In the public interest

This article examines the concerns raised by the Prime Minister regarding RTI applications which have the potential to invade personal privacy. The article was originally published in the Indian Express on 18.10.2012. On a personal note I have been trying to trace the diary of auto shankar which has been mentioned in R. Rajagopal v. State of Tamil Nadu. I would appreciate any help or suggestions in tracing it.

“Recently, the prime minister raised concerns about RTI applications encroaching on the right to privacy. At this juncture, it may be worth remembering the case of “Auto Shankar” and his diary. About 20 years ago, an auto driver called Gauri Shankar, who had murdered more than six teenage girls, was convicted and sentenced to death. Before the appeals process was exhausted, he started writing a diary, which was to be published by a Tamil weekly. The “Auto Shankar” diary was said to contain unflattering portrayals of several senior IAS and IPS officers who, Shankar claimed, were his accomplices. To prevent the publication of the diary, the inspector general of prisons sent a letter to the editor of the publication, giving rise to an interesting contest between privacy and the freedom of the press.

While ruling on the case, the Supreme Court held, in no uncertain terms, that the publication was thoroughly legitimate and the right to privacy was limited by the right to freedom of speech and expression. It stated that privacy could not be extended to public documents and is not available to public officials when it comes to actions and conduct relevant to the discharge of their official duties. The law that naturally flows from the judgment states that public documents and authorities enjoy a conditioned and limited right to privacy.

Such an outcome is replicated in other cases where privacy is pitted against a competing interest, due to the nature of the adjudication. This includes cases where state interests are involved, such as telephone tapping or the declaration of the criminal records of electoral candidates, as well as cases where individual interests are at stake, such as a disclosure to prevent the transmission of AIDS, a DNA test to determine paternity or even the publication of the photograph of a willful defaulter for the recovery of debts. If constitutional adjudication can be pictured as a bout, the privacy right will be the featherweight matched against the heavyweight; it may put up a fight but it will ultimately get knocked out. In the absence of any constitutional imperative to absolutely protect individual privacy, it falls to individual statutes to protect it.

Such protection of privacy is found in the Right to Information Act, 2005. Section 8(1) of the act contains a list of exceptions under which the information requested in RTI applications may be refused. According to the 2010–2011 annual report of the Central Information Commission (CIC), this provision was the part of the act cited most frequently to turn down RTI applications; about one out of every four applications were rejected under it.

Many of these rejections are based on privacy protection clauses. For instance, Section 8(1)(j) prohibits the disclosure of “information which relates to personal information”, or which would cause unwarranted invasion of an individual’s privacy. Other provisions also provide a fairly robust privacy right, with Section 8(1)(d) taking care of trade secrets and the commercial interests of a third party and Section 8(1)(e) prohibiting disclosure of information held or gathered in the course of a fiduciary duty. However, all three clauses are subject to the rider that disclosure may be appropriate if it is determined that it serves a larger public interest. This is the consistent position taken by the act, which aims to promote transparency and accountability in the working of public authorities.

Now let us imagine that adverse orders are passed and these privacy protections are not properly considered. Even in these cases, the public authority that relies on such clauses to reject an RTI application and is then ordered by the CIC to part with information, can always challenge the order of disclosure before a high court. This process of case by case adjudication has already supplied us with an impressive body of precedent, which serves as a guide for the interpretation of various provisions of the legislation, helping block applications that go against Section 8(1).

To conclude, the pronouncements of the Supreme Court prescribe a thin right to privacy, which is put on a further diet when public officials seek to utilise it or when it is cited to block access to government records. However, the RTI Act provides fairly robust privacy protection. Any attempt to strengthen privacy protection by proposing amendments to the RTI Act is nothing less than a solution in search of a problem.”

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