India Must Amend Public Records Act: ‘Secrecy’ Harms in Many Ways

India still lacks comprehensive and accountable routines for maintaining accessible public records, Tharoor writes.

Congress MP Shashi Tharoor argues that the gag order restrains former officials from speaking out about government failures in security or intelligence, challenging policies, and even prevents exposure of corruption.

(Photo: Shruti Mathur/The Quint)

The recent controversy over the Government’s order gagging senior officials, especially from the intelligence community, from publishing anything related to their “domain” without prior permission from the “competent authority”, has been made worse by the threat to withhold pensions in case of violations.

Almost in the same breath comes news of the Ministry of Defence permitting the early declassification of war records so that authentic histories of conflicts involving India can be written within five years of a war.

Both these developments point to a larger problem: a culture of opacity in the Indian government. The gag order restrains former officials from speaking out about government failures in security or intelligence, challenging misguided policies or actions, and even prevents them exposing acts of corruption.

Meanwhile the measures taken by the Defence Ministry, though welcome, miss the forest for one set of trees. India still lacks comprehensive and accountable routines for maintaining accessible public records.

‘Not Just Transparency, Public Record Crucial to Understanding History’

The wider lack of transparency across the government, which keeps important information outside the discriminating gaze of public scrutiny, harms India in two crucial ways.

First, opacity undermines the democratic process, which requires that an informed citizenry acknowledge the successes and the failures of its governmental officials. Democracy demands transparency; secrecy is essentially undemocratic. For voters to keep their government accountable, they require access to critical information. Assessment requires access, lest such restrictions - intentional or otherwise - undermine the democratic apparatus. That is the principle behind the Right to Information Act, and it is ironic that RTI exists alongside such a regressive policy on declassifying public records.

Second, public records are critical to understanding national history, culture, and identity. Public records are the institutionalised embodiment of Indian history, codified in the form of documents, records, and archives. Our understanding of yesterday's events also enables us to solve today's challenges.

The American statesman Henry Kissinger said, "[History] teaches by analogy, not by maxims. It can illuminate the consequences of actions in comparable situations, yet each generation must discover for itself what situations are in fact comparable." Lacking access to yesterday's public records derails the current generation's ability to shed light on today's pressing issues.

Gagging retired officials undermines the same cause. Materials categorised as “sensitive, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, or relation with a foreign State or which would lead to incitement of an offence” will be barred from being published by retired officials of these agencies. But these are precisely the areas in which informed public discussion would most benefit from the knowledge and insights of retired officials.

Private Benefit of Records Dwarfed by Public Interest

Underlying all of this is a lack of clarity and public consensus of the purpose of public records.

Public records currently function as the prerogative of a government bureaucrat who can use records to retain some level of tangible evidence of their industriousness in the event that their productivity comes under closer inspection. Public records also serve as evidence of transactions between two parties, serving political purposes.

For instance, an MP might write to a minister advocating a favour for a constituent. The record of this action can be paraded amongst the MP's constituents to solicit public support. But that private benefit is dwarfed by the potential public benefit of making all such records, by default, part of the public domain. They are a living window to the historical actions of an entire democracy.

Accessible records are part of the debt we owe to history. Much of what we now know about the Soviet Union - a thoroughly undemocratic state - was only discovered after a mass release of Soviet records and files following its dissolution. The release of Soviet records in the early 1990s led to a new era of scholarship and updated our understanding of contemporary global affairs.

The 1993 Public Records Act governs the management of public records and was intended to accommodate the public interest in maintaining public records. However, many flaws in the original bill promoted opacity, making it near-impossible for a layman to obtain public records. And archaic classification rules allowed the government to keep records from public access, most notably Netaji's files for decades, but also material relating, for example, to the wars of 1962 and 1971, far past any reasonable declassification deadline in any other democracy.

It is noteworthy that the new Defence ministry decision is not expected to result in the declassification of the Henderson-Brookes report on the 1962 China War!

Need to Amend Public Records Act of 1993

In 2014 I unsuccessfully moved an Amendment to the Public Records Act to mitigate the numerous shortcomings of the antiquated 1993 Act by introducing transparency and accountability to the management of India's public records. It is time to resurrect its principles and redefine the role of the Public Records Officer from "regulating" access to public records to promoting access.

Transparency should be the expectation, rather than the exception. Classified records should be declassified by default within 20 years and more comprehensively include 21st century forms of digital records; “public records” should encompass every medium from parchment, palm leaves, and birch bark to modern-day optical drives. We should also increase the number of historians on the Archives Advisory Board - the National Archives of India's governing board - to advocate for the public historical and cultural interest in the governance of India's Public Records.

The recent developments remind us of the need for a more open and accessible government. India remains critically behind some global standards in encouraging its citizens to engage with government data more broadly. The United States launched data.gov - a government website that improves public access to digitised data - over a decade ago. The online repository, part of President Obama's 2009 Memorandum on Transparency and Open Government, resulted in a multitude of user-friendly apps that leverage government data in the public interest.

Two years later, in 2011, India started data.gov.in as an open-sourced joint initiative between the United States and Indian governments. The platform boasts thousands of datasets for public use, but still faces a number of implementation problems, including a weak infrastructure to facilitate the collection and management of data in various government agencies and problems sharing the most recent data sets with the public.

An amended Public Records Act would seek to reimagine and reinvigorate the ethos of how the government handles its data and records. Parliament must honour the simple notion that democracy demands reasonable measures of accountability and transparency from public officials. This is something the Modi government has throughout appeared reluctant to accept. We must demand that the government remember they exist to serve the public, not to hide the truth from us.

India needs more than belated declassification: it needs an effective system of public oversight of the government's work. The time to amend the Public Records Act is now.

(Dr Shashi Tharoor is a third-term MP for Thiruvananthapuram and award-winning author of 22 books, most recently ‘The Battle of Belonging’(Aleph). He tweets @ShashiTharoor. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)