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GOVERNMENT'S CLAIM OF PRIVILEGE IS DILUTED BY RIGHT TO INFORMATION ACT: JUSTICE K.M. JOSEPH IN RAFALE REVIEW

Team SoOLEGAL 11 Apr 2019 12:35pm

GOVERNMENT'S CLAIM OF PRIVILEGE IS DILUTED BY RIGHT TO INFORMATION ACT: JUSTICE K.M. JOSEPH IN RAFALE REVIEW

Section 8(2), 23 and 24 of the Right to Information Act somehow failed the Attorney General's arguments which were based on protection under Official Secrets Act 1923(OSA) and privilege under Section 123 of the Indian Evidence Act. It was noted by the Court that by virtue of Section 8(2), that none of the exemptions under Section 8(1) and the Official Secrets Act will come in way of disclosure of documents if there is overriding public interest. RTI has an overriding effect on the Official streets Act. The proviso to Section 24 states that in regards to intelligence and security organizations, the claim of non disclosure will be available if the information pertains to allegations of corruption and human rights violations. The Court said:

"The first proviso to Section 24 indeed marks a paradigm shift, in the perspective of the body polity through its elected representatives that corruption and human rights violations are completely incompatible and hence anathema to the very basic principles of democracy, the rule of law and constitutional morality. The proviso declares that even though information available with intelligence and security organisations are generally outside the purview of the open disclosure regime contemplated under the Act, if the information pertains to allegations of corruption or human rights violations such information is very much available to be sought for under the Act".
Importance of insistent battle against corruption and and violation of human rights is also highlighted in Section 24.

Justice Joseph raised a concern that "Could it be said that what an officer under the RTI Act can permit, cannot be allowed by a court and that too superior courts under Section 123 of the Evidence Act". He traced the legislative wisom behind this and said:

"The economic development of a country is closely interconnected with the attainment of highest levels of probity in public life. In some of the poorest countries in the world, poverty is rightfully intricately associated with corruption. In fact, human rights violations are very often the offsprings of corruption. However, the law giver has indeed dealt with corruption and human rights separately".

Impact of claim of privilege on a citizen's right to expose wrong doings on part of government functionaries:

The law in this regard was distilled by Justice Joseph by referring to judgments in the cases of Raj Narain and S P Gupta. Thus, claim of privilege apples to a category of documents, irrespective of the contents.The principles applicable are 'candour' and 'frankness' which enable the officers to express their views in internal communications without fear.

The objective is to ensure smooth functioning of government. While considering a claim of privilege, the Court has to balance two aspects of public interest - the harm which may be caused to the State due to disclosure and the harm which may be caused due to non-disclosure. Such claim does not intend to protect ministers and Government functionaries from being criticized, however unreasonable, ill-informed or intemperate they may be. The objective is to ensure smooth functioning of government. While considering a claim of privilege, the Court has to balance two aspects of public interest - the harm which may be caused to the State due to disclosure and the harm which may be caused due to non-disclosure.



Tagged: Justice K.M. Joseph   Supreme Court   Rafale   Verdict   Right to Information Act   Official Secrets Act 1923  
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