27 March 2004

Our secretive society

27 March 2004
The Times of India


By Siddharth Varadarajan

Even in secrecy-obsessed India , this story takes the cake. Historian Baren Ray, an expert on the politics of pre-Partition India , spent years in the India Office Library, London , studying a series of sensitive colonial documents - the Quarterly Survey of Political and Constitutional Position in British India from 1937 to 1947 - declassified by the British government in 1977.

Given their academic importance, Prof Ray, who began his project in 1988, prevailed upon the ministry of home affairs (MHA) in Delhi to publish a portion of the papers so that the material could become available to a wider body of scholars.

Since the MHA had given him a grant of Rs 20,000 to make prints from the microfilmed documents, he handed over the entire material to North Block for publication.

And then someone in the MHA made the chillingly absurd decision to, in effect, 'reclassify' what the British had unclassified some 20 years earlier.

The documents were simply deemed too sensitive to see the light of day. The promised book never came out and Prof Ray's queries were brushed aside.

Angry at this official censorship, the historian wrote to the ministry: "I feel very strongly that while the ministry is free not to publish the material on its own auspices, with a Freedom of Information Act in force in the country, the government should not stand in the way of my going ahead with doing the needful with these most important documents... (including making) their contents known to concerned scholars in the country."

On November 4 last year, he got a terse reply stating that the material would not be returned to him and that the government had given him a grant of Rs 20,000 on the condition that the material prepared by him would be the property of the MHA.

Sadly for the right to information, this story doesn't have a happy ending. Prof Ray died last month, his academic project unfulfilled, his sequestered historical documents living testimony to the government's contempt for the citizen's right to know.

There may be small signs of change visible on an otherwise bleak horizon - it is now mandatory for electoral candidates to disclose their assets and criminal record, if any, and the Freedom of Information Act (FOIA) has been passed - but there are still vast swathes of information that citizens are denied or are simply not entitled to know.

From specific contour details on maps to the 40-year-old Henderson-Brooke report on the 1962 India-China war to data on the implementation of official schemes - the government usually divulges information to citizens on a strictly 'need to know' basis. And for transgressors, there is always the dreaded Official Secrets Act.

The irony is that this culture of official secrecy prevails despite more than three decades of enlightened jurisprudence on the subject.

In 1975, the Supreme Court ruled (State of UP vs Raj Narain): "In a government of responsibility like ours where the agents of the public must be responsible for their conduct there can be but a few secrets. 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 bearings."

Though the Constitution does not include the right to information as a fundamental right, the apex court has read that right to be the key link between the right to free speech and the right to life and liberty.

After a sustained struggle waged by people's organisations in Rajasthan and elsewhere, the right to information finally came on to the legislative agenda in the 1990s. The FOIA is a reality but in the absence of enabling rules, the Act is in limbo.

In any event, right to information campaigners have pointed to the large number of exemptions in the FOIA as symptomatic of the government's reluctance to make a break with past practice.

"The most blatant of these exemptions," says Neelabh Mishra, a Jaipur-based activist closely associated with the right to information movement, "is the list of defence and security organisations at the end of the Act which keeps them out of the purview of the law. It is an irony that while on the one hand the Act provides for giving information within 48 hours where the life and liberty of a person is concerned, on the other it exempts those organisations from its purview that are most often accused of violating civil liberties."

The FOIA also excludes such official bodies as the vigilance and anti-corruption bureaus from its ambit. This, says Mishra, "would obviously only keep the course of various corruption cases under a shroud of secrecy."

Another key problem is that the onus for getting information out lies with citizens who must request it, rather than on official bodies which must proactively release details of their work.

And in the absence of the repeal or amendment of the OSA, there will always be a contradiction between the older, more comfortable imperative to hide information and the newer mandate for transparency and openness.

Which way this contradiction is resolved will depend on the political assertiveness of ordinary citizens.

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