MODULE V PRIVACY IN GOVERNANCE AND TRANSPARENCY Official Secrets Act, 1923 The Official Secret Act 1923 is India's anti Espionage Act. Its pu; to consolidate and amend the law related to official secrets Tt clea 19 states that any action which involves helping an enemy state ey. India shall be punishable. It also states that one cannot Tprsael inspect, or even pass over a prohibited government site or area. i The Act is a comprehensive document relating to official secrets and defines a number of offences: 1. Spying 2. Wrongful communication of any secret official code, password or any sketch, plan, model, article, note, document or information. The main objective of this legislation is to maintain the security of the state against the leakage of information, sabotage, etc. The disclosure of any information that is likely to affect the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States, is punishable by this act. If any person communicates any official code or password which is injurious to integrity of country, he shall be punished with 14 years Gf an army secret) and 3 years (if any other secrets). Right to Information Act, 2005 Today every state has become a welfare state and it requires that sas perform more and more administrative functions, Although all u ‘i administrative functions are subject to judicial review, judicial review as its own limitations, Therefore there are chances that this uplimited Raga may lead to misuse of power, In order to prevent this misuse, ions necessary to make them accountable in some way and mai = To = gai ayaayool’~ ge fe a i i 151 sparency in their work. It was in thi tmatio® ‘Act, 2005 was eventually passed, a°K4t0P that Right to : ' i very comprehensive |], A q Act is 2 ‘ ve law which appli WPjoriies. Under this law, the citizens have the sige 42 gait, Publi wernment tO provide any information available to cha Tequest the focuments, records etc. when they doubt that odbeat in the form of vernment are arbitrary. in actions of the va, RTI Act, 2005 has been India, RTI Act, 2008 enacted based on U.N. Princi : isiee that public bodies should disclose information nat inciples which right to obtain information if they have any doubts, citizen has the she main features of the Act are: (a) Maximum Disclosure.—Act provide f aims at maximum disclosure of informaton tear hee public bodies unless the disclosure is forbidden by law. ae (b) Limited Scope of Non-Disclosure.—Certain cases have been put down where public bodies are exempted from disclosure of any information like intelligence agencies. (c) Appellate Mechanism.—In case of non-disclosure without any reason, citizens have the right to appeal to an higher authority. (d) Strict Time Limit.—The RTI Act lays down strict time limit for processing requests and any refusals should be accompanied by sufficient reasons. (c) Nominal fee.—The fee for the whole procedure is nominal so that it is easily affordable by even the commonest man. The RTI Act, 2005 has opened gateway for citizens so that they ask for information and copy of documents from public bodies if they want to verify something. Government bodies are bound to provide this information. Since it is the people who elect the government, they have a Tight to know what government bodies are doing. The main ingredients of RTI Act are: {) Definition of Information Information here means any piece of material rel I me This information can be personal, mation may answer the question of peop’ a Y was used, plans and strategies of the ndals, law and order ete. ta information demanded by the pu! on toes and prevents them from b ating to the affairs of the political, technical, etc. le regarding how public government, corruption blic may keep the government yecoming arrogant and rude. lllMMSDULE y (2) Public Authorities and their obligations Public authority means anybody, working as a working in any organization aided by the gove: included in it. . government employee oy Tnment. Even NGOs are RTI makes these public authorities responsible for giving any informati, relating to the government and their concerned department. Me (3) Mechanism Every public authority shall designate a PIO (Public Information Office) in all offices to provide information to seekers. Also, a Central Information Commission and a State Information Commission shall consist of 10 members and a Commissioner, who shall hold office for 5 years and retire at 65 years of age. The Commissioners will send an annual report to the Central Government at the end of the year giving details about their work. Any person who is dissatisfied with the response of Public Information Offices can appeal to the Central Information Commission or the State Information Commission. (4) Information on Request or Suo Motto The RTI Act requires that it is the duty of the Public Authorities to provide as much information as possible suo motto (on its own) to the public at regular intervals though press, newspapers, gazettes etc. To give information on public issues is the duty of the authorities even if it is not requested. And if any information is requested by any citizen to any EO, he has to give that information too in English or Hindi or any other. Sos language in which application is made. Application shall be scanner with prescribed fee, but need not give any reason nor his personal deta’ 7 If that PIO cannot give that information, he can transfer to the concern PIO. is i i i ithin 30 days maximum. If information on request should be given within 30 ’ Ba i give, it will be deemed rejected. Then PIO will have to ee reasons why the information was not given and the citizen can appea the Commission. (5) Information Exempted from Disclosure mation is exempted from disclosure and PIO is not obliged to oman any citizen even under the RTI Act. Some give certain information to rounds are? a ee ; : (1) If information threatens the unity and integrity of the country. (2) If information is forbidden by courts.-_ hes (3) Ifitisa parliamentary privilege, (4) Defence secrets. (6) Foreign secrets. (6) Personal information not affecting citizens, (@ Right to Appeal ‘Any person. who is denied access to information has the right to appeal oe. the expiry of such period. Th i hin 30 days from n period. The appellate authorit; pall pass appropriate orders after hearing both the Parties, a () Penalty for Refusal or delay in giving information On failure to give information within the specified time, the officers are held personally liable and can be fined. A fine of Rs. 250/- per day shall be imposed. (g) Education and Training There is a provision in the RTI Act which imposes an obligation on the appropriate government to conduct training programmes and spreading awareness in the public about the importance of this right, especially in tural areas so that even the commonest man can make use of it. It can be publicized through phones, internet, brochures etc. Loopholes/ Hurdles in Implementation—Though aims of this legislation are very noble, there are various hurdles in its implementation. (1) Lack of political will to encourage transparency. (2) Casual approach of PIO. (3) Lack of proper records & their maintenance. Privileged Communications under the Indian Evidence Act, 1872 With the introduction of judicial system in India, it was necessary to law relating to evidence which courts would see, then give decisions rdingly. Some kinds of evidence are accepted in courts and others & Miected. Some evidence are given more weightage than others, Evidence an be direct, indi i rson who gives evidence 4 t, indirect, primary or secondary, A pe Ne tocexect d witness, A wi i ive comp . itness is bound to gi' mp? ’ Wit tion about whatever he knows. But certain information, no NESS can be forced to give, This is called Privileged Communic 5 wire he Indagare some instances of Privileged Communications med n Evidence Act, 1872 :_ a OSTNEERS @ Communication during marriage No married person can be fo) reed to discl been received by him during the GG of of crime against the other. Superior court, but he m: happened in front of him. (3) Evidence relating to affairs of State No one can be forced to give information related to unpublished affairs and records of the government except with the permission of the Head of ae Department who can give or withhold the information according to his will. (4) Official Communication No public officer shall be compelled to disclose information made to him in official confidence if it is harmful for public interest. (5) Information about commission of offences No police officer can be compelled to say where he got information about the commission of offence and no revenue officer can be compelled to say where he got information about commission of offence against the public revenue. 4 (6) Professional Communications No lawyer will be forced to disclose any communication kia abe except with his clients consent, made to him in the course of ae a engaged as a lawyer by or on behalf of his client or by his clien pia documents that he has knowledge of or disclose any advice given Reais to his client, during the course of the case except when that inform: towards an illegal goal, (7) Confidential communication with legal advisers : munication which No one shall be forced to disclose any confidential comm! offered has taken place between him and his legal advisor, unless he has himself as witness. : i io deemmoDUE* i 5 under the Information Technolo. A ees 2000 gy Act, New inventio YS ns, discoveries and technologies widen horizons but pose Mplems for the legal world, The courts throughout the world have new Fyealing with these problems. The law providing answers to these end or dealing with Information Technology are called IT laws or Set jaws. The most important legislation in India dealing with these jssues is the Information Technology Act (IT) 2000. It was amended in the year 2008. commerce is the new way in which business is carried out, its tage being that it is document-less. Electronic data like Digital dvan re etc. are important features of E-commerce. Signatu Computer Crimes/Cyber Crimes ‘Computer crimes can be defined as crimes against an individual or organization in which the criminal uses the computer for all or part of crime, There can be two types of Cyber crimes: (1) Crimes in which computer is mandatory like credit card fraud, creation of virus, hacking, etc. These crimes cannot be committed without a computer. (2) Crimes in which computer is used as’an aid like robbery, forgery or even murder. For such crimes, computer isn’t mandatory but it is present nevertheless. f INTERPOL has broadly divided the Cyber crimes in the following categories: 1 Unauthorized Access Ifany person does not take permission from the owner of the computer and secures access to his computer system, he is said to have made an Unauthorized access. If this person downloads any data or information from such a computer, that person is guilty of committing Cyber Crime. Such a person can be penalized under Section 43 of the IT Act. (@) Hacking.—Sec. 66 of the IT Act defines Hacking. “nea punishment, When a person destroys or deletes Ae Shea ita information residing in a computer resource OF NNT value or utility or affects it injurioualy by any meet ay intent to cause or knowing that he is likely ie "a said to have i loss or damage to the public or any person rid unauthorized committed an offence of hacking Hacking too O00) ource is able : for (a asa gr ; ch rupees or both. amp risont ent of 3 years or a fine of five lab) © @ e) ® Sor ae ee! SS Theft of computer resource Sec 66(B). dishonestly takes or retains any stolen co; knowing that it has be imprisonment of at least 3 Theft of Identity Sec makes use of another’s el other identification with t en stolen shall be Punished with years or fine or both. 66(C).—If a person fraudulently lectronic signature, Password or any he intention of fraudulently stealing @ person's identity is called theft of identity and shall be punished with imprisonment of 3 years or fine or both. Violation of privacy Sec 66(E).—Whoever captures, publishes or transmits the image of personal space of any person with or without his consent causing violation of privacy is also punished with imprisonment of 3 years or fine or both. Cyber terrorism 66(F).—Anyone with the intention of threatening the integrity and security of the country or to strike terror in the people and by means of’ such conduct causes death or injury to persons or damage or destruction of property or affects supplies or infrastructure shall be said to have committed cyber terrorism. He can be punished with life imprisonment. IL. Alteration of Computer Data (Section 65) If a person destroys or alters the computer source code which includes computer programmes, designs, when the security code is needed to cai a programme, the person is said to have tampered with the compu source document, izati i isuses that EB organization should have a security code, If anyone misu : sonny ra he is entitled to be punished with 3 years of imprisonme®! or fine or both, Some crimes of alteration of Computer Data are? qd) (2) (3) (4) Data Leakage, Virus—any data which damages or destroys the computer base. Worms. Trap doors. mae 10.89 ch beltiomae a ae, I ae/ 15) A computer Related Frauds a frauds deal wi i mputer related with credit card ost CONG net banking has led to an increase in aaa More and are used for banking which is all the tt tuds. Now even pobile® ks is expanding but security is beings Pe” 10 frau pasiness of banks 12 Sxpaneing Dur Security is being compromised, my sector Banks are more vulnerable to ¢ not verify address proof of people while Jl the more difficult to catch the criminal, hese offences. Private private pening accounts so it panks 40 pecomes 4 the culprits to access accounts of js easy for the c : 8 of others through cd online manipulations when confidential infortia ti ‘ikaePs numbers are sent through private carriers and they never both ts confirm whether the data has reached the proper customer or not. 7 one ATM centers do not use CCTVs, This has often lead to fr “thdrawals from ATMs. tat Interactive voice response is another area vulnerable to bank frauds. Some standard questions are asked and access is given for mobile panking. The mobile service provider asks credit card number and their three digit CVV number. Strangers can note down details and misuse them. As a result, huge amounts are debited to credit cards before it comes to the knowledge of credit card holders. IV. Obscene information in electronic form Sec. 67 deals with publishing of information which is obscene in electronic form and lays down the punishments. The punishment can be 5 years imprisonment and fine of 1 lakh rupees. Obscenity—Obscenity has historically been the subject of several Supreme Court cases and much debate. Obscenity has been defined by the Supreme Court in two cases, Meller v. California, 413 US. 15, 27 (1973) and Hamlingv. United States, 418 U.S. 87, 101 (1974), fashioned a three prong list to define obscenity— ®) The average person, applying contemporary Community standards find that the work appeals to prurient interest. ©) The work is patently offensive. The work taken as a whole lacks serious literary, and Scientific value, VB 5 , i lackmail Threatening E-mails very common: 8 ae mails i z mataling using a computer through er with virus oF Pubji ailing, by threatening to contaminate an hing defamatory pictures or articles is very © artistic, political198 VI. Forgery a erson learns & computer software an later leaves the When a on, he can make copies of the popular packages and sell them organis s under his own name. Vil. Pornography Pornography is define n intended to arouse sexual desire. ‘The Supreme Court in Miller v. California, (1965) 2 QB 327, observed as under:— “Pornography” derives from the Greek. The word now means—(a) description of prostitutes or prostitution (b) description of licentiousness or lewdness a portrayal of erotic behaviour designed to cause sexual excitement.” 7 d as an explicit writing, picture or other materia] VIII. Telecommunication Fraud Information of telephone calls which are stored on computers that is linked to telecommunication system is valuable. Crimes related to telecommunication are non-payment of cash, etc. IX. Conspiracy to defraud Under this fraud, two or more people operate a computer by passing @ password which they should not do. They do this to transfer the funds in their own accounts. They do so with the intention of committing a crime; so at the time of trial, all are tried together. X. Phishing It is a fraudulent way to get confidential information out from @ innocent person. Innocent people receive official looking e-mails that attempt to fool them into disclosing on:line passwords, user names | other personal information, Victims are asked to click on links that direct them to the required place from where their information is misused. XI. Cyber Stalking Stalking is the crime of following and watching somebody over * be period which is annoying or frightening. It includes harassment 1k threatening behaviour, In Cyber Stalking, Internet is used t0 another person,puLeY iL Industrial Disputes Act, 1947 nment came out with an excellent and effective piece of wn as Industrial Disputes Act. The Act regulates the jslation ee mployers and employees in many matters irrespective of tionshiP © lover is the State or not. The Act streamlines a network her the ont authorities stipulating their powers and procedures. Tt eet aiererent provisions relating to strikes and lock-outs. It down penalties against violation of the provisions, Similarly, the 4 Fics for regulation of lay off and retrenchment and also envisages Beeston in appropriate cases. The Act makes provision for tion of powers to the State and Central Government in the matter king rules. This invariably enables the State Government to make endment to the Act so as to suit to the local conditions. 1947, the Gover s of ID Act, 1947 he Industrial Disputes Act, 1947 extends to the whole of India. It came to operation on Ist April, 1947. The Act aims at investigation and ttlement of all industrial disputes by peaceful methods and through the hhinery of conciliation, arbitration and if necessary, by approaching e adjudication under the Act. he main objects of the Act are — @ Tosecure industrial peace— (a) by preventing and settling industrial disputes between the employers and workmen; (b) by securing and preserving amity and good relations between the employers and workmen through an internal works committee ; and () by promoting good relations through an external machinery of conciliation, Courts of Inquiry, Labour y Courts, Industrial Tribunals and National Tribunals. () To ameliorate the condition of workmen in industry— (@) by redressal of grievances of workmen through & statutory machinery; and (b) by providing job security. tate (tt in Workmen of Dimakuehi Tea Estate v. Dimakuchi Tes thas fjg,2988 SC 853), has summed up the principal objects i sae i it 1. Promotion of measures for securing and preserving amity and good relations between the employer Pa bene Investigation and settlement of industrial tee a 6 employers and employers, employers and wor! 2.as eee _s 160 Moy, ‘kmen; Ly «men and wor 5 ee ee of illegal strike and lock-out; Relief to workmen in the matter of lay-off ang rety 3. 4. si and - te 5. Collective bargaining. Distinguishing Features of the Act ‘The following are the distinguishing features of the Act. 1. The Act shall be applied to an industrial dispute Which ¢: or is likely to exist. Xiah, . It provides a comprehensive mechanism for the Poe een iateal: disputes; Jikehveren Committee, Cone Officers, Board of Conciliation, Courts of Inquiry Lat Court, Tribunal and National Tribunal. 3. It contains provisions relating to reference of disputes to Boards, Courts or Tribunals. 4. It provides for lay off or retrenchment compensation to the _ workmen. 5. It provides for payment of compensation to workmen in case of transfer or closure of the establishment. 6. It contains provisions relating to strike and lock-out in public utility as well as non-public utility services. 7. The Act contains special provisions relating to lay of, retrenchment and closure in certain establishments. industri, STRIKES AND LOCK-OUTS Chapter V of the Act having sections 22 to 25, deals with the provisos relating to strike and lock out declared in public utility services as well®® in other services. Strike and lockout have been considered a8 coercive Weapons in the hands of workers and employers respectively. With help of these weapons, the workers and the employers compel each to accept their demands. by Sug a collective stoppage of work, by workmen, undertal ne em to put pressure on the management so that they give in % demands. In simple words, Strike is an act, by which workmen as The their work, until their demands are fulfilled by the managemen® strike can take place only when the workers are employed in an)™ fab! eG - ; fa Strike is an effective weapon in the hands of the workmen is® collectively and consequently put Be the manage! thet Weapon used by the a a ae “t : : a eer ‘ interests. Sec, 2(q), of the emodule © et teet ee 161 jon of work by a body of persons employed j ce roe Pieved in an industry acting co! Aco ording to this definition, the essentials of strike are: i f Work—First ( Cessation 0: V and foremost, stoppage of all kinds of work done by the Table eats e @) by workers employed in the industry—Onk, is workers who are employed can participate in atic in workers cannot participate. ae (3) acting in combination—There should b. i stoppage of work by all. iiss aoteaane (4) There should be a common understanding between the workers as to when to end the strike. It implies that they should have a common goal and that they are ready to call off the strike when certain demands are accepted. (3) The aim of strike should be some change in terms of employment, economic or social. (6) Right to strike is not a Fundamental Right. It is social right given to the workers to resolve their grievances. (7) It is not the end of the workmen-management relationship. It is a temporary suspension of work. Kinds of Strike——There are mainly three kinds of strike, namely, (1) general strike; (2) stay-in-strike; and (3) go slow. (1) General Strike—A General strike is one, where the workmen join together for common cause and stay away from work, depriving the employer of their labour needed to run his factory. Token strike is also a kind of general strike. Token strike is for a day or a few hours or pa short duration because its main object is to draw the attention e te employer by demonstrating the solidarity and co-operation cf ve employees. General strike is for a longer period. It is Bente ee a When employees fail to achieve their object by other means inc token strike which generally precedes a general strike, ®) Stay-in-Strike,—A ‘Stay-in-Strike’ is also known a8 ‘tool! ta pndown-strike’ It is that form of ail xh eir duties, occupy the premises but do not wor’, Prevented from employing other labour to carty 0M his bus tay away from Go'Slow—tIn a “go-slow” strike, the workmen 40 sneha slow speed it otk, they do come to their work and work: flees Bh yy cause 1088 em.t © lower down the production and the ployer, \s-downrstrike’ port the workmen rep’ LN employer is thus ines,. : MODUtEy In addition to these, three forms of strike which are frequent}, by the industrial workers, a few more may be cited although ©, eset are not strike within the meaning of section 2(q), ‘ome f them @ Sympathetic Strike—A sympathetic strike is resorted to j of other striking workmen, Its aim is to encourage or to es support to or indirectly to aid the striking workmen, The mo Moral resorting to such strike have no demand or grievance of their geste Gi) Hunger Strike—In hunger strike, a group of workmen fasting on or near the place of work or the residence of the enter’ e a view to coerce the employer to accept their demands, In Pip ade sit Mills Ltd. v. Their Workmen [AIR 1960 SC 1258] certain employees held Key positions in the Mill resorted to hunger strike atthe wera the Managing Director, with the result that even those workmen a! reported to their duties could not be given work. It was held that the concerted action of the workmen who went on hunger strike amounted to strike within the meaning of this sub-section, Gii) Work to rule.—The employees in case of “work to rule” strictly adhere to the rules while performing their duties which ordinarily they do not observe. Thus strict observance of rules results in slowing down the tempo of work, causes inconvenience to the public and embarrassment to “the employer. It is no strike because there is no stoppage of work at all. LOCKOUT—“Lock-out” means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him. Strike is a weapon in the hands of the labour to force the management to accept their demands. Similarly, lock-out is a weapon in the hands of the management to coerce the labour to come down in their demands relating to the conditions of employment. Lock-out is keeping of labour away fom work by an employer with a view to resist their claim. There are four ingredients of lock-out? e (1) @) temporary closing of a place of employment y employer, or (ii) suspension of work by the employer, or oy and (iii) refusal by an employer to continue to emp: number of persons employed by him; should be (2) the above-mentioned acts of the employer ‘motivated by coercion; (3) an industry as defined in the Act; and (4) a dispute in such industry. SYmpathyyooult v ce between lock-out and closure 163 sere (picker a eapon of coercion i Jockout 1s a Weel n in the hands Ocal for trade reasons. of employer: closure ig out is during an industrial dispute; while j Bs not be any dispute. ile in case of closure there out is temporary; closure is Permanent, COLLECTIVE BARGAINING dividual is free to bargain for himself and If an individual workman seeks Baie sition before his master, who having ete he stands in a reift in better position to dictate his own terms antic ae to accept the offer without any reserves for he has to = individual ied woe is family. However the position becomes diferent geet made by a body or association of workmen. They can rienotits a oe Bate oY hp with the employer in a better way andoceure beter mace, huiter terms of employment and greater security. The object of collective bargaining is to harmonise labour relations, promote industrial peace be creating equality of bargaining power between the labour and the pital tajedtive bargaining can exist only in an atmosphere of political freedom. Any conditions of service like, wages, hours of work, leave, gratuity, honus, allowances and other like privileges can all be settled by y negotiation between the body of workmen and employer. is regarded as a process nt negotiate the terms and ement called An in r interest. safeguard his own weaker P Generally speaking collective bargaining whereby organised labour and manageme’ conditions of employment which are incorporated in an agre ‘collective bargaining agreement”. The essential conditions Essential conditions for collective bargaining. he following? for success of collective bargaining in any country are the . ining in any () Right to organise.—The success of collective bare country depends upon the right of the workers to 0! bargain, This means that the workers mus Association. Workers and employer strong and must also be relatively ea™ . fy eco) ® Stable and strong trade unions —The The stable and Far as aiontte that the trade unionl 7 srajsiraltl e isati ions ‘ le. more the organisations or w he pargaining D ainin® cay role they will be ae ee pe uy ssful collect! barton is (3) re aie For, sucse .g the ing © citi of rade uns etn uae Mm Oo! ‘rade um m * ce "ecognised by employers, the union Li