By Venkatesh Nayak
The author is Coordinator of the Access to Information Programme at the Commonwealth Human Rights Initiative. This post first appeared May 15 in The Hoot.
Last week, upon being requested by a section of the family of the leader of the Indian movement for independence, Netaji Subhash Chandra Bose, to make the government’s secret files on him public, the Prime Minister, who was visiting West Bengal, is reported to have said, “It was the nation’s duty to so do”.[i]
Strangely, neither the website of the PM’s office, nor that of any other government department has put out any official report of this conversation, unlike last month’s much publicised meeting of the PM with other members of Netaji’s family in Germany.
Except for two pictures of the Kolkata meeting with the PM tweeted by the Press Information Bureau, all media reports were based on statements made by some members of the Bose family about the “assurance” given by the PM. If the media reports are accurate, the duty of transparency is unfortunately being transferred to a people who have neither the access to the secret files, nor the power to place them in the public domain.
In fact even before any secret information about Netaji is made public, the Government owes a detailed explanation to citizens about how it classifies and declassifies secret files. These very procedures are locked away in the Manual of Departmental Security Instructions (MODSI) issued by the Union Home Ministry under the label – believe it or not – ‘Confidential’, therefore accessible only to a few authorized officers in government. So how will people perform this new duty that the Prime Minister has placed on them, pray tell?
Official secrets vis-à-vis the RTI regime
Another interesting development that escaped media attention last week was a statement made by the Minister of State for Home Affairs in the Lok Sabha on this very issue. While replying to a question, the Minister admitted that the Official Secrets Act, 1923 (OSA) was not the basis for classifying sensitive official documents and records ‘top secret’, ‘secret’ and ‘confidential’.
Instead, the Minister said, the MODSI issued in 1994 and revised from time to time was the basis for all classification and declassification of sensitive information held by various government departments.[ii]
This Ministerial reply, if not withdrawn or corrected at a later date[iii], turns nine decades of received wisdom about information classification procedures on its head.
Several government-appointed committees including the H. D. Shourie Committee (which recommended enactment of a national level information access law during the 1990s) and the now defunct Planning Commission, have held that the OSA throws a veil of secrecy on decision-making processes, often resulting in the denial of the rightful entitlements of citizens or by preventing them from contributing to the processes of decision-making in public affairs.
Therefore, Parliament enacted the Right to Information Act in 2005 to replace this regime of secrecy with a regime of transparency. People can seek all information as a matter of right from public authorities, except when disclosure would harm a public interest that was recognized in that very law.[iv]
Parliament took care to specify in at least two places in this law that it would override the OSA to the extent of any inconsistency. In other words, if public interest is served better, even exempt or secret information held by public authorities must be disclosed and the OSA would not be a stumbling block in the unfurling of the transparency regime.
The Second Administrative Reforms Commission (S-ARC) headed by veteran Congressman Veerappa Moily went a further step ahead and recommended the repeal of the OSA as it had become redundant with the implementation of the RTI Act. However, S-ARC made two recommendations in 2006:
a) Categorise the information covered by the exemptions in the RTI Act afresh with labels such as ‘top secret’, ‘secret’ and ‘confidential’; and
b) Move the espionage-related provisions and punishments in the OSA to the National Security Act, 1980 (NSA).[v]
A few months later the Government rejected both recommendations[vi]. The first suggestion was rejected on the ground that it would not be practically possible to classify all sensitive information in the manner suggested by S-ARC. The OSA, being a substantive law, its offences could not be inserted in the NSA whose primary purpose was to allow for the detention of people to prevent them from committing crimes against the State.[vii]
The second suggestion was rejected on the grounds that it was not possible to classify sensitive information in the manner recommended by S-ARC. Experience over the last 10 years has shown that public information officers have often rejected requests for information simply on the ground that the records were classified ‘top secret’, ‘secret’ or ‘confidential’.
How is official information classified?
The MODSI which reportedly lays down the procedures for classifying and declassifying sensitive information is not available in the public domain and S-ARC did not find this to be an anomaly. While sensitive information may not be disclosed, the criteria and procedures for classifying information should not be kept under lock and key.
After all, under the modern criminal justice system, “ignorance of the law is not a legitimate defence for escaping punishment for any transgression.” So all laws, rules, regulations and procedures that invite penalty for violation, must be in the public domain. No sane democracy keeps its rules and regulations secret. They are at least published in the official gazette.
Unfortunately, this author was unable to convince the Central Information Commission of India of this important principle of transparency vis-à-vis MODSI when a request for disclosure of the manual was rejected by the Ministry of Home Affairs in 2009.[viii] The plea, that in a large number of developed and developing countries the rules for classification are made public, went unappreciated.
However, within a couple of months of losing this case, this author chanced upon the criteria for classification of documents in an Office Manual published by the Andaman and Nicobar Administration, regulated by none other than the Union Home Ministry. According to this Manual, the following criteria are usually followed for classifying documents with the following labels[ix]:
“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 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.
The Public Records Act, 1993 and the Public Records Rule 1997, while providing a mechanism for downgrading the security grading of sensitive documents and eventually sending them to the National Archives in a time bound manner, do not throw any light on the grade/rank of the officers qualified to classify or declassify documents in each department of the Government.
That being said, a look at the criteria for grading documents with the labels ‘secret’ and ‘confidential’ contain an element, namely “embarrassment to the Government”, which was weighed and rejected by the Supreme Court as far back as in 1981. In the matter of S. P. Gupta vs President of India[x], Bhagwati, J (as he then was) held as follows:
“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.” [emphasis supplied]
Instances of misuse of classificatory labels
Yet, the power to classify documents has been abused and misused wantonly across Government. For example, the handbook published by the Cabinet Secretariat to guide bureaucrats for preparing Notes for the consideration of the Union Cabinet requires all Cabinet Notes to be labeled ‘Top Secret’, right form the drafting stage, even if it contains routine matters such as approval of draft legislation or amendments to existing laws for tabling in Parliament[xi].
Another example is the practice of labelling files relating to the appointments of Governors in the States, ‘Top Secret”.[xii] Neither instance cited above fits in the criteria for the category ‘Top secret’. So the announcement made by the Government that it would review the OSA in the light of the RTI Act in the wake of media reports of long term snooping of the family members of Netaji from the mid-1940s was a welcome development.
What are official secrets?
However that still leaves us with the question: What are “official secrets”? There is no definition of that phrase in the OSA. Instead its meaning must be derived by examining various provisions in the Act.
For example, actions such as approaching, inspecting or flying over any place declared as ‘prohibited’ under the Act will invite penal consequences. So technically, such areas fall within the definition of ‘official secrets’ even though they cannot be described as ‘information’.
Similarly, making sketches, plans, models or notes which is ‘calculated to be’ or ‘might be’ or ‘intended to be’, directly or indirectly useful to the enemy could also fall within the definition of ‘official secret’ even though it may not have been actually created by any officer of government.
Then again, obtaining, collecting, recording, publishing or communicating to any other person any ‘secret code or password’, or any sketch, plan, model, article or note of other document or information which is calculated to be or might be or is ‘intended’ to be directly or indirectly useful to the enemy is deemed to be an act of spying for the purpose of the Act.
Or if disclosure of any such information is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States, that would also be deemed to be espionage.
All these offences are punishable with a maximum prison term of three years. If the prohibited actions are done in relation to any work of defence, arsenal, any establishment of the defence forces, mines (the exploding kind), minefield, factory, dockyard, camp, ship or aircraft in relation to the affairs of the three defence forces, the punishment could be up to fourteen years.[xiii]
Other provisions of the OSA criminalise wrongful communication of such information in order to adversely affect India’s national security interests or foreign relations explained above.[xiv]
While interpreting the meaning of the term “official secret” the Supreme Court of India restricted it to “secret code or password mentioned in Section 3(c) of OSA’.[xv] So are other items mentioned in that clause like sketches, maps, plans and documents not “official secrets”? A deeper look at these provisions makes it increasingly clear that the OSA does not require all kinds of government-held information to be classified as “official secrets”.
So while the OSA serves a different and specialised purpose, namely dealing with espionage, it is MODSI which lays down the mechanism for labelling official documents ‘top secret’, ‘secret’ or ‘confidential’. Such documents do not seem to have any connection with the OSA at all.
Until the MODSI is made public, it will not be clear as to whether it is based on the OSA. Consequently, the OSA should not be a stumbling block for the disclosure of any information other than those covered by the exemption clause in Section 8(1)(a) of the RTI Act and that too only in relation to State security and foreign relations and no other. However the deleterious effect of the OSA is more apparent in its use against persons whom the powers that be want to fix.
Prosecution of innocent people under the OSA
By the Government’s own admission, the prosecution rate under the OSA has been very successful.[xvi] Nevertheless, detailed statistics are hard to come by. In response to a query raised on the floor of the Lok Sabha, in August, 2010, the Home Ministry stated that the Central Government had authorised criminal cases against 395 persons between 2000 and the date of the parliamentary query.[xvii]
However the Ministry admitted that it does not maintain a database of actual prosecutions and the outcomes because that is the responsibility of the State Police Departments or the Central Bureau of Investigation. The Annual Crime Reports of the National Crime Records Bureau also do not contain such State-wise disaggregated data about prosecutions under the OSA and their outcomes.
Nevertheless anecdotal evidence indicates that the OSA has often been misused to settle scores with non-pliable officers and investigative journalists. For example, the eminent atomic energy expert Dr. B. Subbarao was incarcerated for almost two years on charges under the OSA and other related laws.
According to the prosecution, his crime was carrying his Ph.D. thesis while travelling abroad. It accused him of using information classified as defence secrets obtained in the course of his official duties for compiling his thesis. The Bombay High Court threw out the case and discharged him. Later the Supreme Court upheld the High Court’s order on the ground that the mandatory sanction for prosecution under Section 197 of the Code of Criminal Procedure, 1973 had not been obtained from the Government.[xviii]
According to publicly available reports, Dr. Subbarao’s ‘real crime’ was said to be picking holes in the nuclear submarine designs prepared by his peers, more than once, instead of approving them ‘like a good boy’.[xix]
Often investigative journalists have also been hauled up under the OSA. The Delhi-based journalist Iftikhar Gilani was arrested by the police in June 2002 on charges of possessing ‘classified information’. The classified information later turned out to be a publicly available document released by Pakistan’s Foreign Ministry about alleged human rights abuses committed by the defence forces in Kashmir.[xx]
The prosecution also accused him of keeping documents about the movements of Indian defence forces that finally turned out to be a research paper published by a research institute in Pakistan relating to matters from the mid-1990s. The journalist languished in prison for seven months as he was denied bail and the trial was held in camera (permitted under Section 14 of OSA). So the time-honoured principle – “the public has the right to every man’s evidence” – can be waived under OSA trials.
However, in January 2003, the prosecution withdrew the case in the ‘public interest’.[xxi] By then it had become widely known that the establishment had fabricated the evidence against him and the prosecution was bound to fail. His supporters have claimed that the trauma he went through was the price he paid for his fearless approach to journalism and also his matrimonial alliance with the family of a leader of the separatist movement in Kashmir.[xxii]
In May 2011, Taraknath Dwivedi @ Akela was arrested in Mumbai by the Government Railway Police under the OSA. His crime: publishing photographic evidence of the manner in which arms purchased after the 26/11 terror attacks were kept by the Railway Police Force.[xxiii]
Two years later, the Bombay High Court quashed the charges against him holding that mere publication of the news story did not amount to ‘intent to aid the enemy’ – a requirement for conviction under the OSA.[xxiv] The enemy might have been better aided had the information been passed on to them quietly without making it public.
There may be many more such cases of false prosecution of sincere and honest officers and investigative journalists which, for lack of documentation by the mass media, may not have come to light.
But of greater worry is the plan of the national security establishment to go after media houses that publish even innocuous information pertaining to defence or other sensitive matters. For example, a media house recently published a letter purportedly written by the National Security Advisor to the Cabinet Secretary expressing the need for taking action against the media if ‘national security is undermined’ by their publication of ‘official secrets’.[xxv]
The case in point was the telecast of a story about the indigenous nuclear submarine INS Arihant, by a TV news channel.
Amongst other things, the NSA is said to have taken umbrage at the report that the Prime Minister was shown images of the submarine at an awards function.[xxvi] However, the NSA wanted officials who supplied such information to the media to be treated with kid gloves by merely reiterating the guidelines and instructions for handling classified information.
So the OSA stick is to be increasingly wielded against the fourth estate which only performs its function of speaking the truth, founded on our national motto – ‘satyameva jayate’ (truth alone shall triumph).
Another less known fact is that all this mischief is happening on the basis of 16 provisions that make up the OSA, supported of course, by the State’s vengeful temperament. The OSA is a rare law that stands alone without any rule or regulation being required to be made detailing its provisions for the purpose of implementation. As a result, there is little guidance available to prevent its misuse.
In a democratic set up, every law must be implemented or applied in a balanced manner, especially penal statutes like the OSA. That is the requirement of the rule of law that underpins our governance structures and the criminal justice system. There is little public knowledge about the number of times false prosecutions under the OSA have been scrutinized or pending cases reviewed by the government at any level.
Secrecy surrounds the OSA review process
Bureaucrats dyed in the sticky hue of ‘official secrecy’ refuse to change colours easily. The attempts to review the OSA have been going on since independence. The only success was in terms of enhancing the punishments for certain kinds of offences made in 1967.
Several committees were constituted for reviewing the functioning of the OSA. Most of them conducted their business in secrecy. In 2012, this author’s request submitted under the RTI Act for disclosing the draft Cabinet Note containing proposals to amend the OSA was rejected by the Home Ministry.[xxvii]
More recently after the Government announced its intention to revive the OSA Review Committee in the wake of reports of snooping over Netaji’s kin, this author again submitted an RTI application seeking a copy of the terms of reference of this committee. This request was also rejected by the Home Ministry.[xxviii]
Given this intransigence towards even minimal transparency, the reported thinking within Government about involving not only bureaucrats but also researchers, journalists and Netaji’s kin in the process of declassifying Netaji files held by the Central Government can at best be termed a red herring.
The way forward
In conclusion, a central question that the Government must answer is if the procedures for classification of sensitive information held by the government are not sanctioned by the OSA, then how will the OSA review committee make any recommendation to improve the levels of transparency?
Official secrets under the OSA are limited to ‘secret codes and pass word”. No citizen in his right mind would ask for the disclosure of such information unless it is required for the purpose of establishing the accountability of the defence forces and the security establishment.
So what then, is the OSA Review Committee reviewing and how will it help deepen the regime of transparency established by the RTI Act? Unless the Government makes a clean breast of it, speculation about its intentions will continue to exist in the public domain.
A practical review of the classification and declassification procedures will first require disclosure of the contents of MODSI. Review of these procedures and actual practice in the light of the exemptions under the RTI Act and the procedures for declassifying and archiving sensitive information as provided in the Public Records Act and Rules must follow next.
First and foremost, the regime of national security, including the activities and budgets of the intelligence agencies, must be subjected to parliamentary oversight. Today there is enough guidance available for balancing issues of national security against the need for transparent and accountable governance.
A compilation of principles about how the two competing public interests must be handled is available in the form of the Tshwane Principles on National Security and the Right to Information.[xxix]
Equally important is the necessity of reviewing the prosecutions resulting in the discharge or the acquittal of persons accused of offences under the OSA. Last year, the Supreme Court laid down a mechanism to examine every case of acquittal in a criminal trial.[xxx] Thanks to these Kishanbhai directives, it has become mandatory for all State Governments to review every case of acquittal, fix responsibility for the failure and launch disciplinary action against the responsible investigating officers or the prosecutors.
All the cases of false prosecution cited earlier in this article would be fit cases for such a review and the launch of disciplinary action, had the Kishanbhai directives been issued much earlier.
Rather than go through the tortuous process that disciplinary proceedings tend to become, it makes better sense for governments to withdraw OSA cases where there is not much likelihood of success.
Is there any willingness within the Central and State Governments to take such progressive measures? Time alone will tell.
[i] See the Times of India news report.
[ii] Reply to Starred Question #557 given in the Lok Sabha on 05/05/2015. At the time of writing, the text of the question and the reply given had not been uploaded on the official websites of the Lok Sabha or the MHA. However, the summary of this communication with a background may be accessed here.
[iii] Under the Rules of Procedure applicable to either House of Parliament, a Minister can get away with making a false, incomplete or evasive reply to a parliamentary question, with no consequences whatsoever, unless an MP raises a privilege issue.
[iv] For example, Section 8 of the RTI Act contains a long list of grounds on which access to information may be denied in order to protect legitimate public interests such as sovereignty and security of the State, its defence, strategic, scientific or economic interests, trade secrets or intellectual property rights of third parties, information received in confidence from foreign governments and privacy of any individual. Additionally, there is no duty of disclosure if it will endanger the life or safety of any person or if it will incite people to commit offences or jeopardise the investigation or prosecution of any person for any crime or if a court or tribunal has prohibited disclosure. Information shared in a trust-based relationship such as doctor-patient, lawyer-client is also exempt from disclosure. Section 9 prevents disclosure of information if it will violate any copyright vested in any private person and Section 24 insulates notified intelligence and security agencies like the Intelligence Bureau, R&AW, CBI and 22 others similarly placed from ordinary obligations of disclosure. However these organisations will not be exempt from disclosing information if it relates to “allegations of human rights violation or corruption”.
[v] See Recommendations #2.2.12 and 4.1.8 in S-ARC’s first report- Right to Information: Master Key to Good Governance.
[vi] See GoI’s decision on the recommendations contained in the first report of S-ARC accessible here.
[vii] India is one of the few countries on the globe that permit deprivation of a person’s liberty even before he/she has committed any crime – a power legitimised by the Constitution itself (Article 22).
[viii] The text of the decision is accessible here.
[ix] See Chapter XIII of the Manual here.
[x] See para 72 in AIR 1982 SC149.
[xi] See Handbook on preparing Cabinet Notes.
[xii] Personal knowledge of the author while inspecting the appointment-related files under the RTI Act.
[xiv] Other OSA crimes such as impersonating defence personnel is not dealt with here for obvious reasons.
[xv] Sama Allana Abdulla vs State of Gujarat, AIR 1996 SC 569, para 7.
[xvi] See f.n. #6: column 2, row 2 in the tabulated decisions of GoI on the Recommendations of S-ARC contained in their 1st report on RTI.
[xvii] This amounts to an average of about 40 cases per year. See reply to Unstarred Question #3767 answered on 17/08/2010.
[xviii] State of Maharashtra vs Dr. Budhikota Subbarao, (1993) 3 SCC 71.
[xix] “Victmised by the Official Secrets Act: The Story of Dr B K Subbarao”, Manushi, Issue #108, accessible here.
[xx] India: Journalist arrested under Official Secrets Act, 13 June, 2002, accessible on the website of the Committee to Protect Journalists.
[xxi] “My case should be an eye-opener”, The Hindu, 14 January, 2003.
[xxii] “Trials and Tribulations”, The Hindu, 13 January, 2003 accessible here.
[xxiii] “Arrest of scribe under Official Secrets Act leads to outrage”, Zee News, 19 May, 2011 accessible here.
[xxiv] “Two-and-a-half years later, vindication for Mirror: HC quashes Official Secrets Act case over CST armoury exposé”, Times of India, 02 February, 2013 accessible here.
[xxv] “Government wants crackdown on violation of Official Secrets Act”, India Today, 30 December, 2014, accessible here.
[xxvi] Ibid.
[xxvii] See the Times of India news report.
[xxviii] See the Economic Times news report.
[xxix] For the text of the Tshwane Principles see here. This author was a member of the coalition of experts that drafted these principles after consultations in various parts of the globe. The Special Rapporteurs on freedom of speech and expression and access to information at the UN, European Union, African Union and the Organisation of American States have again and again endorsed these principles inviting countries to revisit their practices of over-classifying information under the pretext of national security.
[xxx] State of Gujarat vs Kishanbhai Etc., (2014) 5 SCC 108.
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