is not restricted by using the alibi of the Constitution Bench’s order. Prime Minister Narendra Modi has often talked about moving from confidentiality to transparency and accountability. But there is much for him to do over the next two years and make a clear distinction between transparency of the State and privacy of an individual. Though the NDA came to power on the plank of anti-corruption, the Lokpal law and the Whistleblowers Protection Act are yet to be operationalised. Even before the apex court ruling, attempts were being made to axe transparency in the name of protecting privacy. In April this year, the Central government amended multiple laws to keep the identities of donors to political parties secret, claiming that it would promote greater transparency in political party financing. There is already an impression that the RTI has been diluted.
An assessment of relevant data, recorded in the CIC’s annual reports of top government departments, conducted by Venkatesh Nayak and John Mascrinaus of the Commonwealth Human Rights Initiative (CHRI) found the most worrisome commonality in the rising number of applications that were denied information without providing any legally valid reasons. In the annual reports, the numbers of RTI applications denied information without giving reasons are recorded under the heading “Others”. Consolidated numbers from RTI data filed by all public authorities reveal a disturbing truth: In 2015-16 the number of applications rejected without giving reasons was 36,913 — the highest in the decade since the implementation of the Act.
As Julian Assange says, transparency requirements should be directly proportionate to power. If public interest is being undermined, then an individual’s privacy can be infringed upon by the State. The ‘public interest’ test should be used in e-privacy and transparency laws to address power asymmetries rather than exacerbate them. There is no public interest in reducing privacy for ordinary citizens — the powerless — but there are huge public interest benefits to be secured by increasing transparency of politicians and bureaucrats, who are powerful.
An approach paper circulated within the Government of India way back in 2010 to develop a conceptual framework that could serve the country’s balance of interests and concern on privacy had raised concerns whether the rights granted by a privacy legislation would run contrary to the rights available under the RTI. There are several provisions in the RTI Act which directly or indirectly reinforce that private information relating to an individual is to be prevented from unauthorised disclosure.
In light of the apex court judgement, it is highly recommended that the Government codifies privacy rights in the shape of legislation to avoid any clash with the right to transparency or the RTI.
Currently, protection of personal data flowing through the Internet has been a prime concern for an individual. In the Indian context, it is also advisable to establish a regulator under the proposed legislation. It is particularly important to develop the concept of accountability so that it should no longer be sufficient for organisations to meet applicable data protection requirements — they should demonstrate their willingness and ability to take on data responsibility and ensure compliance on an ongoing basis. Since data protection and personal privacy are the other end of the spectrum from the right of citizens to access public information, it may be appropriate to house the office of the Data Regulator within the same executive framework as the chief information officers under the Right to Information Act. Like the right to privacy, people’s right to know is also an inseparable element of the rights to life and liberty and freedom of speech and expression. Transparency is the obligation of institutions to communicate pertinent information to their stakeholders. Individuals have no such obligation.
The author is Editor, strategic affairs, DNA