Officials’ secret acts

[sidmis]

Government can decide to not share some information. But that decision can’t be made by opaque, dangerous and silly rules.
EXPRESS COLUMN, Bibek Debroy, Monday, October 08, 2007


Why do civil servants have designations with the word ‘secretary’ in them? It is more than a British legacy. It is a legacy we adopted readily. The Latin root is ‘secretus’, meaning to set apart and keep withdrawn or hidden. ‘Secret’, ‘secretary’ and ‘secretariat’ have the same etymology. A civil servant’s job is to keep a secret, not part with it. In mid-1990s a friend of mine used to be a joint secretary (JS) in North Block and when he glanced through pink papers in the morning, he read the equivalent of the gossip column on the op-ed page first.

That was the only way, he claimed, he got to know what other joint secretaries (and those above them) in North Block were contemplating as policy changes. Also in the mid-1990s, a Moynihan Commission on ‘Protecting and Reducing Government Secrecy’ was set up in the US and a report was submitted in 1997. That report found, at the top-level alone, 400,000 new ‘secrets’ were created in the US every year. Civil servants also kept these secrets from politicians. The Commission’s conclusions were: secrecy is a form of government regulation; excessive secrecy is against national interest, because policy-makers have incomplete information; government is not accountable; and the public cannot debate policy matters because their information is also incomplete.

The Moynihan Commission quoted from Max Weber’s Essays in Sociology. “Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret... Bureaucracy naturally welcomes a poorly informed and hence a powerless parliament — at least in so far as ignorance somehow agrees with the bureaucracy’s interests.” Had the Moynihan Commission been British, it might also have quoted Sir Humphrey Appleby from Yes Prime Minister. “The Official Secrets Act is not there to protect secrets. It’s there to protect officials.” Information is power, don’t part with information. And if you part with information, you may become accountable and reveal how stupid you have been. How does one reconcile our Official Secrets Act (OSA) of 1923 with initiatives like right to information and citizens’ charters? We do have colonial legacies in our laws, and some of them are anachronistic because they were meant to suppress ignorant natives. While the OSA is anachronistic, it is not quite colonial in that sense. There is a triple problem with the OSA.

First, it is ostensibly against spying and that apparently gives it some legitimacy. Second, it reflects a 1923 mindset and doesn’t recognise advances in technology. For instance, it prevents the taking of photographs at airports (even civilian ones), a provision that no sensible country anywhere in the world has any more. If one intended to use such pictures for anti-national purposes, more efficient ways of accessing such photographs are possible. Third, the OSA doesn’t define what a secret is. So V.K. Singh is absolutely right when he says, “Even a circular for a tea party in RAW is secret. Your TA claim and cheque slip is secret. You take them out and you will be hauled up for it.” Indeed, it gets more bizarre.

If something is in the public domain, it can continue to be a secret. No wonder that in the 1986 Ram Swaroop case, the court said, “Secret information is an information which may not be secret but relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of State or friendly relation with foreign State or useful to an enemy.” Even if the secret is not a secret and is known, it can be held to be a secret under the OSA if it ‘adversely affects’ India’s security interests. This sounds like stuff straight out of Alice in Wonderland. A word can mean what I choose it to mean.
As often happens in situations like these, courts aren’t culpable.

Notwithstanding our common law tradition and barring constitutional issues, courts don’t create the law. They interpret it, and the problem is with the text of OSA, a problem that might have got solved had the Iftikhar Gilani case gone through its logical conclusion, instead of the government backtracking in 2003. Gilani was imprisoned under the OSA (some IPC sections were thrown in), because he had information on
Indian troop deployments in Kashmir, obtained from a monograph published by a Pakistani research institute. Read Gilani’s book (My Days in Prison) to discover how the ministry of home affairs (MHA), the Delhi Police, the IB and the Directorate General of Military Intelligence (DGMI) couldn’t figure out, among other things, whether a violation of the OSA was involved and whether information in public domain could adversely affect India’s security interests. A quote from the book says it all.

A senior home ministry official said, Gilani had a document “published in Pakistan”. The home ministry, interestingly and instructively, withdrew the charge “for administrative reasons and in the public interest”.
The arrest was in public interest and later, withdrawal was in public interest. The issue isn’t the Gilani case. But had the Gilani case proceeded, we would probably have debated the OSA. But now V.K. Singh has resurrected the debate. There can’t be any argument against the government keeping secrets as long as there is a classification system that is transparent. Developed countries have such classification systems, like top secret, secret, confidential and restricted. So apparently do we, but our classification is vague, non-transparent and arbitrary and the OSA encourages this trend. It is small comfort that China’s classification is just as vague. Becoming developed, for both India and China, means becoming more transparent, accountable and open; GDP growth alone is insufficient.
Let us not also forget that the ancestor of our the OSA, the 1911 OSA in the UK, was passed at a time when there was a scare about foreign spies infiltrating society’s top echelons. That is surely not our scare now.
The writer is a noted economist.

IndianExpress.com :: Officials’ secret acts

[colnrkurup]

Thank you for bringing this excellent article to our notice. Incidentally, we do have a classification system as 'Top Secret' ' Secret' 'Confidential' 'Restricted' and 'Unclassified'

[sngupta]

http://jaipur.sancharnet.in/aaocomptrjp/New Development in RTI 001.jpg
Dear Siddhartha,
A very good article published by you. I am enclosing a news published by local news paper in this regards for taking views of forum man in this regards. I am of the opinion that every action of public authority is to be transparent and open to all.

[sidmis]

Dear Siddhartha,
A very good article published by you. I am enclosing a news published by local news paper in this regards for taking views of forum man in this regards. I am of the opinion that every action of public authority is to be transparent and open to all.

Hello sngupta,
The article is not mine. It originally appeared in EXPRESS COLUMN.
I have only re-posted it here verbatim.
Your comments are always welcome.

Siddharth

[sidmis]

M Veerappa Moily [Tuesday October 9, 01:43 AM]

Why we recommended that the Official Secrets Act must be abolished

The recent raids by the Central Bureau of Investigation on the house of a retired officer of the Research & Analyses Wing (RAW) for alleged violations of the Official Secrets Act (OSA) have ignited a public debate on the role of this act in preventing greater openness and transparency in government. The OSA, enacted by the British, regulates all matters relating to secrecy and confidentiality in government. It mainly provides a statutory framework for dealing with threats to the unity and integrity of the nation by way of espionage, sedition and other covert acts against the nation. Despite its colonial lineage, the act has been kept operational after Independence on grounds of national security.

In its first report, the Second Administrative Reforms Commission (ARC) headed by me had undertaken a full review of this act in the context of the Right to Information Act in a bid to reconcile the felt need for transparency in government with the imperatives of national security. It would be illuminating and opportune at this juncture to retrace the basis of our eventual recommendation in that report to abolish the OSA.

How to deal with so-called 'official secrets' is perhaps the most contentious issue in the implementation of the RTI Act. In a democracy, people are sovereign and the elected government and its functionaries are public servants accountable to the citizens. Transparency should therefore pervade all aspects of governance. At the same time, it has to be recognised that public interest is best served if certain sensitive matters affecting national security are kept out of the public domain. The RTA Act treads this fine balance - for example, by giving people the unhindered right to know the decisions of the cabinet and the reasons for these, but not access to the actual discussions that may occur in the cabinet. The act explicitly recognises these confidentiality requirements in matters of state and Section 8 of the act exempts all such matters from disclosure.

In an unequal and elitist society where public officials wield enormous powers, the OSA has engendered a climate of secrecy wherein confidentiality becomes the norm and disclosure the exception. Section 5 of the OSA was intended to deal with potential breaches of national security but the clumsy wording of the section has converted it into an omnibus provision reducing practically every official data and transaction into a confidential matter. This tendency was accentuated by the Civil Service Conduct Rules 1964, which prohibit communication of an official document to anyone without authorisation.

The RTI Act has a clause: "Sec. 8(2): Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests." This provision overrides the OSA and allows disclosure of information even where there is a clash with the exemption provisions of Sec. 8(1) of the RTI Act. In other words, the OSA would not come in the way of disclosure of information if it is otherwise permissible under the RTI Act. Nonetheless, the OSA along with other rules and instructions still creates a climate of secrecy and paranoia in respect of all official matters even where these may have nothing to do with national security, which is the rationale for the OSA.

Section 5 of the OSA lays down that any person having information about a prohibited place, or such information which may help an enemy state, or which has been entrusted to him in confidence, or which he has obtained owing to his official position, commits an offence if (s)he communicates it to an unauthorised person, uses it in a manner prejudicial to the interests of the state, retains it when (s)he has no right to do so, or fails to take reasonable care of such information. Any kind of information is covered by this section if it is classified as secret. The word 'secret' and the phrase 'official secrets' have not been defined in the act. Therefore, public servants have the discretion to classify anything as secret.

The Supreme Court in Sama Alana Abdulla vs State of Gujarat (1996) held: (a) that the word 'secret' in clause (c) of sub-section (1) of Section 3 qualified official code or password and not any sketch, plan, model, article or note or other document or information and (b) when the accused was found in conscious possession of the material (map in that case) and no plausible explanation has been given for its possession, it has to be presumed as required by Section 3(2) of the act that the same was obtained or collected by the appellant for a purpose prejudicial to the safety or interests of the state.

This implies that a sketch, plan, model, article, note or document need not necessarily be secret in order to be covered by the act, provided it is classified as an official secret. Consequently, even information which does not have a bearing on national security is not to be disclosed if the public servant obtained or has access to it by virtue of holding office. Such overly harsh and sweeping provisions help create a Kafkaesque atmosphere of secrecy about even trifling matters as shown by the travails of the former RAW officer whose criticism of the procurement practices in his former organisation have been taken to be a breach of the OSA. His revelations may be considered as whistle-blowing by some while his former colleagues may consider them to be more a case of washing dirty linen in public. But how such allegations can be considered a breach of national security is difficult to fathom.

The writer, a former chief minister of Karnataka, is chairman of the Second Administrative Reforms Commission.

Bureaucrazy - Yahoo! India News

[karira]

Shooting the messenger

A Surya Prakash It is indeed strange that in this age of transparency and accountability, an anachronistic law like the Official Secrets Act is used by Government to harass a distinguished soldier and fellow citizen who has done his country proud by exposing the corruption and inefficiency in India's external intelligence agency - the Research and Analysis Wing.

Obviously, there are officials in RAW who are unhappy with the publication of India's External Intelligence: Secrets of Research and Analysis Wing, authored by Maj Gen VK Singh, who worked in this organisation for a couple of years. They have reasons to be because Mr Singh's account of what transpires within RAW is not at all complimentary to them. Apart from highlighting "glaring anomalies" in procurement of equipment, Mr Singh talks about ego clashes among those in the higher echelons of RAW, the conflict between intelligence agencies and the ease with which foreign intelligence agencies planted moles in RAW. But the biggest drawback of India's prime secret service agency, he says, is that it suffers from lack of leadership and accountability.

Some of the issues raised by Mr Singh in his book are: Purchase of communications equipment by the Special Protection Group without insisting on specifications that would shield the system from possible penetration by foreign intelligence agencies; purchase of VHF/UHF antennae at prices far in excess of market rates; and, the irresponsible manner in which higher-ups in Government dragged their feet over the presence of a CIA mole in the organisation.

Reading him, one gets the impression that while our intelligence agencies are blessed with the dedicated, patriotic cadre, there are also a few crooks looking for opportunities to make a quick buck even in the purchase of equipment needed for our Prime Minister's security. One, therefore, presumed that the Prime Minister's Office would take serious note of these allegations and bring the crooks to book. However, instead of inquiring into these charges, the Government, probably at the instigation of the very persons whose conduct ought to have been probed, has unleashed the Central Bureau of Investigation, which is under the direct charge of the Prime Minister, on the author. And the weapon in the CBI's hand is the old and rusted OSA.

The Law Commission has commented adversely about the absence of a clear definition of 'official secret' in this law. It had suggested 36 years ago that all laws relating to national security needed be consolidated. The Second Administrative Reforms Commission headed by Mr Veerappa Moily, which undertook a comprehensive review of the working of the Right to Information Act, said that Government must move "from the prevailing culture of secrecy to a new culture of openness; from personalised despotism to authority coupled with accountability; and, from unilateral decision-making to participative governance".

As regards the OSA, it said this law had "illiberal and draconian provisions" and that, in its current form, it was an anachronism and must be repealed. It noted that the OSA was enacted in 1923 to deal with espionage, sedition, etc, but it ended up creating a culture of secrecy. "...the wording of the law and the colonial times in which it was implemented made it into a catch-all legal provision converting practically every issue of governance into a confidential matter." Since the word "secret" or the phrase "official secrets" has not been defined in the OSA, "public servants enjoy the discretion to classify anything as secret", it said. Mr VK Singh, too, makes this point and says that the obsession with secrecy reaches such ridiculous levels that even invitations to tea parties are classified as "secret" in organisations like RAW.

It is difficult to comprehend the continued survival of the OSA as a law despite such weighty opinions expressed against it by several commissions. This only shows the power of the bureaucracy to stifle all progressive ideas. The opening up of the economy and the media boom has brought about a change in many areas of human endeavour. But, as the working of the Right to Information Act shows, members of the Indian Administrative Service continue to offer resistance. Since Prime Minister Manmohan Singh is keen on administrative reform, he will have to deal with the retrograde mindset of the IAS, if he wants the information revolution to gain momentum. As the National Commission to Review the Working of the Constitution said, "We should have an oath of transparency in place of an oath of secrecy."

Finally, we need to distinguish between whistle-blowers and those who are privy to official secrets. The Government must curb this tendency to shoot the messenger. This is the age of the whistle-blower and Mr Singh's work is in line with the sentiment of accountability that is sweeping the country. When Mr VK Singh speaks about corruption in purchase of telecom equipment meant for the Prime Minister's security, is he a violator of the Official Secrets Act? Or is he a whistle-blower who is warning fellow citizens about the rot that has set in our security agencies? Interestingly, after getting an insider's view of RAW, Mr Singh has come to the conclusion that our intelligence agencies must be subject to parliamentary supervision.

Given the nature of their work, all these agencies have access to secret funds. Neither the Comptroller and Auditor General nor the Public Accounts Committee of Parliament has the right to look into the utilisation of these funds. While this gives these agencies the immunity they need to go about their work, it also spawns a culture of corruption and makes at least some of its officials feel that they are accountable to none. That is why Mr.Singh wants Parliament to oversee the working of the country's secret service. He feels that unless this is done, the country's intelligence agencies will remain corrupt and inefficient and even possibly conduct themselves in a manner which is inimical to democracy itself.

Significantly, Mr Singh speaks like a true democrat when he says in his book, "The Indian taxpayer has the right to know how his money is spent, and after reading this book, he will not only be wiser but also angry." The author hopes that the anger gives rise to a public debate and an increase in accountability of our top intelligence agencies. Now that a person holding such views is being persecuted by CBI, Parliament must stand up for him. The Pioneer > Home