For discovering an incriminating document from the defence department, a journalist is threatened. For attaching those documents to public interest litigation, a lawyer is threatened with prosecution under the Official Secrets Act.
The battle is now between the freedom of speech and official secrecy. Can official deals, if wrongful, be protected under the curtains of secrecy?
In the wake of resistance and criticism from media bodies and the public, the attorney general said the government had no intention of prosecuting journalists and lawyers for using the 'documents'.
Then-Centre filed an affidavit on March 13, 2019 stating that those who leaked were guilty of penal offences including theft. It was claimed that annexed notes were marked 'secret', and exempted from disclosure even under the Right to Information Act. It also raised a point under the Evidence Act, on the use of evidence derived from unpublished official records relating to the affairs of the state without permission.
These claims reflect the intention to attack the review petition on technical grounds, without condemning the veracity of the contents that strengthen allegations. First of all, it is not a trial in which admissibility of evidence need to be thoroughly examined; the government can raise those points in the trial that happens after the investigation the petitioners are seeking. The facts of the case have to be considered to decide whether a probe should be ordered.
The second point is on the documents being marked 'secret'. Which part of the deal is secret, and why? The test established by the Supreme Courts of India and the US in several cases to withhold a document as secret is the doctrine of 'clear and present' danger. The Pentagon Papers case in the US and Raj Narain's case against Indira Gandhi in India, the Supreme Courts laid down the norm that the danger should be so clear that secrecy needs to be maintained.
In Pentagon Papers, failures of the US Army in Vietnam were leaked by the New York Times, Washington Post and others. The US government wanted to prevent newspapers from publishing these reports, citing 'national security'. In the Raj Narain case, the Centre was refusing to share the blue book for the then prime minister's visit during electioneering, even many years after the event. The Centre has a duty to explain how a dissent note from three negotiators would pose a clear and present danger to 'security'.
To say that this document could not have been disclosed even under RTI Act is legally not tenable, because the RTI Act provided for disclosure of defence details and information from exempted organisations as well in the context of corruption and human rights violation. The political executive cannot use the Official Secrets Act and a 'national security' defence, without justifying them, to hide the truth and prevent a probe.
The very origins of the Official Secrets Act was to muzzle the voice of the opposition and criticism. The pre-independence 1923 Official Secrets Act promotes secrecy and confidentiality around 'governance'. It is shocking that attorney general, representing the Centre, said the prosecution had stolen 'secret' documents and pleaded with the Supreme Court not to consider the stolen parts of the deal papers.
The review of the apex court's December 14 decision will have very serious implications because the petitioners – Yashwant Sinha, Arun Shourie and Prashant Bhushan – are seeking an FIR against Prime Minister Narendra Modi and others involved in the Rafale deal.
Relying largely on documents published in the media, the petitioners want the Supreme Court to reverse their conclusion about the absence of alleged commercial favouritism, because certain critical information was suppressed from judicial scrutiny.
The AG attacked the review petition, claiming the documents were stolen and then attached to the petition before the bench, which means the petitioners are involved. It is in this context that the threat of prosecution under the Official Secrets Act has to be examined.
Though the AG has retreated from this threat, it has stirred a debate about practical application of provisions of the Official Secrets Act, because of their inconsistency with the Right to Information Act, 2005. One must see how official secrets are valid when transparency is the law and disclosure the rule. Secrecy is now an exception.
More than a threat to the freedom of press and due process, the use and abuse of the Official Secrets Act threatens good governance and promotes corruption.
Culture of secrecy
As rightly observed by the Second Administrative Reforms Commission, the Official Secrets Act is founded on colonial mistrust of people and primacy of officials who deal with citizens. The culture of secrecy was established through this draconian law.
The commission's recommendation to repeal it was rejected. In 2017, a committee of the cabinet secretariat recommended making the Act more transparent, at least. That was not acted on.
On the one hand, the government fills information commissions with former bureaucrats to discourage disclosure, and on the other promotes the use of the Official Secrets Act.
The pre-independence Congress party had resolved to repeal the Act, but every party including the Congress has used it to stifle voices. When it is used in the forum of the Supreme Court to stall a probe into the Rafale deal, the public must doubt the commitment to transparency and zero tolerance of corruption.
Every document is not a secret and every leak is not a crime under the Official Secrets Act. Criminality lies in "intending to benefit enemy country directly or indirectly". Sections 3 and 5 of the Act refer to making or accessing a sketch, plan, model or note or document which is useful to the enemy or wrongfully communicating it, which is likely to affect the sovereignty and integrity of India, security of state or friendly relations with foreign state.
The Act does not define 'secrecy'
The most interesting factor is that the Officials Secrets Act does not define 'secret' or 'official secret', and does not provide a 'classification' of documents. The Manual of Departmental Security Instruction (MODSI) of the Ministry of Defence has laid down procedures and criterion for classification of documents as 'top secret', 'secret' and 'confidential'.
Papers containing vital information which cannot be disclosed for reasons of national security are classified as 'top secret', and these must not be disclosed to anyone for whom they are not essential. 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 'secret' classification is reserved for papers the disclosure of which could cause administrative embarrassment or difficulty, an internal breach of peace and amity, injury to the interest and prestige of the government, or would be of advantage to a foreign nation or enemy.
The 'confidential' category is reserved for papers containing information the unauthorised 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. In S.P. Gupta, the Supreme Court rejected the criteria of 'embarrassment to the government'.
Official Secrets Act vs RTI
Section 2 of the Official Secrets Act defines 'document' as 'document includes part of a document. This means if any part of the document is secret', then the disclosure of part other than 'secret' part also can be denied.
Section 10 of RTI Act provided for separation of the 'secret' part and release of the rest.
This is the conflict between these two Acts. Section 22 of the RTI Act expressly provided that the provisions of the RTI 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 in any instrument having effect by any law other than the RTI Act.
This was further fortified in Section 8(2), which stated that information exempted under sub-section (1) or exempted under the Official Secrets Act, 1923 can be disclosed if public interest in the disclosure overweighs the harm to the protected interest.
The Bofors scandal was the result of a media investigation and the leakage of key documents. In fact, the official radio of Sweden released threads of the bribery to Indian dealers behind the Bofors deal with India. This could happen because there is a Freedom of Press Act in Sweden, which granted people the right to information back in 1766. The transparency law ensures corruption-free defence deals.
In this context of a 21st-century access law overriding a 97-year-old British relic law of secrecy, one has to see whether all papers of negotiations, undue increase in the price, irrational preference of Anil Ambani to HAL, ignoring the 'make in India' policy, dissent of three members of seven-member negotiating team against a parallel bargain by the PMO in Rafale deal, etc. can be considered as 'official secrets'.
Even if agreed that they are stolen, as contended by the AG, the documents accessed by the media are not condemned as false. This strengthens the plea to review the Supreme Court's December 14 decision. The government has a duty to tell the apex court and people which part of the Rafale deal could harm security interests, and disclose the rest.
Whether citizen, journalist or lawyer, shouldn't everyone have the right to criticise and challenge the purchase of Rafale fighter aircraft at a price much higher than earlier estimated?
M. Sridhar Acharyulu is a former Central Information Commissioner and a professor of media law at Bennett University.
This article was first published here [The WIre]