UPSC Application submitted before 20 years

in CIC/MHOME/A/2019/107928 Ehtesham Qutubuddin Siddiqui Vs Ministry of Home Affairs

5.3. The issue before the Commission was as to whether by virtue of provisions contained under sub-section (3 ) ol section 8 of the RTI Act, personal information which was in the custody of a public authority was to be disclosed under RTI application after lapse of 20 years. The relevant portion of section 8 of the RTI Act read as under: "8. Exemption from disclosure of information.- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- (a) information, disclosure of which would prejudicially affect the sovereignlt and integrity of India, the security, strtltegic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an olfence; the the Page 3 of l0 (c) information, the disclosure of which wttuld cause a breach of privilege of Parliament or the State Legislature; (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers; Provided that the information, which cannot bb denied to the Parliament or a State Legislature shall not be denied to arty person. (3) Subject to the provisions of clauses (a), (c) and (i) of sub' section (l), any information relating to any occurrence, event or matter which has taken place. oct'urred or happenecl tv'enty years before the date on which any request is made under seclion 6 shall be proilded to any person making a request under that section: Provided that wheie any question arises as to the date from which the said period of twenly years has to be contputed, tlrc decision of the Centrol Government shall be final, sub.ject to the usual appeals provided for in this Act- " 5.4. The Right to Privacy is not enumerated as a Fundamental Right either in terms of Article 21 of the Constitution or otherwise. It, however by reasons of an elaborate explanation of the Apex Court, has been held to be an essential ingredient of "personal libefiy". 5.5. The Supreme Court in case of Kharak Singh vs. The State of U. P. & Others [1963 AIR 1295] dated 18.12.1962 has held as under: "Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. h k true our constitution doe| not expressly declare a right to privacy as a Fundamental Right, but the said right is an essential (2) Page 4 of 10 ingredient of personal liberty. Every democratic country sanctifies domestic life. . . " 5.6. The Supreme Court in case of R.Rajgopal vs. State of Tamil Nadu p99S AIR 2641 dated 07 .10.1994 has held as under: "...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 safegmrd the privacy of his own, his family, marriage, procreotion, motherhood, child bearing and education among other matters. " 5.7. ln Thappalam Service Cooperative Bank Limited vs State of Kerala(2013) 16 SCC 82, the Supreme Court has recognized that the Right to privacy as a Fundamental Right emanates from Article 2i of the Constitution. 5.8. The commission further notes that the Hon'ble Supreme court of India in case of Justi No.4 dated, 26.09.201 8 has observed that: *aaQ (m) it stands established, without any pale of doubt that privacy has now been treated as part of fundamental right, The Court has held that, in no uncertain terms, that privacy has always been a natural right which given an individual freedom to exercise control oyer his or her personolity. The judgment further ofrrms three aspects of the fundonental right to privacy nomely: (, Intrusion with an individual's physical body, (i, Informational privacy and (iiD Privacy of choice." 5.9. The Hon'ble Supreme Court of India had further observed that informational privacy deals with the person's mind. "In this manner, it protects a person by giving her control over the dissemination of material that is personai to her and disallowing unauthorized use of such information by the State." Page 5 of l0 5.10. The Hon'ble Supreme Court of India, in catena of cases, has also emphasized the primacy of the provisions of the Constitution and that the provisions of the Constitution will prevail over any enactment of the legislature, which itself is a creature of the Constitution. 5.11. The High-Level Committee chaired by Justice B.N.Srikrishna in their report on data protection law has observed that: " data protection law is designed to limit the proce'ssing of personal datct to legitimate reasons where the Jlow of information is beneficial and respects the autonomy of the data principal. It is particularly sensitive to the harm to an individual pursuant to the disclosure of personal data and seeks to actively prevent such harm. However, disclosure of information from the public authorilies may lead to private harms being caused. It is thus important to recognize that, in this context, there is a conJlict of fundamental rights. berween transparency and privacy. 'l-his requires cureful balancing. fhe fact that neither the right to privacy nor the righr to information is absolute and will have to be balanced against each other in some circumstances has been recognized by the Supreme Court. " 5.12. The Constitutional Court of South Africa in NM & Ors vs Smith & Ors., 2007 (5) SA 250(CC), while dealing with the fundamental right to privacy recognized by the South African Constitution, has maile the following observations: "An implicit part of this aspect of privacy is the right to choose what personal information of ours is released into the public space. The more intimate that information, the more important it is in fostering privacy, dignity and autonomy that an individual makes the primary decision whether to release the information or not. That decision should not be Page 6 of l0 made by others. This aspect of the right to privacy must be respected by all of us, not only the state......" 5.13. In D S Nakara & ors vs Union of India (t983) 2 SCR 165 the Supreme court while holding that the division of pensioners into two classes being violative of Article 14 of the constitution inter alia observed that a pension scheme which looked to the goals for attainment of welfare state proposed to be set up in the light of the Directive Principles of State policy and preamble of the constitution the pensioners for payment of pension from a class. The division which classified the pensioners into two classes on the basis of the specific date was devoid of any rational principie and was both arbitrary sand unprincipled being unrelated to the object sought to be achieved by grant of liberalized pension and the gua.rantee of equal treatment contained in Article 14 was violated inasmuch as the pension rutes which were statutory in character meted out differential and discriminatory treatment to equals in the matter of computation of pension from the dates specified in the impugned memoranda. 5.14. In the case under consideration issue is whether the personal information could be disclosed. As per the provisions of sub-section (3) of Section 8 of the RTI Act, personal information which is in the custody of public authority may be disclosed after 20 years lrom the date oI occurrence. perhaps the RTI Act aims to ensure greater accountability so as to make the public authorities more progressive, participatory and meaningful. The operation of the statue would provide more access to the information and thus bring transparency and accountability. The RTI Act is a statute Act which provides for rights and obligations ofpersons. on the other hand, the right to privacy is a facet ofright to life and personal liberty enshrined in Article 21 of the constitution. There has to be harmonious construction of both the provisions. 5.15. The Supreme Court in plethora of cases had held that the right to privacy is an evolving right which may vary from case to case and depending upon the facts of the case and public interest involved in disclosure of information. Right Page 7 of l0 to Privacy being a facet to the Right to Life and personal liberry is on a higher pedestal and a harmonious construction of the provisions of the RTI Act and of the Constitutional provisions would necessitate reading down of the provisions of RTI Act so as to avoid illegality of the statutory provisions. Moreover, the respondent argued that it was not an event or occulrence which happened 20 years back. The respondent vehemently claimed that the event was continuous and thus provisions of Section 8(3) were not applicable in this case. 6. The Commission after adverting to the facts and circumstances of the case, hearing both pafties and perusal of records, feels that the right to privacy being a facet of fundamental right under protected in accordance with the (ii) there must be legal framework and (iii) there must be nexus between the objective to be achieved and the privacy to be compromised. lt appears that for meeting different treatment, there must be a reasonable classification and the classification must have a rational nexus with the objective to be achieved. If we take that the RTI Act contains provisions providing framework for disclosures outweighing right to privacy undcr Section 8(3) of the RTI Act which aims transparency and accountability, the appellant may be entitled for the inlormation ol the occurrence which took place 20 years before the RTt application. Thus the Right to Privacy of the 3'd party may not be absolute if the same is falling within the ambit of the aforementioned parameters. However, the respondent have claimed that the occulrence was not a onetime event i.e. the Right to Privacy is a continuous process and drawing a line of giving applications for appointment as such may not be a water tight comparlment wherein the Right to Privacy was not existing or continuing after the lapse of 20 years. Article 21 of the Constitution has to be three parameters laid down by the Supreme Coufi in the case of K.S.Puttaswamy (Supra) i.e. (i) there must be legal object, Page 8 of 10 Proviso to sub section 3 of section 8 of the RTI Act provides that wherein a question arises as to the date from which the said period of 20 years has to be computed the decision of the central Government shall be final subject to the usual appeals provided in this Act. Keeping in view the submissions made by both the parties and the above observations, the appeal is dismissed.