Right to information and digital security in these troubled times

The last few days have seen curfews and clashes in the United States with escalation of racial protests and also several incidents where the media and journalists have been subjected to severe curtailing of their rights to obtain information and then disseminate them. We have also seen the controversy generated in Bangladesh through the use of certain provisions of the Digital Security Act and measures applied in the case of photojournalist Shafiqul Islam Kajol.

The scenario has also gained additional dimensions because of emerging facets resulting out of measures being adopted to try and control the growing after-effects and impact of the COVID Virus dimension on stranded migrant workers. This last aspect drew the attention of the world with particular reference to India. 

One needs at this juncture to underline the special efforts put in by the Commonwealth Human Rights Initiative (CHRI) to try to facilitate not only the principle of Right to Information but also the use of freedom of information. An independent, non-governmental organisation headquartered in New Delhi, with offices in London, United Kingdom and Accra, Ghana. CHRI realized that absence of full information related to the internal migrant issue was being interpreted as not being consistent with the the practical realisation of human rights. I believe that their recent efforts in this regard needs to be carefully scrutinized by not only the legal authorities but also the other Human Rights Commissions in South Asia- especially in these troubled times.

It appears that the CHRI’s efforts were encouraged through views expressed by three eminent Indian judicial authorities. One needs to refer to them- (a) “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": Justice K K Mathew, former Judge, Supreme Court of India, (1975); (b) "Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their government is doing": Justice P N Bhagwati, former Chief Justice, Supreme Court of India, (1981) and (c) "Information is the currency that every citizen requires to participate in the life and governance of society”: Justice A. P. Shah, former Chief Justice, Delhi and Madras High Courts, (2010).

CHRI’s efforts to obtain access to information about migrant workers stranded in different parts of India through RTI intervention during the nation-wide lockdown began on 25th March 2020. Subsequently on 8th April, 2020, the Chief Labour Commissioner (CLC) under the Union Ministry of Labour and Emplyment issued an official letter to the Regional Heads stationed in 20 different places across the country to collect details about every stranded migrant worker and send it to New Delhi within three days. On 5th May, 2020, the Central Public Information Officer (CPIO) apparently claimed in an unsigned reply, that the Statistics Section of the Office of the CLC did not have this information. It was this apathy that resulted in Venkatesh Nayak, Programme Head, and Access to Information Programme, Commonwealth Human Rights Initiative to file a complaint the same day in this regard to the Indian Chief Information Commissioner, Indian Central Information Commission.

On 27th May, 2020, the Indian CIC condubted conducted an out-of-turn hearing of this complaint against the CPIO's reply, treating it as a matter deserving urgent attention.

Subsequently the Indian CIC has issued an advisory to the CLC under Section 26 (5) of the Indian RTI Act, 2005 requiring him to cause all available information about stranded migrant workers to be uploaded on an official website within a week’s time, consistent with Section 4 of the Act. It has also been directed that this information will have to be updated on a regular basis.

V. Nayak and the CHRI have later drawn attention to these interesting factors that have now been recognized as legal –

1) that all the Regional Heads to whom the CLC addressed the D.O. of 08/04/2020 are subject by law to his administrative jurisdiction. There is no reason why the Regional Heads would not have complied with the instructions of the Respondent Public Authority to complete the enumeration exercise and send the data within the time period specified in the said D.O.;

2) that the information sought concerns the lives of not just one person but all migrant workers residing within the territory of India due to the widespread effect of COVID-19. V. Nayak apparently searched the website of the Respondent Public Authority for information sought through the RTI application before submitting this complaint After finding that none of the information has been disclosed suo motu on the said website, he felt constrained to seek access to such information formally, not for himself alone, but for the benefit of the taxpaying citizenry at large who are dependent on such migrant workers directly or indirectly in a myriad ways;

3) that all the information sought in the RTI application was that which ought to have been disclosed by the Respondent Public Authority proactively under Sections 4(1)(c) and 4(1)(d) of the RTI Act read with Section 4(2) of the RTI Act, so that people are not required to file formal RTI applications to obtain access to it.

This whole process has garnered a lot of interest in India and elsewhere because according to the data presented by the Joint Secretary, Indian Union Home Ministry, at a press briefing held on 23rd May, 2020, there were more than four crore migrant workers across the country. Of these 75 lakh had been ferried to their home States on trains and buses. Even the four crore figure was based on 2011 Census whose detailed Data Tables were released as late as in July 2019. Consequently many felt that it was reasonable to expect that this figure had become obsolete and the actual numbers might be much more than what the Government was citing. Nevertheless, by the Government's own admission there were 3.25 crore migrant workers who had not yet returned to their home States. So the collecting and publishing of statistics about migrant workers was as relevant as ever because three quarters of them had to be accounted for.

It was interesting to see how the Indian CIC responded to the situation. The CIC took serious note of the issue of stranded migrant workers. In its decision, the CIC extensively cited from the orders of the Supreme Court of India and the High Courts of Orissa, Madras and Andhra Pradesh which have already taken judicial notice of the extreme levels of distress and suffering of migrant workers, resulting in scores of deaths. 

Subsequently he CIC issued an advisory to the CLC as follows:

"...an advisory is issued u/s 25(5) of the RTI Act to the Chief Labour Commissioner, to suo-moto upload maximum data as available with them in relation to the migrant workers stranded in relief camps or shelters organised by governments or at the workplace of their employers or generally clustered in any district and wherever possible cumulative numbers of the migrant workers and the names of the districts from where the data is collected should also be uploaded in compliance with Section 4 of the RTI Act, 2005, having regard to the peculiar circumstances prevalent in the country. The website should be continuously updated as and when additional data on this subject matter is received from time to time. The Chief Labour Commissioner is advised to ensure compliance of this advisory in letter and spirit and to submit a compliance report to the Commission within a period of 01 week from today.

This whole process undertaken by the CHRI in India has reiterated very clearly that the purpose and object of the promulgation of the Indian RTI Act, 2005 was to make the public authorities more transparent and accountable to the public and to provide freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto. CHRI deserves a special pat on their back.

This has been extraordinary exercise that needs to be understood and appreciated by all affected countries. We in Bangladesh should also try to use our RTI more functionally. In similar vein, the same dynamics should operate in Europe, the United States and many other countries in South and South East Asia. 

Muhammad Zamir, a former Ambassador, is an analyst specialised in foreign affairs, right to information and good governance, can be reached at muhammadzamir0@gmail.com