Taka Masa Ao
Senior Advocate & Ex-MLA
The direction of the State Government Vide Office Memorandum dated 07-07-2020 to all State Government servants to submit self declaration form regarding members and relatives in ‘underground organizations’: An opinion
The State Government by the Office Memorandum Vide No.CON-6/LOR-5/2007(Pt File) dated 07-07-2020, issued by the Chief Secretary, Nagaland had directed all the Administrative Heads of Departments and all the Heads of Departments to obtain information of all the State Government Servants in a self declaration form regarding family members and relatives in ‘underground organizations’ and submit to the Home Department, Political Branch by 7th August, 2020 positively. The Office Memorandum was issued “As per instructions.” The Note to the O.M dated 07-07-2020 had defined “Family members shall consist of spouse, sons/daughters, sibling and parents of the Govt. Employee. Relative shall consist of anyone who is directly related to any of the family members of the Govt. employee.”
The State Government had enacted The Nagaland Government Servants Conduct Rules, 1968. Rule 2(e), defines the member of the family. The wife or husband but does not include wife or husband separated by a decree or order of a competent court. Son or daughter or step son or step daughter wholly dependent on the Govt. servant. Any other person related, whether by blood or marriage and wholly dependent on the Govt. servant. Rule 13 (1) read with Annexure provides that every Govt. servant on his first appointment and thereafter at such intervals as may be specified by the Govt. submit a return of his assets and liabilities. There is no provision in the Rules of 1968 to submits information regarding family members and relatives in underground organizations. Also, the definition of family members and relatives as per the Rules of 1968 are those “wholly dependent on the Govt. servant.”
There has been much speculation on “As per instructions” in the O.M dated 07-07-2020. The State Government had finally clarified in the media that the Commissioner & Secretary to the Hon’ble Governor had written to the Chief Secretary on 14-02-2020 asking for the information to be furnished by 2nd April 2020. A reminder was also received on 24-06-2020 requesting to furnish the information urgently for the perusal of the Governor. It is the justification of the State Govt. that in order to avoid any confrontation with the Governor, the State Govt. had no option but to issue the O.M dated 07-07-2020. It clearly shows that the O.M dated 07-07-2020 was issued merely upon an executive instruction and not a legislation enacted by the Govt. Also, there was no amendment of the Rules of 1968.The State Cabinet cannot simply shrug off its responsibility by simply blaming the Hon’ble Governor. Any government worth its salt should stand up for the rights of its servants and especially when the Hon’ble Governor functions on the aid and advice of the Cabinet. The normal constitutional schemes enable the Cabinet to request the Governor to reconsider, to reiterate and which is binding upon the Governor.
The Article 371 (A) (1) (b), provides that notwithstanding anything in the Constitution, the Governor of Nagaland shall have special responsibility with respect of law and order in the State of Nagaland. The Governor shall discharge of his functions after consulting the Council of Ministers. The said constitutional provision also recognised the individual judgment of the Governor. The instruction to all Govt. servants to self declare their relations with members in underground organizations have no relation whatsoever with law and order situation in the State of Nagaland. After all, human relations are not by one’s own choices. It is the consistent stand of the Govt. of India and the negotiating parties that the long standing Naga issue, it is political and not a law and order. The issuance of the O.M dated 07-07-2020 had created an apprehension upon the seriousness of the Govt. of India towards a permanent political solution which is honourable and acceptable to all the Naga people.
The Hon’ble Supreme Court by the constitutional bench decision in KS Puttaswamy and Another Vs Union of India and Others, (2017) 10 SCC 1, had recognized the right to privacy as a basic fundamental right and it forms an intrinsic part of Article 21 of the Constitution of India and freedoms guaranteed under Part III of the Constitution of India. The right to privacy is a natural, primordial, basic, inherent and inalienable right of every citizen of India. The right to privacy permeates the core of preambular philosophy underlying the principles of liberty and dignity and also the human concepts of life and personal liberty enshrined in Article 21 and wide ranging freedoms guaranteed under Part III of the Constitution which are considered essential for a meaningful human existence. The right to privacy finds recognition in various international conventions and specially Protection of Human Rights Act, 1993. The privacy of individual recognises an inviolable right to determine how freedom shall be exercised. The integrity of the body and the sanctity of mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Right to privacy is a postulate of human dignity itself. The right to privacy is more than merely a derivative constitutional right but it is the necessary and unavoidable logical entailment of rights guaranteed in the text of the Constitution.
The right to privacy is not an absolute right. It is subjected to reasonable restrictions and limitations made by the State to protect legitimate State interests or public interest. The right to privacy must meet the threefold requirement of (i) legality, which postulates the existence of law;(ii)need, defined in terms of legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the mean to achieve them. The legitimate state interest which would permit abridgement of right to privacy by enactment of law. For example, national security, including terrorist and cyber attacks, data mining to ensure that public resources are not siphoned off by the underserving in social welfare programmes and schemes, prevention of crime, protecting interest of the Revenue and public health, these are just illustrative etc. Every State intrusion into privacy be subjected to the balancing test prescribed under the fundamental right that it infringes depending upon where privacy interest claimed is founded. It is also important that the information disclosed should not be self –incriminating, the information collected by the Government should not be used to the detriment of the disclosers.
In the absence of a valid law, the legality and competency to issue the Office Memorandum dated 07-07-2020 is under serious legal scrutiny, especially when it is only an executive instruction. What is the real underlying need and object to collect such sensitive information? Whether the information is going to be used against the discloser. Is it a situation where Nagaland is under law and order emergency or a clear case of capitulation of the people in power to protect their interests? It is not the authority who had issued the instruction but the authority who had issued the O.M dated 07-07-2020 is directly responsible to the people at large, whose lives shall be adversely effected. These are serious questions the elected government is answerable to the people of Nagaland instead of simply washing off its hands like Governor Pontius Pilate before the crucifixion of our Lord Jesus Christ.
