A sovereign right to privacy — or secrecy?

We live in strange times indeed, where the rules of logic are turned on their head every day 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 it can 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 everyone’s social media chats and emails, snooping in on their phone conversations through imported malware.

On the other, it refuses to share with the same citizens the 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 qualifications, 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 in him/her.

Second, he has already disclosed this information on oath to the government (in this case, to 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 then also cannot be verified or made public!

Then why ask for this information in the first place, if the purpose is to place it under lock and key? The logic of this ruling makes a mockery of the election laws and the voters’ 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 that 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 judgement. 

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 in spite of a dissenting note from 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 in the DPC proceedings 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 practise what they preach when it comes to themselves, on the grounds that it would infringe on the ‘privacy’ of the superseded judges and besmirch their reputations.

Which begs the question: Are only judges entitled to have a reputation? It would appear that that which 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, before the information commissions, various statutory or constitutional bodies, to the courts or to the media.

Yes, even the press is being restrained from doing its duty on grounds of ‘privacy’ or ‘reputation’ of individuals. Just last week a Delhi court injunction against some reputed investigative journalists (including Paranjoy Guha Thakurta and Ravi Nair) has prevented them from publishing ‘defamatory’ and ‘misleading’ articles on the Adani group and has asked them to take down certain 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 meanwhile set new standards in opacity and secrecy, refusing to share any worthwhile or timely information with 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, or the number of ‘Bangladeshis’ finally detected (a stated reason for the SIR). Whenever it has divulged any information, it has done so reluctantly and upon nudging from the courts.

It has, however, reached the height of nebulosity and obtuseness with its recent 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 in the polling booths, where it is part of a publicly proclaimed SOP).

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 in 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.

Views are personal.

Avay Shukla is a retired IAS officer and author of Holy Cows and Loose Cannons — the Duffer Zone Chronicles and other works. He blogs at avayshukla.blogspot.com. More of his writing may be read here.