A SECRETARY ACTS ULTRA VIRES IN THE MATTER OF THE LOKPAL ACT TO INTIMIDATE THE PRESS!

Subhas Chandra Pattanayak

I had in a mail confronted the Commissioner-cum-Secretary of the department of Public Grievance and Pension Administration (PGPA) with a news item published in the de-facto official newspaper Khabara on April 21, 2010. I had sought for his reaction thereto. He is conspicuous by his silence.

This news item reveals that he has preferred a notice to the Lokpal of Orissa requiring him to initiate penal prosecution against journalists and news media organizations that have, according to him, given publicity to his recommendations in violation of the Lokpal Act. My instant reaction was that a senior bureaucrat who heads a department that deals with matters relating to the Lokpal cannot act so foolish to seek punishment against the Press. I therefore tried to locate the letter the said Secretary has written and found that it was well in circulation even though marked ‘confidential’.

This is a confidential letter from the Secretary of the administrative department to the Secretary of the Lokpal with a copy thereof communicated to the Secretary, Higher Education department of Orissa. But it has been leaked to the de-facto official newspaper Khabara and the paper has published it.

Leakage of confidential communication between three of the Secretaries is a severe offence no officer is allowed to commit. But in the instant case any one of these three top executives has certainly committed this offense. If the issuing Secretary has not done it, the Secretary of Higher Education or the Secretary to the Lokpal or the Lokpal himself must have done it, because none else was privy to it.

I deemed it proper to attract attention of the issuing Secretary to this severe offence. His silence suggests that he might be the man, who has circulated it through the government’s loyal media.

Such clumsy conduct a top executive exhibits only when he acts under unavoidable pressure. Therefore, it is obvious that the issuing Secretary has issued the letter to the Lokpal under unavoidable pressure and has also purposefully leaked it to media organizations of his choice.

Whose pressure?

Answer lies in who was affected by the exposure?

It was Chief Minister Navin Patnaik and his Office, marked for uncommon eagerness to serve the interest of Anil Agrawal and his Vedanta project even though thereby the interest of the poor children of the soil is jeopardized.

What was the purpose?

The answer lies in the last sentence of the letter that emphasizes on penal prosecution against the mediapersons “so as to prevent” such exposure “in future”.

So it is a clear act of intimidation resorted to by the PGPA Secretary against the Press.

Let us see if he has the power to send this notice to the Lokpal.

He has no such power.

He has relied upon only one Section of the Lokpal and Lokayukta Act, 1995 to venture his notice to the Lokpal. And, that is Section 15.

This section is captioned as “Secrecy of Information”. This term is a limited purpose term, as is discernible in Sub-Section ( 1 ) that says, “any information, obtained by the Lokpal or the lokayuktas or members of their staff in the course of, or for the purposes of any investigation under this Act, and any evidence recorded or collected in connection with such information” are to be kept secret, save disclosure allowed under Sub-Section (2). Sub-Section (4), which the PGPA Secretary has stressed upon says, “No person shall publish any proceedings relating to investigation which is pending before the Lokpal or a Lokayukta, as the case may be, nor shall any person publish such proceedings after the investigation is complete”. So this ban is put on “proceeding relating to investigation”, which read with Sub-Section ( 1 ) means the keeping on records the corpus of information or evidence collected in course of investigation. No media has published any such corpus except legitimately letting people know of the Lokpal’s observations on questionable conduct of the Government in patronizing Anil Agrawal and his recommendations for action. The people have legitimate right to know of this as they have the soverign right to watch the action taken report of the Government thereon. So there is no question of violation of the secrecy of information provision by any of the media community. The Secretary has not revealed which records of information or evidence related to investigation by the Lokpal are published by the media organizations and/or the media persons. And, he has not named any. So his allegation is misconceived and irrelevant and is vitiated with the ill intention to intimidate the Press so that the misrule is no more exposed in future.

But has he the right to write about the Press publicity to the lokpal? No, he has no right.

Sub-Section (3) of Section 15 of the Act bears the only provision that allows an Officer to write to the Lokpal claiming privilege on any information. It says, “ An Officer or other authority prescribed in this behalf may give Notice in writing to the Lokpal or a Lokayukta, as the case may be, with respect to any document or information specified in the notice, if any class of documents so specified that in the opinion of the State Government the disclosure of the documents or information of that class would be contrary to public interest and where such a notice is given, nothing in this Act shall be construed as authorizing or requiring the Lokpal, the Lokayuktas or any member of their staff to communicate to any person any such document or information specified in the notice or any document or information of a class so specified”.

Except this, no officer has any right to write to the Lokpal requiring him to initiate penal action against publication of its observations and/or recommendations.

So, in the context of the Lokpal and Lokayukta Act, 1995 the PGPA Secretary’s act is ultra vires.

It has exposed Government’s secret agenda against free Press.