Privacy Rights of Public Servants in India
Girish Ramachandra Deshpande's case highlights the balance between transparency in public authorities and the privacy rights of public servants. The judgment by the Supreme Court and subsequent decisions shed light on the complexities of disclosing personal information under the RTI Act and service rules.
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Privacy & Public Servant Is Girish judgment of SC a Precedent? M. Sridhar Acharyulu Central Information Commission 19.5.2017
Girish order vs RTI Every employee of public authority is public servant. Though Public Authority has to be transparent, as a person public servant has right to privacy as part of right to life. Girish Ramachandra Deshpande case is one which is profusely used as a weapon to reject RTI applications
Refusing copies of Memos Girish R Deshpande filed an RTI for copies of Memos, censures, SCNs against an Officer CPIO, FAA refused saying it was personal information of that officer under S 8(1)(j) of RTI Act. CIC also rejected the second appeal saying: it was his personal information and there was no larger public interest .
in Bombay HC Single Judge Bom HC (Nagpur Bench) rejected WP in 2010 The DB of Bom HC also dismissed LPA, 2011. Held: Performance of employee/officer in an organization is primarily a matter between employer and employee, those aspects are governed by service rules, which fall under personal category. Disclosure causes unwarranted invasion of privacy.
SLP dismissed In 2012, a Division Bench of the Supreme Court dismissed Special Leave Petition (SLP) of Girish against the order of Division Bench of Bombay HC. It was not dismissed in limini. The SC Bench expressed agreement with Bombay HC. Is it a full-fledged hearing on merits?
CIC and DoPT Manoj Arya asked similar info and CIC rejected quoting order of dismissal of SLP of SC in Girish DoPT issued OM in Aug 2013 referring CIC and SC, directing the public authorities to refuse Memos, SCN Charges etc. The SC, HCs and CIC gave emphatic conclusions on ITRs, ACRs; Assets statements- Lokpal Act. Complaints, Memos, SCNs: How can they be private?
Law of Precedent A 141 Art. 141 of Indian Constitution: The law declared by the Supreme Court shall be binding on all courts within the territory of India. State of Orissa v MD Illyas 2006: Precedent has 3 aspects. A) A finding on material facts, B) Principles of law applicable to legal problems disclosed by facts, C) Judgment based on effect of each of the above.
SCs discretionary power in SLP Art. 136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. It is not possible to define limitation on this power. (SC 2005) If one SLP is dismissed, party concerned can file another SLP. There is no res judicata for SLP (SC 2003)
Doctrine of Merger If SLP is admitted, it will lead to complete hearing and that would form precedent. If appeal is dismissed, the HC judgment gets confirmed and it merges with the SC order. If SLP dismissed in limini (at threshold) without assigning any reason it cannot be considered as declaration of law u/A 141 Even if SLP rejection was with reasons, still it is not law u/A 141, because there was no exercise of appellate jurisdiction. It neither lays down law nor operates as Res judicata. (Tejkumari Patna HC 2001)
No precedent Kunhayammed v State of Kerala (SC2000), Held: SC can reverse, modify or affirm the judgment appealed from in appellate jurisdiction, but not under discretionary jurisdiction (136) Dhakeshwari Cotton Mills case (SC1955) 136 has to exercised sparingly, it being extraordinary situations. Hari Singh (SC1993) SLP dismissal will not result in precedent.
Kunhayammed 2000 .if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal .
SC in 2010 affirms Order of SC in Girish will bind the parties to that petition only. Not all parties in similar situation. Bhakra Beas Management Board v. Krishan Kumar Vij and Anr., [(2010) 8 SCC 701] that mere dismissal of a special leave petition at a preliminary stage does not constitute a binding precedent, and accordingly, any order passed by the High Court placing reliance on earlier order, shall still be challenged subsequently.
No merger: SC in Bhakra Beas Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order - SC Thus Girish order by Bombay HC does not merge into SC order. However, because it was a speaking order it operates as res judicata, i.e., Girish cannot file another SLP. His appellate options are closed for ever.
HC order in Girish: Is it a Precedent? If SC order is not precedent, Bom HC order is. But there are other SC judgments which have precedential value, overshadowing Girish HC order R Rajgopal: (SC1996) dealt with balancing the right of privacy against right to free speech. SC explained Privacy: Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. Privacy is a Right to be let alone.
Privacy & Public Record SC in Rajgopal: Information that formed part of public record or court record does not give rise to any privacy, except in cases of female victims in sexual crimes. Girish order of Bombay does not even refer to mention R Rajagopal decision. ICs have to look to SC for guidance on this aspect, and not this order. Assets related information of public servants has to be in public domain- Parliament Lokpal Act. Delhi HC 2009 in SC v CIC & ADR v UoI 2002
Surup Singh DB of Bombay High Court in Surup Singh Naik v Maharastra 2007: info that cannot be denied to Parliament cannot be denied. Its sets off precedent of Bombay HC in Girish. PUCL v UoI 2003, ADR v UoI 2002, SC info about properties of contestants is in public domain. Resurgence India v ECI (SC2013) Affidavits with unfilled blanks results in rejection of nomination. DP Jangra v SIC Haryana 2001: assets of public servant matter of public interest & cant be denied under section 8(1)j
Privacy explained Omprakash v Uttarakhand 2012 UHC; when assets info was required by law to be disclosed, it cannot be private. PUCL v UoI 1997SC Phone tapping as per procedure estd by law, review committee. Naz Foundation case 2011 right to privacy of a citizen s sexual relations is protected. No where, memos, complaints and probe reports are included in privacy.
Keral HC DB Division Bench of the Kerala High Court in Centre for Earth Sciences Studies v. Anson Sebastian. 2010 (2) KLT 233 held that disclosure of information regarding domestic enquiry against a public servant was not prohibited under Section 8(1)(j) of the RTI Act. UPSC v RK Jain: 2012 DHC DB: Disciplinary inquiry of the charged officer is with regard to the alleged irregularities committed by him while discharging public duties and public functions. The disclosure of such information cannot be regarded as invasion of his privacy. This order sets off the Girish Bombay order.
Public transaction not private State of UP v Raj Narain SC 1975. blue book and other related documents of public transactions cannot be held secrecy unless it has repercussion on public security. In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. - They are entitled to know the particulars of every public transaction in all its bearing...
Conclusion Girish order has brought disorder in RTI as far as information about public servants are concerned. Public servants do have privacy, but it is confined to home, family, procreation and motherhood etc. does not include affairs in domestic inquiries into their wrongful acts in public functioning. Main objective of RTI is to bring accountability. Girish order and OM of DoPT obstructs it. There should be a revised OM on this topic
