Sitting tight on information
As reported by Josy Joseph in D N A Tuesday, June 03, 2008
The government may have brought in progressive legislation like the
Right to Information Act, but babudom is still the same. It seeks to
slow down the flow of information, even if the information happens to
be 50 years old and is of little use to anybody but historians.
The files now being made available from the Nehru era should have
contained documents that could have thrown light on the 1962 war, the
Chinese takeover of Tibet, the military standoffs with Pakistan, the
Cold War's compulsions and several other epochal events in a young
nation's life. But they are merely the tip of the iceberg.
The files unveiled by DNA offer interesting insights into the workings
of the prime minister's office, especially during Nehru's stewardship
of the country, but the extreme reluctance with which they are being
made available for research and scrutiny is a telling comment on
babudom's unwillingness to release information without a fight.
Despite relentless efforts by many activists, there is no
comprehensive national policy on declassifying sensitive government
files. Making sensitive files available after they have ceased to
remain sensitive is important in a democracy for they help raise the
level of debate and provide useful lessons for policy-makers.
The Nehru era files, despite their shortcomings, provide previously
unknown insights into the birth of the nation, its high aspirations,
and the failure of government to implement ideas and proposals that
would have helped India's economic development and nation-building
The time is now ripe for government to enact a law, or evolve
transparent rules, that allow documents to be declassified
automatically after the lapse of a minimum number of years. Only the
most sensitive of documents should ever be withheld indefinitely, and
even in these cases, the decision should be subject to review by a
publicly appointed ombudsman.
The CIC has mentioned in several of its orders that the Government should formulate a clear cut policy for declassification and release of Documents related to such matters including defence documents relating to past wars - but no one in the Government has listened.
1962 - UNTOLD STORY The people have a right to know what went wrong in 1962 when India went to war with China.
IT is surely time that the Government of India bestirred itself on inquiries and studies on the wars in which the country’s blood and treasure were expended. The people have a right to know why and how things went the way they did. Eight years ago, the Kargil Review Committee noted: “India has not published authoritative histories of the 1965 and 1971 wars. It is necessary to publish authentic accounts of the 1965 and 1971 wars and to establish the facts.”
If the reports are now in the public domain, it is not because of state action. “Private enterprise” paved the way on the Internet. We owe it to K. Subrahmanyam’s exertions and commitment.
Referring to the Kargil Review Committee’s Report, Defence Minister A.K. Anthony disclosed, in a written reply in the Rajya Sabha on November 21, 2007, “A committee to review the publication of war histories was constituted by the government. The committee has given its recommendations which are being considered for arriving at a final decision on this issue.”
Its report should be published soon. The people are entitled to know when the committee was set up, its composition and terms of reference and its findings and recommendations.
Did publication of the Henderson-Brooks-P.S. Bhagat report on the 1962 war with China form part of its remit? On February 27, 2008, the Defence Minister announced in Parliament the government’s decision not to publish that report. The ground he cited was specious: “Sensitivity of information contained in the report and its security implications” – 45 years after the report was submitted.
On November 9, 1962, while the war was on, Prime Minister Jawaharlal Nehru told the Rajya Sabha that there would be an inquiry at a “suitable time” into the charges of “unpreparedness”. Implied in the promise, surely, was an assurance that the result would be shared with Parliament and the nation. It was instituted to allay public disquiet. He said, clearly enough, “I hope there will be an inquiry so as to find out what mistakes or errors were committed and who were responsible for them.” This was for public edification no less than the government’s.On April 1, 1963, Defence Minister Y.B. Chavan informed the Lok Sabha that “with my approval the Chief of Army Staff [COAS] had ordered a thorough investigation to be carried out”. He specified the issues for the probe. The task was entrusted to Lieutenant-General T.B. Henderson-Brooks and Brigadier P.S. Bhagat. On May 12, they submitted their report to the COAS, who, in turn, forwarded it to the Defence Minister, with his comments, on July 2. Chavan made a formal statement on the report to the Lok Sabha on September 2, 1963.
“Consideration of security”
“This inquiry is the type of inquiry which the Prime Minister had in mind when he promised such an inquiry to the House in November 1992.” But, he now said, “it would not be in the public interest to lay the report on the table of the House”. Not even an abridged or edited version of it, consistent with “consideration of security”. Since that was the consideration, there should be no bar to its publication now. “Information about the strength and deployment of our forces and their locations would be of invaluable use to our enemies” in 1963. It is pure history in 2008.
In 1970, a mere seven years later, came Neville Maxwell’s book India’s China War. Its reference to “an unpublished Indian Army report on these events” and, indeed, the contents of the book, left none in doubt that he had had access to the report. All doubt has since been dispelled by his citation of precise details of the report in an article entitled “Henderson-Brooks Report: An Introduction” published in the Economic and Political Weekly on April 14, 2001, He subsequently put it up on the Internet. He wrote: “The Henderson-Brooks Report is long (its main section, excluding recommendations and many annexures, covers nearly 200 foolscap pages), detailed and far ranging. This introduction will touch only upon some select points, to give the flavour of the whole…..”
Are the people of India to be denied a report that is available and has been publicised by a foreign writer? Or, is the government waiting for him to put the entire report online?
In 1963, the nation readily accepted Chavan’s plea of “the public interest”. In 2008, it cannot and must not. Section 8(1) (a) of the Right to Information Act (RTI), 2005, says that “there shall be no obligation to give any citizen information the disclosure of which would prejudicially affect ... the security, the strategic … interests of the State, relations with a foreign State …” None of these applies today. Note that Section 8 (1) does not impose a bar. It says only that there is no “obligation” to give the information. It is open to the government in its discretion to provide it even if it falls within Section 8 (1) (a). Clause 2 explicitly confers that discretion: “if public interest in disclosure overweighs the harm to the protected interests”.
In recent years, Chinese journals and memoirs have provided China’s version of the war of 1962. India’s relations with China will not suffer by publication of the report, nor will national security. Those who support its suppression on the grounds that it would affect a great national hero’s reputation do Jawaharlal Nehru’s memory no service. Whole shelves of libraries are full of studies documenting Winston Churchill’s mistakes during the Second World War. The opposition of the day, the Jan Sangh, the Swatantra and the Socialists, were all for “action”, crying “appeasement”. They are as culpable as he on the foolish adventure that was the Forward Policy. Partisanship in such a matter is indecent. Statements by leaders of the opposition during that period, if recalled, would do them little credit. It was a national failure, and publication of a study of the war is very much in the national interest.
War inquiries have hallowed precedents. Britain held an inquiry into the conduct of the Crimean War in the 19th century. During the First World War, a Special Commission was set up by an Act of Parliament to inquire into the Dardanelles campaign. The terms of reference were “for the purpose of inquiring into the origin, inception and conduct of operations or war in the Dardanelles and Gallipoli, including the supply of drafts, reinforcements, ammunition and equipment to the troops and fleet, the provision for the sick and wounded, and the responsibility of those departments of the government whose duty it has been to minister to the wants of the forces employed in that theatre of war”.
What was the genesis of the famous Pentagon Papers? In 1967, Defence Secretary Robert McNamara commissioned a study of how the United States had come to fall into the deep marsh that was Vietnam.
A Vietnam History Task Force produced, in 47 volumes of documents, a history of the U.S.’ involvement in the Vietnam war. Fifteen sets of these, known as the Pentagon Papers, were prepared. Daniel Ellsberg, a former official in the Defence Department, secretly copied them while still in government service. He gave them to The New York Times and The Washington Post. The Supreme Court upheld their publication.
A modern classic
There is a modern classic – the Report of the Inquiry Commission headed by Dr. Shimon Agranat, President of Israel’s Supreme Court, and comprising four other members, on the Yom Kippur War. It began on October 6, 1973, and ended on October 22, when Egypt agreed on a ceasefire. The Israeli Cabinet appointed the commission as early as on November 18 to probe, mainly, two matters – intelligence and deployment of the Israeli Defence Forces. It submitted a report on April 1, 1974, but promised a further report that would contain “a detailed description of the facts and a complete exposition of the Commission’s conclusions”. The “Partial Report” was published in 1975.
The Commission cautioned that the later report would “contain many secret facts which in all probability will rule out publications in full”. On April 4, 1994, the Cabinet authorised the release of the final report. It runs into seven volumes. Significant extracts from the classic were reproduced in a book published in 2000.
The terms of reference covered politicians in power as well as soldiers: “The information, in the days preceding the Yom Kippur War, concerning the enemy’s moves and his intentions to open war, as well as the assessments and the decisions of the duly authorised military and civilian bodies with regard to the aforementioned information.
“The Israeli Defence Forces’ deployment for battle in general, its preparedness in the days preceding the Yom Kippur War and its actions up to the containment of the enemy.”
Eliyahu Winograd, a retired judge, was asked to inquire into Israel’s war against the Hizbollah in Lebanon in 2006. His 629-page final report was published on January 30, 2008. He found “grave failings” among both political and military leaders. An interim report was published on April 30, 2007, with remarkable despatch. It censured Prime Minister Ehud Olmert, who had testified before the inquiry. One wishes our judges would show similar despatch and our politicians equal concern for transparency.
The U.S. Supreme Court’s ruling in the Pentagon Papers case provides a good guide for the government, as also for the Central Information Commission if it is moved to order disclosure. Justice Hugo Black said: “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”
Justice Potter Stewart propounded a good test – “direct immediate and irreparable damage to our Nation and its people”. The case was decided in June 1971, while the Vietnam war was on.
A more recent precedent is even more relevant. Clause 2 of Section 8 of the RTI explicitly confers a discretion: “if public interest in disclosure outweighs the harm to the protected interests.” Invoking such a provision in the Freedom of Information Act, the United Kingdom’s Information Commissioner, Richard Thomas, ordered, on February 26, 2008, disclosure of the minutes of two Cabinet meetings in March 2003 at which Ministers discussed Attorney-General Lord Goldsmith’s advice on the legality of the war on Iraq.
That war is still on. The 1962 war ended that very year.•