Legality of a measure does not justify it because what all the judges are concerned with is whether it violates the constitution. They cannot adjudge its morality; The legal opinion is different from public opinion.

Therefore, one wonders why people seem to have accepted without demur the most pernicious ordinance since independence the one relating to reports by inquiry commissions. The measure gives the government the right to withhold from Parliament and the state legislatures reports of inquiry commissions which it considers harmful to state security or to relations with foreign countries or in “public interest”. Like the National Security Act, which gives the government unlimited power to detain people, the ordinance in effect. Will enable it or, for that matter, the ruling party to suppress any report which is embarrassing to it.

‘The ordinance, which amends Section (3) of the Commissions of Inquiry Act, defeats the very purpose of the Act. An inquiry is meant to bring before the public the facts relating to anything that is so serious that it greatly agitates the public. Now that very public can be denied what it wants to know under the pretext that to ‘know is against its own interest.

PUBLIC INTEREST

In fact, the Supreme Court has gone to the extent of saying that when a case against an individual (State versus R.K. Dalmia) involves public interest, even the dealings of that individual cannot be looked into by an inquiry commission under the act. The emphasis is on “public interest”. Now imagine the government withholding reports of inquiry into assets of ministers or public men in the name of public interest!

Still more reprehensible is the government’s acquisition of the right to withhold reports from Parliament and the state legislatures, which represent the people, One can understand in an emergency situation the government coming before Parliament or a state legislature saying that a particular report should be disclosed in camera but not released to the public because it involves the country’s security or might affect relations with foreign countries. Though, Britain did not do that even during the war when the enemy could have taken all the advantage of the information disclosed in Parliament, What the Government of India’s trying to do is to be able to suppress any report it does not like.

OBJECTIVE

It is apparent that the government’s immediate objective is to suppress the report of  the Thakkar Commission, which inquired into the assassination of Mrs. Gandhi. One believes that he has mentioned certain persons whose conduct he waits to be probed into further. P.N. Lekhi, the lawyer defending the accused, has alleged much more. Even presuming he is exaggerating, how does one establish that he is doing so if the Thakkar Commission report is to stay “secret”, The government does not seem to realize the credibility gap that will remain unfilled even after the trial is over.

The Mishra Commission report on anti Sikh riots has disappeared in the inaccessible underground vaults of the government and the public would never know as to who have been indicted and who exonerated. It is an open secret that the Mishra Commission was ‘appointed under pressure of public opinion and that Prime Minister Rajiv Gandhi was not in favour of it, :

One can only conclude that the government has promulgated the ordinance so as to cover up its lapses uncovered by the Thakkar Commission and likely to be brought by any commission in the future. How will the public’s misgiving be allayed if the inquiry ordered to satisfy it is suppressed? And then what is the purpose of setting up inquiry commissions?

‘One suspected the government’s dubious motives when it refused to make public the Mathew Commission report on the Hindi speaking area from Punjab to be transferred to Haryana in lieu of Chandigarh. The two states have been given the full text of the report after several weeks of its submission. The public, more so Parliament has been fed only with a gist of the report. I ‘the government can resort to such things in the case of an innocuous report, what will be its attitude towards reports of the inquiry commissions inquiring into serious matters is not difficult to imagine, Is a report ‘meant only to satisfy official curiosity? One does not like the suppression of even official inquiry reports like the one by Henderson Brooks after India’s debacle in 1962 at the hands of China. Now the government is trying to extend the same “right to suppress” the inquiry commission reports.

Indeed, it is said that the Rajiv Government, ‘which began on a slogan of open government, is gradually falling prey to the syndrome of secrecy. In a democracy, which rests on the people’s faith in the government response, even an iota of doubt raised about what the ‘government says or does is dangerous. Mrs., Gandhi did not appreciate this fact. The ordinance on the inquiry commission reports indicate that neither does Rajiv Gandhi.

FLAGRANT MISUSE,

‘The government has issued the ordinance within 24 hours of Parliament’s adjournment. This is a flagrant misuse of Article 123 which has a rider stating that the President must be “satisfied” that there is necessity for an ordinance. Unfortunately, the Supreme Court in its majority Judgement on the National Security Ordinance has not given due consideration to “necessity? but has equated the President’s power to issue an ordinance with Parliament’s right to pass legislation, arguing that just as it does not go into why Parliament has passed a particular legislation, cannot question why the President has issued a particular ordinance,

It is strange that the President, who has tried to prove that he is not a figure head, has not fulfilled his constitutional obligation before signing the ordinance, Article 123 lays down that the President has to be “satisfied that circumstances existed which render it necessary for him to take immediate action”. Inquiries reveal that he took no time to sign it.

GREAT CRITICISM

The farmers of the constitution were aware of the fact that the ordinance making power provided for under the Act of 1935 had never been popular in the country and had been the subject of “greatest”, In the Constituent Assembly, it was criticised by some members as “obnoxious to democracy”. But the farmers always looked upon it as necessary. BIN, Rau, the constitutional adviser, wrote in his memorandum: “Circumstances may exist where the immediate promulgation of a law is absolutely necessary and there is No time in which to summon the Union Parliament.

Even in the Constituent Assembly the members were afraid that the power might be misused and amendments were moved to prescribe a particular time limit within which Parliament should be called to review the position. HN, Kunzru, an esteemed liberal in the opposition, suggested that Parliament should be called within “30 days of the promulgation of the ordinance”. However, he did not press it when he was assured by BR. Amhedkar, then law minister that his fear was unfounded. ‘The way ordinances, especially the latest relating to the reports of commissions of inquiry, are promulgated now does lead one to believe that the government does not see much of a difference between a departmental order and an ordinance.

‘Courtesy: Muslim Islamabad

Article extracted from this publication >> October 3, 1986