Legal

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This Blog is written by Romil Shrivastava from Symbiosis Law School, Noida. Edited by Maulika Awasthi.

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INTRODUCTION

For any institution to function properly constant changes are required to keep up with the dynamic atmosphere. These changes can be found at the grassroot level as well as in mammoth decisions and policies. For example, a software update on your smartphone is a regular feature that fixes the bugs and gives modifications to the existing software. This does not necessarily mean that the software is faulty or broken but that it has scope for improvement. Similarly, in a country, the rules and regulations governing the citizens have to be updated regularly. These changes are in the form of amendments to the current laws, the introduction of new bills, presidential orders, and landmark judgments.

The suggestions of the citizens play a pivotal in the forming of new legislations and invalidating obsolete laws. These suggestions are based on the opinions of the individuals; to form these opinions they require factual data about the ground realities. This was the primary reason for the introduction of the Right to Information Act, 2005, so that the citizens can form their opinions based on facts and figures and not on mere speculation. This Act allowed any citizen of India to request information from a “public authority” and required the authority to reply expeditiously or within thirty days. Strengthening the democratic values of the country, this Act made governmental organisations and public sector undertakings more accountable and transparent.

There is, of course, a reasonable amount of restriction relating to the amount of accountability and transparency a governmental organisation can provide. For example, if the Right gave unlimited access to information from a public authority, a citizen could ask military secrets and other confidential information from intelligence agencies which these organisations would have to share endangering the lives of the citizens. Therefore, while valuing the views of dissent, the national security of the citizen cannot be compromised.

To maintain a balance between the national security concerns and transparency and accountability of the government, several organisations and academic centres located all over the world decided to come together and issue a set of guidelines or global principles on National Security and the Right to Information. The final meeting was held in Tshwane, leading to the name “Tshwane Principles.” The 22 organisations include teams from India, Pakistan, the United States of America, Egypt, and many more. However, as witnessed many times the over-invocation of national security concerns can seriously undermine the safeguard against government abuse.

IMPACT

Unfortunately, the impact of these guidelines has not been much successful in India. The number of people aware of these principles is very less. One of the reasons for writing this article is also to raise awareness about these principles among the legal community which may create a ripple effect and leads to bigger changes in society. In the same year, these principles were finalised, the central government of India amended the Right to Information Act of India and removed national political parties from its scoped even though they were majorly funded by the government by indirect sources. Similarly, a major step backward regarding the Right to Information Act came in 2019 under the BJP government; Right to Information Amendment Act 2019 which opened the Information Commissioner (IC) subject to undue influence from the central government as the central government removed the fixed tenure clause of the ICs.

This amendment also led to a change in the clause regarding the compensation of the ICs. Earlier, the salary of an IC was comparable to that of an Election Commissioner (EC) but the government gave the reason for its change in the fact that the Election Commission is a constitutional body whereas the Information Commission is a statutory body. This reasoning is considered bogus by many experts because the same Prime Minister led government in 2017 allowed for the compensation of Judges in Tribunals (a statutory body) to be similar to that of Judges of Courts (constitutional body).

This systematic concentration of power by the hands of the central government and lack of accountability has been a pattern for many years but changed pace drastically in 2014 after the change in central government. This is not just a pattern in India but it has been visible globally that the authoritarian far-right leaders’ government has led to the loss democratic values in many democracies around the world; for example, Donald Trump’s government in the United States of America and Jair Bolsonaro’s government in Brazil.

ANALYSIS

The Commonwealth Human Rights Initiative pointed at over 300 cases across India where there can be found a direct correlation among people who sought information under the RTI Act and post which they are physically or mentally harassed, damage to their property has been done and in some extreme cases it has even lead to their death. Seeking answers from the government should never lead to the demise of an individual. How can a society function like this where it has been normalised that the seeking of information from the government through legal channels has to lead to their death and it receives zero coverage from the media and negligible outrage from the citizens? 86 people have been killed, 172 people have been assaulted, 184 people have been harassed or threatened and 7 people have died by suicide; and the reason for their struggle was that the sought information with the help of Right to Information from a public authority who didn’t want to share the information.

The Whistle Blowers Protection Act, 2014 which aimed to protect public servants who wanted to disclose acts of corruption, misuse of power, or criminal offense by a public servant has not been as encouraging to the whistleblowers and failed to motivate individuals to come forward. Furthermore, it only covers the protections of a public servant or a servant of a non-governmental organisation. Even though the Whistle Blowers Protection Act, 2014 received assent on 9^th May 2014; it has still not come into force.

Although the Tshwane Principles are comprehensive guidelines on how to address national security concerns while simultaneously not hampering the right to information of the citizens there are a few key points in the principles. It is important to note that many governments are taking undue benefits from its laws regarding national security or formulating new ones to protect themselves from being exposed. Considering that the concept of separation of power is already weakening in the country; there is an immediate concern to protect the rule of law, safeguard against government abuse and media freedom.

One of the biggest issues with national security concerns is the fact that all the parameters are controlled by the government. What constitutes classified information, for how long does it remain classified, and the identification of real and identifiable risk of causing harm. A statement by Edward Snowden can be considered for understanding the essence of this argument “When exposing a crime is treated as committing a crime, then you are ruled by criminals.”

CONCLUSION

Democracy is well established as the best form of government. One of the reasons that it is a great institution is the participation of citizens in the decision-making process. From choosing their elected representatives to criticising them with their Right to Freedom of Speech and Expression without facing the threat of prosecution; these features help in the sustainable growth of a country. However, as witnessed multiple times, with the arrest of student activists to the prosecution of journalists, dissent has been oppressed by the government.

The Right to Information is one of the most powerful tools in a democracy. It gives a chance to the citizens to question the administrative functioning of the government. Tshwane Principles were a breath of fresh air when they were formulated. Citizens of a country understand that some guidelines formulated by an external committee cannot be adopted as it is, but taking inspiration from these principles and updating current laws and making the democracy stronger should be realised. Inspiration from countries like New Zealand and Germany can be taken on how to strengthen the country and strive for progress that can be made while respecting democratic ideals.

It is very easy to undo the progress of decades by passing a regressive law but to get assent for a progressive law, the society, lawmakers, and all other institutions have to be in the same place. While looking back at our history we are shocked seeing the acts which were termed criminals back in the day and which were not even treated as crimes. So, we as citizens of the nation have to make sure when 50 years down the line individuals study the law, they are not shocked by how society was functioning in 2020.

REFERENCES

(1) Attacks on RTI users. (n.d.). Retrieved from the Commonwealth Human Rights Initiative: http://attacksonrtiusers.org/

(2) Bhatnagar, G. V. (2016, October 19). Maharashtra, Gujarat Top in Attacks, Killing of RTI Users. Retrieved from The Wire: https://thewire.in/politics/74320

(3) GLOBAL PRINCIPLES ON NATIONAL SECURITY AND THE RIGHT TO INFORMATION (THE TSHWANE PRINCIPLES). (n.d.). Retrieved from Right2info: https://www.right2info.org/exceptions-to-access/national-security/global-principles (2013). GLOBAL PRINCIPLES ON NATIONAL SECURITY AND THE RIGHT TO INFORMATION.

(4) The Tshwane Principles on National Security and the Right to Information: An Overview in 15 Points. (2013, June). Retrieved from OPEN SOCIETY JUSTICE INITIATIVE: https://www.justiceinitiative.org/publications/tshwane-principles-national-security-and-right-information-overview-15-points#:~:text=Related%20Work-,The%20Tshwane%20Principles%20on%20National%20Security%20and%20the%20Right%20to,and%20national%20law%20and%