The Rajasthan government has launched a very great initiative in September 2019 by setting up the Jan Soochana Portal, which gives details on a variety of schemes of the government and the beneficiaries of these schemes. It makes it easy to locate how much rations were issued to a particular household or how much pension was disbursed in the various welfare schemes of the government. This is the transparency that can lead to curbing a lot of corruption and ghost beneficiaries.
Some other states are planning to follow suit and the Rajasthan government has promised to help with the software and other support. Some doubts have been raised whether this would be considered a violation of privacy. (The Jan Soochana Portal: A test case for balancing privacy and transparency by Prashant Reddy.)
It is my contention that considering our legal and constitutional provisions this does not constitute a violation of privacy. This kind of information about the wages earned by each person in the Mahatma Gandhi National Rural Employment Guarantee Scheme works has already been available on the website for a few years. It has thus been an established practice for over a decade.
Another perspective is that the government has no right to violate the privacy of the individual. Hence, information that the government collects routinely about its citizens cannot be considered an invasion of privacy. Thus information available on public records cannot generally be considered as matters relating to privacy. The fundamental idea in the Right to Information is that all information in government belongs to people and hence the default mode is that disclosure of information with the government is the norm and there should be very few exceptions.
The RTI Act clearly states that except for the exemptions listed in Section 8, all other information must be shared with people. It goes on to state that most information with government should be shared suo moto with citizens. In Section 4, it specifies 17 categories of information that must be shared with citizens. This includes a directory of its officers, the remuneration and compensation received by its officers, details of beneficiaries of programs and particulars of recipients of concessions, permits and authorizations. The law mandates that most information should be made available to citizens so that they do not have to file RTI applications.
The Right to information, speech and publishing all flow from Article 19 (1)(a) of the Constitution. Fundamental rights guaranteed by the people of India to themselves can only be constrained if permissible in the Constitution. Article 19 (2) permits reasonable restrictions in the “interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. There are only two words that relate to privacy: “decency or morality”.
In R Rajagopal vs. State of Tamil Nadu, the clear ratio was established by the Supreme Court:
“We may now summarise the broad principles flowing from the above discussion:
(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media”.
This will apply to right to speech, publishing and information. Thus the court stated that for matters on public record, Article 19 (1)(a) could be constricted only in matters relating decency or morality.
The Right to Information Act also is in consonance with this by exemption in Section 8 (1)(j):
“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.”
Thus it exempted personal information from disclosure if:
i) It had no relationship to any public activity or interest
or ii) would cause unwarranted invasion of the privacy of the individual.
Recognising that it may be difficult for government officials to understand what constitutes privacy it gave an acid test to them. They would have to give their subjective assessment that they would deny the information to parliament if they wanted to claim this exemption. If certain information violates “decency or morality”,-as mentioned in R Rajagopal it should be denied to Parliament.
Some adjudicators have not read Section 8 (1)(j) and Article 19 (2) and are claiming that all personal information is private. This is arbitrary and not in consonance with the Indian Constitution or the Indian RTI Act. Disclosing personal information from public records that does not violate decency or morality is as per the Constitution and the RTI Act.
Shailesh Gandhi is a Former Central Information Commissioner.