The Privacy Shortfall: Revisiting The Youth Bar Guidelines

Until recently when there surfaced news stating that 'several police stations in Chandigarh have not been uploading FIRs'^[2] on the official government website within 24 hours of lodging, defying the guidelines and directions (“2016 guidelines”) laid down by the court in the Youth Bar Association Case (“this case”)^[3]. This raised concerns relating to the FIRs being tampered with, undiligent police officials, harassment of the informant or victim by not giving them a copy of the FIR, and not allowing them the access to a document meant for the public, to state a few. These were also the reasons which necessitated the bringing in of 2016 guidelines on mandatory uploading of the registered FIRs on the website of the police stations.

As with every coin, there is a flip side to this. It is the flagrant breach of privacy of an individual named in the FIR being uploaded on an online platform. The police officials will have to walk a tightrope in balancing the privacy of an individual against transparency in the procedure of lodging and uploading the FIRs. These 2016 regulations and directives demand a set of safeguards to protect the privacy of individuals named in the FIR and a mechanism for redaction of the FIRs of individuals who were maliciously prosecuted.

At this juncture, it is crucial to thoroughly examine the guidelines to understand the need for developing safeguards. These safeguards would serve as a guide for police officials, ensuring they apply the directives in a manner that balances an informant's privacy, and upholds transparency in the justice delivery system.

What Are The Guidelines?

The Apex Court in this case among other guidelines, directed that a copy of the FIR, except in cases involving 'sensitive' offences such as sexual crimes, insurgency, terrorism, etc., must be uploaded to the police website or the official State Government website within 24 hours of registration. If there are connectivity issues due to geographical location or other unavoidable difficulties, this time frame can be extended to 48 hours, with a maximum extension of up to 72 hours. The Court also clarified that the examples of 'sensitive' offences are not exhaustive, and it is up to the competent authority to determine the sensitivity of a case.

Furthermore, it clarified that if an FIR is not provided due to the sensitive nature of the case, the aggrieved party can submit a representation to the Superintendent of Police or an equivalent authority in the state, after revealing their identity. In metropolitan cities, the Superintendent of Police or Commissioner of Police must form a committee of three officers within eight weeks of this order. This committee will address the grievance within three days of receiving the representation and communicate the outcome to the aggrieved person.

In situations where a decision is made not to provide copies of the FIR due to the sensitive nature of the case, the accused or their authorized representative may file an application to obtain a certified copy from the court where the FIR has been submitted. The court is required to provide this copy within three days of receiving the application.

The apparent motive of the Court seems to make the justice delivery procedure more transparent with a copy of the FIR, which forms the basis of the case, to be accessible to the parties. It was to prevent the FIR from being tampered with, once it is registered by the Police officials as there is a negligible possibility of anyone trying to change the details so stated once the same is uploaded on a public platform. Furthermore, under Article 21 of the Constitution of India, 1950 it is the right of an accused to know of the allegations that they are being of.

2016 Guidelines: A Step Towards Transparency?

“Registration of a crime is no longer a private affair.”^[4]

The court put forth these guidelines to bring more transparency in the criminal procedure as expounded above. While this step supported the aim of creating a transparent process, the lack of specific guidelines on how FIRs should be uploaded seems to obstruct the Supreme Court's intended transparency. This decision of uploading FIRs online seems to be at a very nascent stage of inception and needs to be developed further by bringing in some safeguards or guidelines for police officials to follow to prevent the breach of privacy of individuals.

This is to say that while the Supreme Court's decision is praiseworthy, there is a significant issue regarding the management of uploading personal information in FIRs. Officials responsible for uploading these, are posting FIRs online without properly redacting sensitive details like names, castes, and contact numbers about the informant and/ or victim. This practice necessitates urgent attention and corrective measures to safeguard individuals' privacy, sparking a privacy v. transparency debate around the same.

Another concern is that in a case in which FIR was filed maliciously and subsequently registered and uploaded, there is no procedure to redact the same. The presence of malice in prosecuting the person will come to the fore only once the FIR is filed if it is there at all. Going by the 2016 guidelines, let us assume that the FIR was uploaded on the website within 24 hours. After investigating the same, the police found that it was a case of malicious prosecution and filed a closure report accordingly. Now. What about the FIR that was uploaded online? Do we have a mechanism to take it down? A rule enabling the police officials to remove it from the platform? Or is there any other way that the person so maliciously prosecuted is saved from being robbed off his reputation because of the sections that he was only alleged to have committed an offence under?

The Absence Of Safeguards: Risks Of Misuse

In conclusion, while the Supreme Court's 2016 guidelines on the online publication of FIRs have indeed bolstered transparency in the justice system, they have inadvertently exposed significant privacy risks. The lack of clear directives on redacting sensitive information and the absence of mechanisms to handle cases of malicious prosecution have created a gap between the intention of the guidelines and their practical implementation.

To uphold the principles of justice, it is imperative that we strike a balance between transparency and privacy. This can be achieved by introducing robust safeguards that protect individuals' privacy rights without compromising the transparency of the FIR process. The introduction of such measures would not only ensure that the privacy of individuals is respected but also reinforce the public's trust in the legal system, thereby fulfilling the Supreme Court's vision of a more transparent and fair justice delivery system.

It is only after we are institutionally equipped, that these 2016 directives should be enforced.^[5] We need a mechanism that will enable the officials to remove the FIRs uploaded in cases of malicious prosecution. However, it needs to be robust because this can potentially defeat the purpose of these directives altogether, as there is a possibility that police officers remove FIRs so uploaded at the pleasure of their whims, under the garb of them being cases of prosecution taken up maliciously. We need to incorporate a check against this in the mechanism.

Views are personal.