Sovereign right to privacy, or secrecy?

We live in strange times indeed where the rules of logic are turned on their head everyday with a new executive diktat or court ruling. The latest is this epidemic of “privacy” — one-sided, of course. On the one hand the government is doing everything to prise loose every shred of personal information from its citizens, through Aadhaar, PAN, voter registration, authorising the tax sleuths to mine even one’s social media chats and emails, snooping on their phone conversations through imported malware. On the other, it refuses to share with the same citizens information they are entitled to in order to meaningfully exercise their democratic rights. In other words, the citizen has no right to privacy, but the government has a sovereign right to it!

When you buy a packet of noodles, you are entitled by law to know what it contains. But when you choose your Prime Minister — a more consequential decision, you will agree — you are not entitled to know whether he has a valid educational qualification or not. Even though he has declared it in his electoral nomination form, it has been displayed in a press conference and published in papers! For, the Delhi High Court has ruled that this is private information and no public interest is served by revealing it.

There are so many threads of logical incoherence and fallacy in this ruling that it is difficult to separate them. For one, a person in public life cannot claim privacy in matters that may have a bearing on his character or functioning, such as educational qualification, income and its sources, marital status, material disposition of his family members, or whether he has a criminal past: these details are necessary for the public to decide whether or not to repose confidence.

Second, he has already disclosed this information on oath to the government (in this case, the ECI) and it is no longer private. Third, such disclosure has to be properly verified to the satisfaction of not only the election authority, but also the voter. Fourth, by this same misconstrued logic, all other information provided by a candidate also cannot be verified or made public! Then why ask for this information in the first place, if the purpose is to put it under lock and key?

In effect, the court is telling us that we have no right to any information about a candidate.

Actually, this ruling is an inevitable consequence of a disturbing judicial pattern which began with the jurisprudence of the sealed cover, a hideous anomaly in any rule-based form of governance. It started with the Rafale case, was refined in the Pegasus case and has now become institutionalised with this judgment.

The recent elevation of some High Court judges to the Supreme Court further establishes how entrenched the element of secrecy (under the garb of privacy) has become. It has been reported that one judge has been elevated after superseding judges senior to him, and in spite of a dissenting note of a member of the Collegium (which is not being made public). Now, in the executive, even an Upper Division clerk cannot be superseded without recording detailed reasons for doing so. It’s the courts which have themselves reiterated time and again this principle of natural justice. But, strangely, they are loath to practice what they preach, on the grounds that it would infringe on the “privacy” of the superseded judges by besmirching their reputation. Which begs the question: are only judges entitled to have a reputation?

This perverted interpretation of “privacy” has now become a weapon to deny legitimate information to the public, whether in Parliament, the Information Commissions, statutory or constitutional bodies, the courts, the media.

A Delhi court recently restrained some investigative journalists from publishing “defamatory” and “misleading” articles on a leading business group. Pardon me, but how can the court be so sure that the articles are not based on facts, or are defamatory? Has it examined any evidence to this effect? Legitimate questions all, since more and more politicians and “celebrities” are now taking this easy route of claiming “privacy” to avoid any public scrutiny of their deeds.

The dubiously constituted Election Commission of India has set new standards in opacity and secrecy, refusing to share any worthwhile or timely information, whether it be the number of votes cast, VVPAT counts, reasons that prompted a hasty SIR in Bihar, the names of the excluded voters and the reasons for their deletion, the number of “Bangladeshis” detected (a stated reason for the SIR). Whenever it has divulged some information, it has done so reluctantly and on the nudging of the courts.

It has, however, reached the height of nebulosity and obtuseness with its refusal to make public the video recordings of the polling process on the grounds of “protecting” the privacy of our mothers, sisters and daughters! This is a formulation worthy of a Uriah Heep or a Goebbels, given that these same ladies are videographed every day at airports, hotels, shops, road crossings, usually without their permission or even knowledge (unlike the polling booths where it is part of publicly proclaimed SOPs).

How can justice be “seen to be done” when the process is shrouded under a cloak of secrecy disguised as privacy? Justice can be served, and the law upheld, only in the full glare of the public gaze, not in the shadows of legally doubtful subterfuge.

— The writer is a former IAS officer