Shailesh Gandhi kisses your privacy goodbye

Recently, I blogged about an important dispute related to the Right to Information Act. The dispute dealt with two issues 1) that of hard copy verus soft copy data 2) protecting the privacy of students.

Information Commissioner Shailesh Gandhi ruled on this issue. The good news: IITs have to provide a soft copy of the data. The bad, rather ugly news: can kiss your privacy goodbye.

Here is a quote from this truly horrible ruling (the PDF is here. It is only 3 pages. You can read it yourself)

the Commission rules that merely giving the name of the person and the pin code with the marks obtained cannot be considered as an invasion of the privacy of an individual

If revealing an individual’s test scores publicly does not violate privacy, I don’t know what does.

I hope somebody appeals this ruling to a High Court or the Supreme Court. After all, India’s courts have consistently ruled that the right to privacy is a fundamental right. The courts have also ruled that the right to information is a fundamental right. The RTI act talks about the conflict between the right to privacy and the right to information.

information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information

As someone who cherishes both the right to privacy and the right to information, I am sure there will be complicated situations that courts will consider in the future, in deciding when public interest justifies disclosure and when it does not. This case, in my opinion, doesn’t even come close to causing a conflict. No public interest is served by revealing a student and their test score to the public. Mr. Shailesh Gandhi did not even bother to articulate when that would be true in his ruling. Violating an individual’s fundamental right to privacy at the very least deserves a few more drops of ink.

PS: Thanks to Prof. Gautam Barua for his comment :)

Important RTI dispute involving the IITs

Central Information Commissioner Shailesh Gandhi is going to hear an important dispute relating to the Right To Information act. Prof. Rajeev Sharma, a computer sciences professor at IIT Kharagpur has filed an RTI application seeking test scores of all applicants who appeared in the IIT Joint Entrance Examination in 2006. The JEE exam board is stalling the process.

It has been very hard to get complete information on this dispute. Reporting, like it is usually the norm, has been pathetic. Here is what I understand of where this dispute currently stands.

Some irregularities in the JEE exam

The plaintiff Prof. Kumar has been doggedly seeking information about the IIT JEE 2006 examination. He alleges irregularities in calculating which students made the cut. In fact, the Calcutta High Court is currently hearing a case on this very issue. The court asked the IITs to submit the formulae used to calculate applicants who are offered admits. The IITs have submitted several different formulae on different occasions. Moreover, they destroyed all answer sheets before they were supposed to.

Soft-copy versus hard-copy

Now, let’s come back to the RTI application that that IITs have not yet responded to. Times of India has reported that this is an issue of soft-copy of data versus hard-copy. The paper reports that the IITs have offered to provide printouts of the data (running to tens of thousands of pages) at cost to the plaintiff. This clearly would be ridiculous.

However, I am not sure if this is the case. Prof. Gautam Barua, Director of IIT Guwahati, who is also responsible for the entrance examinations, responded to me that the dispute was not one of hard or soft copy, but one of privacy. I could not reach the reporter and got no response from Prof. Kumar. So, I have to give the IITs the benefit of doubt.

Privacy issue

Prof. Barua claimed to me that the IITs offered to provide the data after removing personally identifying information. In fact, a news report seems to corroborate this claim.

IIT Guwahati Director Gautam Barua has said that he had offered the appellant data for scrutiny with the names made anonymous. IIT Guwahati [...] had refused to provide marks and personal details of candidates on a CD as requested by Prof Rajeev Kumar of IIT Kharagpur.

Releasing personal information of applicants would be ridiculous. However Prof. Barua did not clarify where he stood on the soft-copy issue.

Where it stands now

To me this is such an open and shut case. There is no question that privacy should not violated. There is also no question that information should be provided in the most accessible form, in this case a soft-copy. I don’t know why this has been dragging for so long.

Prof. Barua agrees that they have not provided the application any information yet, and are waiting for the CIC’s hearing. This puzzles me. They could have provided a soft copy of data without private information on their own accord.

Resolution?

Shailesh Gandhi is going to hear this soon. I hope he clarifies one important piece of this issue. The RTI act clearly specifies that information includes electronic data and that citizens have a right to this data in an electronic form or in the form of printouts. The act does not specify that a soft-copy, where available, should be preferred. I hope he does that.

“information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;

["right to information"] includes the right to obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;

My thoughts on the ruling against Sec. 377

I am really happy today over the Delhi High Court ruling parts of Section 377 unconstitutional. The ruling is available in PDF format here. The entire judgement is awesome. The judges did not restrict themselves to narrow legal issues, but spoke overwhelmingly about broad constitutional issues such as privacy, dignity and equality.

In the run up to the court case there was a lot of discussion about homosexuals accelerating the spread of HIV/AIDS, and that was one argument for same-sex intercourse to remain illegal. I was always baffled by such discussion and to me the issue was about privacy and individual liberties in a democratic society. It was clear to me as day, that Section 377 is unconstitutional. I am glad that the Judges spoke about civil liberties in no uncertain terms.

Here are a few nuggets from the ruling:

• The ruling cites court cases from various countries including Lawrence v. Texas which struck down sodomy laws in the United States.
• I did not know that the Indian Constitution (like the United States Constitution) does not have an explicit “Right to Privacy.” On the issue of privacy there are mentions of Roe v. Wade, and Planned Parenthood v. Casey.

• The Court went above and beyond what it was called to do. In a single stroke, it accorded protection against discrimination on the basis of “sexual orientation.” I found this really surprising.

  We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.

• The Court clearly understands that a Government or a Constitution cannot grant fundamental rights to people. Sweet :)

  In the present case, the two constitutional rights relied upon i.e. ‘right to personal liberty’ and ‘right to equality’ are fundamental human rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian consideration. A Bill of Rights does not ‘confer’ fundamental human rights. It confirms their existence and accords them protection.

Kudos and thanks to Chief Justice Ajit Prakash Shah and Justice S. Muralidhar.