Right to Know vis a vis Right to Privacy: Which will prevail?

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Introduction

In a recent judgment in the case of Lok Prahari v. Union of India, a bench of Justice Chelameshwar and Justice Nazeer of the Supreme Court have expanded the voter’s fundamental right to know to include not just the assets of the candidates standing for election but also the source of their income.

This obligation extends not only to the candidates but also their spouses and dependents. The court arrived at this conclusion by expanding on its earlier judgment in Union of India v. Association for Democratic Reforms & Another (2002) 5 SCC 294 where it held that every voter had a fundamental right to know, under Article 19(1)(a), the assets and qualifications of candidates because it was only on receipt of such information that they could express themselves by exercising their vote for the best candidate.

The present judgment does not stop with requiring this extra level of disclosure. The judges go on to hold that the non-disclosure of information would be considered as a corrupt practice under the heading “undue influence” in Section 123(2) of the Representation of People Act thereby opening the door to disqualification of the candidate.

While this judgment is bound to have political repercussions, I am stumped by the manner in which this court has completely ignored the privacy dimension. The bureaucracy has for long been raising the privacy flag every time it has been asked to disclose its assets. A few years ago, when a Parliamentary Committee was looking into the issue, it agreed with a government recommendation that bureaucrats should only disclose their assets to the ‘competent authority’ rather than disclose them publicly.

“Can courts favor one set of fundamental rights over another? If so, what is the basis of making such a judgment?”

The ‘competent authority’ could then disclose these details to the Lokpal who would be required to keep the information confidential. The entire thread of argument underlying this issue was that of the bureaucrat’s privacy. This discussion happened in 2015, more than six years after the Central Information Commission held that bureaucrats could not hide their assets on the grounds of privacy. It appears that this order has not yet been implemented.

Similarly, judges of the higher judiciary have been resisting the Full Court’s resolution from 1997 to make public all their assets. As of October 2017 the media was reporting that nearly half of the 25 judges on the Supreme Court had not made publicly available their assets. I suspect most of them will claim that such disclosure violates their fundamental right to privacy.

As documented earlier in the Hoot, Indian judges have never shied away from invoking their privacy right when faced with RTI applications. Even in the judgment where the Supreme Court struck down the National Judicial Appointment Commission (NJAC), one of the judges strongly protested against the government’s proposal to make the proceedings of the NJAC completely transparent on the grounds that it “does not take into account the privacy of a person who has been recommended for appointment, particularly as a Judge of the High Court or in the first instance as a Judge of the Supreme Court. The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy.”

So, if privacy has always been a concern for bureaucrats and judges, why is it that the Supreme Court did not even think it fit to discuss the issue in the context of legislators, especially when nine judges of the court recently concluded that all Indians have a fundamental right to privacy?

It is important to discuss this issue because privacy has a dangerous dimension to it, in that it abridges other rights like the right to speech and the right to know under Article 19(1)(a). Of what use is this fundamental right if it can be abridged by the court in order to favor the fundamental right to know of the voter under Article 19(1)(a)? Can courts favor one set of fundamental rights over another? If so, what is the basis of making such a judgment?

Are we to understand that fundamental rights are status driven, in that citizens who are running for public office automatically lose their fundamental right to privacy? The rationale for fundamental rights is that they are so sacrosanct that they cannot be sacrificed or abridged by the state. They may be subject to reasonable restrictions but the restriction cannot eviscerate the very nature of the right.

More importantly, what of the fundamental right of the spouse or the dependent? How can they be stripped of their fundamental right merely because a blood relative, who is an autonomous individual, has taken a decision to stand for public office? Of what use is a fundamental right that is contingent on the behavior of another individual?

The dominating theme of the Puttaswamy judgment was that the individual was at the center of the constitution. Yet, in a judgment delivered less than a year after Puttaswamy, the court did not even think it necessary to pay even lip service to these issues. So much for the fundamental right to privacy!

Recently, information commissioner Sridhar Acharyulu, in an attempt to save the right to information (RTI) from dilution, cautioned against amending the RTI Act while implementing the data protection framework suggested by the Srikrishna Committee report.

The public focus so far has been on the conceptualization of personal data, consent fatigue and data localization. But the report raises a crucial question. What would be the mandatory of the future data protection authority (DPA) it envisages? And how would the mandatory be reconciled with that of the information commissioner? This concern becomes particularly relevant due to a history of bureaucratic conflict in various countries including India stemming from the tension between the discordant mandates of the two authorities.

Conceptually, Right to Information and the right to privacy are both complementary and in conflict. While Right to Information increases access to information, the right to privacy veils it instead. Side by Side, they both function as citizen rights safeguarding liberty against state overreach. There are two possible frameworks for managing this kind of tension.

A two-body model

In most jurisdictions areas, the information commission and privacy commission are separate and distinct bodies. In a few countries, however, the Right to Information Commission is a single-function body responsible for balancing competing interests. These jurisdictions include Hungary, Mexico, and the UK.

Countries which have two commissions are able to champion both these rights exclusively. This is because they are unencumbered by the onerous task of balancing competing interests. However, this lucidity of mandate and authority comes with a price tag. Disagreements between the two authorities can thrive transaction and opportunity costs involved in reconciliation, reducing overall efficiency in grievance atonement.

Canada has witnessed public torment between the two commissions due to politics and policy concerns. These concerns include delineating the extent to which a request to access personal information may be granted without undermining any kind of privacy. A Canadian task force and arm force reviewing its two-body model acknowledged the confusion arising out of conflicting recommendations. For instance, the two bodies could have conflicting opinions on whether educational records of public officials or asset records of spouses of public officials construct personal data shielded from right to information requests.

A single-body model

Adopting a single commission as in the United Kingdom instead would remove the transaction costs associated with conflict between two commissions. This would increase administrative efficiency and, in turn, public welfare as well. However, the possibility of a conflict between the two competing rights may end up prejudicing the authority in favor of one of them, endangering their intended harmonization among them. Moreover, additional mandates may over-burden the authority and undermine its efficacy, reducing social welfare instead.

One body or two for India?

The Supreme Court of India, while exposing the right to privacy as a fundamental right in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India and Others, missed out on defining its contours with respect to the right to information. The Srikrishna Committee Report, while acknowledging that most commentators are in favor of a distinct data protection authority, falls short of explaining the rationale behind it. These missed chances are regrettable. That said, the optimal resolution for India is indeed two independent bodies.

While the cost-effectiveness of a single body model is winsome, in the Indian context, it may have a number of drawbacks. These include high levels of corruption that could cheer conflict of interest and a tendency to safeguard personal gains.

Moreover, there might be another kind of mismatch in giving an information commissioner the injunction of enforcing a data protection law. The information commissioner’s injunction is concerned with personal data only of public officials and not of citizens at large. The enforcement of a data protection law, on the other hand, would require familiarization with, and expertise in, a far wide mandate. Achieving these may require a structural overhaul of the commission, which could prejudice the existing rule. A body with specialized expertise in this field would be far more come true to serve this purpose.

We admit that there may be some agency costs engaged in reconciling conflicts between the information commissioner and the DPA. However, these costs would not override the portly public interest served by ensuring the independence of a DPA. This is because the agency costs would be relatively small compared to the harm arising out of bias to either of these rights.

Besides, a single commission may lean towards hierarchizing the enforcement of RTI over the realization of privacy. This fear grows from the false perception that a dichotomy exists between privacy and welfare. This feeling is based on public attitudes that question the relevance of privacy within the Indian sociopolitical climate as opposed to RTI, which is looked upon more favorably.