July 6, 2007
Why keep records secret if Bose had died in 1945?: Mission Netaji
Disclosure of Top Secret records will lead to chaos in country: MHA
Matter is of a serious national importance: Central Information Commission
In a major boost for the freedom of information movement in India, the full Bench of Central Information Commission (CIC) has ruled that the Ministry of Home Affairs (MHA) must declassify records relating to Netaji Subhas Chandra Bose's reported death.
The CIC set aside the MHA's contention that disclosure "may lead to a serious law and order problem in the country, especially in West Bengal" as "facile hypothesis" which "seems to be a position repeated without any discernable application of mind".
The Bench comprising Chief Information Commissioner Wajahat Habibullah and Information Commissioners Padma Balasubramanian, AN Tiwari, Dr OP Kejariwal and Prof MM Ansari hammered in that the matter was of "wide public concern and therefore of national importance" and rejected the Home Ministry's "considered view" to not to "supply the documents relating to various Commissions of Inquiry on disappearance of Netaji Subhash Chandra Bose in public interest".
The documents had been sought in June last year when Sayantan Dasgupta of Mission Netaji requested the MHA to "make available authenticated copies of documents used as exhibits by the Shah Nawaz Khan and GD Khosla panels".
The idea was to better the understanding about the conclusion drawn by these panels since the Government held their findings true even after receiving the latest report of Justice MK Mukherjee, a top criminal law expert and former judge of the Supreme Court of India.
Shah Nawaz Khan, a one time INA man, was a Congress party MP when Prime Minister Jawaharlal Nehru appointed him the chairman of Netaji inquiry committee in 1956. Justice GD Khosla, a friend of Nehru's, authored a eulogistic book on Prime Minister Indira Gandhi while he disposed off the Bose death probe in early 1970s. It was alleged that both these panels worked along a premeditated line that Netaji had died in a plane crash in Taipei.
Setting aside the charges of foul play, the Government readily accepted the reports of Shah Nawaz Khan and GD Khosla. Whereas, they arbitrarily dismissed that of the Mukherjee Commission -- set up after a scathing court order -- that this crash was actually a camouflage of the Japanese military to help Netaji escape to the Soviet Russia.
Sayantan's request too was arbitrarily rejected by the MHA under Section 8(3) of the RTI Act dealing with "information, disclosure of which would prejudicially affect ... the security, strategic ... interests of the State" and its "relation with foreign State".
Following this, he approached the CIC where three hearings were held by Information Commissioner AN Tiwari. Interestingly, on 26.3.2007, the Ministry informed Tiwari that "the matter had been considered carefully at the highest level in the Ministry". The Ministry refused to hand over the documents either to Mission Netaji or the National Archives saying they are "sensitive in nature".
Commissioner Tiwari found the MHA "to be unwilling or unprepared to take a considered view regarding which parts of the Netaji Subhash Chandra Bose's papers should be kept secret and for what reason" and decided to refer the matter to the Full Bench of the Commission so that the MHA could "present their case after holding such inter-ministerial consultations as might be considered necessary by them."
The Full Bench hearing on 5.6.2007 was attended by Sayantan Dasgupta, Anuj Dhar and Chandrachur Ghose from Mission Netaji; and LC Goyal, Jt. Secretary, SK Malhotra, Dy Secretary and SK Goswami, Under Secretary of the MHA.
Mission Netaji's stand was that section 8(1)(a) which bars disclosure of information if it harms sovereignty and integrity of India, relation with foreign State or lead to incitement of an offence, etc, did not "apply to the present case as it is already concluded (by the Government) that Netaji had died in a plane crash".
Mission Netaji "wanted to know at what level the decision about sensitive nature of the documents has been taken and who has taken this decision" and "alleged that the documents have been destroyed" and that "the intention of the Ministry is to hide and to not disclose."
"Their responsibility does not end just by saying that certain documents are missing or cannot be located."
The MHA's argument was: "The documents sought under the RTI Act are voluminous (70,000 pages) and top secret in nature and may lead to chaos in the country if disclosed ...the information asked for is more than 20 years old and as such, its disclosure is exempted under section 8(3) of the RTI Act."
The officials conceded that "the decision concerning disclosure has to be taken at the highest (read political) level and that they cannot say any thing on their own".
The CIC, in its order read out a riot act to the Ministry, which seems to have been caught up in the days when Official Secrets Act held the sway.
"A plain reading of sub-section 3 makes it clear that a public authority is obliged to provide information which is more than 20 years old," the CIC noted, underlining that the Ministry had got its basics wrong.
The MHA "in spite of the direction given by the Commission has made no attempt either to examine the documents requested, or to analyze as to whether their disclosure need be withheld and if so, on what grounds," they further stated.
"It appears that neither before nor now, the respondent Public Authority (MHA) has been able to establish a clear nexus or any co-relation between the decision of non-disclosure and the objectives which they seem to achieve by such nondisclosure."
"If it has not even looked into or analyzed the documents, on what basis could they come to the conclusion that any disclosure of such information will be prejudicial to the security or sovereignty and integrity of the country or would prejudicially affect its relations with any foreign State?"
The Commission accepted that the MHA "is the authority to best judge to determine whether the disclosure of the information would prejudicially affect the national interest or not. However, such determination cannot and, should not, be superficial, jejune or perfunctory."
"Any decision in this regard must factor in the changed transparency scenario after the advent of the RTI Act. Earlier, a public authority could bar any information from disclosure under the Official Secrets Act, simply by classifying the information as secret or top-secret. That option has been effectively excluded by the RTI Act. Any decision to withhold information from public access is to be justified rationally, under the provisions of the Act. The decision to bar an information from disclosure can no more be arbitrary. It will need to pass the Commission's scrutiny."
Having reasoned its overall stand, the CIC directed the MHA to furnish information sought by Sayantan Dasgupta within three months. The caveat was: "In case the Public Authority decides not to disclose certain documents or any part thereof, it shall record reasons for such non-disclosure together with the name and designation of the authority arriving at the conclusion of non-disclosure, and submit the same before this Commission".
The CIC reminded that MHA that by carrying out the directives they "would not only be discharging its legal duties and rendering an essential service to a public cause, it may finally help resolve an unsolved mystery of independent India."
Air your views on Justice for Subhas blog
Related links: CIC order (Jump to most important part), The man who put MHA in a spot; God forbid this should be true; Need to know
Media coverage: IBN Live; Indian Express, BBC Hindi, Jagran, Nav Bharat Times, Zee, NDTV, Gulf News, Hindu, Sahara Samay
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