IN many a postcolonial country, leaders have adopted institutions inherited from the British while also denuding them of their soul and spirit — among them, inquiries into cases of gross neglect, malfeasance, corruption, etc.
It’s unthinkable for any British government to suppress their reports, but India presents several such instances, the most notorious of which is the suppression of the Henderson-Brooks Report on military reverses in the war with China in 1962. Submitted in 1963, it remains unpublished to this day despite the fact that a former New Delhi correspondent of The Times (UK), Neville Maxwell, published most of it online. The Central Information Commission — constituted by the Right to Information Act, 2005, and headed by one more royalist than the king, Wajahat Habibullah — upheld its suppression.
Even reports set up under a statute have suffered the same fate. In 1986, the Rajiv Gandhi regime promulgated an ordinance to amend the Commissions of Inquiry Act, 1952 to empower it to suppress inquiry commissions’ reports. The urgency behind this move was to prevent the publication of a report by Supreme Court justice C.K. Thakkar on Indira Gandhi’s assassination in October 1984. It was re-enacted as an act of parliament. Fortunately, the V.P. Singh government that succeeded his regime secured its repeal.
Citizens have an undeniable right to information.
Another ploy used by past governments is wilfully delaying the publication of a report and even suppressing the dissenting note. This defeats the very purpose of inquiries. India’s Commission of Inquiry Act, 1952, is modelled on a British statute, the Tribunals of Inquiry (Evidence) Act, 1921. In 2005, it was replaced by the Inquiries Act.
The 1921 act had, however, stood the test of time and fully justified its enactment. The old institution of the select parliamentary committee had exposed its main flaw in the Marconi Scandal, which involved leading figures like Lloyd George (later prime minister) and Rufus Isaacs (who became viceroy as Lord Reading). The committee split along party lines. The Liberals and the Conservatives submitted conflicting reports. The 1921 act enabled judicial inquiries to be instituted. Their reports were invariably laid before parliament for the people to read.
In 1966, a royal commission was set up to inquire into the workings of tribunals. Its report, regarded as a classic on the subject, said: “We are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence. In such cases we consider that no other method of investigation would be adequate.”
Surely, in precisely such cases, it is imperative that inquiry reports be published to restore the “nation-wide crisis of confidence” among the people, who have an undeniable right to know. In the last 40 years, India’s Supreme Court has ruled in a series of cases that the right to know is an inseparable part of the fundamental right to freedom of speech and expression. A citizen cannot form an opinion, still less express it, unless he is provided access to information — which he is entitled to in a democracy.
Article 19(2) of the UN’s International Covenant on Civil and Political Rights, to which most states (including India) are parties, clearly states, “Everyone shall have the right to freedom of expression, this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of arts or through any other media of his choice.” India’s ban on telecasts from any foreign country violates Article 19(2) of the covenant.
Section 74 of the Indian Evidence Act, 1872, enacted during British rule, provides that “every public officer having the custody of a public document, which any person has a right to inspect shall give the person on demand a copy of it on payment of the legal fees…” and provides a list of such documents. Acts or records of “official bodies and tribunals” are among them. This was a precursor to the right to information law.
Now no longer subjects of an alien power, citizens have a right to ask the courts to construe a statute, nearly a century half old, in light of the situation today. Their ‘right to inspect’ should be enforced by the high courts or Supreme Court if a petition seeks the disclosure of a suppressed commission inquiry report. This is stands apart from their rights under the Right to Information Act, 2005.
The citizen’s elected representatives also enjoy such a right. To deny them access to an inquiry report is an insult to parliament as well.
The writer is an author and a lawyer based in Mumbai.
Published in Dawn, January 28th, 2017