WITH a boom in book publishing, former ministers, diplomats, civil servants and politicians have not been slow to profit from it. The reading public is avid for “disclosures”. Many of them publish state papers to lend a veneer of authenticity to the book.

A former self-righteous comptroller and auditor-general of India, Vinod Rai, had no qualms about reproducing in his memoirs, whole texts of documents which he had no right to publish. It was a breach of the law as well as the established norms of propriety.

B.K. Nehru, of the Indian Civil Service, who belonged to the undivided Punjab’s cadre, wrote of those norms in his memoirs Nice guys finish second: “Having been a disciplined civil servant for most of my life I obeyed strictly, till towards the end of my official career, the rule that no copy of any official paper may be maintained in the private possession of any individual.

Documents composed in the course of public duty are state property.

“It was only when I discovered later in life that in the new world in which we live nobody pays attention to any rules, and that in most foreign countries people retain copies of official papers and make money subsequently by their publication, that I started retaining copies of some of the important letters I wrote during my tenures as governor.

“Also, having discovered that the Government of India would not allow even the author of notes and letters to see them or read them in the files after he had demitted office, I requested one successor of mine as ambassador in Washington to let me have, stealthily and in breach of the law, copies of letters and telegrams that I had received and sent on matters of importance during my long tenure in that office.”

But his successor, as governor of Indian Jammu & Kashmir, Jagmohan, quoted in his memoirs a letter of censure which Nehru had written as governor to the chief minister Farooq Abdullah. Obviously Jagmohan had made a copy of this paper when he demitted office as governor and used it later in his memoirs. Cabinet proceedings and civil servants’ advice were also published.

The law is clear beyond all doubt. Documents composed or received by any public servant — minister, civil servant or diplomat — in the course of his public duty are state property. The copyright in them vests in the state, neither in the writer nor the recipient.

In Britain, the rule is: “Former ministers are required to submit their manuscript to the secretary of the cabinet and to conform to the principles set out in the Radcliffe report of 1976.” This is an allusion to the report of the committee of privy counsellors on ministerial memoirs, headed by Lord Radcliffe.

The committee was set up in the wake of the serialisation by The Sunday Times in 1974 of the diaries of a former cabinet minister Richard Crossman. While it was at work, the attorney-general went to court for an injunction to restrain the publication and lost.

On Oct 1, 1975, the lord chief justice of England Lord Widgery delivered a judgement which balanced public interest in confidentiality with the people’s right to know.

He said, “It seems to me, that the degree of protection afforded to cabinet papers and discussion cannot be determined by a single rule of thumb. Some secrets require a high standard of protection for a short time. Others may require protection until a new political generation has taken over.” A decade after the diaries were composed, confidentiality had waned.

The committee took due note of the ruling and, after an exhaustive review of the practice, laid down “three working rules” which a cabinet ministers is expected to follow. He should not disclose (1) the opinions or attitudes of colleagues as to the government business; (2) advice given to him by individuals whose duty it has been to tender him their advice or opinions in confidence; (3) he should not make public assessment or criticisms, favourable or unfavourable, of those who have served under him.

These rules apply also to civil servants. All this concerns disclosure of oral discussions, not publication of state papers. In 1945, Churchill’s request for retention of cabinet papers which he himself had written, was rejected. They were the state’s property, not his.

In the United States, the rule is no different. Congress passed a law to acquire Richard Nixon’s papers. He challenged it in the Supreme Court and lost. Only the papers concerning his personal matters were returned to him. The rest belonged to the US and are open to scrutiny by interested persons.

Unfortunately, this well-established rule has yet to take root in India. But the courts are not powerless. They can forbid such publications.

The writer is an author and lawyer based in Mumbai.

Published in Dawn, July 4th, 2015

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