By Venkatesh Nayak*
Readers may recall my despatch from two years ago about my efforts to seek access to the papers handed over by General Sir Roy Bucher to the Nehru Memorial Museum and Library (popularly known as Teen Murti Library) containing details of the operations launched by Indian Defence Forces in Jammu and Kashmir (J&K) soon after the erstwhile princely State acceded to India on 26-27 October 1947. Both the Central Public Information Officer (CPIO) and the First Appellate Authority (FAA) had refused to disclose those papers under The Right to Information Act, 2005 (RTI Act) claiming that the Union Ministry of External Affairs (MEA) had prohibited disclosure to researchers. 18 months after the matter was escalated to the Central Information Commission (CIC) by way of a second appeal, the CIC has now favoured the disclosure of the Sir Roy Bucher papers on J&K, in the national interest, directing NMML to obtain the necessary permissions from MEA.
Readers might remember my piece published in The Wire in October 2016 around the 68th anniversary of J&K’s accession to independent India. I had publicly released multi-colour scanned copies of the Instrument of Accession signed by the then Ruler of J&K, Maharaja Hari Singh and accepted by the then British Vice Roy in India, Lord Louis Mountbatten of Burma in 1947. The Wire was kind enough to republish that piece in the aftermath of the legislative exercise made in August 2019 to change J&K’s status under the Indian Constitution.
In the interim, my Quest for Transparency (a phrase borrowed from the website of the Prime Minister’s Office) continued, until it led me to a 20-odd page transcript of an interview of Sir Francis Robert Roy Bucher, 2nd Commander-in-Chief of the Indian Army (who took over from General Sir McGregor MacDonald Lockhart) conducted by noted biographer Shri B. R. Nanda a few decades after the former’s retirement in October, 1949. Although I was able to read the entire transcript, NMML’s policy permits copying only a third of the manuscript. So a small number of pages which I was able to get photocopied (click here).
The transcript of the interview with Sir Roy Bucher makes for very interesting reading with tidbits about what happened in J&K, narrated from memory and also his love for India and the respect he had for top leaders like Pt. Jawaharlal Nehru, Sardar Vallabhbhai Patel and Sir C. Rajagopalachari- first Governor General of independent India. This crucial interview contains multiple references to files and papers related to J&K affairs that were compiled between 1947 and October 1949 by Sir Roy Bucher and handed over to NMML. When I looked up its index of archival papers, this file which Sir Roy Bucher had handed over to NMML was catalogued “closed” (see entry #127 on page #34 of the catalogue accessible at the web link provided above). Surprised that NMML would be holding back government records and papers from public scrutiny even after more than 70 years had lapsed, I inquired with a senior official about this practice. He conceded that certain archival material are indeed withheld from scholars and researchers on two grounds:
a) under instructions from the Government department concerned; and
b) under instructions from the donor or his/her family who hand over archival materials to NMML.
The RTI Intervention
So in October, 2019, a formal request was submitted under the RTI Act to NMML, through the RTI Online Facility, seeking the following information:
“1) A clear photocopy of any list of records, documents, papers, microfilms, microfiche and any other material available in the holdings of the Nehru Memorial Museum and Library that are closed to the public, under instructions from any agency in or under the Government of India;
2) A clear photocopy of any list of records, documents, papers, microfilms, microfiche and any other material available in the holdings of the Nehru Memorial Museum and Library that are closed to the public, under instructions from any agency in or under the State or Union Territory Governments;
3) The name of the agency which has issued instructions, the date of such instruction and the period for which every such record, document, paper, microfilm, microfiche or other materials referred to at para nos. 1 and 2 above, must remain closed to the public, and
4) Inspection for a period of 5 hours, the files and papers pertaining to Jammu and Kashmir handed over to the Nehru Memorial Museum and Library by General Sir Roy Bucher, 2nd Chief of the Army Staff of India, as mentioned in his interview with eminent historian Shri B. R. Nanda, which is recorded in the Sir Roy Bucher Transcripts available in your holdings.
Kindly make arrangements for supplying copies of all papers and micro-films or micro-fiche, if any, or any other materials that I may identify during the inspection.”
The PIO’s reply
The Public Information Officer (PIO) was prompt enough to send a reply, free of charge, within 20 days of receiving the RTI application. He attached a list of archival papers that are closed for public scrutiny under orders from the Central Government or under directions from the donor. A study of the list of “closed papers” attached to the PIO’s reply reveals the following interesting facts:
1) Sir Roy Bucher’s papers (except for the transcript of the interview with Shri B. R. Nanda) are closed under orders from the Union Ministry of External Affairs;
2) Certain papers of Shri Pyarelal who was Personal Secretary to Mahatma Gandhi in his later years and Dr. Sushila Nayyar who was Gandhiji’s personal physician, are closed from public scrutiny under directions from Shri Harsh Nayar. This restriction is to run for a period of 30 years. The start date of the embargo is not revealed in the RTI reply;
3) Certain papers relating to former Prime Minister Smt. Indira Gandhi are closed under instructions from the Indira Gandhi Memorial Trust;
4) Certain papers of Shri Uma Shankar Dixit, former Union Minister and Governor of my home state, Karnataka during the 1970s (he was removed within a year and a half of appointment when the Janata Government came to power in 1977) under instructions from his daughter, the Late Smt. Sheila Dixit, former Chief Minister of Delhi. Whether her heirs will continue to press for this secrecy remains to be seen;
5) Certain papers of Shri K. Hanumanthaiah, former Chief Minister of my home State Karnataka, (he was instrumental in completing the construction of Vidhana Soudha which houses the State Legislature and certain segments of the Government Secretariat) under instructions from one Shri V. Shivalingam; and
6) Certain papers donated by noted author Ms. Nayantara Sahgal who has instructed maintenance of secrecy until 2033. Incidentally, Ms. Sahgal is the niece of Pandit Nehru and the daughter of his sister Smt. Vijayalakshmi Pandit who was India’s Ambassador to the United Nations and the first woman President of the UN General Assembly in 1953.
The list that NMML’s PIO provided also includes papers of Mr. Gordon B Halstead, who was associated with Gandhiji until the British Government ordered him out in 1932 and those belonging to a former officer of the Indian Police Service, Shri Ashwini Kumar. The PIO of NMML endorsed the note prepared by a staffer of NMML that Sir Roy Bucher’s papers and the rest listed above cannot be permitted for anybody to see or consult.
The first appeal
Not being satisfied with the CPIO’s reply a first appeal was filed with the FAA on the following grounds:
a) because, the CPIO, NMML had merely forwarded a note from one Ms. Priyamvada (the staffer of NMML) containing some details without giving his decision regarding disclosure of the information sought about the Jammu & Kashmir (J&K) papers handed over by General Sir Roy Bucher to NMML. Nothing in his reply indicated that he had applied his mind to the inputs received from his colleague and arrived at an informed decision while sending his reply.
b) because, Section 7(1) of the RTI Act permits a CPIO to refuse access to information only by invoking any of the exemptions specified in Sections 8 or 9 of the Act. Neither the attached note nor the reply of the CPIO contain a speaking order as to which of the permissible exemptions is attracted by the information sought regarding the J&K papers handed over by Sir Roy Bucher to NMML.
c) because, Section 22 gives the RTI Act overriding effect over all other laws including any instrument having effect by virtue of any law other than this Act, to the extent of inconsistency, merely stating that a donor has desired secrecy for a set of papers, particularly to such papers and records which pertain to the affairs of the Government of India is not adequate for the purpose of refusing access under the RTI Act. The CPIO had erred in refusing access to the Sir Roy Bucher papers and files pertaining to J&K which ought to be in the public domain.
The FAA’s order
The FAA dismissed the grounds cited in the first appeal holding as follows, but supplied some more information about archival papers that were not open to the public along with the date of their receipt in the holdings:
“The Respondent (CPIO), NMML had given all information to the appellant as per the records and information available with respondent [sic]. The respondent, NMML had received all information from the Manuscript section of the NMML.
In response to Point 2 of the appeal, the required information is pertaining to Manuscript Section of NMML. The respondent (CPIO) had received the information related to appellant query from the information about the collections closed to the public including Sir Roy Bucher papers.
In response to Point 3 of the appeal, it has been noticed that the list is not containing the date of receiving of the papers/records in the NMML. The appellant can see below table which indicates the date of receiving papers in NMML.”
The second appeal
Not being satisfied with the FAA’s decision a second appeal was filed with the CIC in January 2020 on the following grounds:
“i) because, the Appellant has personal knowledge of the fact that some microfilms lying in the holdings of the Respondent Public Authority are also indexed as “closed for the public” in their catalogue of manuscripts. The CPIO of NMML has not supplied a complete list of documents held in hard copy or electronic or audio-visual formats that are closed to the public as requested in the instant RTI application. During the hearing that this Hon’ble Commission may conduct into this appeal, this Appellant is willing to provide names of some such microfilms that have come to his notice while perusing the catalogue maintained by NMML, which are “closed for the public”. NMML has a duty to make all such meta-information about the records in its holdings publicly accessible under clauses (vi) and (xiv) of Section 4(1)(b) of the RTI Act, 2005. However, the catalogue made available on NMML’s website does not contain any such reference to “papers closed for the public”. Even the papers of Sir Roy Bucher referred to at para no. 4 of the instant RTI application are not mentioned as “closed for the public” in the online catalogue of NMML.
ii) because, according to Section 19(8)(a)(iv) of the RTI Act, in its decision on an appeal received under Section 19(3) of the RTI Act, this Hon’ble Commission is vested with the powers to require a public authority to make changes to its records management and maintenance practices. In light of the arguments presented at para #10.1.2 above, the Appellant believes, this is a fit case to issue directions to NMML to indicate on its website a comprehensive list of records, manuscripts, papers, microfilms, microfiche, audio and video recordings and collections in its holdings are “closed for the public” along with reasons for the same;
iii) because, the CPIO merely forwarded a note received from one Ms. Priyamvada to this Appellant stating that the inspection of the Sir Roy Bucher papers available in its holdings cannot be permitted to be inspected by the Appellant, as requested at para no. 4 of the instant application. Nothing in the reply of the CPIO indicates that he had applied his mind to the inputs received from the concerned Department while arriving at his decision on this portion of the RTI application. This is an essential requirement for every CPIO according to the ruling of the Hon. Delhi High Court in the matter of J P Agrawal vs Union of India & Ors. [2011 VIIAD (Del.) 625];
iv) because, instead of taking serious note of this lapse of judgement on the part of the CPIO, the said FAA merely pointed out that the CPIO had not rejected the request for information in his reply. Instead, the FAA pointed out that the Sir Roy Bucher papers in question were closed for the public under instructions from the donor agency, namely the Ministry of External Affairs. The Appellant firmly believes that the said FAA acted in complete disregard to the procedure provided in Section 11 of the RTI Act. Under Section 11 of the RTI Act, where a CPIO intends to supply the information sought by an RTI applicant which is supplied by a “third party” and has been treated as being confidential by that third party, he is required to issue a notice to such third party. As neither the CPIO nor the FAA stated that they were rejecting the information sought at para no. 4 of the instant RTI application, both of them had a statutory duty to invoke the third party procedure under Section 11 of the RTI Act to the CPIO, Ministry of External Affairs to ascertain his or her views regarding disclosure of the Sir Roy Bucher papers. By not so doing both the CPIO and the FAA have been neglectful of their duties under the RTI Act;
v) because, Section 8(3) of the RTI Act enjoins a statutory duty on the public authority to disclose all information relating to any event or occurrence or matter which has happened or occurred or taken place 20 years before the date on which a request is made for the same. Only such information falling within the ambit of clauses (a), (c) and (i) of Section 8(1) may continue to be withheld beyond the 20-year period stipulated in Section 8(3) of the RTI Act. The Appellant is seeking access to official records specified at para #4 of the instant RTI application, which by NMML’s own admission are more than half a century old, counting from the date on which they were received in the NMML’s holdings. The 1st instalment of Sir Roy Bucher’s paper was received by NMML 55 years prior to the date of the instant RTI application and the 2nd instalment was received 50 years prior to the date of the instant RTI application. As the FAA of NMML has reasoned that the CPIO did not reject the request for information, there is every reason for directing disclosure of these papers in line with the principle contained in Section 8(3) of the RTI Act. The Appellant firmly believes that neither the CPIO nor the FAA have adequately applied their mind to these matters before arriving at their decision on the instant RTI application.”
The CIC’s decision
The CIC scheduled a hearing in this case on 20th September, 2021. During the hearing I pointed out that the NMML’s catalogue of manuscripts published on its website had been revised to indicate which archival papers were closed for the public. As the FAA provided some additional information that part of the RTI application was not pressed for. The only matter that remained relevant in the second appeal was providing access to Sir Roy Bucher’s papers on Kashmir. The following additional arguments were made verbally during the hearing and submitted in writing afterwards with the permission of the CIC:
“i) that the disclosure of papers handed over by General Sir Roy Bucher to NMML are essential in order to out an end to the baseless and needless controversies created by some foreign scholars and authors about the circumstances surrounding the accession of the erstwhile princely State of Jammu and Kashmir (J&K) to the Dominion of India, in 1947. These controversies have ranged from questioning the very existence of the Instrument of Accession as a physical document to doubting the dates of the signing of this document by the then Maharaja of Jammu and Kashmir, Shri Hari Singhji and its acceptance by the then Governor General of India, Lord Mountbatten. The Appellant also pointed out that in 2016, he was able to obtain a scanned copy of the Instrument of Accession pertaining to J&K through the combined use of the RTI Act, 2005 and the Public Records Act, 1993. By making these records public through an article he authored that year, the Appellant was able to counter the allegations about the non-existence of the said Instrument of Accession. The aforementioned article may be accessed here http://thewire.in/76079/public-first-time-jammu-kashmirs-instrument-accession-india/;
ii) that access to the papers handed over by General Sir Roy Bucher to NMML will be of immense value to counter the controversy that has been created with regard to the actual date of signing of the Instrument of Accession and its acceptance. The said dates happen to be 26th and 27th of October, 1947 respectively. As October 2021 will usher in the 75th anniversary of this historic event, this author is seeking access to the said papers in any of the following forms, as this Hon. Commission may be pleased to direct:
- clear photocopies of the entire set of papers described at points #3-4 of the instant RTI application to be provided; or
- permission to inspect the entire set of papers described at points #3-4 of the instant RTI application for a reasonable period of time by this Appellant and provision for making legible copies of the said documents which he will identify during the inspection; or
- uploading of all the information described at points #3-4 of the instant RTI application on the Respondent Public Authority’s website and intimation of the respective URLs to the Appellant by email;
iii) that further the Appellant pointed out to this Hon. Commission about the institution of a policy for declassifying andarchiving classified official records for the purpose of compiling war and operations histories by the Ministry of Defence, Government of India on 12th June, 2021. A copy of the press note caused to be circulated by the said Ministry on the website of the Press Information Bureau is enclosed below at pages 4-5 of this additional submission. The relevant portion from the said press note is extracted below:
“…The policy envisages that each organisation under the Ministry of Defence such as Services, Integrated Defence Staff, Assam Rifles and Indian Coast Guard, will transfer the records, including war diaries, letters of proceedings & operational record books, etc., to the History Division of Ministry of Defence (MoD)for proper upkeep, archival and writing the histories…
Timely publication of war histories would give people accurate account of the events, provide authentic material for academic research and counter the unfounded rumours.;”
iv) that in view of the said policy of the Government of India, vis-à-vis declassification and archiving of records relating to India’s war histories, this Appellant believes that the information sought at point #4 of the instant RTI application squarely falls within its ambit and purpose;”
In its decision issued 10 days later, the CIC has stated as follows:
“When queried by the Commission about why does he want information on point no. 4 the Appellant said that he was demanding the information in larger national interest. Further he informed the Commission about a recent policy decision of the Central government taken vide letter dated 12.06.2021 about declassification of the documents related to war & operations archives and argued that after this decision of the Central Government there was no technical or legal hitch for the Respondent in parting with the information . He further explained that this information is required to nail the controversies that are often raised, particularly by the foreign media, about the date of India’s accession. He said that the operation of the instruments of accession was handled by the then 2nd Army Chief and there are some documents connected with him which have not been disclosed to the public so far but which throw light on the truth of accession . He further submitted that 2021 being the 75th anniversary of signing of the instrument of accession it is necessary that these documents are made public.
The Respondent submitted that they do not have any official intimation from the government to disclose this information despite the policy decision of the Central government. The Respondent further averred before the Commission that PIO has rightly pointed out that until and unless the Government gives instruction to NMMS to make the said information public they cannot do so. The Appellant however stuck to his position that the information should be revealed under the RTI Act in larger National interest which overrides everything else.
He requested the Commission to direct the public office for the disclosure of the information by giving him either copy of the documents or allow him the inspection of the documents or put the said information on the website.
Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that the objective of the Appellant in National interest. Therefore the Commission directs the CPIO to take up the matter with the higher officials of the Respondent Authority and cite this order of the Commission and secure the necessary permission from them before sharing the information with the Appellant.”
The CIC’s decision is a rare one favouring the disclosure of archival information that was kept confidential for more than half a century about matters that occurred more than three quarters of a century ago. Even though the CIC does not mention Section 8(3) of the RTI Act in its decision, the concurrence with the public interest argument (labelled as national interest in the order) in favour of disclosure of such old records may prove to be a milestone in the development of RTI case law in India. Interestingly, the official history of the J&K Operations of 1947-48 published by the History Division of the Ministry of Defence in 2005 does not mention the Sir Roy Bucher papers in its bibliography.
Whether NMML will comply with the CIC’s order or challenge it in Court; will the Ministry of External Affairs refuse permission to disclose these papers in defiance of the CIC’s order- all remain to be seen. I will keep you posted on the developments in this case. All said, this is a positive decision that might help clear up the cobwebs which have obscured details of events leading to and beyond J&K’s accession to India as we approach its 75th anniversary.
Transparency Advocator, New Delhi/Bengaluru