New Delhi: The recently concluded argument in the electoral bonds case captured the interplay of two competing rights — the Right to Know and the Right to Privacy. On 2 November, a Constitution Bench of the Supreme Court reserved its judgment on petitions challenging the validity of the scheme.
Both rights are not expressly guaranteed in the Constitution of India, but got recognised as basic fundamental rights through judicial pronouncements made over decades. While the Right to Know or be informed flows from the right to free speech that is Article 19 (1)(a), Supreme Court judgments have read the Right to Privacy as an intrinsic part of Article 21, which is the right to dignity.
Many see the Right to Know and Right to Privacy as two sides of the same coin. However, the debate over whether the two rights can co-exist have intensified ever since the apex court in 2017 delivered the pathbreaking K.S. Puttaswamy judgment, which declared Right to Privacy to be a fundamental right, which it held would also include informational privacy.
The perceived incompatibility has drawn more attention with the new Digital Personal Data Protection Bill, 2023, coming into force. Drawing an objective to protect the privacy of Indian citizens, this legislation introduces regressive amendments to the Right to Information Act (RTI), with information rights activists claiming the changes would adversely impact the ability of people to access information.
Historically, the two rights have been viewed as two sides of the same coin. Lately, however, experts have differed, finding mistakes in the Supreme Court verdict that declared informational privacy as a fundamental right. This declaration, they believe, provides the government with bulletproof legal cover for the amendment in the RTI law.
Neither the right to know or information as a facet of Article 19(1)(a) nor right to privacy as a facet to Article 21 is absolute. These rights may be restricted on the grounds enumerated in clause (2) of Article 19. However, restrictions — where abridgement of the two rights is provided by law — would be permitted if it pursues a legitimate state objective and complies with the principle of proportionality.
In this background, ThePrint breaks down the debate and explains how the two rights evolved and how the duel between them was played out during the hearing in the electoral bonds case.
Introduced in 2018, electoral bonds are financial instruments brought in by the Modi government with the stated aim of cleansing the political-funding system by reducing the influence of black money.
According to the government, electoral bonds provide a transparent procedure for those who want to contribute to political parties. Potential donors can buy the bonds in denominations of Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh and Rs 1 crore from SBI branches and hand them over to a party of their choice. The bonds neither carry the name of the donor nor the recipient, and are purchased and encashed through bank accounts.
Since the SBI comes under the government, critics allege the bonds only offer “selective anonymity”, besides raising other concerns about their potential to aid quid pro quo and corruption.
Right to Know
Through its judgments, which go back as far as 1975, the Supreme Court has asserted a citizen’s right to receive and impart information on the premise that it enables Indians to enjoy their right to speak.
In an important ruling titled State of UP versus Raj Narain, the Supreme Court in 1975 enunciated guiding principles on the aspect of Right to Know. It upheld the Allahabad High Court’s decision to direct the government to disclose a document called “Blue Book”, which contained security guidelines regarding then Prime Minister Indira Gandhi’s travel. The matter reached the court with the government insisting it was an unpublished official record and its disclosure would be against public interest.
It held India, being a democratic country, people are its masters who have a right to know how the governments, which are meant to serve them, are functioning and unless they know they cannot express themselves. Moreover, as a taxpayer, every citizen has a right to know how each penny is being spent by the government.
This judgment established a persuasive precedent within its jurisdiction and has been cited in many verdicts that furthered the rights of citizens to be informed. But one such verdict in 2002 developed jurisprudence in electoral reforms.
In 2002, the top court said in ADR vs Union of India that the right to information — the right to know antecedents, including the criminal past, or assets of candidates — was a fundamental right of a voter under Article 19 (1) (a) of the Constitution and that the information was fundamental for survival of democracy. This judgment directed the Election Commission to call for information on affidavits from each candidate, seeking election to Parliament or state assembly.
Though the judgment was nullified with an amendment to the Representation of People’s Act later in 2002, the Supreme Court in 2003 struck it down by deeming it unconstitutional as it imposed a blanket ban on the dissemination of information by the candidate. Such a move, the court held, infringed the “right of electors” to know, a constituent of the fundamental right to free speech and expression and hindered free and fair elections, which is a part of the basic structure of the Constitution.
As recently as in July 2023, the top court reiterated that the voter’s right to know about the full background of a candidate is an “additional dimension to the rich tapestry of our constitutional jurisprudence”.
The “Right to know” got crystalised with the promulgation of the most empowering legislation — Right to Information Act in 2005. Enforcement of this law means every individual has a basic human right to demand information held by government bodies and have access to it. Even the law makes this right available within a legal framework, subject to conditions, exclusions, restrictions and conditions listed under it. An information that has no relation to any public activity or interest is exempted from being disclosed under this Act.
Right to Privacy
Though not expressly guaranteed in the Constitution of India, right to privacy is now recognised as a basic fundamental right. The 2017 Justice Puttaswamy order declared it as an intrinsic part of right to life and liberty under Article 21 of the constitution.
Several international treaties, chief among them being Article 12 of the Universal Declaration of Human Rights, 1948, became the basis for this declaration. The judgment recognises that everyone has a right to protection of laws against any arbitrary interference or attack on his/her privacy.
Prior to this landmark ruling by a nine-judge Constitution Bench, there were apex court decisions that emphatically recognised privacy as fundamental rights. But they were by benches of smaller constitutions.
The evolution of privacy jurisprudence is traced to a 1975 judgment of the Supreme Court in the case of Govind versus State of MP. It was the first time that the top court extensively discussed the right to privacy under the Constitution. The decision emerged from a petition challenging the validity of regulations of the Madhya Pradesh Police Regulations.
This three-judge bench verdict unanimously laid down compelling state interest for an infringement of privacy. The concept of privacy was reiterated in 1996 when the Supreme Court ruled in the PUCL versus Union of India case that phone-tapping without appropriate safeguards, and without following legal process, was a violation of an individual’s fundamental right to privacy.
It echoed Govind’s view on restrictions that could be imposed on privacy, which, the 1996 judgment said, must be narrowly tailored if they are to be constitutional. Several judgements, thereafter, affirmed the privacy jurisprudence and the narrow tailoring test for its infringement.
Despite a plethora of decisions on right to privacy, the Supreme Court in 2015 agreed to refer to the issue on the said right being a fundamental right to a constitution bench of nine judges. This was done after then Attorney General Mukul Rohatgi, while defending the constitutional validity of Aadhar, argued that the right to privacy is not a fundamental right.
In his submission, Rohatgi said that in 1954, an eight-judge bench of the Supreme Court had given this ruling. Though the finding was then diluted by some smaller bench-judges in the 1990s, he said that to settle these divergent views, a larger bench should be constituted.
The reference to a nine-judge bench resulted in the pronouncement of the Puttaswamy judgment.
On the question of invasion of personal liberty, the judgment conceptualises a three-fold requirement for it. The verdict postulates the existence of a law that regulates such an invasion, which it says must be in terms of a legitimate State aim and have a rational nexus between the objects and the means to be adopted to achieve them or the proportionality principle.
The debate
Apex court judgements establishing right to know as a fundamental right and RTI have played a pivotal role in democratising access to information and ushering in transparency, particularly in government functioning. This cannot be done if the powerful are able to shield critical information.
At the same time, privacy and confidentiality encompass a bundle of rights, including the right to protect identity and anonymity, despite being in public space. Right to privacy law grants individuals a fundamental right to control the collection of, access to, and use of personal information about them that is held by governments and private bodies.
The two rights have become essential human rights today where technological information breach is very common.
The original challenge to the electoral bonds scheme raised three distinct issues — questioning the opaque mechanism of receiving corporate donations under the scheme, whether political parties should be brought within the purview of the RTI Act, and the challenge to the amendments to the Foreign Contribution Regulation Act through the Finance Acts of 2016 and 2018 that exempts political parties from scrutiny of foreign funding, with retrospective effect.
By way of its 16 October order, however, the top court limited the challenge to the electoral bond scheme, while referring the batch to a larger bench of five judges, which concluded the hearing of arguments earlier this month.
The petitioners have raised a constitutional challenge to the scheme on the grounds that it treats the information about the buyer of the electoral bond as confidential. This, according to petitioners, is a breach of a voter’s right to know or seek information to make an informed decision regarding his/her franchise during elections. The petitioners have argued that voters are entitled to have complete information regarding political parties and their candidates before they vote.
Besides, they also apprehend that anonymity of corporate donors could potentially give rise to kickbacks in favour of the ruling party.
The Centre has, however, refuted the allegations made by the petitioners. It said the information can only be disclosed when demanded by a competent court or upon registration of a criminal case by any law enforcement agency.
Elements of anonymity and the privacy of information are important in order to incentivise and popularise the scheme in order to shift the cash-based economy to a regulated legal economy, it has said.
While asserting that the right to know is not absolute, the Centre has described the restrictions on information in the scheme as “limited” and “narrowly tailored,” saying they have a “rational relation to the object that is sought to be achieved,” which is clean political funding. This object “would not be achieved” if political donations continue to remain outside the electoral bond scheme.
At the same time, the Centre has batted for the electoral bond purchaser’s right to privacy, saying it is recognised as a fundamental right in the Puttaswamy judgment.
Confidentiality of donors has to be maintained to “balance the interest of the individual vis-à-vis the State,” and to protect “them from being targeted by political opponents,” the Centre has said.
(Edited by Smriti Sinha)
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