Right to information versus National Security
Author: Gowri.R,
3rd year ,
School of law, Christ (deemed to be) University.
Right to freedom of speech and expression acts as the broad foundation for the right to receive information and acts as an extension for the same. The same has been recognized by various international human rights treaties and conventions. [1]. The reason behind including right to information under the bracket of freedom of speech and expression is because access to necessary information is the pre cursor to completely exercise freedom of speech and expression[2]. Without access to information, there can never be the complete exercise of freedom of speech and expression and the fundamental right ends up being a dead letter. The UN Special Rapporteur on Freedom of Opinion and Freedom of Expression report (1993) has endorsed the recognition of the right to freedom of information within the framework of the right to freedom of expression as mentioned in the International Covenant on Civil and Political Rights (ICCPR).The report in 1998 referred to the right to seek, receive and impart information in Article19 as imposing ‘a positive obligation on states to ensure access to information, particularly with regard to information held by governments’. Subsequent reports submitted by the Special Rapporteur have endorsed the view that Article19 of the ICCPR encompasses a right of access to information.
The right to receive information has been addressed by the international human rights Courts in varied cases where they have expanded the scope of the same and has imposed a positive duty on the state to provide the people with such information. In 1979 in X v Federal Republic of Germany[3] , the European Commission on Human Rights held that, “It follows from the context in which the right to receive information is mentioned…that it envisages first of all access to general sources of information…the right to receive information may under certain circumstances include a right of access by the interested person to documents which although not generally accessible are of particular importance.”[4]
In Tarsasag a Szabadsag v Hungary[5] the European Court of Human R
ights held, for the first time, that a refusal of access to information constituted a violation of Article10 of the ECHR. The rationale behind imposing a positive duty on the state is based on two principles namely that, in a democracy such as Flavia, orchestration of democratic principles has to take place in a continuous pervasive manner and cannot be limited to exercising the right to vote in once in five years. For a democracy to function, transparency must be maintained between the people and the government to ensure that people can exercise sound judgement on the conduct of the state so as to maintain accountability of the government and to ensure its efficient functioning[6].
ights held, for the first time, that a refusal of access to information constituted a violation of Article10 of the ECHR. The rationale behind imposing a positive duty on the state is based on two principles namely that, in a democracy such as Flavia, orchestration of democratic principles has to take place in a continuous pervasive manner and cannot be limited to exercising the right to vote in once in five years. For a democracy to function, transparency must be maintained between the people and the government to ensure that people can exercise sound judgement on the conduct of the state so as to maintain accountability of the government and to ensure its efficient functioning[6].
The Supreme Court of India has also upheld the right to receive information and has treated it as a fundamental right in a series of cases which essentially widened the scope of media rights[7]. In People’s Union of Civil Liberties v Union of India[8], the Court elaborately dealt with the aspect of right to information and upheld the people’s right to secure information regarding the basic details of the candidates contesting elections and in State of Uttar Pradesh v Raj Narain[9] the Court held that 19(1)(a) also includes right to receive information about matters regarding public concern and its importance in a democratic state. The same aspect was again highlighted in Dinesh Trivedi, MP v Union of India [10]where the Court observed, “In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare.”[11]
Ø The Defense of National Security
The Right to Information flows from the Right to Freedom of Speech and Expression which is a fundamental right. However, the same is not absolute and is subject to certain limitations. The Supreme Court of India reiterated the same as “While there is a necessity to have fundamental freedoms as a citizen, the same cannot be an absolute in the interest of public order and security”[12]. In the same light, the Freedom of Speech and Expression also contains certain restrictions for the greater good of the public. This finds its roots in the jurisprudence surrounding Social Contract Theories which assert the giving up of few individual freedoms for the collective benefit of the society. Hence, it is justified by the State to impose certain restrictions on individual rights for the collective benefit of people. State may impose restrictions in the in
terest of public order, decency, morality, sovereignty, national interest, defamation, and incitement. Since the Right to Information flows from the Right to Freedom of Speech and Expression, it is also subject to the limitations viz. national security, morality, public order, national security, defamation and incitement to an offense which are articulated in the Flavian constitution. The same restrictions are imposed when the national security of the state is at threat due to internal aggression and secessionist movement. In such cases of emergency, it is justified on part of the State to ensure and prioritize national security over all other individual freedoms to take necessary actions to curb such situation until normalcy is restored over such areas.
terest of public order, decency, morality, sovereignty, national interest, defamation, and incitement. Since the Right to Information flows from the Right to Freedom of Speech and Expression, it is also subject to the limitations viz. national security, morality, public order, national security, defamation and incitement to an offense which are articulated in the Flavian constitution. The same restrictions are imposed when the national security of the state is at threat due to internal aggression and secessionist movement. In such cases of emergency, it is justified on part of the State to ensure and prioritize national security over all other individual freedoms to take necessary actions to curb such situation until normalcy is restored over such areas.
However, the state cannot impose the restriction of right to information under the wide and vague ambit of national security. The apex Court’s divisional bench in the Rafael case[13]has put forth that, the center cannot withhold releasing documents by using the defense of national security when withholding the same will attract more harm. The Court has highlighted the reason of public interest in such cases. The Court has upheld the aspect of public interest with regards to rights to information in cases such as Girish Ramchandra Deshpande v. Central Information Commissioner[14]. Hence it is imperative for the state not to abuse the defense of national security with public interest at sake.
[1] Article19 International Covenant on Civil and Political Rights 1966, 999 U.N.T.S. 171 (I.C.C.P.R.); Article 13 American Convention on Human Rights 1969,1144 U.N.T.S 123 (A.C.H.R.); Article 10 European Convention on Human Rights and Fundamental Freedoms 1950, ETS 5 (ECHR); and Article 9 African Charter on Human and Peoples’ Rights 1981, O.A.U. C.A.B./L.E.G./67/3rev.5; 1520 U.N.T.S. 217;21I.L.M. 58 (1982).
[2]Beatsonand Cripps (eds), Freedom of Expression and Freedom of Information: Essays in Honor of Sir DavidWilliams (Oxford: Oxford University Press,2000).
[3] X V. Federal Republic of Germany D.R. 17 (1979) at 227.
[4] Ibid.
[5] Application No. 37374/05, Merits, 14 April 2009.
[6] Ibid.
[7] C.I.C. v State of Manipur A.I.R. 2012 S.C. 864(867), Ram Jethmalani v U.O.I., (2011) 8 S.C.C. 1,
ICAI v Shaunak H Satya (2011) 8 S.C.C. 781: 2011 S.C. 3336;
CBSE v Adithya Bandopadhyay (2011) 8 S.C.C. 497 : (2011) 9 J.T. 212
[8] People’s Union of Civil Liberties V. Union of India, (2004) 12 S.C.C. 381.
[9] A.I.R. 1975 S.C 865, 884.
[10] (1997) 4 S.C.C. 306.
[11] Dinesh Trivedi, M.P. V. Union of India, (1997) 4 S.C.C. 306.
[12] Ramlila Maidan Incident v Home Secretary , Union Of India (2012)2 M.L.J. 32 (S.C.)
[13] Manohar Lal Sharma vs Union of India, (2014) 9 S.C.C. 516
[14] (2013) 1 S.C.C. 212