Why government presentations to RSS violate Oath of Secrecy
On a planet in a galaxy far away, a Rajat Gupta with a professional track record that few can match was sentenced to two years in jail for passing on to a friend, in all probability innocently, some information which his friend used to make money in the market. Rajat Gupta did not make a cent himself.
In distant India, ministers carry laptops and wait for their turn to eagerly present their current and future strategies to sundry members of a social organisation whose aim, by its own reckoning, is "to bring to life the all-round glory and greatness of our Hindu Rashtra". Those who make such presentations include the Union finance, defence and home ministers, among others.
The presentations and discussions are behind closed doors and there is no way to tell exactly what was discussed. But the fact that the ministers trooped in to the RSS headquarters to make their presentations at the allotted time slots tells its own story and lays bare the balance of power.
These are not ministers trying to educate their audience about their respective portfolios but submitting themselves for evaluation by a set of unelected superiors. The burden of deciding the agenda is not on the ministers but on the audience. It's tough to imagine that any minister, with the possible exception of the prime minister, will actually refuse to answer questions asked by the audience on the grounds of violation of oath of secrecy which each minister has solemnly taken. And thereby hangs a tale.
Nothing is beyond the purview of such discussions. President’s rule in Bihar? Preemptive strike? Reservations? Special packages for states/various sections? New RBI governor? Deterrent taxes on e-retail? Ban on films or books? Special package for Uttar Pradesh in view of the elections next year? Labour reforms? Article 370? Ram Mandir? Appointments? Transfers?
All government decisions create winners or losers. Even the clearly non-controversial decisions like investing into infrastructure or alternative energy sources or simply banning old vehicles are good for some and not-so-good for others; that is the very nature of governance. Companies and individuals can gain hundreds or even thousands of crores by knowing the drift of government action in advance.
Questions, comments, suggestions, advice. When they come from people who have the power to seriously dent your career, they assume a sinister undertone. Suddenly it becomes tough for the citizen to tell who runs the government. That this is detrimental to the authority of the prime minister is but an avoidable side effect.
Impropriety is an old-fashioned concept and in any case is subject to personal interpretation. So we should let it be. Let us view this purely from a legal perspective and study the oath that ministers including the prime minister have taken. After all, that is the most basic covenant that determines their actions. The oath is in two parts, the Oath of Office and the Oath of Secrecy.
The Oath of Office is unexceptionable; it basically outlines how a minister must approach his or her job. But wait a minute; there is something interesting in it. For whatever reason, the framers of the Constitution thought it appropriate to add that the minister shall work "... without fear or favour, affection or ill-will".
Does the entire cabinet trooping across to the headquarters of a cultural organisation to have their performance evaluated not suggest "favour" and "affection"? Or even "fear"? Mind you, these are ministers whom an ordinary citizen like you and me can almost never hope to meet, leave aside ask them for a review of his work. If we are to go by the media, it is a combination of all three. Since the actual discussions happen behind closed doors, the onus must be on ministers to explain what it was if not favour, fear or affection?
The Oath of Secrecy is more interesting. For one thing, it is unique to India. The oaths of office of the US president, British prime minister, German chancellor and French president have no mention of secrecy. In fact, the French president has no prescribed oath. The fact that the framers of the Indian Constitution chose to add it despite the knowledge that in most other countries, secrecy was taken as read, speaks for itself. Secrecy was obviously seen as a key concern by them. It follows, therefore, that if we are to go by the spirit of the Constitution, secrecy must be an important concern for us too.
The text of the Oath of Secrecy is clear and unambiguous.
Even the finest of lawyers would be hard-pressed to interpret the oath in a way that allows ministers to present their strategies to anyone, no matter how lofty their intent. The oath imposes a blanket ban on "sharing, directly or indirectly, anything or any matter which shall be brought under my consideration or shall become known to me as a minister for the Union, except as may be required for the due discharge of my duties as such minister".
So comprehensive is the ban that it does not as much as leave the onus on the minister to decide whether or not the matter is worthy of confidentiality. If something is not already in the public domain, it cannot be shared. Period. In fact, even if it is in the public domain as a rumour, it can neither be confirmed nor refuted. This is not my interpretation; this is simply the text of the oath.
The only possible logic that could be used in support of the presentations would be to suggest that they were necessary and required for "due discharge of (my) duties as ministers".
Are strategic presentations to an organisation that wishes to bring "to life the all-round glory and greatness of our Hindu Rashtra" by ministers necessary for "due discharge of (my) duties as a minister"? It is tough to believe that any judge anywhere in India would buy that argument.
So who will they make these presentations to next? The Muslim Personal Law Board? Akal Takht? All India Christian Council?