March 27, 2001


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Ashwin Mahesh

The emperor's new guns

Almost twenty years ago, in an extraordinary case defining the scope, breadth and power of the judiciary, the Supreme Court of India laid out an interesting sidelight while rendering its opinion. Verdicts from the courts often include commentaries that buttress the judgements, and these obiter dicta are noteworthy, for in democratic societies, they often presage the direction of social policy. Opining that transparent government is essential to upholding democracy, the court offered the following.

The concept of an open Government is the direct emanation from the right to know.
Therefore, disclosures of information in regard to the functioning of Government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest.

Legalese being what it is, some plain English is helpful. As citizens of India, we are entitled to know how our government functions. Indeed, this ought to be the rule in every instance. Sometimes, however, it is necessary for the government to maintain a level of secrecy in particular dealings; national security comes to mind as an example. The courts' role is two-fold,
(a) to ensure that recourse to such secrecy is limited to exceptional circumstances, and
(b) to remember that even in instances where secrecy may be warranted, disclosing that which is sought to be kept secret may serve some public good as well. Defence contracts appear to fall plainly in this latter category.

Yes, a small measure of stealth is required in ascertaining what is needed by our armed forces, and in making purchases to fulfill those needs. Nonetheless, the citizens' interest in being certain that such deals are above board cannot be set aside. The mere fact of being defence-related is not sufficient basis for secrecy, by this judgement. The reason is plain -- concealment must ultimately serve the public interest, and whereas operational details of weapons can be kept to a select few individuals, the costs of procuring them hardly merit such protection. Their 'disclosure', we can be sure post-Tehelka, serves a much higher interest than any security concern. How much of the nation can you really defend with a fictitious weapon, anyway?

Roll the tape from the court's ruling in 1981, to 2001, and the national president of the federal majority party has just submitted his resignation. This, after revelations/allegations of improper and clandestine conduct in matters relating to the potential purchase of equipment for the armed forces. Not long after, the Union defence minister follows, along with the president of his coalition member-party. Several heads at the ministry of defence, and within the armed forces themselves, are on the block, as we are witness to reams of opinions that lament the jeopardizing of national security.

Personally, I'm not much stricken with the fear of being overrun by the enemy, but that must count as entirely fortunate. The barbarians at the gates, by and large, appear incapable of overthrowing even an Indian army burdened by these expected scandals, and for that we must be grateful. This does nothing, however, to alleviate the suffering of those whose children are martyred to the filth and squalor that now poses for administration. Whether the odd Bofors gun can actually fire, or thermal-sensing gadgetry "bought" by the armed forces even exists merits scrutiny, but the cancer of their underlying callousness is no mere wart.

Whether George Fernandes is guilty, we must either concede or disbelieve mostly from political leanings, precisely because there is no established way of knowing the answer. Instead, let us examine how the very nature of government and the extent to which its functioning is transparent to us, the represented people, is undermining our interest.

A good reading of any prominent constitutional provision will reveal a continuing malaise in Indian government. The legislatures' contempt for the courts has, through the years, been the clearest sign that representatives in government, for all their public pronouncements, have little regard for the law. Rulings that appeared to fly in the face of majority opinions in Parliament were simply overturned by legislation. Rewriting inconvenient laws -- as witnessed by the Emergency, 80-something Muslim divorcees, and the Damocles' sword of anti-defection legislation -- became the answer to constitutional safeguards against subverting the public interest.

Even the genius of such legal nefariousness may be condoned, for they do include a rewriting of the laws. What is truly inexcusable is the degree to which the legislatures have simply ignored the directives and suggestions of the courts. Whereas the courts have repeatedly urged action on a million issues -- whether in local matters such as pollution in the national capital or in far-ranging ones such as the directive principles listed in Articles 36-51, the response has been uniformly disrespectful. The executive offices have simply declined to implement the laws. Lacking enforcement authority of their own and subject to the ubiquitous transfer raj, the justices -- even activist ones -- have been silenced.

The results have been predictable. Universal education remains a dream, national health-care is even less likely. The Uniform Civil Code is shelved as inexpedient, 70 per cent of our forests are gone, and hundreds of millions will never see a living wage. And, to the point of this article, for nearly twenty years since the Supreme Court's musings on the public's right to know, and 50+ years from the time such a right was presumably understood to be vested in the citizens of free India, transparent government remained an enduring campaign pledge.

Enter the National Democratic Alliance, and the Freedom of Information Bill, slated for passage this session in Parliament, and now before the standing committee on home affairs. It is heartening that at long last, the wheels of government machinery appear to be turning, but we must conclude from the evidence so far that this attempt does not go far enough. It is one thing to respond to strictures from the justices, and another, entirely different thing, to enact legislation that truly serves the public's interest in knowing how government operates. In December 2000, Article 19, the Global Campaign for Free Expression issued a critique of the draft version of this bill, finding significant areas in which this attempt remains inadequate.

The review is fairly lengthy, but very instructive. Salient amongst the criticisms (a link to the entire review is included below) are the following.

  • When public authorities refuse to disclose information, the only review of such refusal is to be conducted by the government itself!
  • The courts are prohibited from admitting lawsuits relating to orders made under the bill/law.
  • The bill/law envisions no penalty for tampering with public records, or destroying them.
In each of the above, the demerit of the provision is at once apparent. If there shall be no penalty for destroying public information or refusing to share it with the citizenry, if the courts may not review denials of information, and the only reviews are to be conducted by those who withhold information, what good is the bill? To my reading, it imparts the appearance of an attempt at being interested in informing the public without actually doing so, and that is regrettable. A further provision in the bill pertains to national security, and fails even this meager attempt at apparent good intent.

  • Article 16 of the draft bill proposes a blanket exclusion of the public record from listed security and intelligence organizations, and permits the government to maintain a list of agencies included within this provision.

It is obvious that security and intelligence organizations will have much to conceal from the limelight, but the assertion that all material from such agencies should be withheld is unfounded. Worse still, the additional twist permitting a list of such agencies to be altered at will by the government negates even the limited value of the exercise. For instance, what is to prevent future governments from adding a plethora of departments to this list, effectively nullifying the bill? Among the myriad recommendations made by the Global Campaign for Free Expression, the one pertaining to this particle article was the most direct -- that it be deleted!

This criticism of proposed legislation reminds us of a deeper flaw, that the Government in India remains a top-down process, determining what is appropriate for the masses. The purpose of democracy, however, is that elected representatives fulfill the people's wishes, not that they appoint themselves to determine what those wishes shall be! By whose leave, and by whom, for instance, was it determined that the public's right to information can be refused, without independent review? None in government or in the bureaucracy dare publicly admit this view, for it poses dire political consequences, and yet it is about to acquire the force of law!

The ignominious exit of the defence minster is ironic, considering that he ordered a review of all substantial purchases in recent years. Nonetheless, it is instructive. Ruling parties have rarely constructed a vision of where they wish to take India, professing instead to simply address apparent and immediate evils. They promise combative measures against poverty, a liberalization of the economy, a more equitable distribution of wealth and income, the resolution of Kashmir, and so on and forth. The idiocy of such posturing stands exposed at each turn, when the demons we have been fighting put in their scheduled appearances.

What is needed instead is a more fundamental understanding of government, one that permits inspirational change. The "ruling" party needs to view itself as the "majority" party instead, seeing its charge to be fulfillment of the economic and social ideology that gained the broadest acceptance among the public. From that perspective, it will be immediately apparent not only that the public has a right to know how government functions, but additionally, that it is an integral part of governing to so inform it. Armed with that knowledge, we can buy all the weapons in the world from the finest manufacturers at the most appropriate prices.

For every semblance of the public interest that is sought to be served by secrecy, there is far more that is achieved by openness. A political organization must view the participation of the citizenry in government as fundamental. The right of governance, for too long, has resembled a ruler's absolutism more than the representative's concern for the public interest, informing the governed by decree and not in service. The fallout from Tehelka is a small reminder that the Vajpayees, Jaitleys and Swarajs of our times are about to be judged by the evidence of how vigorously they disassemble the institutionalized sense of lordship that pervades government.

Related Links:

Review of the Freedom of Information Bill 2000 by the Global Campaign for Free Expression.

Acknowledgement: My thanks to Chiradeep SenGupta for his assistance in understanding the legal principles referred to in this opinion, and for his research input.

Ashwin Mahesh

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