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Suppressed reports

April 13, 2013

GOVERNMENTS set up inquiries to allay public disquiet; whether over a financial scandal, a case of ministerial corruption or a military disaster.

But, with the proverbial shortness of public memory, by the time the report arrives, after a protracted inquiry, public interest in the wrongdoing has largely evaporated. The government exploits this failing and suppresses the report.

By now it should be evident to public-spirited citizens who keep vigil over such matters that they are not helpless. They have a right to read the report and the government has a corresponding duty to publish it.

The inquiry was, after all, instituted to address the people’s concern. Considerable amounts of state funds were spent on the conduct of the inquiry. The report is public property. The citizen’s right to its disclosure is an integral part of his fundamental right to freedom of speech.

It is now established beyond challenge by judicial rulings that the right very much includes the right to know and is, therefore, enforceable by the high courts and the Supreme Court, endowed as they are with the power to enforce the citizen’s fundamental rights. Any public-spirited citizen can invoke the court’s jurisdiction.

A case in Indian Kashmir reveals how the right has been treated by the government there. On Sept 29, 2011 a 61-year-old retired teacher and National Conference “sympathiser”, who allegedly took money from two party leaders on the promise of getting them a ministership and a legislative council seat through Union Minister Farooq Abdullah, died in custody after he was handed over to the crime branch by Chief Minister Omar Abdullah personally at his residence.

The family of the man, Syed Mohammad Yousuf, alleged he was killed by the police because he knew “too many secrets”. The police claimed that he had died after “a heart attack” in the police hospital where he was taken away from the chief minister’s residence.

The government announced that “in order to allay all apprehensions and in order to ensure an impartial investigation” it had been decided to “request the chief justice of the J&K high court to nominate a sitting judge to conduct a judicial inquiry into the immediate circumstances leading to the death of Syed Mohammad Yousuf”.

Public apprehensions arose out of a reasonable suspicion of torture which presumably led to the heart attack. The only way to allay it was to institute criminal investigations. That could not be conducted by the police; only by the Central Bureau of Investigation, or a special investigation team set up by the Supreme Court. The IG crime Raja Ajaz was at the chief minister’s residence and Yousuf died at the crime branch.

Justice Harjit Singh Bedi a former judge of the Supreme Court, was appointed to head the commission of inquiry. He arrived in Srinagar on Sept 28, held a preliminary meeting on Nov 29, and returned to New Delhi on Dec 1. Even months after Yousuf’s death in mysterious circumstances, no probe into the deed had begun.

When the Bedi Commission’s report was submitted to the government recently, there was a furore in the Kashmir assembly over its failure to table it in the house to avoid a debate there.

It matters not whether the statute on commissions of inquiry obligates the government to publish their reports. Its duty to publish them and the citizen’s right to peruse them flow inexorably from the constitution and their fundamental right to freedom of speech and expression; not from an ordinary law.

In 1975 the Supreme Court of India held that “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but 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….”

This was a sensitive case on prime minister Indira Gandhi’s use of state facilities during an election campaign. The court upheld the petitioner’s right to see the hitherto secret ‘blue book’ containing the rules on that point.

In 1981 the court amplified: “The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfil the role which democracy assigns to them and make democracy a really effective participatory democracy … The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic state.”

In Britain suppression of reports of inquiries is unheard of. A committee of privy counsellors was set up “to review the way in which the responsibilities of government in relation to the Falkland Islands and their dependencies were discharged in the period leading up to the Argentine invasion of the Falkland Island on 2 April 1982”.

The report, laid before parliament in January 1983, was based on testimony by prime minister Margaret Thatcher and her colleagues as well as cabinet papers. Sections 25 and 26 of the UK’s Inquiries Act 2005 provide for the publication of reports of inquiries as well as for their presentation before parliament.

However, in India the Henderson Brookes report on the 1962 war with China, submitted in 1963, has been suppressed by the government. What is more shameful is that the Central Information Commission set up under the Right to Information Act, which was then headed by Wajahat Habibullah, a retired bureaucrat, upheld this suppression on grounds manifestly spurious.

The writer is an author and a lawyer.