What is it that the Government wishes to hide? Subversion of the rule of law?

There has been much perfervid advocacy of late of presidential or other systems that would allow decisiveness and expedition in governance by vesting greater powers in the hands of the executive.Even while the issue is being debated, the executive has begun to assume wide powers outside the framework of the checks and balances written into the Constitution by resort to the doctrine of executive privilege.This doctrine was pleaded in the United States by President Nixon in circumstances and for purposes that are well known. To have accepted that plea would have been to confer untrammelled power in the hands of the executive to the detriment of the legislative and judicial branches and the principle of accountability.The doctrine of executive privilege is being insidiously pushed in India too, at levels and on issues that have not attracted the attention they deserve, thus establishing precedents that could become springboards for future action.Executive privilege was claimed by the Bihar Government with regard to the disclosure of certain Criminal Investigation Department (CID) files and reports pertaining to the Bhagalpur blindings.Publication by the Indian Express of the verbatim text of documents that the Government at one stage even disputed ever existed called the bluff. Executive privilege was shown as a tattered cover for malfeasance and as clearly inimical to the public interest.Strange Reversal: Another instance arose in respect of the Thal-Vaishet fertiliser project. On December 24, 1980, K.P. Unnikrishnan, MP, speaking in the Lok Sabha, quoted official notings leading up to the initialling of a contract for four large ammonia-based fertiliser plants to be awarded to an American firm, C.F. Braun, and its subsequent and sudden annulment and award to two other parties in the face of a series of earlier unanimous technical, official and political decisions. The reasons for this extraordinary reversal have not been satisfactorily explained and various extraneous and unsavoury considerations have been alleged.What is it that the Government wishes to hide? Subversion of the rule of law? Incompetence? The cosy network established between corrupt politicians, corrupt officials and corrupt businessmen? Pettifogging technicalities are being advanced to subvert the public interest.... Rather than clear itself unambiguously, the Government instituted an inquiry into how the files or notings had leaked and has launched proceedings against certain persons on grounds of having made available official secrets to interested foreign parties who are willing and able to buy highly lucrative contracts. Espionage in any form is not to be condoned.What is noteworthy however is the cover provided by the subsequent prosecution to the originally alleged delinquency to which Unnikrishnan drew sharp attention with devastating detail. Executive privilege has not been specifically pleaded here except indirectly at second remove to the extent that violation of the Official Secrets Act has been allowed or used to obscure the charge of domestic malfeasance.Delayed Inquiry: More recently, another case that emits a very strong stink has come to notice. On August 11,1979, Machhu Dam-II in Saurashtra broke, unleashing a flood that destroyed the prosperous town of Morvi and claimed over 2,000 dead. It was the worst disaster of its kind experienced in India since Independence.The nation was shocked and there was insistence on a judicial inquiry. The Gujarat Government set up the Machhu Dam Inquiry Commission under Justice P. D. Desai, a sitting judge of the Gujarat High Court, on September 8,1979 under the Commissions of Inquiry Act, with instructions to report within six months.No sooner was the commission constituted than every effort commenced to scuttle it. The Government sought 37 adjournments and extensions over the next 18 months - the life of the commission having been twice extended, the second time on January 23,1981 until June 9, 1981.The commission finally cleared the decks for recording the evidence of government witnesses from March 16. Two days later, the state Government issued an order winding up the commission. Fortunately, the Consumer Education and Research Centre of Ahmedabad, which is impleaded in the inquiry on behalf of the citizens of Morvi, filed a writ for stay of the notification which was granted by Desai. The matter has been posted for hearing on June 15, and the commission will continue in being unimpaired until that time.The reasons advanced by the Government for seeking extensions from time to time were that its officials were on leave or on strike, the number of approvals required in dealing with a multi-departmental matter, the time involved in searching for records spread over 20 years in 750 files, other urgent work pertaining to the budget and the five-year plan, Divali holidays, alleged lack of accommodation and air-conditioning in Morvi, time for filing fresh affidavits, and technical objections.The commission made every concession it could but repeatedly deplored what seemed to be wilful delay and obstruction. Executive privilege came to be pleaded by the Government when it was required to produce the report of the then district collector of Rajkot who wrote a contemporary assessment of the disaster and the role of the officials involved. A story based on this document had in fact appeared in the Sunday Standard of September 9, 1979 under the caption "Rajkot Collector Collars Irrigation Engineers".The Machhu Dam-II in Morvi which collapsed: Suppressing the truthThe secretary of the Revenue Department in an affidavit stated "The said Report contains the chain of events which took place in the entire district of Rajkot from 28-30 hours (sic) on 10.8.79 till 12.8.79 as well as opinions of Shri Bannerjee".He went on to argue that the notings constituted unpublished records of the Government and communications made in official confidence relating to "affairs of State". Thus, disclosure of the report would injure the public interest whereas its non-disclosure would not adversely affect the administration of justice.Protecting Officials: The plea is specious. The commission was asked to inquire into the causes of failure of Machhu Dam-II and on the "adequacy of the action taken by various authorities, till the flood waters from the Dam entered the affected area, to avert the disaster and mitigate the consequences thereof. The commission was further required to make recommendations in this regard for future guidance.How was the commission to do so with the Government intent on protecting its officials and other vested interests? And what was the Government's plea? That disclosure of this document would affect the frankness and candour with which government servants in general would in future express themselves on affairs of State. Disclosure might also expose officials to unnecessary litigation. The commission heard counsel on both sides and tartly observed that "the claim of privilege is totally misconceived".The phrase "affairs of State" has a legal connotation as interpreted by the Supreme Court in Sukhdev Singh's case. The commission stated that "without violence to the language, the confidental record in question before me cannot be elevated to that high pedestal of one relating to affairs of State ex facie since they are not by their contents such as to affect either national defence or public security or good neighbourly relations; nor do they fall within that class which carried on its face the character of a document the disclosure of which may injure the public interest since they are not within the category of the confidential minutes of Cabinet meetings or advice by the Public Service Commission to the Government or minutes of high-level inter-departmental officers".Accountability: The plea of exposing public servants to unnecessary litigation was found equally frivolous. Applying the test of the Sukhdev Singh judgment, the commission pointed out that the frankness and candour of public officials that might appropriately be safeguarded would relate "to opinions expressed in the determination and execution of public policies". The Rajkot collector's report could not, however, be said to fall in this category.The commission noted that the event under inquiry was a disaster of such magnitude as had few precedents in records of dam failures in this century. It went on to emphasise that public accountability is a proper check on inefficiency within the administration as much as on ill-informed public criticism. Disclosure of the Rajkot Report by enhancing accountability would therefore contribute to the public good while its suppression would affect the administration of justice. The commission delivered its order against the privilege sought on September 23, 1980, but granted a stay to permit the Government to appeal. The matter is pending before the Gujarat High Court.What is it that the Government wishes to hide in all these cases? Subversion of the rule of law? Incompetence? The cosy network established between corrupt politicians, corrupt officials and corrupt businessmen? Pettifogging technicalities are being advanced to subvert the public interest in the name of executive privilege masquerading as the public interest. It is time the country looked alive and challenged the unhealthy precedents that are being established.Published By: AtMigration Published On: Nov 22, 2013 11:52 IST--- ENDS ---

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What is it that the Government wishes to hide? Subversion of the rule of law?

What is it that the Government wishes to hide? Subversion of the rule of law? Incompetence? The cosy network established between corrupt politicians, corrupt officials and corrupt businessmen?

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