By Bijit Das and Isheta Srivastava
The Bombay High Court in a recent case (Saket S. Gokhale v The Union of India) relating to Right to Information RTI in India has held that ‘If such large scale breaches in the field of Right to Information are not taken seriously, the right itself will be trivialized. Suitable action must be taken, and also seen to be taken, to underscore the importance of the Right to Information Act, 2005.’
The issue in the case was related to the personal details of 4474 RTI applicants being uploaded on the official website of the Ministry of Information & Broadcasting leading to a massive breach.
- Saket S. Gokhale (hereinafter referred to as ‘the Petitioner’) on October 27, 2019, filed a Right to Information (RTI) application with the Ministry of Youth and Sports Affairs, Govt. of India seeking details regarding a campaign launched by the Government of India.
- On November 27, 2019, the Ministry of Youth and Sports Affairs transferred the application of the Petitioner to the Ministry of Information and Broadcasting.
- The Petitioner had instituted court proceedings on some sensitive social issues. Petitioner started received phone calls and threatening messages on his phone. A mob gathered outside his residence chanting slogans.
- The Petitioner noticed that its RTI application was uploaded to the website of the Respondent with his contact details and address publicly displayed.
- Further, since the website link of the Ministry of Information and Broadcasting (hereinafter referred to as ‘the Respondent’) was accessed by internet search engines, the Petitioner’s details were freely available on the internet.
- On August 3, 2020, a petition was filed for a direction that the Petitioner’s details be removed from the website of the Ministry of Information and Broadcasting.
In a reply affidavit filed by the Respondent, it was stated that the Petitioner’s data was removed from the website from August 1, 2020.
- The action of the Respondent in violating the fundamental right to privacy of the Petitioner guaranteed under Article 21 of the Constitution of India has put the life, liberty, and safety of the Petitioner and his family in great jeopardy.
- By way of the Writ Petition under Article 226 of the Constitution of India, the Petitioner sought the issuance of a writ of certiorari or any other appropriate writ to order the Respondent to remove the personal data of the petitioner from its website for violating the fundamental right to privacy guaranteed under Article 21 of the Constitution of India and to award compensation for the immense distress, agony, and personal risk faced by the petitioner due to the violation of his fundamental rights by the respondent.
Contentions of the Petitioner:
- It contended that though its personal details were stated to be removed on August 1, 2020, the details continued to be on the website till September 14, 2020.
- It was submitted that because his personal details were uploaded by the Respondent in the public domain, it was accessed by antisocial elements who threatened him causing harassment and trauma.
- It alleged that despite office memorandums the Respondent has uploaded the personal details singling him out because he has taken up various sensitive social causes.
Contention of the Respondent:
- It submitted that it is not the case that the Petitioner has been singled out, as it has uploaded 4,474 applications with personal details.
- On the specific query whether personal details of all 4,474 applicants were displayed on the website, the Respondent confirmed that it was so and the applications with all personal details were uploaded.
- It pointed out that the letter dated July 31, 2020, whereby it had informed the Senior Technical Director, National Informatics Centre, to remove the personal details of the applicants. It further submitted there was an error on the part of the Respondent and there is no malice or motive to put up the personal details of the Petitioner alone to harass him.
RTI India- Personal Details of Applicants in Public Domain defeats Object of RTI Act
It was noted by the Court that despite office memorandum dated October 7, 2016, till August 1, 2020, 4,474 applications filed under the RTI Act in India with personal details of the applicants were uploaded on the website of the Respondent.
The Court held that it may not be that the petitioner is singled out, but the reason why it so makes the matter more serious. The Respondents cannot seek dismissal of the writ petition contending that the petitioner is not the only victim of an irregularity, more particularly when the breach is regarding an enactment which is an essential component of a working democracy.
The Court refuted the contention of the Respondent that it was not aware of the Official Memorandum dated October 7, 2016, and when it became aware, it took suitable action.
It held that this response was vague. There is no such general concept of awareness of a government department. Either the government department receives an official communication, or it was not received. The stand that Respondent Ministry was not aware of the Memorandums is not specific.
On the issue of RTI in India, the Court stated that as the statement of objects and reasons of the Act indicates it was enacted to set up a practical regime of right to promote transparency and accountability in the working of every public authority. Citizen actions and transparency are vital for the functioning of the democracy, to contain corruption and to hold Governments and their instrumentalities accountable to the governed, The Act also balances competing goals and interests. It is acknowledged that the revelation of information in actual practice may conflict with efficient operations of the Governments, limited financial resources and the need for confidentiality of sensitive information. The Right to Information Act is, therefore, a unique and vital piece of legislation.
The Court strongly held that the issue also travels beyond the individual breach of the privacy of the applicant and the potential likelihood of a risk. It is the impact on future applicants. Informed citizenry and transparency of information are vital for the functioning of democracy. Noticing that personal details of other applicants are put up in the public domain, some of those who want to seek information for the larger good may be deterred for the fear of being targeted. This could defeat the object of the RTI Act in India. If such large scale breaches in the field of Right to Information are not taken seriously, the right itself will be trivialized. Suitable action must be taken, and also seen to be taken, to underscore the importance of the Act of 2005.
It further held that despite the office memorandum dated October 7, 2016, for four years, 4,474 applications with personal details of the applicants were uploaded on the website of the Respondent. Looking at the magnitude of the lapse, it cannot be treated as just a routine internal matter. We, therefore, intend to place the responsibility of ensuring that necessary inquiry is conducted and that too in a time-bound manner upon the highest official in the Ministry, the Secretary. Needless to state that if the inquiry will result in punitive action against the guilty government servants it would follow the applicable Rules and Regulations.
Whether the right to privacy is protected in India?