Resurrecting the right to know

By, Justice (retd.) Madan B. Lokur is a former Supreme Court judge

Context

• A High-Level Committee (HLC) chaired by a retired judge of the Gauhati High Court and including, among others, the Advocates General of two Northeast States was constituted by the Home Ministry through a gazette notification of July 15, 2019, to recommend measures to implement Clause 6 of the Assam Accord and define “Assamese People”.

Releasing the Report

• Assam CM has handed over the report to the Union Home Minister on March 20. With the Central government apparently “sitting idle” over the report, the All Assam Students’ Union (AASU), which was represented in the HLC, released the report on August 11.
• The proffered reasons for the release were the Central government’s inaction on the report and the people’s right to know.
• Sitting idle over a report is not an uncommon phenomenon. The Vohra Committee report on the alleged nexus between politicians and criminals was kept under wraps for almost two years.
• It was tabled in Parliament following a public uproar on the murder of Naina Sahni by a prominent politician.

State of U.P. v. Raj Narain (1975)

• The right to know was recognised nearly 50 years ago and is the foundational basis or the direct emanation for the right to information.
• In State of U.P. v. Raj Narain (1975), the Supreme Court carved out a class of documents that demand protection even though their contents may not be damaging to the national interest.
• For example, Cabinet papers, foreign office despatches, papers regarding the security of the state and high-level interdepartmental minutes.
• A pragmatic view was canvassed by Justice Mathew who held that “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. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.”

S.P. Gupta v. President of India (1981)

• This view was endorsed in S.P. Gupta v. President of India (1981) and a few other decisions.
• In S.P. Gupta, Justice Venkataramiah observed that “the tendency in all democratic countries in recent times is to liberalise the restrictions placed on the right of the citizens to know what is happening in the various public offices. The emphasis now is more on the right of a citizen to know than on his ‘need to know’ the contents of official documents.”

Yashwant Sinha v. Central Bureau of Investigation (2019)

• In Yashwant Sinha v. Central Bureau of Investigation (2019), the Supreme Court referred to the decision of the U.S. Supreme Court in New York Times v. United States (1971) wherein Justice Marshall declined to recognise the right of the government to restrain the publication of the Pentagon Papers.
• Our Supreme Court held that a review petition based on three documents published by The Hindu was maintainable since the provisions of the Official Secrets Act, of 1923 had not been violated.
• It held that there is no provision by which Parliament had vested power in the government either to restrain the publication of documents marked as secret or from placing such documents before a court of law which may have been called upon to adjudicate a legal issue concerning the parties.

Section 8(2) of the Right to Information Act, 2005

• Justice K.M. Joseph referred to Section 8(2) of the Right to Information Act, 2005 which provides that a citizen can get a certified copy of a document even if the matter pertains to security or a relationship with a foreign nation if a case is made out.
• Therefore, it is clear that the right to know can be curtailed only in limited circumstances and if there is an overriding public interest.

Being more transparent

• Keeping in mind the view expressed by the Supreme Court over nearly 50 years, it is clear that the Official Secrets Act is not attracted to the disclosure of the HLC report.
• There is no doubt that a bold and progressive decision has been taken by AASU to release the report in the public interest.
• Hopefully, this will encourage governments to effectuate the citizen’s right to know and be more transparent in the public interest, as long as the security of the country is not jeopardised.