Central Information Commission
Navdeep Gupta vs National Archives Of India on 24 September, 2018
CENTRAL INFORMATION COMMISSION (Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067) Before Prof. M. Sridhar Acharyulu (Madabhushi Sridhar), CIC CIC/NAIND/C/2017/605263 Navdeep Gupta v. PIO, National Archives of India Order Sheet: RTI filed on 14.07.2017, CPIO reply - Nil, FAO -Nil, Second appeal filed on 21.09.2017, Hearing on 18.06.2018;
Proceedings on 10.04.2018: Complainant absent, Public Authority represented by Dr. Keshab Chandra Jena, NAI and Mr. Udey Shankar; Directions issued.
Proceedings on 18.06.2018: Appellant absent, Public Authority represented by CPIO Mr. Arun Sharma, Director and Mr. Sanjeev Chandra, Asst. Director (RTI) from Rajya Sabha Secretariat; Dr. Saurabh Shukla and Mr. Parveen Kumar, Under Secretary (RTI), Mr. Mukul Dixit, SO (RTI) and Mr. Jai Prakash Singh, ACPIO, SO from Prime Minister's Office; Mr. V.K. Rajan, Dy. Secretary and Mr. P.S. Danguse, Under Secretary from Ministry of Home Affairs; Mr Ved Prakash Singh, Under Secretary from Ministry of External Affairs; Dr. Keshab Chandra Jena, National Archives of India; Smt. Sheela Sharma, Smt. Vinesh from NIC Lok Sabha Secretariat at CIC;
Date of Decision - 24.09.2018: Disposed of with directions/recommendations FINAL ORDER
1. The complainant sought information relating to death of former Prime Minister Late Shri Lal Bahadur Shastri (Shastri): "1. If dead body of Late Prime Minister was brought to India or was he cremated there in Russia? 2. In case his body was brought to India, please supply me certified copy of post-mortem conducted on his body". The Home Ministry forwarded this RTI request to the National Archives of India (NAI) on 05.08.2017. The NAI could not give any information. Applicant filed this complaint.
2. The CPIO of NAI had no information, they searched but found nothing. He says this information might be with the Ministry of External Affairs or Indian Embassy in Russia or Ministry of Home or some other authority.
3. The Commission gave an interim direction on 11.05.2018:
12. .... the Commission directs the CPIOs of the PMO, the Ministry of Home Affairs or Ministry of External Affairs to provide information/documents about the referred subject to the applicant including those 11 pages which were directed earlier by the CIC in above referred case, which are not hit by any exception under Section 8(1) of CIC/NAIND/C/2017/605263 Page 1 RTI Act. In case the CPIOs of PMO, MEA and MHA consider that any record of part of it was hit by Section 8(1)(a) or any other clause on the ground that were classified, they are required to explain the same and as per section 18(4) of the RTI Act, they are directed to produce in sealed cover the relevant record or part thereof for the examination by the Commission to decide the question of disclosability of the information sought. If any document is claimed to have been classified they have to inform the period of withholding of such information because of such classification, when it will be accessible, or is there any possibility of declassification of records as demanded by eminent citizens and family members of Shastri, etc. The Commission considers that these offices especially that of MHA require to make a fresh effort to trace the details about Raj Narain inquiry report or related documents and tell the nation what was inquired and found. These offices are also required to explain whether they have transferred or transferring any records relating to the death of Shastri to the National Archives of India facilitating access to public in general and to requesters in particular, under RTI Act.
13. As per Section 4(1)(b) clause (iv), the public authority is under an obligation to disclose on its own "a statement of the categories of documents that are held by it or under its control". The Commission directs the PMO, MEA and MHA to publish the statement of categories of documents regarding the death of Late Shri Lal Bahadur Shastri that are available with them.
14. The Commission recommends the CPIO of Parliament Secretariat to search in their library whether any records regarding the Raj Narain inquiry commission could be retrieved? If they discover any, they are required to share with the appellant, and the National Archives of India.
15. The Commission directs the CPIO of NAI to explain their efforts to secure records from different public authorities on this subject.
16. The public authorities referred above have a constitutional duty to inform and the people have legitimate expectation to know the truth behind the death of their beloved leader. More so, it is the primary responsibility of the PMO to inform the people what happened to Late Lal Bahadur Shastri, who once was its head.
17. The CPIOs are required to present their written/oral submissions on June 18, 2018. All responses shall reach by that date. The case is posted to 18th June, 2018 at 2.30 noon.
Medical Report on Shastri Death
4. Shri V.K. Rajan, CPIO, Ministry of Home Affairs and Shri Ved Prakash Singh, CPIO, Ministry of External Affairs jointly filed following statement on 18.06.2018:
"This has reference to CIC's Order No. CIC/NAIND/C/2017/605263 dated 11th May, 2018 on the subject mentioned above. Shri Navdeep Gupta vide his RTI application dated 14.07.2017 had requested for the following information related to death of former Prime Minister Shri Lal Bahadur Shastri:
CIC/NAIND/C/2017/605263 Page 2
(i) If dead body of Late Prime Minister was brought to India or was he cremated
there in Russia?
(ii) In case his body was brought to India, please supply me certified copy of post-mortem conducted on his body.
2. The information in this regard is as under: "As per record, a statement was made by the then Minister of External Affairs in Lok Sabha/Rajya Sabha on 16.2.1966, on the circumstances under which Shri Lal Bahadur Shastriji occurred because of an acute attack of 'INFARKTMIOCARDA'.
MEDICAL REPORT ON THE DEATH OF THE PRIME MINISTER OF INDIA, L.B. SHASTRI During all the days of his stay in Tashkent, as well as on the evening of 10th January 1966, the Prime Minister of India, Lal Bahadur Shastri, felt well. He never complained about his health. On the evening of 10th January 1966, the Prime Minister of India, Lal Bahadur Shastri, was healthy and cheerful while he was attending a reception given by the Chairman of the Council of Ministers of USSR, A.N. Kosygin. According to Dr. R.N. Chugh, the doctor-attendant on the Prime Minister, who used to be always present at his side and thus had attended the reception, after return from the reception to his residence, Lal bahadur Shastri was in normal health and was in a good mood and spoke over the telephone with his relatives in Delhi. He went to bed at about 12.30 midnight. On the 11th of January, at about 1.20 in the morning, Messrs. Shay, Kapur and Sharma approached the Premier's doctor who was in the room next to him and told him that the Prime Minister is feeling unwell. Dr. R. N. Chugh at once approached the Prime Minister and found that the Prime Minister was sitting on his bed, coughing and was complaining of lack of breath. He was holding his chest with his hands and was looking pale. The doctor found the pulse to be very fast and weak. Blood pressure was not registered. The heart beats were hardly audible. With the help pf the gentlemen mentioned above, the doctor put the Prime Minister in a reclining position, gave him intra-muscular injection of MEPTHENTIH SULPHATE one m.1 (15 milligrams) and 1 m.1 of MICCRENA. Within the next 3 minutes, Prime Minister L.B. Shastri lost consciousness, the pulse disappeared, breathing stopped and the heart beats could not be heard. Death occurred at 1.32 on the morning of 11th January 1966. Doctor R. N. Chugh had already begun revival treatment by the methods of indirect massage of the heart and artificial respiration through the mouth by means of the air tube. The Soviet doctor E.G. YEREMENKO who had come there immediately on a call from Dr. R. N. Chug also took part in the treatment by revival procedures. She found Prime Minister L.B. Shastri dead when she arrived: The pulse had stopped, the heart was silent, there was no breath and no corneal reflexes. The revival treatment was continued further with the help of the anti-shock group of doctors which had arrived immediately on call. Indirect massage of the heart wsa done; in the left cavity under the heart at an interval of 15 minutes was twice introduced a mixture of Potasssium Cloride with Adrenalin and glucose. Artificial respiration by means of the machine with the help of "Intubation tube" was also attempted. However, these measures yielded no results. The following Professors also took part in the entire treatment:
U.A. ARIPOV CIC/NAIND/C/2017/605263 Page 3 Y.Y. Gordon O.N. Pavlova A.R. Rakhimjanov M.S. Tursum-khojaeva Z.E. Ummidova Taking into account the fact that Prime Minister L.B. Shastri had suffered even in the past from INFARKTMIOCARDA and the fact that during the night from 10th to 11th of January 1966 there was an acute attack of the same disease it can be considered that death occurred because of an acute attack of INFARKTMIOCARDA.
Dr. R.N. Chugh, M.D.,
Doctor-attendant on Sd/- R.N. Chugh
the Prime Minister
TASHKENT, 11th January, 1966
Deputy Minister of Health of
Uzbek SSR, Professor U.A. Aripov Sd/- U.A. Aripov
Doctor of Medicine
Professor Y.Y. Gordon,
Honoured Worker of Science, Sd/- Y.Y. Gordon
Doctor of Medicine
Professor O.N. Pavlova,
Honoured Worker of Science, Sd/- O.N. Pavlova
Doctor of Medicine
Professor A.R. Rakhimjanov, Sd/- A.R. Rakhimjanov
Doctor of Medicine.
Professor M.S. Tursun-khojaeva Sd/- M.S. Tursun-khojaeva
Doctor of Medicine.
Professor Z.E. Ummidova,
Honoured Worker of Science, Sd/- Z.E. Ummidova
Dorcot of Medicine
Corresponding-ember of the
Academy of Medical Sciences of USSR
No Records with Rajya Sabha
5. On 24.05.2018, Mr. Devashish Sen, Under Secretary, Rajya Sabha,
Secretariat in his note-sheet bearing reference no. RS/5(3)/2018-RTI stated that "no record related to Raj Narain Commission of Inquiry is available with CIC/NAIND/C/2017/605263 Page 4 this Section" and demarcated it to the RTI Cell. Mr. K. Sudhakaran, Director, RTI Cell on 25.05.2018 in his note-sheet explained that neither the report of Raj Narain Inquiry Commission nor the date of laying of the report on the Table of the Rajya Sabha is available with them. As Parliament Library comes under the jurisdiction of the Lok Sabha Secretariat, the requisite information may be ascertained from that Secretariat and subsequently this note-sheet was further put up to Shri Arun Sharma, Director (Q) and CPIO, who in turn wrote a letter to Shri J.M. Baisakh, Director & CPIO, Lok Sabha Secretariat on 28.05.2018 stating that the subject matter of this interim order also concerns Lok Sabha Secretariat. Afterwards, Mr. Rosey Sailo Damodaran, Additional Director, LARRDIS (Publications an Who's Who Unit) in his note-sheet stated that the requisite information is not available with them and also suggested that the query may be transferred to the parliament Library, Lok Sabha Secretariat as it is repository of books, reports etc.
6. Shri Parveen Kumar, under Secretary and Central Public Information Officer in his letter dated 15.05.2018 addressed to this appellant i.e. Navdeep Gupta and a copy to this Commission provided the medical report on the death of the Prime Minister of India L.B. Shastri.
7. During the hearing the officers of the Rajya Sabha Secretariat submitted that they do not have any information relating to this subject matter neither in their table office nor legislative branch nor library. Dr. Keshab Chandra Jana, National Archives of India stated that there are no details available with them and the Ministry of Home Affairs have unnecessarily forwarded the RTI application to NAI and also pleaded before the Commission to direct the concerned Ministry to check in their registry/records before transferring to NAI. Further he submitted that in compliance of para 15 of the interim order, the National Archives of India sent letters in the form of memorandum to all the Governmental Departments/Public Authority under following heads viz., a. Records Management - Action to be taken for microfilming of A' Category records lying the custody of Records Creating Agencies - (addressed to President's Secretariat, Vice President's Secretariat, Prime Minister's Office, Cabinet Secretariat, All Ministries of the Government of India and PSUs);
b. Public Records Act, 1993 - Compilation of Twentieth Report of the Director General of Archives for the year 2017 on the Implementation of - request for CIC/NAIND/C/2017/605263 Page 5 information (addressed to President's Secretariat, Vice President's Secretariat, Prime Minister's Office, Cabinet Secretariat, All Ministries of the Government of India and PSUs);
c. Furnishing of Information on Records Series of defunct Committees/Commissions (addressed to President's Secretariat, Vice President's Secretariat, Prime Minister's Office, Cabinet Secretariat, All Ministries of the Government of India and PSUs);
d. Recording, Reviewing, Indexing and Weeding of Public Records and Supply of Half Yearly Returns thereof under Public Records Act, 1993 and Public Records Rules, 1997 (addressed to President's Secretariat, Vice President's Secretariat, Prime Minister's Office, Cabinet Secretariat, All Ministries of the Government of India and PSUs);
e. Downgrading of classified records - supply of half yearly Returns as required under Public records Act, 1993 and Public Record Rules, 1997 (addressed to President's Secretariat, Vice President's Secretariat, Prime Minister's Office, Cabinet Secretariat, All Ministries of the Government of India and PSUs); f. Compilation of Organizational History of Ministries/Departments/Offices as required under clause (i) of sub-section 1 of the Section 6 of the Public Records Act, 1993(addressed to President's Secretariat, Vice President's Secretariat, Prime Minister's Office, Cabinet Secretariat, All Ministries of the Government of India and PSUs);
8. Mr. Syed Farid Ahmad, Assistant Director of Archives has put in all possible efforts to collect and collate the information from all the concerned departments/ministry/public authority to update but finds no grounds to continue with the Complaint. When there is no record within the reach or the record needs to be furnished by the top political executive functionaries, it is not reasonable to consider it as a denial by the CPIO.
Issues emerging out of facts & circumstances
9. However there are certain important issues deserve attention. The Ministry of Home Affairs should have examined if any information could be given before passing RTI off to NAI or should have transferred the RTI request also to the Ministry of External Affairs, or the Indian Embassy in Russia or Russian Embassy in India.
10.The answer to first question was generally available in public domain that the body of Shastri was brought from Tashkent and was cremated in India. Second question is also unofficially answered that no post mortem was conducted on his body. Though the questions could be answered either in CIC/NAIND/C/2017/605263 Page 6 'yes' or 'no', the real purport of the RTI request is to know about the mysterious death of India's second Prime Minister Shastri. Serious doubts were raised by family members of Shastri, eminent writers and journalists continuously. Former British High Commissioner and veteran Journalist Mr. Kuldip Nayar's book Beyond The Lines (Nayar, Kuldip, Beyond The Lines, Lotus Collection, Roli Books, page nos. 198 to 202) (https://www.outlookindia.com/magazine/story/the-night-shastri-died-and-other- stories/281456) contains a detailed account of the incident, as the writer was present in Tashkent as PM's media advisor. It was a matter of great concern that our late Prime Minister met with sudden death on Russian dacha on January 11, 1966. Journalist Mr Nayar has posed the question--was Shastri poisoned?
11.The Outlook published excerpts from this book and wrote after contacting the members of the family: "As we pieced together the strange circumstances of Shastri's death through family accounts and on the basis of RTI applications, we can only conclude that the mystery deepens and some answers must be found. His family has always maintained that he was poisoned and his death hushed up". The magazine listed some 'certainly unanswered questions':
a) Press reports of the incident show that the authorities in Tashkent immediately arrested a Russian cook. He was released after five hours of questioning.
However, in spite of the initial suspicion of poisoning, no post-mortem was done, either in Russia or in India. His late wife kept trying to raise questions about his death, but nothing was ever investigated.
b) The couple had six children, of whom only two, Anil and Sunil Shastri, survive. Both are members of the Congress, although the latter had joined the BJP briefly. Grandson Siddhartha Nath Singh (son of Shastri's late daughter Suman) is in the BJP. But regardless of political affiliations, there is a unanimity within the family that Shastri was poisoned and the case was never investigated.
c) In 2009, the PMO had replied that it had only one document relating to Shastri's death but refused to declassify it under a clause that would "prejudicially affect the sovereignty and integrity of the country, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence".
CIC/NAIND/C/2017/605263 Page 7
d) "I'm willing to believe my grandfather died of a heart attack. But at least declassify the documents" says Siddhartha Singh: "I'm willing to believe my grandfather died of a heart attack. But please share the information with us as our family has never got closure on this issue. Please just declassify the information." He recounts something that was an obsession with his late mother who was the last family member to speak to Shastri. She was on the phone with her father, as her husband, V.N. Singh, an employee of the State Trading Corporation, was travelling to Cairo on work where Shastri too was headed. Shastri therefore told his daughter to ensure that her husband carried Indian newspapers to Cairo. His last words to her were--"I'm going to have a glass of milk and sleep." The line got disconnected and Suman tried again. However, when she got through 15 minutes later, she was told her father was dead.
e) The first inquiry was conducted only after the Emergency when the Janata government was in power- called the Raj Narain Inquiry- it never came up with any conclusions but began the process. However, no record of this can be found in the Parliament library by itself not a sinister event as lots of vital documents have disappeared often due to carelessness.
f) Two witnesses were scheduled to depose before this parliamentary body in 1977.
One was R.N. Chugh, Shastri's doctor who accompanied him to Tashkent. The second was Ram Nath, his personal servant, who was also present on the day of his death. Chugh was travelling to Delhi by road to testify before the committee and was hit by a truck and died. Ram Nath came to Delhi and visited Shastri's widow before the deposition. According to family members, he told her, "Bahut din ka bojh tha, amma. Aaj sab bata denge (I have been carrying this burden too long. I will shed it today)." Ram Nath left the 1, Motilal Nehru, residence to make his way to Parliament. He was hit by a moving vehicle, his legs crushed (eventually amputated) and he lost his memory.
https://www.outlookindia.com/magazine/story/tashkent-whodunit-an-enduring- tale/281537 Shastri's Last moments: Kuldip Nayar's account
12.The RTI questions in this case were dealt with by Kuldip Nayar. Hence it is relevant to reproduce his first person account from Beyond The Lines:
a) "That night I dreamt Shastri was dying, I dreamt about him dying. I was woken up abruptly to knock on my door. A lady in the corridor told me: 'Your prime CIC/NAIND/C/2017/605263 Page 8 minister is dying.' I hurriedly dressed and drove with an Indian official to Shastri's dacha which was some distance away.
b) I saw Kosygin standing in the verandah. He raised his hands to indicate that Shastri was no more. Behind the verandah was the dining room where a team of doctors were sitting at an oblong table, cross-examining Dr. R. N. Chugh who had accompanied Shastri.
c) Next to it was Shastri's room. It was extraordinarily large. On the huge bed, his body looked like a dot on a drawing board. His slippers were neatly placed on the carpeted floor. He had not used them. In a corner of the room, however, on a dressing table, there was an overturned thermos flask. It appeared that Shastri had struggled to open it. There was no buzzer in his room, the point on which the government lied when attacked in parliament on its failure to save Shastri's life.
d) Our official photographer and I spread the national flag, which was neayly folded up near the dressing table, over the body and placed some flowers to pay homage to him. I then went to meet Shastri's assistants. Their room was a few yards away and one had to walk through an open verandah to reach it. Shastri's personal secretary, Jagan Nath Sahai, told me that Shastri had knocked on their door at around midnight and wanted water. Two stenographer and Jagan Nath helped him walk back to his room. This was fatal, Dr. Chugh said.
e) I heard Gen. Kumaramangalam in the adjoining room, giving instructions over the phone (a hotline between Tashkent and New Delhi) about the arrangements for the reception of Shastri's body. After he had finished his call I took the receiver from him and gave the operator the UNI reporter's telephone number.
f) Sunder Dhingra, on late night duty, received the call. I told him to send a flash:
'Shastri Dead'. This was after midnight when the newspapers had been put to bed. Dhingra began laughing over the phone and told me that I must be joking because he had just cleared Shastri's speech at the evening function. I told him not to waste time and send the flash immediately. He still did not believe me and I was obliged to resort to some harsh words in Punjabi to get him to act. He then showed agility and rang up the newspaper offices in Delhi to inform them about Shastri's death. Many papers stopped the press to include the news. It was a UNI scoop; PTI got the news much later.
g) Sitting in another room were the two leaders, Y. B. Chavan and Swaran Singh, and senior officials discussing who would succeed Shastri. When Swaran Singh asked me to join them, his first question was who the next prime minister would CIC/NAIND/C/2017/605263 Page 9 be. I told them what Shastri had himself said that if he lived for another three or four years, the next prime minister would be Chavan but if he were to die in a year or two, Indira Gandhi would be the prime minister.
h) After sending the flash on Shastri's death, I went back to his assistants' room to learn the details about his death. Bits and pieces of information gathered together indicated that Shastri, after attending the farewell reception, reached his dacha around 10 p.m. Jagan Nath, with Shastri's servant Ram Nath and some other assistants, trooped int his room. They had heard about Ayub's invitation to tea in Islamabad. Loyal and devoted as they were, they said that he should not overfly Pakistan because Pakistanis might engage in mischief.
i) Jagan Nath recalled how Gujarat Chief Minister Balwant Rai Mehta was killed during the India-Pakistan conflict when 'a Pakistani plane had downed his Dakota' (Forty-six years later Qais Hussain, a distinguished Pakistani pilot, wrote to the daughter of the IAF pilot who was flying Mehta, admitting that he mistook the plane for a Beechcraft).
j) Shastri dismissed Jagan Nath's apprehension: 'Now we have an agreement.
Moreover, Ayub is a good person.' Shastri told Ram Nath to bring him his food which came from Ambassador Kaul's house, prepared by his cook, Jan Mohammed. He ate very little: a dish of spinach and potatoes and a curry. While he was eating a call came from Delhi, which Jagan Nath took. It was from Venkataraman, another of Shastri's personal assistants. He said that the reaction in Delhi to the Tashkent Declaration was favourable but Babuji's (as he was called by the family and the staff) own household was not happy. Surendra Nath Dwivedi, the Praja Socialist Party leader and Atal Bihari Vajpayee, the Jana Sangh leader, had also criticized the withdrawal of Indian forces from Hajipir and Tithwal, Shastri said that the Opposition was bound to criticize the declaration.
k) Jagan Nath asked Shastri if he should connect him to his residence as he had not spoken to his family for two days. Shastri first said 'No', but then changed his mind. This was around 11 p.m. (Tashkent time, half an hour behind New Delhi). First, his son-in-law, V. N. Singh, spoke, but he did not say much. Then Kusum, Shastri's eldest and favourite daughter, took the phone from her brother-in-law. Shastri asked her: 'Tum ko kaisa laga? [How did you react to it?]' She replied:
'Babuji, hamein achha nahin laga. [I did not like it]' He asked about Amma, the word by which Lalita Shastri was referred to in the house. 'She too did not like it', was Kusum's reply. Shastri observed: 'Agar gharwalon ko achha nahin laga, to CIC/NAIND/C/2017/605263 Page 10 bahar wale kya kahengae? [If people in the family did not like it, what will outsiders say?]'
l) Shastri asked his daughter to hand the telephone to Amma. Despite Shastri's many request, Lalita Shastri did not come on the phone. He then asked for the morning newspapers to be sent to Kabul, where an Indian air force plane was reaching the next day to collect him.
m) The telephone call, according to Jagan Nath, appeared to have upset Shastri. The Indian press too had been rough on him. He began pacing up and down in his room. This was not unusual as Shastri would often do that when talking to people who came to meet him at his residence in Delhi. For one who had suffered two heart attacks earlier, the telephone conversation, the journalists' attitude, and the walk must have been a strain that night.
n) Ram Nath gave Shastri milk which he used to drink before retiring at night. The prime minister once again began pacing up and down and later asked for water, which Ram Nath gave from the thermos flask on the dressing table. (He told me that he had closed the flask). It was a little before midnight when Shastri told Ram Nath to retire to his room and get some sleep because he had to get up early to leave for Kabul. Ram Nath offered to sleep on the floor in Shastri's room but Shastri told him to go to his own room upstairs.
o) The assistants were packing the luggage at 1.20 a.m. (Tashkent time), Jagan Nath recalled, when they suddenly saw Shastri at the door. With great difficulty Shastri asked: 'Where is doctor sahib?' It was in the sitting room that a racking cough convulsed Shastri, and his personal assistants helped him to bed. Jagan Nath gave him water and remarked: 'Babuji, now you will be all right.' Shastri only touched his chest and then became unconscious. (When Lalita Shastri was told by Jagan Nath in Delhi that he had given him water she said: 'You are a very lucky person because you gave him his last cup of water'.)
p) Dr. Chugh, his physician, who had arrived by then, felt Shastri's pulse and tearfully said: 'Babuji, you did not give me time.' He then gave him an injection in the arm and later put the syringe straight into the heart. Finding no response, he attempted mouth-to-mouth resuscitation. Dr. Chugh asked Jagan Nath to call for additional medical help. The Soviet government had posted a security guard who, after hearing the word 'doctor', ran to call them. A lady doctor arrived then minutes later, followed by more physicians. They found Shastri dead. The official CIC/NAIND/C/2017/605263 Page 11 time of death was declared as 1.32 a.m. (Tashkent time); in India it was just after 2 a.m. on 11 January 1966.
q) Gen. Ayub was genuinely grieved by Shastri's death. He came to Shastri's dacha at 4 a.m. and said, looking towards me: 'Here is a man of peace who gave his life for amity between India and Pakistan.' Later, Ayub told the Pakistani journalists that Shastri was one person with whom he had hit it off well; Pakistan and India might have solved their differences had he lived,' he said.
r) Aziz Ahmad, Pakistan's foreign secretary rang up Bhutto to inform him about Shastri's death. Bhutto was half asleep and heard only the word, 'died', and apparently asked, 'Which of the two bastards?'
s) When I returned from Tashkent, Lalita Shastri asked me why Shastri's body had turned blue. I replied: 'I am told that when bodies are embalmed, they turn blue.' She then inquired about 'certain cuts' on Shastri's body. I did not know about those because I had not seen the body. Even so, her remark that no postmortem had been conducted either at Tashkent or Delhi startled me. It was indeed unusual.
t) Apparently, she and others in the family suspected foul play. A few days later I heard that Lalita Shastri was angry with the two personal assistants, who had accompanied Shastri, because they had refused to sign a statement which alleged that Shastri did not die a natural death.
u) Kamaraj rang me up not to discuss Shastri's death but to find out whether the family had the resources to sustain itself. I told him that as far as I knew they had nothing to fall back upon. He had a legislation passed to provide free accommodation and an allowance to the wife of the deceased prime minister.
v) As days passed, the Shastri family became increasingly convinced that he had been poisoned. In 1970, on 2 October (Shastri's birthday), Lalita Shastri asked for a probe into her husband's death. The family seemed to be upset that Jan Mohammed, T. N. Kaul's cook at the time, had cooked the food, not Ram Nath his personal servant. This was strange as the same Jan Mohammed had prepared food for Shastri when he visited Moscow in 1965.
w) Following newspaper reports, the old guard Congress party supported the demand for a probe into Shastri's death. I asked Morarji Desai towards the end of October 1970 whether he really believed that Shastri did not die a natural death.
Desai said: 'That is all politics. I am sure there was no foul play. He died of a heart attack. I have checked with the doctor and his secretary, C. P. Srivastava, CIC/NAIND/C/2017/605263 Page 12 who accompanied him to Tashkent.' (Nayar, Kuldip, Beyond The Lines, Lotus Collection, Roli Books, page nos. 198 to 202)
13.This Commissioner visited the residence of 94 year old veteran Journalist, former editor of Indian Express Shri Kuldip Nayar, during the last week of May 2018, and discussed this issue with him. He told this Commissioner that he was shocked at the sudden death of Shastri, as he saw him off last in his last evening, and then he rushed to his place on a telephonic call and saw him lying dead. He said: "We were all worrying about sudden development but doubts did not strike. After we returned to India, when Mrs Shastri and other members raised serious doubts, I could find reason in their suspicion, and surprised how we could not think of need for medical examination at that time. We are now talking about post-mortem examination in such cases of important persons' death. Later I have narrated out of my memory in my book, how things unfolded on that fateful day. I cannot say anything on the question whether he was poisoned. But I think now the doubts are not baseless. Shastri's personal doctor Mr Chug and Personal Assistant have met with accidents in separate incidents when they were about to depose before Raj Narain Commission. Whether both accidents are really 'accidents'? Is he poisoned, if so, who could do it? I can't suspect anyone. I can't say anything.. I think there is a need to further study of the issue or probe even". After reading Commission's interim order, Kuldip Nayar Ji was interested in reading responses of Government; He expressed happiness that someone raised an RTI question on Shastri's death. Commissioner proposed to meet him again but unfortunately Kuldip ji breathed last.
14.The BBC Journalist, Mr. Soutik Biswas, analysed the narration by Kuldip Nayar and said it leads to an inference of possible heart attack as the cause of death. In his another blog Archives for August 2009, Was Mr Shastri murdered?, on 27th August 2009, Mr Biswas referred to Mr Kuldip Nayar's book "India, the Critical years" and culled out the points which suggest the possibility of heart attack being the cause of sudden death or Prime Minister. Mr Bisawas wrote:
CIC/NAIND/C/2017/605263 Page 13 Mr Nayar writes that the Indian prime minister was already a heart patient, having suffered two attacks. He had had a hectic day .... had very little sleep.
"That evening," writes Mr Nayar, "I met Dr RN Chugh, ... asked him how Shastri was standing the strain. He looked up to the sky and said: 'Everything is in the hands of God'." Mr Nayar does not elaborate.
Mr Nayar then proceeds to describe the fateful night in Agatha Christie-like detail. Since he was to travel in the prime minister's airplane early next morning to Kabul en route to Delhi, he retired to bed early an hour before midnight. "I must have been dozing when someone knocked at my door and said: 'Your prime minister is dying.' A Russian lady was waking up all the journalists," writes Mr Nayar.
A group of journalists then sped to Mr Shastri's dacha from the hotel. On arriving, Mr Nayar found a grief-stricken Mr Kosygin standing on the verandah. "He could not speak and only lifted his hands to indicate Shastri was no more."
When Mr Nayar went in, he found Dr Chugh being questioned by a group of Soviet doctors through an interpreter. In the next room Mr Shastri lay still on his bed. The journalists emptied the flower vases in the room and spread them on the prime minister's body. Mr Nayar also noticed an overturned thermos flask on a dressing table some 10 feet away from Mr Shastri's bed and wondered whether the prime minister had struggled to get to open it to get water. "His slippers were neatly placed near the bed; it meant that he walked barefoot up to the dressing table in the carpeted room," Mr Nayar writes.
Mr Nayar then pieces together the events leading up to Mr Shastri's death - of how the prime minister reached the dacha around 10 pm after a reception, chatted with his personal staff and asked his cook Ram Nath to bring him food "which was prepared in the dacha by the Russians". It gets more interesting from here. "In the kitchen there was a Soviet cook helped by two ladies - both from the Russian intelligence department - and they tasted everything, including water, before it was served to Mr Shastri," Mr Nayar writes. Remember this was at the height of the Cold War and India-Pakistan hostilities and the security paranoia was extreme.
CIC/NAIND/C/2017/605263 Page 14 As Mr Shastri tucked into a frugal spinach and potato curry meal, he received a call from a personal assistant in Delhi and sought the reaction to the Tashkent agreement back home. Then he spoke to his family in Delhi. He asked his eldest daughter, Kusum, about how she had found the peace pact.
"She replied, 'we have not liked it'," writes Mr Nayar. "He asked 'what about her mother?' She too had not liked the declaration, was the reply given." A crestfallen Mr Shastri, according to Mr Nayar, then remarked: "If my own family has not liked it, what will the outsiders say?"
Mr Nayar writes that the prime minister's wife did not come on the line to talk despite many requests - a contention that is disputed by many of his surviving family members. This upset Mr Shastri. "He began pacing up and down the room... For one who had had two heart attacks earlier, the telephone conversation and the walking must have been a strain," he writes. Then his staff gave him milk and some water in the flask. Around 1.30 am, his personal assistant Sahai, according to Mr Nayar, saw Mr Shastri at his door, asking with difficulty, "Where is the doctor?"
The staff woke up Dr Chugh, while the prime minister's staff, assisted by Indian security men, helped Mr Shastri walk back to his room. "If it was a heart attack - myocardiac infarction, and obstruction of blood supply to the heart muscles, as the Soviet doctors said later - this walk," writes Mr Nayar, "must have been fatal."
Mr Nayar writes - presumably from an eyewitness account by the personal assistant - that Mr Shastri began coughing "rockingly", touched his chest and became unconscious. Dr Chugh arrived soon after, felt the prime minister's pulse, gave an injection into the heart, tried mouth-to-mouth resuscitation, but to no avail. More doctors arrived. They found Mr Shastri dead. The time of the death was 1.32 am.
Talk about foul play began as soon as the body arrived in Delhi. Mr Nayar says the prime minister's wife asked him why Mr Shastri's body had turned blue. He told her that when "bodies are embalmed" they turn blue. Mrs Shastri was not convinced. She asked about "certain cuts" on Mr Shastri's body. Mr Nayar told her he hadn't seen any. "Apparently, she and others in the family suspected foul play," Mr Nayar writes.
(http://www.bbc.co.uk/blogs/thereporters/soutikbiswas/2009/08) CIC/NAIND/C/2017/605263 Page 15
15.Then Mr Biswas refers to demand of the family members:
They still do. I went to meet Sidharth Nath Singh, the prime minister's grandson and a senior member of the main opposition Bharatiya Janata Party, recently to hear the family side of the story. He told me that Mr Nayar's account of the telephone conversation that Mr Shastri had with his family members that night was inaccurate, and that he HAD spoken to his wife. Mr Singh, who was two years old when his grandfather died, says that one person was detained on "suspicion of poisoning Mr Shastri", but was released. Mr Nayar's book has no mention of this.
"Knowing the truth is important for our family. The truth has never been out,"
Mr Singh told me. Then he talked about the cold war politics of the day, and who would have gained from poisoning Mr Shastri who had served as prime minister for only 19 months: a foreign power, political rivals. Some of it sounds remotely credible; other bits outlandish. But Mr Singh and the nation deserve to know why the government is holding the paper about Mr Shastri's death back. How will it imperil our foreign relations, with whom? India has a notoriously stodgy reputation as far as declassifying historical documents is concerned; the state almost encourages a statist historiography. (http://www.bbc.co.uk/blogs/thereporters/soutikbiswas/2009/08)
16.Mr. Biswas, asked for bringing out the truth to end controversy once and for all. Late PM's son Mr. Anil Shastry on 26th September 2015 urged the Prime Minister that documents related to Shastri's death should be declassified. In an interview to news channel CNN-IBN, said that his father's death did not look natural. He said:
"When my father's body came to the Delhi airport, the Palam airport as it was called then, and when it was taken out of the aircraft, that came as a shock because his body had turned blue. His face had turned blue and there were white spots on the temple.... It is "unbelievable" that the Prime Minister's room in the capital of then Soviet Uzbekistan had "no call bell, no telephone, no caretaker in his room and no first aid. He had to walk up to the door himself."
He alleged that the death was due to fault done by the Indian embassy and termed it as "height of negligence".
"His death was badly handled by the Indian government. It hurts me to a great extent, ....Post-mortem could have been done in Tashkent if there was a request from the Indian government or a request from the Indian CIC/NAIND/C/2017/605263 Page 16 doctors.....some close associates feel that suspicion revolves around an Indian hand or a foreign power".
He claimed that his father had come to know about a scam involving a shipping tycoon Dharam Teja and cited an article by eminent journalist Khushwant Singh that Teja was in Tashkent at the time of his father's death. Shri Anil Shastri further said:
"...Lal Bahadur Shastri had suddenly gained a lot of power, when he retaliated with full force against Pakistan. Whether it was America, China or any third country... I cannot name any country but the truth is Lal Bahadur Shastri was becoming very strong in the region."
He raised several other issues like: the sudden death of Dr RN Chugh, the personal physician accompanying the Prime Minister, who died in an accident with his family; his father's personal assistant too met with an accident, was crippled and lost his memory; his father's red personal diary, in which he made daily notings was missing. He says his father may have even written about the Tashkent agreement and the pressures he was under... It is not a bad idea to have an inquiry into his death, question all remaining witnesses and clear all speculation and at least establish the negligence." (https://timesofindia.indiatimes.com/india/Lal-Bahadur-Shastris-death-was-not-natural-claims-his- family/articleshow/49116369.cms)
17.Mr. Anoop Bose, Advocate, Supreme Court of India, in Law Z magazine dated 7.12.2016 wrote: "Tass issued a terse message, 'The Presidium of the Supreme Soviet of the USSR and the Council of Ministers of the USSR is sad to notice that 11 Jan, 1966 in 1 hour and 32 minutes in Tashkent died a distinguished statesman, Prime Minister of India Lal Bahadur Shastri.' In 2009, the Indian Ministry of External Affairs revealed that no 'postmortem was conducted by the authorities of the former USSR'. The solitary record available is the report of the joint medical investigation conducted by Dr.Chugh and some Russian doctors attributing Shastri's death to 'an acute attack of INFARKTMIOCARDIA'. Mr Bose wrote: "Shastri's Russian butler Akhmed Sattarov was arrested, subjected to an excruciating interrogation and eventually let off the hook by the dreaded KGB. It is not CIC/NAIND/C/2017/605263 Page 17 known whether Jan Mohammed, who joined the Rashtrapati Bhavan staff in Delhi subsequent to Kaul becoming India's Foreign Secretary, was also interrogated". He pointed out that apart from mother and wife of Lal Bahadur, the Union Law Minister in Shastri's cabinet Mr Asoke Sen also noticed blue patches on Shastri's body much to his consternation.
18.In February, 1966, the issue of Shastri's death was raised for the first time in the Indian Parliament. In April, 1970, Shastri's childhood friend Tribhuvan Narain Singh (who was personally known to me), demanded a comprehensive enquiry into his death as he had not been autopsied. The maiden inquiry into Shastri's death was conducted by the Raj Narain Inquiry Committee in 1977 which proved to be utterly abortive and not a trace of the inquiry survives even in the archives of Parliament House. An epic Hindi poetry book titled 'Lalita Ke Aansoo' ('Tears of Lalita') penned by the celebrated Indian poet and writer Dr. Krant M. L. Verma was published in 1978 containing a narrative of the Tashkent whodunit.
19.Mr. Anoop Bose added certain startling facts to the mystery. He wrote:
"Giving a rare insight into Shastri's death, Sanjay told me in chaste Hindi, 'Amma (his grandmother) invariably travelled with Babuji (Shastri) on his overseas trips, but this time she did not travel with him. In fact, Amma and Anil Mama (maternal uncle) were supposed to have travelled with Babuji to Tashkent, but at the last minute their trip was cancelled by Babuji. Babuji was to be booked at a hotel in Tashkent. But, he was put up in a dacha far away from the venue of the conference. His suite did not have any telephone, buzzer or teleprinter. When his body reached Delhi, blood was oozing from his mouth and nostrils. There were fresh cuts on his abdomen which had been strapped with adhesive tape bandage. Amma dipped her fingers into a bowl of ghee and smeared ghee on Babuji's lips. When she put her fingers back into the bowl, the ghee turned dark blue and became hard. Babuji's personal diary as well as his 'Action Plans' diary went missing. Babuji's spectacle case came back to Delhi along with his body. Rummaging inside the spectacle case, Amma stumbled across a minute strip of paper containing Babuji's last hastily scribbled message which visibly shocked her.' Shastri's third son Sunil Shastri, another close friend of mine, had earlier told me about the spectacle case which had 'miraculously' escaped the scrutiny of his father's detractors and had reached his mother's safe hands. What CIC/NAIND/C/2017/605263 Page 18 adds grist to the rumour mill is the fact that Dr.Chugh met with a fatal road accident on 5th February,1977. In a spine chilling judgement of the Delhi High Court dated 11th February,2004,Justice Madan Bhimrao Lokur (an old friend from my college days and presently a senior judge of the Supreme Court of India), observed, 'On 5th March, 1977, a horrific accident took place between a truck driven by Wasan Singh and a car driven by Dr. R.N. Chugh...Dr. R.N. Chugh and his wife Dr. (Mrs.) Sarojni Chugh and their minor son Master Shailender Chugh died. Their daughter Ms. Shobha Chugh..received grievous injuries on her head and other parts of her body.As a result of the injuries, she is facially permanently scarred, her memory was affected and her concentration impaired.' On 6th March,1997, Ram Nath, whilst riding a bicycle was hit by a speeding bus. Both his legs were crushed, necessitating amputation, and he became mentally unstable. Both of them were on the verge of deposing before the Inquiry Committee!
20. Are these incidents strengthening doubts? Who will answer these valid questions? These doubts show larger public interest behind the RTI requests. Section 8(1) does not provide for public interest defence for exception under clause (a), but Section 8(2) empowers the CPIOs to show, if public interest in disclosure outweighs the harm to the protected interests. This subsection allows CPIO to examine comparative public interest on all grounds of exceptions under subsection (1).
21.Mr. Anoop Bose in his article titled -Tragic Death of Lal Bahadur Sashtri and the Mystifying Netaji Subhas Chandra Bose Angle, raised another question linking Shastri's death with mystery of Netaji's disappearance. He wrote:
"Shastri was an indefatigable champion of Netaji. Jagdish Kodesia, a former Delhi Congress chief and a confidante of Shastri, appeared before the Khosla Commission in March, 1971 as a witness. He deposed that Shastri did not believe in Netaji's death in a plane crash and went on to assert, 'When he became Home Minister, he wanted to know the truth whether Subhas Bose was alive or not.' Shastri also showed a deep interest in the antecedents of Gumnami Baba of Faizabad who was rumoured to be Netaji. It is widely believed that Netaji was present at Pandit Jawaharlal Nehru's funeral on 27th May,1964 at Teen Murti Bhavan dressed as a monk. According to Capt.Ajit Vadakayil, the well known blogger, Netaji came in a taxi and sent an envelope to Shastri whereupon Shastri came running out to meet CIC/NAIND/C/2017/605263 Page 19 him. Then Shastri and Netaji went inside Teen Murti Bhavan. Netaji took out a package, stood beside Nehru's body and offered a giant garland of roses with an attached note saying 'Another name of Jawaharlal Nehru is courage. Let us confront the crisis of our nation for the future of India'. The note was undersigned as 'Subhas Chandra Bose'. After Shastri became the Prime Minister, 80 Members of Parliament visited him and proclaimed that the monk was none other than Netaji without any shadow of doubt! Shastri wanted to set up a second inquiry commission to investigate the mystery behind Netaji's death.....In 1965, Shastri was invited to unveil Netaji's statue on the occasion of his birth anniversary on 23rd January, 1966 at Mayo Road in Kolkata. For some inexplicable reason, Shastri preponed the ceremony and unveiled the statue in December, 1965, three weeks prior to his Tashkent visit. Netaji's nephew Amiya Nath Bose, the eminent lawyer and parliamentarian, who happened to be at the ceremony requested Shastri to probe into the circumstances relating to Netaji's death whereupon Shastri assured him that he would personally pursue the matter in Russia. Bose was extremely close to our family. After my father retired from government service in 1966 shortly after Shastri's death, we stayed with him for a few months at his 10, South Avenue flat. During those days, he used to regale us with his personal reminiscences of the intense relationship that existed between Shastri and Netaji and was never tired of telling us about the Mayo Road ceremony. In 1976, I joined the legal profession and became a member of the Bar Library Club within the majestic confines of the Calcutta High Court in 1991. Bose, who used to come infrequently to the High Court, most graciously allowed me to sit on his hand crafted Elizabethan chair in the Library which fortuitously happened to be right next to the chair of Asoke Sen. After his death, the chair was permanently allotted to me prompting Sen to remark in a jocular vein, 'The chair moves from Bose to Bose!' I continue to occupy that chair to this day with a sense of immense pride. On 12th December, 2015, the Times of India divulged that a forensic face-mapping report submitted by a British expert Neil Miller had found a strong resemblance between Netaji and a man photographed in Tashkent. According to Miller, the face mapping of the mystery man seen in Tashkent 'lends support leaning on strong support to the contention that the person seen in the picture and Subhas Chandra Bose are one and the same person.' Shastri had made a call before his death to his family members. In a moment of helpless nostalgia, Sanjay, who was standing right beside the telephone, vividly recalled, 'Amma first spoke to Babuji but could hardly hear his voice. Then Hari Mama (Shastri's eldest son) exchanged a few words with him. Lastly, Ramji (his father CIC/NAIND/C/2017/605263 Page 20 Vijay Nath Singh) spoke to Babuji who asked him about the reaction in India to the Declaration. When Ramji told him that certain prominent opposition leaders were planning to hold a black flag demonstration against him for having returned Haji Pir Pass, Babuji clearly told him that he would bring forth such a thing that would make his countrymen forget about the return of the Pass and any criticism about the Declaration. He was alluding to Netaji! Within a fraction of minutes, we got a call saying Babuji had taken ill. This was followed by another call after 10 minutes announcing his death...On 16th August, 2015, Sunil disclosed on Zee 24 Ghanta that his father told him shortly before his death about a 'special person' he was going to meet. Was this 'special person' Netaji? Was Shastri planning to present Netaji before his countrymen on 23rd January,1966?Did he intend to invite Netaji as the Chief Guest to the Republic Day parade on 26th January,1966? Was he going to abdicate in favour of Netaji? These questions will perhaps remain inscrutable forever!"
http://lawzmag.com/2016/12/07/the-tragic-death-of-lal-bahadur-shastri-and-the- mystifying-netaji-subhas-chandra-bose-angle/
22.In 2009 Mr. Anuj Dhar, author of "What happened to Netaji?", "CIA's Eye on South Asia", and moderator of a transparency website, seeking the correspondence between the Indian embassy in Moscow and the external affairs ministry and between the two countries after the Shastri's death and on the demand of Shastri's family to declassify 1966 correspondence between MEA and Indian embassy. He claimed the PMO replied that only one document relating to Shastri's death was available but refused to declassify as it would "prejudicially affect the sovereignty and integrity of the country, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence". Mr. Dhar wrote: "The ministry of external affairs (MEA) informed me on July 1, 2009 that the division concerned had no information on the subject. It was quite strange because the sudden death of the prime minister must have thrown the Indian embassy in Moscow and the ministry in New Delhi into a tizzy. The correspondence between the MEA and the Indian embassy in Moscow too remain classified. Under ordinary circumstances, there should have been several reports from the embassy on the incident. They should have included an assessment by the Indian ambassador, T.N. Kaul at that time. Surely CIC/NAIND/C/2017/605263 Page 21 these should be ordinary routine documents, not dark secrets of state". In their response dated 25th September 2009, the MEA, rejected information on points 1 to 4 and 6 of Anuj Dhar's application and regarding point 5, stated:
"No records with the Embassy of India, Moscow, relating the demise of Prime Minister Shri Lal Bahadur Shastry in Tashkent on 11.01.66, or subsequent events, have either been destroyed or lost".
23.In another RTI request with eight questions, Anuj Dhar asked PMO if any post-mortem was conducted on former prime minister's body in India to ascertain causes of his death and if not, the reasons thereof. The PMO answered only two questions of the RTI application saying it has only one classified document pertaining to the death of Shastri which is exempted from disclosure under the RTI Act. It sent rest of the questions to Ministry of External Affairs and Home Ministry to answer. The Home Ministry referred the matter to Delhi Police and National Archives. The CPIO of Delhi Police in his reply dated July 29, 2009 said, "no such record related to the death of the former prime minister of India Lal Bahadur Shastri is available in this district... Hence the requisite information pertaining to New Delhi District may please be treated as Nil." The MEA said only document from the erstwhile Soviet Government is "the report of the Joint Medical Investigation conducted by a team comprising Dr R N Chugh, Doctor in-Attendance to the PM and some Russian doctors" and added no post-mortem was conducted in the USSR. Shri Sunil Shastri, another son of the former prime minister, called the transferring of application as "absurd" and "silly joke". "He (Shastri) died as sitting prime minister. It sounds very silly that MHA is referring the matter of death of second prime minister of India to a district level police. "It should be looked into by highest authorities like President, Prime Minister and Home Minister."(2.8.2009,http://expressindia.indianexpress.com/karnatakapoll08/story_page.php ?id =497076)
24.Mr. Dhar's second appeal was heard and decided on 22nd June 2011, by the then Chief Information Commissioner Shri Satyananda Mishra (CIC/WB/A/2009/ 000942 & CIC/WB/C/2010/000274-SM). Officers from CIC/NAIND/C/2017/605263 Page 22 PMO, Rashtrapathi Bhawan, Ministry Of Home Affairs and Ministry of External Affairs, were present. The CIC directed:
2. In our order dated 6 June 2011, we had directed the CPIO each of the PMO and the Cabinet Secretariat to produce in a sealed envelope the relevant records for our perusal. Today, both of them appeared with the relevant records. The Appellant himself was also present.
3. We carefully went through the contents of the records shown to us. We took up the record of the PMO first. Since the Appellant had wanted only the classified records, the PMO produced only one page of classified record relating to the death of the former Prime Minister Sri Lal Bahadur Shashtri. After carefully reading the contents of that record, we are satisfied that it should not be disclosed in terms of Section 8(1)(a)of the Right to Information (RTI) Act as it contains material which, if disclosed, can adversely affect India's relationship with a foreign country.
4. Next, the CPIO of the Cabinet Secretariat produced a sealed envelope containing a bound volume in which 11 pages related to the information sought by the Appellant. We carefully went through the contents of the relevant pages. These are primarily the minutes of some meetings of the Cabinet and also contain a communication sent to the Home Ministry based on the decision taken in one of the meetings. We found that except for one sentence in one of the minutes containing a reference to the Mukti Bahini, rest of the documents contain no information which could be exempted from disclosure under any of the exemption provisions, especially those contained in Section 8(1) (a) of the RTI Act. The sentence containing the reference to the Mukti Bahini should not be disclosed as, in our opinion; it may adversely affect India's relationship with a foreign State. Therefore, we do not see any reason why these 11 pages cannot be disclosed after deleting the lone sentence with the reference to the Mukti Bahini. We direct the CPIO of the Cabinet Secretariat to disclose these pages to the Appellant within 10 working days from the receipt of this order, after making the necessary deletion as above (https://indiankanoon.org/doc/1148146/).
25.Mr Anuj Dhar said that after the intervention of CIC, Shri Satyananda Mishra the MEA, in August 2011, "...supplied me copies of Dr Chugh's medical report and a copy of the statement made by the external affairs minister in the Rajya Sabha. Neither of them was classified. There was no word about the secret documents. CIC Mishra upheld the PMO's decision in withholding the single secret record with it. Later, I learned that this record contained a conspiracy theory that the Americans had spread rumours about foul play in Shastri's death. I see nothing to back this mindless charge". Then Mr Anuj pleaded that "today there must be several classified records about Shastri's CIC/NAIND/C/2017/605263 Page 23 death in the non-accessible archives of our intelligence agencies. The Russians will have interrogation records of the butlers at least. In the fullness of time all of that must come out". Mr. Anuj further said: "For a start, the Russian butler serving Shastri had been arrested - this fact came to light only decades later. Ahmed Sattarov, the butler, himself told British and later Russia media that a few hours after Shastri died he was woken up by an officer of the Ninth Directorate of the KGB. Suspecting that the Indian PM had been poisoned, the KGB men took Sattarov and others to a dungeon and subject them to a thorough interrogation". (https://www.dailyo.in/politics/lal-bahadur- shastri-son-anil-shastri-west-bengal-netaji-files-subhas-chandra-bose-mamata-banerjee-moscow-tn-kaul-
kgb/story/1/6462.html)
26.Mr Anuj, who wrote extensively on mystery of Netaji's death, in one of his articles stated '4 reasons Lal Bahadur Shatri's death was suspicious"
(https://www.dailyo.in/politics/lal-bahadur-shastri-tashkent-kgb-russia-rti-congress-pmo- mea-tn-kaul/story/1/8393.html):
(i) The KGB suspected poisoning: At 4am, Ahmed Sattarov, the Russian butler attached to Shastri, was rudely woken up by an officer of the Ninth Directorate of the KGB (responsible for the safety of VIPs). In Sattarov's own words, the KGB officer "said that they suspected the Indian prime minister had been poisoned.
Sattarov was handcuffed and, along with three junior butlers, was rounded off to a location 30km away. Their harsh interrogation commenced in a dungeon. After some time, Jan Mohammad was brought in. In Sattarov's words again: "We thought that it must have been that man who poisoned Shastri."
(ii) Shastri's near and dear ones see a needle of suspicion pointing towards an insider's hand: His mother screamed that someone had poisoned her son. "Mere bitwa ko jahar de diya!" Shastri's sons Anil and Sunil Shastri (one in Congress, another in BJP) and grandsons Sanjay and Siddharth Nath Singh have often spoken about their ongoing anguish and pain about what happened so long ago. Shastri's wife Lalita died thinking that her husband had been poisoned. Other family members and near and dear ones, like childhood friend TN Singh and close follower Jagdish Kodesia, were not able to make sense of the cut marks on Shastri's stomach and back of the neck. The cut on his neck was pouring blood and the sheets, pillows and clothes used by him were all soaked in blood. A grandson of Shastri told me that he still has his nanaji's blood-soaked cap". Dr CIC/NAIND/C/2017/605263 Page 24 Chugh, his wife and two sons were run over by a truck in 1977. Only his daughter survived, but was crippled.
(iii) No post mortem was carried out on Shastri's body: Family demanded post- mortem, but was not accepted.
(iv)RTI responses muddied the water further, by saying that MEA have no records.
Law of Access to Records and Official Secrets
27.As the ambiguity, secrecy and mystery shrouded sudden demise of Lal Bahadur Shastry, the issues assumes of high significance and high larger public interest. Whether people have right to information and express about the death of their second prime minister? Supreme Court, before and after passing of Right to Information Act 2005, held that RTI was intrinsic part of Freedom of Speech and Expression under Article 19(1)(a), which says:
19. Protection of certain rights regarding freedom of speech etc, (1) All citizens shall have the right...(a) to freedom of speech and expression;
Not being an absolute right, there are limitations on the grounds listed under Article 19(2) which will straight away apply as restrictions on right to information too.
(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Similarly the Right to Information Act, 2005 in Section 8(1)(a) prescribed exemptions to RTI:
8 (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
28.US Secrets and Security; Pentagon Papers: Can fundamental right of the people be denied on this excuse? The US Executive resisted publication of articles in Newspapers about Pentagon Papers, on similar grounds. But they failed. In 1967 Secretary of Defense Robert S. McNamara commissioned a "massive top-secret history of the United States role in Indochina". It's report CIC/NAIND/C/2017/605263 Page 25 of the office of the Secretary of Defense Vietnam Task Force, was popularly known as Pentagon Papers. Daniel Ellsberg, who had helped to produce the report, leaked 43 volumes of the 47-volume, 7,000-page report to reporter Neil Sheehan of The New York Times in March 1971 and the Newspaper began publishing articles outlining the findings revealing that the Johnson Administration "systematically lied, not only to the public but also to Congress". [Sheehan, Neil (1971-06-13). "Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement" (PDF) The New York Times] This article explained how clandestinely the US enlarged scope of Vietnam War with bombings of nearby Cambodia and Laos, coastal raids on North Vietnam and Marine Corps attacks, none which were reported in the mainstream media. [Frum, David (2000). How We Got Here: The '70s. New York: Basic Books. p. 43] The US charged the journalist with conspiracy, espionage and theft of government property, which were later dismissed by prosecutors. Ellsberg discussed the study with The New York Times reporter Neil Sheehan and gave 43 volumes to him. Times started publishing reports on June 13, 1971. [Correll, John T. "The Pentagon Papers" Air Force Magazine, February 2007] Nixon Administration obtained a federal court injunction forcing the New York Times to cease publication after three articles. Then the Times approached the Supreme Court. Meanwhile The Washington Post began publishing articles based on the Pantagon Papers given by Ellsberg.
29.President Nixon had claimed executive authority to force the Times to suspend publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press, guaranteed by the First Amendment, was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. District court declined to give injunction, refusing to concede the contention of the state that security of nation was threatened, saying "the security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in CIC/NAIND/C/2017/605263 Page 26 authority to preserve the even greater values of freedom of expression and the right of the people to know" [United States v. N.Y. Times Co., 328 F. Supp. 324, 331 (S.D.N.Y. 1971)]. The Government approached the Supreme Court which combined case with New York Times Co. vs US [403 U.S. 713] case. Fifteen more newspapers also started publishing the reports. In Dennis v. United States, [341 U.S. 494 (1951)], state contended that certain message will likely to cause 'grave and irreparable danger to the American public when expressed, then the message's prior restraint could be considered an acceptable infringement of civil liberties. On June 30, 1971 the Supreme Court of US decided 6-3, that the government failed to meet the heavy burden of proof required for prior restraint injunction. The US SC concurred with the decisions of the two lower courts. Justice Black wrote:
"... To find that the President has 'inherent power' to halt the publication of news...would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make 'secure.' ... The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security... . The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.... Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell". (New York Times Co. v. United States, 403 U.S. at 714-20) Justices Potter Stewart and Byron R. White agreed that it is the responsibility of the Executive to ensure national security through the protection of its information. However, in areas of national defense and international affairs, the President possesses great constitutional independence that is virtually unchecked by the Legislative and Judicial branch. "In absence of governmental checks and balances", wrote Justice Stewart, "the only effective restraint upon executive policy and power in [these two areas] may lie in an enlightened citizenry - in an informed and critical public opinion which alone can here protect the values of democratic government". (New York Times Co. v. United States, 403 U.S. at 727-30.) Justice Thurgood Marshall argued that the term "national security" was too broad to legitimize prior restraint, and also argued that it is not the Court's CIC/NAIND/C/2017/605263 Page 27 job to create laws where the Congress had not spoken. (New York Times Co. v. United States, 403 U.S. at 740-48)
30.Is there a clear and present danger? In the 1919 case Schenck v. United States, [249 U.S. 47 (1919)] Justice Oliver Wendell Holmes, Jr. introduced the clear and present danger test, which would become an important concept in First Amendment law. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right". Brandeis and Holmes, JJ again promoted the clear and present danger test, this time in a concurring opinion in 1927's Whitney v. California decision [(274 U.S. 357 (1927), & Dunlap, William V., "National Security and Freedom of Speech", in Finkelman (vol 1), pp 1072-1074)]. The clear and present danger test was invoked by the majority in the 1940 Thornhill v. Alabama [310 U.S. 88 (1940)] decision in which a state antipicketing law was invalidated. Following Schenck v. United States, "clear and present danger" became both a public metaphor for First Amendment speech [Derrick, Geoffrey J. (2007). "Why the Judiciary Should Protect First Amendment Political Speech During Wartime:
The Case for Deliberative Democracy". Lethbridge Undergraduate Research Journal, 2(1)] [Tsai, Robert L.(2004). "Fire, Metaphor, and Constitutional Myth-Making". Georgetown Law Journal. 93: 181-239] and a standard test in cases before the Court where a United States law limits a citizen's First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a "clear and present danger".
31.The publication of Pentagon papers that analysed the defense defects of US in Vietnam War (1945 to 1967), could not have posing any clear and present danger to the security of nation in 1971 when it was published. The US government has ultimately, declassified all of the Pentagon files in June CIC/NAIND/C/2017/605263 Page 28 2011. The National Archives and Records Administration released to the Richard Nixon Presidential Library and Museum in Yorba Linda, California, which means anybody can have the benefit of that critical analysis, as that cannot have any imminent danger to the security of nation.
32.Official Secrets Act and RTI: People centric governance could be ushered in if the Right to Information is used as key to strengthen the participatory democracy. The RTI is basic necessity of good governance. With reference to OSA, the RTI Act has a non-obstante clause:
"Sec. 8(2): Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests".
33.The provisions of the Act which allow disclosure of information even where there is a clash with the exemption provisions of Sec.8(1) enjoy a general immunity from other Acts and instruments by virtue of Sec.22 of the Act :
"Sec.22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or any instrument having effect by virtue of any law other than this Act".
34.Though OSA does not come in the way of disclosure generally the OSA along with other rules and instructions may impinge on the regime of freedom of information as they historically nurtured a culture of secrecy and non- disclosure, which is against the spirit of the Right to Information Act Section 5 of OSA is the catch all provision, which says:
Any person having information about a prohibited place, or such information which may help an enemy state, or which has been entrusted to him in confidence, or which he has obtained owing to his official position, commits an offence if (s)he communicates it to an unauthorised person, uses it in a manner prejudicial to the interests of the State, retains it when (s)he has no right to do so, or fails to take reasonable care of such information.
35.Any kind of information is covered by this Section if it is classified as 'secret'.
Most interesting part of this OSA is that the word "secret" or the phrase "official secrets" has not been defined anywhere. Whatever a Babu says that could be 'secret', and its leak could be a serious offence. The information which does not have a bearing on national security cannot be disclosed if the CIC/NAIND/C/2017/605263 Page 29 public servant obtained or has access to it by virtue of holding office as per this Act. Such illiberal and draconian provisions clearly bred a culture of secrecy. Though the RTI Act now overrides these provisions in relation to matters not exempted by the Act itself from disclosure, the fact remains that OSA in its current form in the statute books is an anachronism. (Comment in 2.2.5 ARC II, https://darpg.gov.in/sites/default/files/rti_masterkey1.pdf)
36.The public servants should never forget that the people are sovereign in democracy and they are functionaries of elected government. That means they are people's servants. They have duty to inform the masters. Transparency should be the norm in all matters of governance. The Official Secrets Act, 1923 (OSA), enacted during the colonial era, governs all matters of secrecy and confidentiality in governance. Given the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, OSA created a culture of secrecy. Confidentiality became the norm and disclosure the exception. The Administrative Reforms Commission II report observed: While Section 5 of OSA was obviously intended to deal with potential breaches of national security, the wording of the law and the colonial times in which it was implemented made it into a catch-all legal provision converting practically every issue of governance into a confidential matter. This tendency was buttressed by the Civil Service Conduct Rules, 1964 which prohibit communication of an official document to anyone without authorization. Not surprisingly, Section 123 of the Indian Evidence Act, enacted in 1872, prohibits the giving of evidence from unpublished official records without the permission of the Head of the Department, who has abundant discretion in the matter. Needless to say even the instructions issued for classification of documents for security purposes and the official procedures displayed this tendency of holding back information. (ARC II Para 2.1.2)
37. Undefined Powers and Abuse: What are "official secrets"? The OSA did not define it. This law is unique as there are no provisions for rules and regulations. Thus it is totally left to the individual discretion of the officers without any guidance from anywhere. If an officer declares any file as CIC/NAIND/C/2017/605263 Page 30 prohibited, the possession of that document would attract severe penalty without looking into intention or purpose of the possession. Supreme Court restricted meaning of the term 'official secret' to "secret code or password mentioned in Section 3(c) of OSA'.[Sama Allana Abdulla vs State of Gujarat, AIR 1996 SC 569, para 7] Similarly the clause like sketches, maps, plans and documents used in OSA cannot be considered as "official secrets"? The OSA does not require all kinds of government-held information to be classified as "official secrets". That is why the MoDSI is not part of OSA. Most of documents are not connected to OSA at all. Why the Government not make MoDSI public? Thus the power to classify documents, irrespective of OSA is huge, undefined and also unguided. Even the routine matters are classified. There should be a file with file-notings and reasons for classification of documents by appropriate designated officer. A mere labeling or typing 'top secret' on the top of document make it 'top secret'. Is it appropriate? The OSA without definition of 'secrecy' leaving huge discretion with public servant, is not only threatening the freedom of press and people's right to information, but also essential civil liberties of the people. Recent example of misuse is the judgment of Supreme Court in case of Nambi Narayanan, ISRO Scientist who was victim of abuse of OSA & discretionary power of Police. For fifty days of wrongful imprisonment of the scientist, the SC ordered Rs 50 lakh compensation. What documents were classified, who classified, who leaked it, and what was illegal consideration? There was no trace of evidence on these questions at all. Over 24 years after Nambi Narayanan's career got "smothered" in the infamous ISRO (Indian Space Research Organisation) spy scandal case, a three-judge Bench led by Chief Justice of India Dipak Misra, on Sept 14, 2018, found him a victim of trumped-up allegations of espionage by the Kerala police. Bench agreed with contention that prosecution launched by the Kerala police had a "catastrophic effect" on his career and personal life besides setting back the technological advancement in space research. Bench said: "The criminal law was set in motion without any basis... His liberty and dignity, basic to his human rights, were jeopardised... Despite all the glory of the past, he was compelled to face cynical abhorrence," Chief Justice Misra CIC/NAIND/C/2017/605263 Page 31 wrote. Based on 'confessions' of two arrested foreigners, Kerala Police registered a case in 1994 under Section 3 and 4 of Official Secrets Act, 1923 alleging leak of secrets of ISRO by scientists. CJM Ernakulam found allegations false. Siby Mathew, head of SIT, was found by CBI to have surrendered his duties to IB and ordered indiscriminate arrest of scientist under OSA though no incriminating ISRO documents could be recovered, and no monies paid. They specifically stated "Shri Siby Mathew and his team miserably failed..." No document was recovered, no secrecy and no classification was proved, yet a scientist was arrested and tortured for 50 days. Apex court's decision proved how the state was left with absolute powers that were abused, in the hands of the police under OSA. While Nambi Narayanan was struggling for justice for several decades, the Kerala Government refused to take any action against the police team for this gross abuse, instead, appointed their head as the Chief Information Commissioner of Kerala (https://www.thehindu.com /news/national/sc-appoints-panel-to-look- into-harrowing-torture-of-nambi-narayanan/article24943213.ece).
38.The Law Commission in its 43rd Report (1971), summarized the difficulties encountered with the all inclusive nature of Section 5 of OSA, in the absence of a clear and concise definition of 'official secret', in the following words:
"7.6.1. The wide language of section 5 (1) may lead to some controversy. It penalizes not only the communication of information useful to the enemy or any information which is vital to national security, but also includes the act of communicating in any unauthorized manner any kind of secret information which a Government servant has obtained by virtue of his office. Thus, every noting in the Secretariat file to which an officer of the Secretariat has access is intended to be kept secret. But it is notorious that such information is generally communicated not only to other Government servants but even to some of the non-official public in an unauthorized manner. Every such information will not necessarily be useful to the enemy or prejudicial to national security. A question arises whether the wide scope of section 5(1) should be narrowed down to unauthorized communication only of that class of information which is either useful to the enemy or which may prejudicially affect the national security leaving unauthorized communication of other classes of secret information to be a mere breach of departmental rules justifying disciplinary action. It may, however, be urged that all secret information accessible to a Government servant may have some connection with national security because the maintenance of secrecy in Government functions is essentially for the security of the State. In this view, it may be useful to retain the wide language of this section, leaving it to the Government not to sanction prosecution where leakage of such information is CIC/NAIND/C/2017/605263 Page 32 of a comparatively trivial nature not materially affecting the interests of the State.
7.6.3 The language of sub-section (1) of section 5 is cumbersome and lacks clarity. Hence without any change in substance, we recommend the adoption of a drafting device separately defining "official secret" as including the enumerated classes of documents and information."
39.The Shourie Committee commented about OSA: "It is the Official Secrets Act that has been regarded in many quarters as being primarily responsible for the excessive secrecy in government. Its "Catch-all" nature has invited sustained criticism and demand for its amendment. Section 5 of this Act provides for punishment for unauthorized disclosure of Official secrets but omit to define secrets". The Shourie Committee recommended a comprehensive amendment of Section 5(1) to make the penal provisions of OSA applicable only to violations affecting national security.
40.Administrative Reforms Commission II has ultimately recommended:
"OSA, in its present form is an obstacle for creation of a regime of freedom of information, and to that extent the provisions of OSA need to be amended. The Commission, on careful consideration agrees with the amendment proposed by the Shourie Committee, as it reconciles harmoniously the need for transparency and the imperatives of national security without in anyway compromising the latter. These can be incorporated in the proposed new chapter in the NSA relating to Official Secrets".
41.In a response to Lok Sabha starred question No 557, 5.5.2015 a statement was laid on the table of the House by MoH, saying:
"a) Madam, the Government has set up a Committee consisting of Secretaries of the Ministry of Home Affairs, the Department of Personnel and Training and the Department of Legal Affairs to examine the provisions of the Official Secrets Act, 1923, particularly in the light of the Right to Information Act, 2005.
(b) & (c) The Official Secrets Act, 1923 was comprehensively amended by the Parliament in 1967 which had widened the scope of the offences covered under the Act and enhanced the punishment for the offences under the Act. Thereafter, the review of the Act has been conducted from time to time and it was decided that there is no need to further amend the Act.
(d) & (e): The classification of files is not done under the provisions of the Official Secrets Act. The classification or declassification of files is done CIC/NAIND/C/2017/605263 Page 33 by each Ministry/ Department of the Government as per their requirement in terms of the Manual of Depart- mental Security Instructions, 1994. These instructions are reviewed by the Ministry of Home Affairs from time to time and reiterated to all the Ministries/ Departments for compliance. As the actual process of classification and declassification is done by the Ministries/ Departments concerned as per their requirement, there is no central database of the total number of classified files".
42.This answers two points: One- they have rejected all the recommendations to reform the OSA, two- it is clear that classification of documents have to be done by concerned ministry and that such classification is not under Official Secrets Act. How the documents are classified, then? The ARC II Report on RTI & OSA explained:
4.1.1. Apart from the somewhat indiscriminate application of OSA to information which was not intended to be secret, a major contributor to the culture of secrecy in the government is the tendency to classify information even where such classification is clearly unwarranted.
The Government of India has issued detailed instructions pertaining to safeguarding information in its possession, the unauthorised disclosure of which would cause damage to national security or would cause embarrassment to the Government in its functioning or would be prejudicial to national interest. These instructions, which are contained in the Manual of Departmental Security Instructions and the Manual of Office Procedure, lay down guidelines to give a security classification to a record based on the degree of confidentiality required. They also describe the manner in which each of such classified information should be handled and the persons who can access such information.
4.1.2 The Shourie Committee considered the issue of classification of information and noted: "A major contributor to the lack of transparency is the tendency to classify information even where such classification is clearly unjustified. There is also the tendency to accord higher classification than is warranted. The Manual of Departmental Security Instructions 1966 (MoDSI), issued by the Ministry of Home Affairs, and the Manual of Office Procedure, which incorporates some of these instructions, do lay down the criteria and guidelines for classification and specify the authorities competent to authorise classification gradings viz. Top Secret, Secret and Confidential. While the criteria for classification have perhaps necessarily to be broad, it is desirable, in the interest of a proper CIC/NAIND/C/2017/605263 Page 34 approach to classification that they should be backed up by a suitable illustrative list for guidance of officers. While drawing up such a list, the principle to be adhered to is that ordinarily only such information, as would qualify for exemption under the proposed Freedom of Information Act, should be classified."
4.1.3 The Manual of Departmental Security Instructions deals with classification of documents and records involving national security and sensitive matters. Once information gets a security classification it moves out of the public domain. Even the RTI Act respects the need to keep certain information outside the public domain. Section 8 of the Act lists out the exemptions under which the PIO need not give information. However it is necessary to harmonise security classification with the provisions of the Act.
4.1.4 The task of classifying a document is vital in the larger national interest, and should be handled with great caution as any security classification denies access of information to public. Therefore only officers of sufficient seniority should be empowered to classify documents. Moreover under the existing instructions, information once classified continues to be so without any time limit. In other countries, even war secrets are brought into public domain after a lapse of a specified period, usually 30 years. It is therefore necessary to review such classified documents after a reasonable period of, say 30 years (the period can be even less in case of some documents). Those which do not merit classification should then be declassified and kept in the public domain.
4.1.5 Further, the hierarchy of security classification needs to be rationalised, reflecting the scheme of exemptions under the Act and emerging challenges. The Act has listed 11 categories (section 8 and 9) of exemption wherein information may not be given out. These range from "information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; to "infringement of copyright subsisting in a person". The Commission feels that the classification system should broadly cover each of these categories of information. It is quite possible that an information falls under two or more categories of exemptions. In that case the information should be given the classification of the higher order among the exemptions.
4.1.6 Although the 11 categories of information are fairly exhaustive and cover almost all possible situations for keeping information secret, some situations which demand secrecy seem to remain out of these exemptions like confidential reports of officials, and question papers of examinations. The Commission feels that information in these cases should also be covered by exemptions.
CIC/NAIND/C/2017/605263 Page 35 The ARC finally recommended: (Paragraph 4.1.8): a. The GOI should amend the Manual of Departmental Security Instructions (MoDSI) in the following manner:
i. Information Deserving Classification (Para 3) It would be advisable for each Ministry/Department to identify the information which deserves to be given a security classification. Ordinarily, only such information should be given a security classification which would qualify for exemption from disclosure under the Right to Information Act, 2005. (ARC also suggested how classification needs to be done, gave a table and guidelines) Section of the RTI Act to which classification information pertains:
8(1)(a)- Top Secret,; 8(1)(b)- Confidential; 8(1)(c)-Confidential; 8(1)(d)- Secret; 8(1)(e)- Confidential; 8(1)(f)-Secret; 8(1)(g)-Top Secret/Secret; 8(1)(h)-Secret/Confidential; 8(1)(i)-Confidential; 8(1)(j)-Confidential/ Restricted; Section 9-Confidential/Restricted.
Explanation: The above mentioned classification should be generally followed. It is quite possible that information may be covered by more than one exemption; in that case the information should be given the classification of the higher category. Also if it is felt by the Competent Authority that circumstances of a case demand a higher classification that what is indicated above, then the same may be done by an authority, which is empowered to give such a classification.
Provision should be made to include annual confidential reports of officers and examination question papers and related matters in the exemptions under the RTI Act. This may be done by way of removal of difficulties under Section 30.
ii. Upgrading and Downgrading (Para 2.3) Documents once classified as "Top Secret" or "Secret", should remain so classified as long as required but not exceeding 30 years. Documents classified as confidential and restricted should remain so for a period not exceeding 10 years. However, the competent classifying officer may, for reasons to be recorded in writing, authorize continued classification beyond the period prescribed above if information, the disclosure of which would cause damage to national security or national interest. A recipient officer of appropriate rank in a Ministry or Department may upgrade the security classification of a document received from outside, but this raised classification will be limited only to the Ministry or Department. (S)He will, however, have no authority to downgrade the security classification of a document received, without the concurrence of the originator. Within the same Department, an officer superior to the originator would have the authority to downgrade or upgrade the classification.
CIC/NAIND/C/2017/605263 Page 36 iii. Officer Authorised to Accord the Grading:
Top Secret: Not below Joint Secretary Secret: Not below Deputy Secretary Confidential: Not below Under Secretary The State Government may authorize officers of equivalent rank to accord the grading.
43.Response of MoH: In 2008, the Ministry of Home Affairs vide their No. 1/11014/08-CDN dated 13.6.2008 made changes in the Mannual of Departmental Security Instructions, (MoDSI) 1994. "Clause 2.2.: Guidelines to ensure proper classification of documents: To ensure proper classification of documents, only an officer not below the rank of Joint Secretary in the Government of India would have the authority to classify information originally as 'Top Secret', an officer not below the rank of Deputy Secretary would have the authority to classify information as 'Secret' and not below the rank of Under Secretary will have the authority to classify information as 'Confidential". This is the action taken by the Ministry on the recommendations by ARC. The Home Ministry stated that no action was pending on this subject. Thus the officers of the concerned department have authority to classify information. Ordinarily any decision has to be justified. No officer can arbitrarily classify.
44.The MoDSI at 172 defines Classified Documents as follows:
"172. Definition of Classified Documents (I) Top Secret: This grading is reserved for papers containing information of such a vital nature that, for reasons of national security, it must not be disclosed to anyone for whom it is not essential to have knowledge of it for the proper performance of his duty. Such papers include references to current or future military operations, intending movements or disposition of armed forces, shaping of secret methods, of war, matters of high international and internal political policy, ciphers and reports derived from secret sources of intelligence. The distribution of papers having "Top Secret"
classification must be limited to the minimum of persons concerned and in such cases it will be safer to err on the side of security.
(II) Secret: This marking is reserved for papers which are of a nature that their disclosure to persons other than those whose duty is to have knowledge of them would cause administrative embarrassment or difficulty or internal CIC/NAIND/C/2017/605263 Page 37 breach of peace and amity or injury to the interest and prestige of the Government or would be of advantage to a foreign nation or enemy. NOTE: This is the highest classification ordinarily used for very important matters.
(III) Confidential: This marking is reserved for papers containing information, the unauthorized disclosure of which, while not endangering national security, would be prejudicial to the interests of the nation, any government activity or individuals, or would cause administrative embarrassment or difficulty or be of an advantage to a foreign nation. NOTE: Most matters will, on proper analysis, be classified higher than Confidential".
(IV) Personal - Not for Publication: This is reserved for communications to members of the public when it is desired to make it clear that these communications or the information contained therein should not be published. The words `Not for publication' are generally added.
Nothing in this Office Manual tells us about the grade/rank of the officer who can classify documents in this manner. The only guideline given is that the officer must be authorized to handle documents of such sensitivity in order to be able to grade them. However, downgrading must be done by an officer of at least the same rank or higher.
45.The Public Records Act, 1993 and the Public Records Rules 1997, provided a mechanism for downgrading the security grading of sensitive documents and eventually sending them to the National Archives in a time bound manner. But it did not throw any light on the grade/rank of the officers qualified to classify or declassify documents in each department of the Government. The Supreme Court considered this aspect in the matter of S. P. Gupta vs President of India (para 72 in AIR 1982 SC149), Bhagwati, J (as he then was) explains:
"Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document."
46.Whether the Shastri's documents fit the criteria listed in the Manual for the security classification of 'Restricted? In none of the RTI cases referred above CIC/NAIND/C/2017/605263 Page 38 and in this case, in spite of CIC's direction the public authorities have explained who, why and how these documents of Shastri's death were classified, how long they remain classified, is there any effort to declassify. They have a duty to justify that release of these documents prejudicially affect the security sovereignty and integrity of India and relation with foreign state and even after half a century, they should remain restricted. Compared to Pentagon Papers, can the papers of Lal Bahadur Shastry's death be considered as threat to security or integrity of the nation or friendly relations with neighbours, as claimed?
47.The present Government has taken a historical decision to declassify 33 of Nethaji related files on 4th December 2015, thereafter 37 and 25 files and made 100 files digitally available on 23rd January 2016 to meet the long standing public demand to access these files. NAI has released 75 declassified copies of Nethaji. Fourth batch of 25 files of 1968-2008 was launched on 27th May 2016, which can be accessed on abhilekh patal website of NAI at http://www.netajipapers.gov.in/. When Pentagon papers in US and Nethaji papers in India could be declassified why not Shastri papers also?
Decision
48.In an earlier order referred above, the then Ld Chief Information Commissioner Sri Satyanand Misra has observed as follows:
4. Next, the CPIO of the Cabinet Secretariat produced a sealed envelope containing a bound volume in which 11 pages related to the information sought by the Appellant. We carefully went through the contents of the relevant pages.
These are primarily the minutes of some meetings of the Cabinet and also contain a communication sent to the Home Ministry based on the decision taken in one of the meetings. We found that except for one sentence in one of the minutes containing a reference to the Mukti Bahini, rest of the documents contain no information which could be exempted from disclosure under any of the exemption provisions, especially those contained in Section 8(1) (a) of the RTI Act. The sentence containing the reference to the Mukti Bahini should not be disclosed as, in our opinion; it may adversely affect India's relationship with a foreign State. Therefore, we do not see any reason why these 11 pages cannot be disclosed after deleting the lone sentence with the reference to the Mukti Bahini. We direct the CPIO of the Cabinet Secretariat to disclose these pages to the Appellant within 10 working CIC/NAIND/C/2017/605263 Page 39 days from the receipt of this order, after making the necessary deletion as above (https://indiankanoon.org/doc/1148146/).
49.It is not known whether the CPIO of the Cabinet Secretariat furnished the pages after making deletion of one sentence. The Commission directs the CPIO of the Cabinet Secretariat to submit a report of compliance of above referred order of CIC and to provide those 11 pages to the appellant in this case marking a copy to this Commission, before 10th October 2018.
50.People's right to know the 'truth' behind the death of Shastri cannot be brushed aside on the ground of Section 8(1)(a) en bloc. In view of the startling incidents that followed the mysterious death, such as killing of his personal doctor and assistant in two separate 'accidents', disappearance of records of Rajya Sabha Committee's probe, and various significant points raised by Journalists Kuldip Nayar, Anuj Dhar, Soutik Biswas, Advocate Anoop Bose, Shastri's wife Mrs Lalitha, other family members, the Commission is of opinion that the Union Government has a duty to explain the nation why and how Lal Bahadur Shastri died in Tashkent. The Government representatives have not come up with any justification for continuing these documents 'secret' for unlimited period of time. They did not produce documents earlier claimed as 'classified' before the Commission, in spite of specific direction, to facilitate the Commission considering the claim of classification in terms of S 8(1)(a) of RTI Act and OSA.
51.Except a medical report, nothing is disclosed, and mystery is being allowed to persist. In view of the law of OSA, Manual of Departmental Security Instructions, reply given to Lok Sabha referred in Paragraphs 41-42 and the advice of the Supreme Court cited in paragraph 45, following information- questions emerge, which need to be answered by the concerned Ministries of the Government of India in response to RTI of appellant, family members of Shastri and the people;
CIC/NAIND/C/2017/605263 Page 40
a) As records are not being classified under OSA, and it is being done by individual ministry, which Ministry has classified the documents of Shastri?
b) Whether Shastri's death related papers are classified as 'top secret', 'secret' or 'confidential', on what basis?
c) Which part of 8(1)(a) of RTI Act is invoked to deny and what is the justification for such invocation?
d) What is the normal period for such classification? Whether any norms are guidelines prescribed? If yes, same shall be furnished.
e) What is the period prescribed for classification of Shastri documents?
f) Whether any ministry is considering declassification, if so what is the status?
g) As per Section 10 of RTI Act, using doctrine of severability, the portion of document classified could be blocked or deleted. As the MoDSI cannot override RTI Act, and RTI overrides the MoDSI, the ministry which classified has a duty to provide such portion of information which his not hit by S 8-9 of RTI Act. Whether concerned Ministry would be disclosing that part of the information, which is not hit by Section 8(1)(a)?
For these doubts, serious questions, deaths and disappearance of records, the Commission directs the CPIOs of PMO, Ministry of External Affairs and Ministry of Home Affairs to place all those so-called 'classified papers' before the Honourable Prime Minister and the Home Minister, who are recommended to consider the fundamental right to know and demand of the people, family members of Lal Bahadur Shastri and opinion of legendary senior journalists like Late Kuldip Nayar, to declassify either through an expert Committee or by any other process to get the mystery probed and resolved. Even if they can prove that Shastri died by heart attack, that can answer the doubts of the people.
52. All the CPIOs and seniors of PMO, MEA and MHA have a duty to resolve this mystery and to provide to complete answer these frequent RTI requests to pay due respect to the most honest former Prime Minister of India, and the people who admire him.
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53. Though the complaint is valid and justified, because to above facts and circumstances, imposing penalty on any of the CPIOs will not be reasonable because the CPIOs do not hold the records or they are not in a position to secure the records or decide as the higher authorities have to decide whether to declassify those records. Hence, penalty proceedings are dropped.
54. The Commission recommends DoPT to initiate necessary steps on six heads of records to be transferred to NAI as sought by NAI in Para 7 above.
55. However the Commission finds it very difficult to get convinced about claim that there were no records with Rajya Sabha pertaining to probe by Raj Narain Committee into the death of Shastri initiated during Janata Government. The Parliament is known for meticulous maintenance of documents. Every word uttered in Parliament is recorded and kept in public domain, a humongous task the office is perfectly performing. Then how such a significant record disappeared? It may not be justified to hold the present or past CPIO liable for the absence of this record. But it is certainly worrying factor and the Rajya Sabha and Parliament as a whole should worry about. The Commission recommends the constitutional authorities in the Parliament to look into this matter and initiate measures including probing or finding means to secure those records, to prevent such loss of documents in future, and to reinforce the credibility of the institution.
56. The Commission dedicates this order to Late Kuldip Nayar.
57. Disposed of.
SD/-
(M. Sridhar Acharyulu)
Central Information Commissioner
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