Will India Ever Have ‘The Post’ Moment, With The Official Secrets Act In Place?

Manu Sebastian

26 Feb 2018 2:26 PM GMT

  • Will India Ever Have ‘The Post’ Moment, With The Official Secrets Act In Place?

    Official Secrets Act has become an instrument of oppression at the hands of the establishment to witch-hunt those who dare to ask uncomfortable questionsAmidst the Vietnam war, the board of management of ‘The Washington Post’ was caught up in a severe dilemma as to whether it should publish sensitive and classified defense documents which revealed that the U.S Government had been always...

    Official Secrets Act has become an instrument of oppression at the hands of the establishment to witch-hunt those who dare to ask uncomfortable questions

    Amidst the Vietnam war, the board of management of ‘The Washington Post’ was caught up in a severe dilemma as to whether it should publish sensitive and classified defense documents which revealed that the U.S Government had been always aware that there was no chance of winning the war, and that despite such concrete knowledge successive governments escalated the war propaganda solely to reap political benefits. The leaked documents made it clear that the U.S was waging a futile war, and thousands of young men were sent to die only for the sake of whipping up jingoistic frenzy. While the management was apprehensive of inviting the wrath of the then President Richard Nixon, the Editor-in-Chief Ben Bradlee was very resolute in his decision that the paper should publish the documents which showed that successive US Governments have been lying about the Vietnam war for past 30 years. “If we don’t hold them accountable, who will?”, asks him.

    This incident of Washington Post publishing Pentagon documents belying the Government’s claim about winning Vietnam war has been recreated in cinematic form in the recent Hollywood movie “The Post”. Directed by Steven Spielberg, this film has been nominated for Best Picture in Oscar Awards. Veteran actor Tom Hanks plays the role of Ben Bradlee, the editor.

    What will happen if we don’t publish? We will lose! The country will lose!”, asserts the character of Tom Hanks, which nudges Katharine Graham, the heiress of the newspaper family, to take a firm decision, overcoming her initial tentativeness. Meryl Streep plays the role of Katharine Graham,  who,  has to make a tougher call as she has to negotiate strong chauvinistic prejudices in the male-dominated board of management, apart from dealing with apprehensions about legal and financial consequences of publication.

    The New York Times’ had already published a part of the documents, which  resulted in legal proceedings under the U.S Espionage Act for breaching national security, and it was restrained from publishing as per injunction orders passed by Courts. It was in that backdrop that ‘The Washington Post’ decided to publish the rest of the information.  Both the papers had to ultimately approach the U.S Supreme Court to protect their right to publish. In a landmark decision, New York Times v. U.S.A, the U.S Supreme Court upheld the right of the newspapers to publish the documents. By a 6:3 majority, the Court held that the Constitution did not permit prior restraint on press freedom on whatever grounds.

    The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. 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, Justice Hugo Black emphatically observed in the judgment.

    “The Post” is a riveting account of the above historical developments.  The movie’s moral compass points at the right direction, as its setting and tenor make the viewer root for the triumph of truth and liberty.  Perhaps this is why Dushyant Dave, Senior Advocate, remarked during the hearing of Loya case that “your Lordships should watch ‘The Post’”.

    Official Secrets Act 1923- the Indian counter-part of Espionage Act.

    The US Government tried to restrain publication of Pentagon papers invoking Section 793 of the Espionage Act, which criminalized possession of information relating to ‘national defence’, which the possessor has ‘reasons to believe’ ’could be used to the injury of the United States or the advantage of any foreign nation’. The US Supreme Court held that this penal provision cannot be invoked to impose a prior restraint on publication.

    The Indian counter-part of the said provision of U.S Espionage Act is the Official Secrets Act 1923- a short colonial legislation which reflects imperialistic fervour than constitutional temperance. It criminalizes disclosure of information which is likely to affect sovereignty and integrity of India, the security of state or friendly relation with foreign states’(Section 5). The Act also criminalizes disclosure of information which might be directly or indirectly useful to an enemy(Section 3). As per the interpretation given to the provision by the Supreme Court in Sama Alana Abdulla v. State of Gujarat , the information need not be even ‘secret’, and if it is likely to be useful to an enemy, the offence is said to have been committed. Therefore, there is a lot of subjectivity involved here, as the conviction is based on an arbitrary and uncertain test of information being useful to an enemy. In an article published in the blog ‘Indian Constitutional Law Philosophy’, it is articulated that the constitutional validity of the Official Secrets Act(OSA) is highly doubtful on account of its vagueness, subjectivity and over-breadth in creation of offences.  Various incidents in India demonstrate that the OSA has been misused to clip the wings of bona fide press reportage, and Indian Courts are not keen to follow the American example of protecting press freedom when OSA is involved.

    Instances of misuse galore.

    Journalist Santanu Saika was booked under Official Secrets Act in 1998 for publishing the contents of a cabinet note on disinvestment policy. This was widely perceived as an instance of official high-handedness, as the nexus between disinvestment policy and national security seemed too remote. When the Court acquitted Saika on the grounds that the publication of the disinvestment document, though marked “secret”, was unlikely to affect the sovereignty and integrity of India or the security of the state or friendly relations with foreign states, it was 2009, and by that time he had undergone considerable period under detention.

    In 2002, Kashmiri journalist Iftikar Gilani had to face prosecution under the Act on the ground that he disclosed classified military information to terrorists. This had led to huge furore, and was seen as an attempt of the establishment to break the morale of Kashmiri journalists. The Committee for Protection of Journalists and Reporters Sans Frontiers, two international organisations, had written to the then Deputy Prime Minister L.K Advani urging him to drop the charges. In trial, the military officials conceded that the information found in possession of Gilani was freely available in public domain, resulting in his acquittal.

    During the same period, Tehelka had to face action under the Act on ground that it published sensitive government information, making many wonder if it was a vindictive response from the Government after the Tehelka sting operation exposed corruption in arms deal, which resulted in the exit of the then Defence Minister George Fernandes and then BJP President Bangaru Laxman. In 2011, Mid-Day Reporter Tarakant Dwivedi was arrested under the OSA for a piece on how arms purchased by the Government Railway Police, after the 26/11 attack, were rotting in the armoury due to poor storage; but only to be freed subsequently by Court.

    Recently, in 2017, Poonam Agarwal, a reporter of online portal ‘Quint’, published a video story which showed that senior army officers in Nashik Army Camp were improperly compelling subordinate officers to do their personal work and household chores.  One of the soldiers interviewed in the report, Roy Mathews, was found dead a few days later, reportedly a case of suicide. Poonam Agarwal’s story irked the establishment, and she was charged under Official Secrets Act.

    "This is nothing but an attempt by the Indian Army to shut up journalists from exposing wrongdoings in the institution. It will set a very bad precedent, because, in future, an editor or reporter will think twice before raising their voices against the Army.", Agarwal remarked about the developments.

    Apart from these reported instances, there are many other low-profile instances of journalists facing harassment under this Act across the country. The mere mention of Official Secrets Act by the prosecution is enough for the Magistrates to deny release on bail. Magistrates rarely venture to question the prosecution opposition on the ground of ‘national security’. Very often the process itself becomes the punishment, resulting in a chilling effect on press freedom.

    The main problem with the Act is that it is not possible for anyone to know with certitude that some information is ‘secret’ or is likely to be useful for an enemy. It seems that there is a manual by the Ministry of Home Affairs which deals with classification of documents. However, that manual itself is treated as ‘secret’. When an RTI activist tried to obtain the copy of the manual, it was declined to state that it was ‘confidential’. The CCI upheld the decision of Ministry in denying the copy of manual.  This is a bizarre situation, leaving too much to the subjective whim of the prosecution. Therefore, it is not surprising that OSA has become an instrument of oppression at the hands of the establishment to witch-hunt those who dare to ask uncomfortable questions.

    The OSA is an anachronism in this age which has recognized the citizen’s right to information as sacrosanct. It is interesting to note that the RTI Act has an overriding power over OSA, as expressly stated in Section 22.  The Administrative Reforms Committee recommended in 2006 that the OSA should be repealed as it was incongruous with the transparency regime. But no further action was taken in that regard.

    The Act has no redeeming provision, which protects disclosure of information in public interest. The reports of Mid-Day and The Quint mentioned above definitely had public interest element in them, as they revealed wrong-doings on the part of military establishment.  Yet, they were subjected to charges under OSA.  Such instances will deter whistle-blowers and activists from using the information to which they are privy in order to openly question misdeeds of government.

    ‘National security’ and ‘defence’ are holy cows in Indian scenario, which cannot be questioned. In this backdrop, it is difficult to say whether Indian media can fearlessly report about botched up military operations and expose hollow claims of national security, as did by Washington Post and New York Times during Vietnam War. ‘The Post’ moment for the Indian scenario may never happen.

    Manu Sebastain is a lawyer practicing at High Court of Kerala.

    [The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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