Doval threatens OSA axe

Reporting on national security is as hard as ever, despite the RTI Act.
PRASHANT REDDY T. explains how the Official Secrets Act effectively silences journalists (Photo credit: India Today website).
Roughly two weeks ago, the media reported on a note dated October 13, 2014 from the National Security Advisor (NSA) Ajit Doval to the Cabinet Secretary demanding that firm action against the leak of information to the media, especially on the issue of national security, should be taken. 

The immediate catalyst for the NSA’s note appears to have been a story broadcast by NDTV, about two months ago, on August 20, 2014 on INS Arihant which is India’s first home built nuclear submarine. The comical irony of this affair is that Doval’s note itself was accessed by the media – in fact a scanned copy of the note is available on India Today's website.

The NDTV, quite honestly, appears to have overhyped the “exclusive”. The pictures don’t really reveal much and it’s not quite clear why the NSA in his note went to the extent of saying: “It is notable that the information televised by the media on Arihant submarine is classified information. Obtaining such information is an offence under the Official Secrets Act.” 

The NSA’s demand for more prosecutions under the Official Secrets Act (OSA), 1923 is bad news for the media. National security has always been a holy cow for the media, with most reporters turning into stenographers for the establishment. The Caravan had carried a wonderful story on this phenomenon by Praveen Donthi. 

Whenever a reporter decides to question the establishment’s version, as Praveen Swami recently did, he’s likely to be labeled a traitor by the patriots of the national security establishment or meet an unfortunate accident which is never solved by the police.

A part of the reason for the silence and lack of independent reporting by the media on the issue of national security is probably the OSA. This legislation is of 1920s vintage and is deadly ambiguous, the kind of ambiguity that leads to self-censorship by editors. As per Section 3(c) of the OSA which is most relevant to journalists, spying includes the following activity:

 “(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy 2 [or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States];

If the above provision is not scary enough, there is a Supreme Court judgment in the case of Sama Alana Abdulla v. State of Gujarat which has held that the word “secret”, as used in the provision, is confined to only the words “official code” or “password” and that the rest of the section is not qualified by the phrase “secret”. 

Therefore, if a person is found with a sketch, plan, model, article or note or other document or information which is publicly available but calculated or intended to be directly or indirectly useful to an enemy or affect the sovereignty of India, it can still be classified as an act of spying. This ambiguity in the law has led to some rather frivolous prosecutions of journalists though thankfully the courts have been relatively liberal in acquitting or discharging them.

About a decade ago, a Kashmiri journalist, Iftikar Gilani, was arrested under the OSA and eventually released six months later after the Government withdrew the case when the Director General of Military Intelligence O.S. Lochab informed the court in a sworn deposition that the documents found in Gilani’s possession were freely available. 

In 2002, a case was filed against Tehelka under the OSA for reporting on the basis of some confidential documents. 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. 

There was also the case of Santanu Saika, a journalist who was arrested under the OSA for publishing the contents of a cabinet note on disinvestment policy. Apparently he had been arrested in 1999 by the CBI after a failed in-house probe to find out how the note had been leaked in the first place. 

Additional Judge Inder Jeet Singh at Tiz Hazari reportedly gave a very liberal interpretation to the OSA to discharge Saika even before the trial. According to a ToI report, Judge Singh held that the cabinet note accessed by Saika was unlikely to affect the sovereignty and integrity of India or the security of the state. 

It should be remembered that the OSA itself does not provide for a process of classification of information, it merely defines the act of spying and provides for penalties. So how does the government classify its information? The answer to that question lies in the Manual of Departmental Security Instructions, 1994. 

An understanding of this manual is key to understanding how the government classifies certain information as ‘secret’. Except, the manual itself is deemed to be a secret! 

RTI Activist Venkatesh Nayak has tried to procure a copy from the Ministry of Home Affairs (MHA) under the RTI Act. The MHA denied him a copy on the grounds that the manual “is a ‘confidential’ document, and is exempted from sharing with the general public under Section 8(1)(a) of the RTI Act, 2005.” 

Nayak appealed against this decision to the Central Information Commission (CIC) and in a rather Kafkaesque judgment, the CIC concluded that the MHA was correct in denying Nayak the manual. 

Sushma Singh, the Commissioner who penned the judgment, said: “It is to be noted that the manual in question lays down guidelines for security classification of the issues referred to above. In other words, it is a kind of code for security classification. It can hardly be over-emphasized that disclosure of the contents of the manual may enable elements hostile to India - both internal and external - to peep into the security strategy of the Indian security establishment and thereby cause detriment to India’s security, without let or hindrance... I have, therefore, no hesitation in holding that disclosure of the requested information would be detrimental to the India’s security interests.” 

With all due respect to Sushma Singh, her order is quite silly because a security classification process cannot by itself jeopardize the security of the country. It’s only when the documents classified as confidential under the policy are released to the public that the country’s security is jeopardized.  
It is also interesting to note that other countries make their security classification documents, public. You can access the U.K’s policy over here.  Venkatesh Nayak has written about his experience in over here. He finally did manage to get hold of some information on the classification process – apparently only a Under-Secretary can mark a document ‘confidential’, a Deputy-Secretary can mark a document ‘Secret’ and a Joint Secretary can mark a document ‘Top Secret’.
An important question at this juncture is the interplay between the RTI Act and the manual. The answer to that is simple. The RTI Act is a parliamentary legislation, while the manual is only an internal document of the government. As a thumb rule, parliamentary legislation overrides departmental manuals. Even otherwise, Section 22 of the RTI ensures that in case of any inconsistency with any other law, the RTI Act will prevail.   
Government offices (not already exempt under Section 24 of the RTI Act) may withhold certain information classified as ‘confidential’ under the manual provided the information falls within the exemptions of Section 8 of the RTI Act. In other words, although the manual may be used by the government to classify information as confidential, it will still be necessary for the relevant authority to justify the need to withhold the document under Section 8 of the RTI Act. 
For example, a bureaucrat may be tempted to classify a document on money spent towards refurbishing his office as “confidential” but it is unlikely that such information would be covered under the exemptions in Section 8 and will thus have to be disclosed under the RTI Act. 
The RTI Act does little to make reporting on national security any simpler than it was prior to 2005. For reporters covering issues of national security, the OSA axe continues to hang over their necks. Their reporting is, however, as important as ever to inform us of the truth of botched military operations and corruption in defence procurement deals.  
The writer is a Delhi-based lawyer.
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