We live in strange times indeed where the rules of logic are turned on their head everyday with every new executive diktat or court ruling. The latest is this new 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, face recognition, DigiYatra, 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 by his Sancho Panza and published in many 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, whether he has a criminal past: these details are necessary for the public to decide whether or not confidence can be reposed on him/her. 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 that of the voter. Fourth, by this same misconstrued logic of the court, 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? The logic of this ruling makes a mockery of the election laws and the voter's rights. In effect the court is telling us that we have no right to any information about a candidate and we might as well elect a pig in a poke!
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 further 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 40 judges senior to him, and inspite 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, in the DPC proceedings. 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 when it come to themselves, 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? It would appear that what is good for the clerk is not good enough for the judge!
This perverted interpretation of "privacy" has now become a weapon to deny legitimate information to the public, whether it be in Parliament, the Information Commissions, statutory or constitutional bodies, the courts, the media. Even the press is being restrained from doing its duty on the grounds of privacy or reputation of individuals. Just last week a Delhi court has injucted some reputed investigative journalists (including Paranjoy Guha Thakurta and Ravi Nair) from publishing "defamatory" and "misleading" articles on the Adani group, and has asked them to take down some articles. Pardon me, but how can the court be so sure that the articles are not based on facts, or that they are defamatory? Has it examined any evidence to this effect before issuing the restraining order? If any defamation is involved then shouldn't the Adani group be filing defamation cases against the authors, instead of the court doing a preemptive job on behalf of the company? 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 with the voters, whether it be number of votes cast, VVPAT counts, machine readable voter rolls, reasons that prompted a hasty SIR in Bihar, the names of the 65 lakh excluded voters in the SIR and the reasons for their deletions, the number of "Bangladeshis" detected (a stated reason for the SIR). Whenever it has divulged some information it has done so reluctantly and under 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 Goebbles, given that these same ladies are videographed every day in airports, hotels, shops, road crossings, usually without their permission or even knowledge (unlike the polling booths where it is part of publicly proclaimed SOPs). Surely the Chief Deletion Commissioner cannot be unaware of the fact that polling booths are public spaces and not private places? That CCTVs are set up in polling booths precisely to keep an eye on the polling process, including the polling staff and the voters? That this makes for greater transparency, and that no voter has ever objected to it?
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 dark shadows of legally doubtful subterfuge.
The blogpost rightly flags concerns of opacity, but it collapses privacy into secrecy and ignores important constitutional balances. A few counters are in order:
ReplyDelete1. Privacy is a constitutional right, not a trick. In Puttaswamy (2017) the Supreme Court affirmed privacy as intrinsic to dignity and liberty, precisely to curb state overreach in surveillance (Aadhaar, DigiYatra, spyware). Calling privacy a “cloak for secrecy” erases its role as a shield for ordinary citizens.
2. Candidate information is already public. By law (PUCL 2003, ADR 2002), election affidavits must disclose education, assets, liabilities, and criminal cases. Courts have only limited additional RTI access where overriding public interest was not shown (e.g. Gujarat University v. Arvind Kejriwal, 2023). So the complaint is overstated: voters already see these details before casting their vote.
3. Public life doesn’t erase all privacy. Assets and criminal records are rightly public, but not every personal detail—medical history, family disputes—needs disclosure. Courts draw this line to prevent harassment or politically motivated fishing expeditions.
4. Judicial appointments are opaque, but not because of privacy alone. Confidentiality is claimed to protect independence and collegial deliberation. The considerations on the basis of which the Government appoints a person to a top post are not made public. This practice is intended to preserve the integrity and independence of the selection process.
5. Defamation injunctions must be balanced. Prior restraint on media is exceptional; the detailed reasoning can be found in the Delhi High Court ruling.
6. Election Commission opacity is about accountability, not privacy. The ECI considers videography and CCTV footage to be an "internal management tool" used for oversight and to deter malpractice. The footage is preserved for a specific period (currently 45 days) but is only shared with political parties or used in court under a specific judicial order.
It is not only the ECI, but government bodies/institutions in general that are increasingly becoming NOT ACCOUNTABLE. The so called FREE PRESS doesn’t really answer questions that matter, but responses/ replies get subsumed in endless verbiage leaving the curious more confused. Example, in this case neither the ECI (whoever that is?), nor any body of consequence will clearly answer the questions raised by Mr Shukla? Or what was in those brown envelopes passed on (and accepted) as proof/ evidence in crucial court cases? It appears that the Freedom we are guaranteed is more for argument than meaningful action.
ReplyDeleteWhile the Constitution grants people their right to privacy, the government assigns to itself the right to secrecy. The former is a fundamental entitlement of the indigenous population, the latter is claimed by the administration in the manner of a sovereign appropriation.
ReplyDeleteWhen authoritarianism is made the plank of governance, rights and privacy are bound to be trampled. Secrecy will then inevitably permeate the passages of power. One man lording over the Legislature, the Executive, the Judiciary and the Press, yet praising his rule from the ramparts of the Red Fort as being the world’s biggest democracy, is a fitting case of the emperor’s new clothes.
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DeleteMr Patankar mistakes confidentiality for authoritarianism. No democracy publishes every cabinet note — even the UK keeps Supreme Court judge appointments behind closed doors, revealing only the outcome. India’s Constitution ensures separation of powers, and courts remain open to all. To claim one man lords over legislature, executive, judiciary, and press is baseless hyperbole — the fact that his critique is freely printed proves the point. In democracy, the ballot box is the test: if people are dissatisfied, they will vote the government out; if satisfied, they will renew its mandate.
ReplyDeleteMr. Sahu is among those who believe that the ability to critique the regime is proof of a free and liberal undercurrent in the nation. To him, all is kosher about the Press and broadcast media being dismantled and rebuilt with a spine of limp noodles.
ReplyDeleteIt matters little to him that NGOs have been emaciated by the withdrawal of licences to receive foreign funding, simply because they asked uncomfortable questions. The film industry has lost its vibrancy and faces a paucity of genres. Productions that echo the government’s themes are granted tax-free status, while the rest risk offending some religiously jingoistic offshoot of the ruling party. Education is being skittled; facts are yielding to fantasy. Science, history, and logic are dragged down from their perch by baloney and the bizarre. Language wars are stoked across regions in the scramble for one-upmanship.
The judiciary is under sustained assault, with this government opposed to the Collegium system of appointing judges. Since the tenure of CJI Mishra, it has continued its downward capitulation to one man. The period of Ranjan Gogoi was perhaps the worst, when the judiciary exposed its symbiosis with the executive. The NRC in Assam, the complete alteration of J&K, and the refusal to act on electoral bonds, all reflected its willingness to collude in the Vishwaguru’s grand designs. Rosy sinecures have made it too tempting for retiring judges to resist the embrace of the Executive.
The selection process for the Chief Election Commissioner has been reduced to a farce: the Chief Justice replaced by a cabinet minister, sitting with the Prime Minister and the Leader of the Opposition. Strangely, then CJI D.Y. Chandrachud raised no objection, further attritioning a once fiercely independent institution. Today, the Commission resembles a jellyfish clinging to the coattails of one man. Every rule is bent to favour the government, with the latest heat from mass vote-deletions singeing it once again.
The dilution of the Lokpal, the neutering of the RTI, and the weakening of the Comptroller and Auditor General are further assaults that reveal the regime’s intent. Each pernicious scheme is pushed forward at the cost of citizens’ rights, while shoring up the government’s secrecy.
What Mr. Sahu labels reverentially as confidentiality, is a transparent shroud with which he tries to cloak naked authoritarianism.