Yes, minister!

Did the HRD minister violate her oath of office by allowing an officer to look at sensitive files before he was cleared by intelligence sources?

By Ramesh Menon

W hen the Narendra Modi government was sworn in, the message that was bei­ng subtly relayed was that everything would now be transparent and clean. It sounded too good to be true. Of late, the capital has been abuzz with allegations as to how an officer on special duty was allowed to function without necessary clearances from intelligence sources in the office of Smriti Irani, minister of human resource development.

Is it such a big deal? It is serious, as the individual would have access to top secret files, cabinet notes and goings-on within the ministry. The moot question being raised in top government circles is how an appointment in such a sensitive position was made without following the standard procedure. The individual in question is Sanjay Kachroo, who has earlier worked with several top corporate houses. The Mahanagar Telephone Nigam Limited also lists Kachroo as OSD in Irani’s office. There are swirling murmurs in both government and business circles about why he was hand-picked when there were many competent bureaucrats to choose from.

Kachroo has become a powerful figure in the HRD ministry. A senior official said that Kachroo would always be present when any important decisions were being made by Irani.

STICKY ISSUE

In fact, the issue is being discussed all over Twitter, with users asking how no action was being taken against the minister. One even asked why Prime Minister Narendra Modi was not acting on it and whether this was a deliberate plan to help influential industrial circles know the daily nitty-gritty within the government. The dust on the sticky issue was kicked up, as Kachroo earlier used to be with a major corporate house that is known to be extremely influential with whichever party is in power.

While Kachroo’s name was subsequently cleared by intelligence sources, the appointment of another senior functionary in Irani’s office, Noopur Jhunjunwala, was also cleared a few weeks ago. She is the daughter of Rajesh Jhunjunwala, a leading stock broker in Mumbai. She has an IT background and has worked as a consultant with the department
of telecom.

This is not the first time that controversy has erupted over breach of oath of office. Sometime back, there was a row over then Prime Minister Dr Manmohan Singh sharing important files with UPA chairperson Sonia Gandhi. But, before any final decision could be arrived at, his government was voted out of power. The questions which arose were: Can the PM and PMO share the contents of these sensitive files with anyone outside the Union council of ministers? Will this not amount to violation of oath of secrecy taken by the PM and his ministers? Similarly, the question being raised now among legal experts is, whether Irani violated the oath of secrecy she took on May 26 when she was sworn in.

SERIOUS OATH

Constitution-makers thought it fit to bind the prime minister and his ministers by an oath of secrecy, apart from the oath of office. The Third Schedule provides this oath: “I do swear in the name of God that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a minister for the Union except as may be required for the due discharge of my duties as such minister.”

This brings the larger constitutional question into play. Can a minister share critical information about governance with private persons? Will it not amount to breaching the oath of secrecy? Did the HRD minister share official files with private persons, who were not officially appointed? An email to Irani from India Legal asking why Kachroo had continued in her office before an official clearance and why he was getting access to official files went unanswered. Attempts to get Kachroo to respond also failed.

A three-judge bench of the Kerala High Court (HC) in the KC Chandy vs R Balakrishna Pillai case on August 19, 1985, gave answers to some of these vital questions. The court held that breach of the oath of office was not a disqualification specified in the constitution or under any law made by parliament. However, it cannot be assumed that there is no sanctity in the oath taken before assumption of office. Or for that matter that there is no authority to take action if the oath is violated. It is a fact that a minister cannot take charge unless the president or governor administers oath of office and secrecy. Thereafter, it is expected that the oath would be respected.

Taking an oath before assumption of office cannot be treated merely as “an additional moral obligation” without legal consequences. The oath binds the person throughout his tenure in that office, and he extricates himself from it only when he frees himself from that office. Breach of this fundamental conduct of good behavior may result in the deprivation of the very office he holds.

TERMINATION OF OFFICE

The Kerala HC termed the breach of oath as a betrayal of faith. It further added that the breach of oath requires a termination of the tenure of office. Technically, this would mean that Irani could be asked to leave office for violating it. It remains to be seen how seriously Modi would view this.

However, this power can be exercised by the appointing authority under the constitution, and according to the procedure, if any, prescribed therein. The termination of that tenure is not the function of a court; and it would not be appropriate to exercise jurisdiction under Article 226 in such cases. Interestingly, similar views have been expressed by the Madras HC in Ramachandran vs MG Ramachandran, by the Rajasthan HC in Kashi Purohit vs of Rajasthan and also by the Karnataka HC in BM Gangadhariah vs HD Deve Gowda.

Vinita Srivastava, who is a 1994 cadre Indian Railway Service officer, was the private secretary to Irani, but got shunted out, as Modi did not want his ministers to appoint secretaries who have served under UPA ministers. She has been replaced by IPS officer Vineeta Thakur.

Srivastava was an officer on special duty to Beni Prasad Verma, former minister of steel. She was one of the 22 personal secretaries or officers on special duty of the previous UPA regime who were put on compulsory hold by the personnel ministry through a June 10, 2014 circular. They were expected to wait till their relocation was cleared by the Appoint-ments Committee of Cabinet, chaired by the prime minister. This move by Modi has led to a lot of bitterness in bureaucratic circles, as it sends a message that the government does not trust their integrity and loyalty. As soon as he took over, Modi surprised everyone promulgating an ordinance to ensure appointment of Nripendra Misha as his principle secretary.

When will Modi and his ministers walk the talk about transparency?

—With inputs from Shailendra Singh