Mr.Modi’s announcement of Bose files disclosure is a hoax?

Supreme Court advocate Mr.K.V.Dhananjay argues that the Prime Minister’s announced future disclosure of Subhash Chandra Bose files appears to be a mere political gimmick. And, he suggests that the concerned lawyers could come together to strategically trap the Central Government with this Prime Minister’s announcement. Thereby, the Central Government could be forced to disclose the files immediately – the Central Government may only inform a court that it will or will not disclose certain information and cannot legally set a ‘muhurat’ or a ‘politically opportune time’ for disclosing the sought-after files.

For years and months, the Central Government had refused to divulge the Bose files. In courts and tribunals, its argument was the same – whatever it was.

A few days ago, the official twitter account of our Prime Minister belted out these lines – “Process of declassification of files relating to Netaji will begin on 23rd January 2016, Subhas Babu's birth anniversary.”

‘Great’, our media cheered universally. But, wait. Read it carefully. It is not even a case of guaranteed disclosure of anything on 23^rd January, 2016. It is just a case of beginning the ‘process’.

In a case of isolated doubt- I wondered aloud that night on Facebook – ‘Just another gimmick it is. Why in the future? Why not tonight?’

It is our misfortune to not have a journalist courageous enough in Delhi to pose the following question to our Prime Minister –

“Dear Prime Minister. Why should the people of this country trust you? You terribly lied to the people of this country about bringing back all the overseas black money and depositing Rs.15 lakhs each in the citizens’ bank accounts. You refused to do so after getting elected. You did lie and you do not even acknowledge the fact that you did lie big to the whole country. Why should anybody trust you now? And, why not begin the process now so as to disclose all of that information on Jan, 23, 2016? Why are you playing politics over a dead patriot?”

Anyway, let me thank the Prime Minister for that tweet and the massive media attention it has generated. Even assuming that it was all a nice political gimmick, we could trap the Central Government with those tweets in court to force a disclosure of information forthwith.

Now, can the Central Government tell a court or the tribunal that is hearing a demand from a citizen for release of Bose files that ‘it no longer opposes release of the Bose files and is willing to release it; but it will set a ‘muhurat’ or an ‘auspicious time’ or a ‘politically opportune time’ in the future to release those files in public domain’?

Of course, you know the answer. The Central Government cannot lawfully render any such argument in a court of law. In a country governed by the ‘rule of law’ and a statutory right to its citizens to certain information, the Government may only state to a court if ‘it would release or withhold the sought-after information’. It cannot arrogate to itself, the further power to time the release to a ‘politically opportune time’. Such an administrative discretion is simply unknown to law.

How do we now trap the Central Government? Simple. Whichever tribunal or court that is hearing the Bose files case should be informed of the change in the Central Government’s stand and on that basis, an order should be sought from that tribunal or court to direct the Central Government to release the files ‘forthwith’.

Now, let us address a few of these things. First, is a tweet from the Prime Minister relevant evidence to a court or to a tribunal? Well, it is not a complete evidence and need not be. Of course, the applicant to the court or the tribunal is to inform it that there has been a public indication of a change in the position of the Central Government and that the tweet of the Prime Minister is that indication. Is the court bound by such an argument by the applicant? Actually, it is a wrong question to ask. The proper question is – how is a court to respond to such an argument from the applicant? Well, that court should call for a response from the Central Government. Then, would the Central Government disown the Prime Minister’s tweets and ask the world to see him as a ‘bluff’ thereby?

You know the answer – it is highly unlikely. However, if it would, it would be tragic to those who have been crying out for the Bose files. Assuming that the Central Government would not disown the Prime Minister’s tweet and would admit those tweets as a change in its stand, the matter should end there. That court would have no discretion but to direct the Central Government to release the sought after information ‘forthwith’. Elections to a crucial State Legislative Assembly or a desire to negatively expose bygone leaders of an opposition political party – in case you did not know – are not and never relevant grounds to withhold information until a future time.

To the Bose family, I would like to say this much – every Government that refused to first divulge the Bose files owes you an apology and remediation if the divulged files expose ill-treatment or torture of Bose or of his family members. And, my humble suggestion to you is this – do not let this Government play politics over your right to information about your ancestor. Mr. Bose was a man of exceptional courage and character. Please be courageous and do act in a manner consistent with the stature of your ancestor – demand all that information forthwith. Do not be afraid to displease Mr. Modi. In your quest to be too grateful to the Prime Minister of this country, do not fall victim to his party’s political machinations.

You might ask, ‘should we really risk anything now and why not wait patiently until the 23^rd January, 2016’? In other words, what if you would be rewarded with all those files on Bose’s birthdate if only you would remain quiet until then? The answer lies in ordinary psychology – if the Prime Minister was really moved by the grief in your eyes, do you think he would have still told you to wait for a few months to get that information – particularly when there is nothing in law to block the release of that information right away? Be honest with yourself – you know the answer.

You might also ask, ‘why not move a court after 23^rd January, 2013 if Mr.Modi refuses to release the promised information? What is the harm in waiting till then?’

The answer is twofold. Not even the Prime Minister has himself told you or the country that he will release anything on 23^rd January, 2016. He has only assured a ‘process of declassification’. He did not say ‘release of information’. Well, he could have simply begun the ‘process of declassification’ now so as to ensure ‘release of information’ on 23^rd January, 2016. He chose not to do so. That should lead to much doubt about his intention to disclose anything in the near term. Then, waiting for months until you are frustrated will make it hard for you to force the court to act swiftly. For various reasons, you would not be able to demand information ‘forthwith’ if you do wait for months after a clear public indication of the change in the stand of the Central Government. Given the lethargic pace of our courts, you rarely get an opportunity to legally demand information ‘forthwith’ like this. Do you want to miss it?

I write here because I can see the grief in your eyes that Mr. Modi simply missed. Should you do as suggested in this piece and force release of information ‘forthwith’, you would know whom to thank. It is Mr. Modi only and nobody else. He should be pleased if you would force information now and thank him sooner than wait for months to thank him afterwards - ordinary human psychology, you see. A ‘thank you’ to the Prime Minister today is so much more worth than a ‘thank you’ to him in January, 2018 or…Don’t wait for a future date. Do whatever it takes to thank him now.

K.V.Dhananjay