Image courtesy: The Cartoonist and Pinterest
July 28, 2017
By Venkatesh Nayak
A nine-judge Constitution Bench of the Supreme Court of India is currently hearing arguments about whether Article 21 of the Constitution of India contains within its meaning and scope a guarantee of the right to privacy of individuals. The controversy was created by a submission made by the Government of India in the context of a batch of petitions that challenged the constitutionality of Aadhaar (Unique Identification- UID) a couple of years ago. According to media reports, 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 seems like a climb down from the original argument made by his predecessor in August 2015 who questioned whether there was a fundamental right to privacy at all, under the Constitution. Readers may access my two-part comment on this controversy here and here.
According to media reports, the current AGI is said to have argued, "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". Apparently, he asked the Bench, as right to privacy is not a homogeneous right but is a combination of various aspects of privacy, whether they would all be bunched together instead of the Courts examining them individually as the occasion arises. He is said to have further argued that different species of privacy exist and all of them cannot be elevated to the status of a fundamental right. He is also said to have argued that where personal liberty exists as a right, it has to subordinate to the right to life of others. In essence, one human right is being pitted against another human right- this is hugely problematic.
According to media reports, the counsel for Maharashtra is said to have argued yesterday that "privacy" is only a concept and that 1975 onwards several Benches of the Supreme Court had erred in holding it to be a fundamental right. He is reported to have told the Apex Court Bench that privacy can become a fundamental right only through a constitutional amendment. In 2015 I had pointed out how this argument will junk a host of landmark judgements on the right to privacy.
Before this seemingly 'manufactured' controversy (to save Aadhaar) over whether privacy is a fundamental right or not arose, on at least three 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 at stake.
The purpose of this email alert is not to influence the thinking of the Apex Court's Constitution Bench in any manner. Instead, the objective is to encourage informed debate on this important subject by presenting a summarised version of some judicial pronouncements that are already in the public domain to show the jurisprudential trend on the right to privacy vis-a-vis disclosure of information. Further, the AGI's argument that every aspect of the right to privacy cannot be granted the protection of a fundamental right is examined below in the light of international and domestic law.
When the judiciary successfully protected its right to privacy
1) Judges' Assets case (2007-2010): In November 2007, renowned 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, in a straightforward manner:
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.
Readers must take note, Mr. Agrawal never asked 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 this 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.
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. The Delhi High Court reasoned as follows:
"67. A private citizen’s privacy right is undoubtedly of the same nature and character as that of a public servant. Therefore, it would be wrong to assume that the substantive rights of the two differ. Yet, inherent in the situation of the latter is the premise that he acts for the public good, in the discharge of his duties, and is accountable for them. The character of protection, therefore, afforded to the two classes – public servants and private individuals, is to be viewed from this perspective. The nature of restriction on the right to privacy is therefore of a different order; in the case of private individuals, the degree of protection afforded is greater; in the case of public servants, the degree of protection can be lower, depending on what is at stake...
73...It is one thing to say that judges are accountable, and have to make asset declarations; for extension of complete and uninhibited access to the contents, of asset declarations, by invoking transparency, a mere demand is insufficient, as the court would be decreeing something which the law not only does not provide, but for which the existing law makes explicit provisions to the contrary. ... Apart from the inalienable value of independence of the judiciary, which is entrenched in the Constitution, and guaranteed by various provisions, judges’ tenure is secured till retirement, subject to good behaviour (the threshold of their removal being very high), whereas legislators, Parliamentarians and the top most echelons of the Government, at ministerial level, occupy office as long as the people choose to keep them there, or as long as the concerned individual has the confidence of the Prime Minister or Chief Minister (in the case of a minister, in the cabinet or council of minister). Rhetoric and polemics apart, there is no reason to undermine the protections provided by law, merely because some members of the public believe that judges ought to permit unimpeded disclosure of their personal assets to the public...
74. In this court’s opinion Section 8(1)(j)" (of the RTI Act) "is both a check on the power of requiring information dissemination, (having regard to its potential impact on individual privacy rights,) as well as a mechanism whereby individuals have limited control over whether personal details can be made public. This safeguard is made in public interest in favour of all public officials and public servants. There can be no manner of doubt that Supreme Court and High Court judges are public servants (K. Veeraswami established that). They are no doubt given a high status, and afforded considerable degree of protections, under the Constitution; yet that does not make them public servants any less. If that is the true position, the protection afforded by Section 8(1)(j) to judges is of no lesser quality than that given to other public servants, in this regard. To hold otherwise would be incongruous, because, members of the higher judiciary are held to self imposed obligatory Constitutional standards, and their asset disclosures are held, (by this judgment), to be “information” held by the CJI, a public authority, under the Act; yet, they would be deprived of the protection that the same enactment extends to all those covered by it. It cannot be that judges’ being held to high standards, on the basis of norms articulated by the 1997 resolution and the judicial conference resolution of 1999, should place their asset declarations outside of the Act – a demand never made by the applicant, whose case from inception of these proceeding has been that they are subjected to the Act, being “information”. ...For the purposes of this case, however, the particulars sought do not justify or warrant that protection; all that the applicant sought is whether the 1997 resolution was complied with. That kind of innocuous information does not warrant the protection granted by Section 8 (1)(j).
75. In view of the above discussion, it is held that the contents of asset declarations, pursuant to the 1997 resolution – and the 1999 Conference resolution- are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j); they are not otherwise subject to disclosure. As far as the information sought by the applicant in this case is concerned, (i.e. whether the declarations were made pursuant to the 1997 resolution) the procedure under Section 8(1)(j) is inapplicable." [emphasis supplied]
The Registry of the Supreme Court appealed against this ruling before the same High Court. In 2010, a Full Bench of the Delhi High Court upheld the earlier judgement. As regards the protection for the personal information and the right to privacy of judges of the Supreme Court, the Full Bench made the following observations:
"115. The Act makes no distinction between an ordinary individual and a public servant or public official. As pointed out by the learned single Judge “----- an individual‟s or citizen‟s fundamental rights, which include right to privacy - are not subsumed or extinguished if he accepts or holds public office.” Section 8(1)(j) ensures that all information furnished to public authorities – including personal information [such as asset disclosures] are not given blanket access. When a member of the public requests personal information about a public servant, - such as asset declarations made by him – a distinction must be made between personal data inherent to the person and those that are not, and, therefore, affect his/her private life. To quote the words of the learned single Judge “if public servants ---- are obliged to furnish asset declarations, the mere fact that they have to furnish such declaration would not mean that it is part of public activity, or “interest”. ----- That the public servant has to make disclosures is a part of the system‟s endeavour to appraise itself of potential asset acquisitions which may have to be explained properly. However, such acquisitions can be made legitimately; no law bars public servants from acquiring properties or investing their income. The obligation to disclose these investments and assets is to check the propensity to abuse a public office, for a private gain.” Such personal information regarding asset disclosures need not be made public, unless public interest considerations dictates it, under Section 8(1)(j). This safeguard is made in public interest in favour of all public officials and public servants.
116. In the present case the particulars sought for by the respondent do not justify or warrant protection under Section 8(1)(j)" (of the RTI Act) "inasmuch as the only information the applicant sought was whether 1997 Resolution was complied with. That kind of innocuous information does not warrant the protection granted by Section 8(1)(j). We concur with the view of the learned single Judge that the contents of asset declarations, pursuant to the 1997 Resolution, are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j); that they are not otherwise subject to disclosure. Therefore, as regards contents of the declarations, information applicants would have to, whenever they approach the authorities, under the Act satisfy them under Section 8(1)(j) that such disclosure is warranted in “larger public interest”. [emphasis supplied]
While concluding its judgement, the Full Bench took note of the international standards for disclosure of assets details of judges and opined as follows:
"117...Income and Asset Disclosure is generally perceived to be an essential aid towards monitoring whether judges perform outside work, monitoring conflicts of interests, discouraging corruption, and encouraging adherence to the standards prescribed by judicial code of conduct."
So, 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.
2) Protecting the privacy of a High Court (2011-2013): In 2011, through a bunch of information requests, an individual in Tamil Nadu sought copies of files and minutes of meetings of Judges of the Madras High Court relating to a criminal contempt petition that had been filed against a Tahsildar and other public servants in relation to a property dispute. The Tamil Nadu State Information Commission directed the applicant to seek information in accordance with the Court's own Rules instead of the RTI Act. Subsequently, the matter escalated to the Madras High Court and a Division Bench ruled in 2013 against disclosure of the information, invoking the protection of privacy granted by the RTI Act, reasoning as follows:
"92. At the risk of repetition, we point out that the 1st Respondent/Petitioner along with his counsel, not satisfied with the perusal of Roc. No. 1490-A/2010/Judl./MB on 11.07.2011, filed two R.T.I. Petitions dated 01.08.2011 and 18.08.2011 and sought for copies of the Minutes recorded by the Hon'ble Portfolio Judge for Pudukottai District dated 16.12.2010 and the Minutes recorded by the Hon'ble Chief Justice dated 07.03.2011. For that purpose, he filed Copy Application and remitted a flat rate of Rs. 70/- (Rs. 35/- for obtaining the copies of the minutes). In this regard, we relevantly point out that the Notings, Jottings, Administrative Letters, Internal Deliberations and Intricate Internal Discussions etc. on the administrative side of the Hon'ble High Court cannot be brought under Section 2(j) of the Right to Information Act.
93. To put it succinctly, the copies of Minutes recorded by the Hon'ble Portfolio Judge, Pudukottai District dated 16.12.2010 and the Minutes recorded by the Hon'ble Chief Justice on 07.03.2011 in the Criminal Contempt Petition issue, cannot be furnished or supplied to the 1st Respondent/Petitioner, for the purpose of maintaining utmost confidentiality and secrecy of the delicate function of the internal matters of High Court. If the copies of the Minutes dated 16.12.2010 and 07.03.2011, as claimed by the 1st Respondent/Petitioner, are furnished, then, it will definitely make an inroad to the proper, serene function of the Hon'ble High Court being an Independent Authority under the Constitution of India. Moreover, the Hon'ble Chief Justice of High Court [as Competent Authority Public Authority under Section 2(e)(iii) and 2(h)(a) of the Act, 22 of 2005 and also Plenipotentiary in the Judicial hierarchy] can be provided with an enough freedom and inbuilt safeguards in exercising his discretionary powers either to furnish the information or not to part with the information, as prayed for by any applicant much less the 1st Respondent/Petitioner.
94. That apart, if the copies of the Minutes dated 16.12.2010 and 07.03.2011 are supplied to the 1st Respondent/Petitioner, then, the interest of the administration of the High Court will get jeopardised and also it will perforce the Petitioner/High Court to furnish the informations sought for by the concerned Applicants/Requisitionists as a matter of usual course without any qualms or rhyme or reasons/restrictions. In effect, to uphold the dignity and majesty of the Hon'ble High Court being an Independent Authority under the Constitution of India, some self-restrictions are to be imposed as regards the supply of internal/domestic functioning of the Hon'ble High Court and its office informations in respect of matters which are highly confidential in nature inasmuch as it concerns with the Intricate, Internal Discussions and Deliberations, Notings, Jottings and Administrative Decisions taken on various matters at different levels and as such, they are exempted from disclosure under Section 8(e)(i)(j) of the Right to Information Act, 2005. Even otherwise, they are not open to litigants/public without restrictions. No wonder, it can be fittingly observed that if Impartiality is the Soul of Judiciary, then, Independence is the Life Blood of Judiciary. Also that, without Independence, Impartiality cannot thrive/survive.
95. In short, if the informations sought for by the 1st Respondent/Petitioner are furnished, then, it will prejudicially affect the confidential interest, privacy and well being of the High Court, in the considered opinion of this Court." [emphasis supplied]
In short, it is respectfully submitted that the Hon'ble Madras High Court extended the fundamental right of privacy under the Constitution and the exemption for personal information and privacy under Section 8(1)(j) of the RTI Act to itself as an institution (an artificial juridical entity) even though these protections are meant for individuals only. To the best of my knowledge, this judgement has not been set aside by the Supreme Court, till date.
It is important to point out that in August 2015, the then Attorney General of India did not elect to include this judicial pronouncement while questioning whether individuals were guaranteed the right to privacy under Article 21 of the Constitution.
3) Judges' medical expenses reimbursement case (2010-2015): In 2010, noted transparency advocate, Mr. Subhash Chandra Agrawal sought information under the RTI Act about the total amount of monies reimbursed to judges of the Supreme Court (all those serving and some retired) for incurring medical expenses while in office. The CPIO of the Apex Court pleaded that the Registry did not maintain the information in the manner sought by the applicant i.e., judge-wise medical reimbursement figures. The CIC directed the Registry to improve its records management practices to ensure that medical expense claims paid, be maintained judge-wise so that that summary payment figures are easily accessible. Under Section 19(8) of the RTI Act, the CIC has the power to issue such directions to public authorities to improve their records management practices to facilitate easy access to information for RTI applicants, in accordance with Section 4(1)(a) of the RTI Act.
The Apex Court's Registry challenged the CIC's direction before the Delhi High Court. A Single Judge Bench quashed the CIC's direction reasoning as follows:
"8. At the outset, it is relevant to note that the information sought by the respondent is with regard to expenses incurred on medical facilities of Judges (retired as well as serving). Concededly, information relating to the medical records would be personal information which is exempt from disclosure under Section 8(1)(j) of the Act. The medical bills would
indicate the treatment and/or medicines required by individuals and this would clearly be an invasion of the privacy.
...12. Further, the extent of medical reimbursement to an individual is also, in one sense, personal information as it would disclose the extent of medical services availed by an individual. Thus, unless a larger public interest is shown to be served, there is no necessity for providing such information. Thus, clearly, a direction for maintaining records in a manner so as to provide such information is not warranted.
...15. The basic financial data can be accessed to generate innumerable reports depending on the exigencies and requirements of an organization. A direction by the CIC to maintain such records to generate reports, merely because an individual information seeker has sought such information, is not warranted as the same would multiply with each information seeker seeking information in different form. A direction to maintain records in a particular manner must be occasioned by considerations of public interest,
which is admittedly absent in this case. [emphasis supplied]
It must be pointed out that the RTI applicant was not seeking information about the nature of illnesses for which judges were claiming medical expense reimbursements. Nor did the CIC direct the disclosure of this information. The CIC only directed the Registry of the Apex Court to maintain judge-wise expense details. Even this direction relating to improving records management was set aside using the judges' right to privacy as one of the grounds.
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 are the medicines 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?" [emphasis supplied]
It is respectfully submitted that while there was complete certainty about the necessity of guarding the privacy of judges in July, 2015 when the Apex Court dismissed this SLP, 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 when he presented a convoluted interpretation of a couple of Constitution Bench judgements from the 1950s and the 1960s on the subject. Click here for my preliminary analysis of the then AGI's argument.
India accepted the right to privacy as a basic human right in 1979
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 was recognised as far back as in 1895 in the first Constitution of India Bill that was drawn up for self-governance. Although the right to privacy was proposed to be included in the Draft Constitution, the Advisory Committee of the Constituent Assembly dropped it based on objections raised by some members and experts. Click here for an MSPowerPoint presentation that I presented on this subject at the 10th RTI anniversary Convention in New Delhi. Click here for a discussion on the historical evolution of the right to privacy in India.
However, the right to privacy in India has another important and legitimate source, related nevertheless to the jurisprudential development of Article 21 from which successive Benches of the Supreme Court deduced this right. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) recognises the right to privacy of every human being in the following words:
"1. 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.
2. Everyone has the right to the protection of the law against such interference or attacks." [emphasis supplied]
Indian acceded to the ICCPR on 10 April, 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 with its leading lights who are still alive [Mr. Atal Behari Vajpayee (later Prime Minister of India) and Mr. L. K. Advani (later Deputy Prime Minister of India)] approving 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 is duty bound to ensure the promotion and protection of the right to privacy of every person.
In 1993, Parliament enacted the Protection of Human Rights Act, 1993 (PHR Act). Section 2(1)(d) of the PHR Act defines "human rights" as follows:
“human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India." [emphasis supplied]
Section 2(1)(f) defines "International Covenants" as follows:
"“International Covenants” means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights adopted by the General Assembly of the United Nations on the 16th December, 1966 and such other Covenant or Convention adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify”. [emphasis supplied]
Earlier in 1948, India not only participated in the drafting exercise, but also signed the Universal Declaration of Human Rights which recognises the right to privacy in the following words:
"Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks." [emphasis supplied]
So the right to privacy clearly qualifies for protection as basic human right on its own without being treated as a penumbra right under Article 21 of the Constitution that emerged through judicial interpretation in India. It is not merely a "concept" or a sub-species of the right to life guaranteed under Article 21 as labelled by the present Attorney General of India and the counsel for Maharashtra. Its is a universally recognised basic human right and India has unquestioningly accepted this position. There is a duly enacted law that requires the Government of India to treat the right to privacy as an equally important human right as others. Its arguments need to be based on respect for human rights that is its bounden duty rather than the political expediency of saving the Aadhaar from the Apex Court's scrutiny. How the Apex Court decides the status and scope of the right to privacy will be eagerly watched in the coming days.
Meanwhile, the National Human Rights Commission and all State Human Rights Commissions which are specifically set up to ensure the protection, promotion and fulfilment of all basic human rights recognised by the PHR Act must intervene in the ongoing case and defend the people's right to privacy. They have the authority coupled with the duty to intervene in such matters under Section 12(b) of the PHR Act.