Shailesh Gandhi Prashant Reddy T. DECEMBER 01, 2020
Only information bearing a nexus to public activity should be available to the public
Recently, in a case involving activist Saket Gokhale, the Bombay High Court ordered the Ministry of Information and Broadcasting to remove Mr. Gokhale’s contact details from its website. His address was revealed to the general public when the Right to Information application filed by him was displayed on the Ministry’s website. According to Mr. Gokhale, once his phone number and address were displayed, he began receiving threats on the phone. A mob gathered outside his house chanting slogans against him because of his activism against the ruling party. What happened to Mr. Gokhale is unacceptable and the state must take all possible steps to prosecute those who threatened him and his family.
The larger question here is whether a person’s address is public or private information. The answer to this will have significant implications for transparency in governance and the fight against corruption in India.
Addresses in public records
The instinctive reaction of most people is to consider their address private information and this is entirely understandable. However, it is also important to note that the address of people’s residence or office has never been considered private under Indian law. Back in the day, government telecom service providers used to supply telephone directories to everyone containing the names, telephone numbers and addresses of every subscriber in the city. Similarly, electoral voter lists include the addresses of all voters in each and every ward. These lists are now available online in a digital format on the website of the Election Commission. Land records, containing details of ownership, are open for public inspection across the country and play a crucial part in ensuring confidence in the volatile land markets in India. Similarly, all FIRs in cognisable cases must be displayed on the website, according to a Supreme Court judgment. These would display the names and addresses of the complainants and the accused. Ironically, even the courts, including in Mr. Gokhale’s case, disclose the addresses of litigants in their judgments as a regular practice. Many of the new transparency initiatives such as the Jan Soochna Portal in Rajasthan make available the details of all beneficiaries of all welfare schemes administered by the State government.
The rationale for such disclosures is quite simple. As has been demonstrated repeatedly by grassroots activists working on the Mahatma Gandhi National Rural Employment Guarantee Scheme and the Public Distribution Scheme, access to information about beneficiaries, including addresses, is critical to weeding out ‘ghost beneficiaries’ created by officials looking to pilfer funds or rations. In all of these cases, the disclosure of addresses of citizens in the public domain plays a crucial role in boosting public confidence in governance systems and ensuring efficiency while also combating corruption in its various forms.
Privacy and information
Questions such as privacy, which involve fundamental rights, must be dealt with not just on the basis of the consequences that may follow from the disclosure of their addresses but also first principles of the law and this is where the judgment of the Bombay High Court is on thin ice.
In its order in Mr. Gokhale’s case, the Bombay High Court relies heavily on a brief order of the Calcutta High Court in the case of Avishek Goenka v. Asish Kumar Roy (2013). In the Goenka case, an RTI activist wanted to provide a P.O. Box number as his address while filing a RTI application in order to not disclose his residential address and thereby protect himself from possible reprisals. However, the public authority insisted that he disclose his residential address. The Calcutta High Court ruled in favour of the RTI applicant because the RTI Act does not require information seekers to disclose personal details except those which may be required for contacting him. At the same time, the Calcutta High Court, confoundingly, also permitted authorities to disallow P.O. boxes and insist on personal details in cases where the Public Information Officers faced “difficulty”. This was followed with the caveat that in all such cases, personal details should be hidden by the government from public disclosure in order to prevent harassment of the RTI activist. This part of the Calcutta High Court’s order formed the basis of the Bombay High Court’s order in Mr. Gokhale’s case.
Both the Calcutta High Court and the Bombay High Court followed a consequential line of reasoning i.e., the information in question should be treated as private because its disclosure may lead to threats against the RTI applicant. With all due respect to the honourable High Courts, this is the wrong approach and will lead to inconsistent outcomes as visible in Mr. Gokhale’s case, where the government was upbraided for disclosing his address while the High Court did not think twice about disclosing his address in its own judgment that is published on the Internet for all to access.
RTI v. Privacy
Thus, the correct question to ask in such cases is, which law or principle of law prevents the state from disclosing such information about the addresses of citizens?
The RTI Act clearly lays down that all information held by the government must be shared with citizens unless it is exempted under Section 8 or 9 of the Act. The exemption relating to privacy is given under Section 8 (1)(j) which exempts “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.”
While this provision protects the privacy of citizens, it requires disclosure of information bearing a nexus to public activity. Generally, most of the information in public records arises from a public activity. Applications for a government job, ration card, caste certificates are some examples of public activity. However, there may be some personal information which may be with public authorities which is not a consequence of a public activity, e.g. medical records, or transactions with a public sector bank. Similarly, a public authority may come into possession of some information during a raid or seizure which may have no relationship to any public activity. These would be exempt. Everything else should be published in the public domain.
In the meanwhile, RTI activists looking to protect themselves should be urged to use P.O. boxes as a means to preserve the anonymity of their addresses.
Shailesh Gandhi was a former Central Information Commissioner and Prashant Reddy T. is a lawyer