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Insights into Editorial: Resurrecting the right to know

clause_6

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.

Its mandate was, among others, to recommend measures to implement Clause 6 of the Assam Accord and define “Assamese People”.

The HLC finalised its report by mid-February 2020 and submitted it to the Assam Chief Minister soon after. He handed over the report to the Union Home Minister on March 20.

MHA’s Clause 6 panel sets 1951 as year to determine Assamese:

A high-level committee on implementation of Clause 6 of the Assam Accord constituted by the Ministry of Home Affairs has said that ‘Assamese people’ should be determined by taking 1951 as a cut-off year.

The report said that the definition of ‘Assamese People’ for the purpose of implementation of Clause 6 of the Assam Accord should include Indigenous Tribals as well as other Indigenous Communities of Assam, all other citizens of India residing in the territory of Assam on or before 01.01.1951 and Indigenous Assamese and their descendants.

What is Assam Accord?

  1. The Assam Accord (1985) was a Memorandum of Settlement (MoS) signed between representatives of the Government of India and the leaders of the Assam Movement in New Delhi on 15 August 1985.
  2. It was a tripartite accord signed between the Government of India, State Government of Assam and the leaders of the Assam Movement in 1985.
  3. The accord brought an end to the Assam Agitation and paved the way for the leaders of the agitation to form a political party and form a government in the state of Assam soon after.
  4. As per the Accord, those Bangladeshis who came between 1966 and 1971 will be barred from voting for ten years.
  5. The Accord also mentions that the international borders will be sealed and all persons who crossed over from Bangladesh after 1971 are to be deported.
  6. Though the accord brought an end to the agitation, some of the key clauses are yet to be implemented, which has kept some of the issues festering.

Clause 6 of the Accord:

It says that constitutional, legislative and administrative safeguards, as may be appropriate, shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people.

The committee chaired by Biplab Kumar Sarma was constituted to define ‘Assamese People’ and institute safeguards for them.

Recommendation of the committee chaired by Biplab Kumar Sarma:

The report proposes January 1951 as the cut-off date for any Indian citizen residing in Assam to be defined as an Assamese for the purpose of implementing Clause 6.

The report seeks reservation for Assamese in Parliament, state assembly, local bodies. It recommended creating an Upper House (Legislative Council of Assam) whose seats will be reserved for the ‘Assamese people’. The report also seeks quotas in government jobs.

Development in the right to information campaign:

A significant development in the right to information campaign has largely gone unnoticed.

The resurrection of the right to know is momentous considering that we are increasingly witnessing an unfortunate denial of information while forgetting the 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.

The key legal and constitutional issue that needs to be considered is whether the definition of an Assamese or a Bengali or a Punjabi or a Tamil define her/his Indian-ness or an Indian citizenship.

The definition of Assamese is connected to the NRC process as the Assam Accord cannot be reviewed in isolation of one clause or the other.

The Right to know and concept of freedom of speech:

  1. The right to know was recognised nearly 50 years ago and is the foundational basis or the direct emanation for the right to information.
  2. 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.
  3. For example, Cabinet papers, foreign office despatches, papers regarding the security of the state and high-level interdepartmental minutes.
  4. A pragmatic view was 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.
  5. They are entitled to know the particulars of every public transaction in all its bearing.
  6. 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.”
  7. This view was endorsed in S.P. Gupta v. President of India (1981) and a few other decisions.
  8. 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.
  9. The emphasis now is more on the right of a citizen to know than on his ‘need to know’ the contents of official documents.”

Conclusion: Being more transparent is the Way Forward:

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 public interest.

Hopefully, this will encourage governments to effectuate the citizen’s right to know and be more transparent in public interest, as long as the security of the country is not jeopardised.

As observed by the Supreme Court in S.P. Gupta: “If secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability.”