Posted online: Saturday, October 06, 2007 at 0000 hrs
Why Maj Gen (retd) V K Singh, the target of CBI raids, should be basically seen as a whistleblower
I was intrigued to know, via newspaper reports, that the CBI, which is prosecuting Maj Gen V.K. Singh (retd), had told the concerned court that it had not read his book. Presumably, the prosecution is for violation of the Official Secrets Act; and not for some technicality, which would have merited some lesser procedure. How can a person be hauled up before court for revealing official secrets, if the prosecuting agency does not even know what secrets are being revealed? This is some kind of ‘Alice in Wonderland’ situation.
I was further intrigued to learn that the publisher was also raided; surely the publisher was not privy to violation of any official secrets, when the prosecuting agency itself is not clear about the whole thing. Have we moved from Lewis Caroll to Kafka territory? I should add that I have not read the book, but have only seen excerpts.
I recall that a couple of years back M.K. Dhar had revealed some activities of the Intelligence Bureau, of which he was an employee. There was some furore in public about disclosure of official secrets. I had read that book, and was quite disgusted, not by the fact that so-called secrets were revealed, but by the total lack of morality shown by the agency, and confessed to by Dhar, the perpetrator. Indeed the agency had been put to private use by those in power. In a couple of TV programmes, while attacking the contents and the method of working of the IB, I had expressed strong appreciation of Dhar’s courage in bringing into the public domain such sordid happenings.
In a democracy, there are no sacred cows. Every institution must be subjected to some public scrutiny; the degree and the extent of the scrutiny will depend on its sensitivity, appropriateness and relevance. Thus, the judiciary, much as we respect it, cannot hide behind the “contempt” screen, and keep all the inner goings-on from the public eye. I, as much as most Indians, appreciate the highly sensitive nature of the work of intelligence agencies. However, it does not follow that they are totally beyond any kind of examination by anybody in India.
From what little I have heard about V.K. Singh’s book, he had mostly criticised the RAW for internal corruption, lax procedures and profligacy. These are areas that may not require public scrutiny in the normal course but should merit strong examination on a continuing basis by the appropriate government machinery. Thus, for example, the DRDO’s expenditure patterns cannot be held away from scrutiny merely because it works on sensitive defence projects. Similarly, there is no licence for the Intelligence agencies to spend public money without accountability. Even the discretionary grant moneys at the disposal of chief ministers, etc, are subject to maintenance of some kind of accounts and internal checks, to ensure that these are not put to personal use. Blind protection of any agency, however sensitive, is not consistent with democracy.
I recall that in 1997, the first draft of the RTI Act had already been finalised and it had even cleared the cabinet committee stage. It took nearly a decade thereafter for it to be enacted. The present government has taken credit for RTI. Indeed, many other agencies, including many NGOs, have taken credit for ushering it in. The fact is the RTI Act was ready to be enacted in early 1998 when the then government fell. Again, in 1997, the proposals to amend the Official Secrets Act had been finalised within the government and, in fact, a final draft was prepared for clearance by the cabinet. This did not happen for the same reason. It is indeed high time that the Official Secrets Act, a legacy from British rule and enacted to protect foreign interests on the principle of ‘need to know’, was replaced with a new act based on the principle of ‘right to know’.
I was also amused to read that the government is contemplating issuing a ‘gag order’, contractually binding all intelligence agency officials to ensure that they will never write a book about their careers. If true, this is draconian. In the first place, I believe it will be unconstitutional. Secondly, from the point of view of natural justice, preventing a government employee from sharing his experiences in public is indefensible.
Indeed, my own book, Journeys through Bureaucracy and Netaland (2004), ought to have attracted the attention of CBI for “revealing official secrets”. In other words, I wrote about government’s mismanagement in various sectors! By the same token, heaven forbid, my publisher also ought to have been raided; fortunately, that did not happen.
That brings us to the CBI. Though the present director is a thorough professional and personally beyond reproach, it is sad to see the CBI progressively becoming another implementation arm of the government — to be precise, an agency to meet the private objectives of those in power. The CBI is no more seen as an independent investigating agency. To some, it may even seem the CBI is no better than the vigilance directorates in many states, which function under the chief minister. I have also found, in the last three or four years, that various Intelligence agencies (IB, Army Intelligence, RAW) have now been brought under some kind of unified command, controlled from the prime minister’s office. While coordination and cooperation between intelligence agencies is of utmost importance, their independence and ability to search the territory their own way needs to be protected for maximum effectiveness.
V.K. Singh is basically to be seen as a whistleblower. The points he has raised need to be looked into with a constructive approach to see how the top-secret agencies can be made to function with greater efficiency without financial profligacy. Checks and balances are the essence of democracy. Some of these sensitive agencies need carefully structured ‘oversight committees’, comprising independent experts, carefully chosen, to ensure that these are geared to continually serve national interest optimally, rather than cater to the personal needs of those in power.
The writer was cabinet secretary to the GOI between 1996 and 1998
This is a wonderful thread where RTI can play hell. I am craving for more information on this lfield. A CabinetSecretary is a "MAN WHO KNEW TOO MUCH ". I doubt whether Mr.Subramanian will be able to open more
SUBVERSE: Don't spook them
by A G Noorani, 28 Aug 2008, Times of India
The government's sweeping gag on retired members of the Intelligence
Bureau and RAW is an assault on press freedom and a violation of the
citizens' right to know.
The Intelligence Organisations (Restriction of Rights) Act, 1985 bars
serving intelligence officials from communicating with the press or
publishing any material except with the prior permission of their
superior. If the ban is to be extended to retired members of these
bodies, legislation was necessary. It cannot be done by an executive
The fundamental right to freedom of speech, which includes the right
to know, is not absolute. But the state can impose only "reasonable
restrictions" on the right on grounds specified in Article 19(2) and
only by "law" and not by an executive fiat.
The grounds are "the sovereignty and integrity of India, the secu-rity
of the state, friendly relations with foreign states, public order,
decency or morality or in relation to contempt of court, defamation or
incitement to an offence".
The gag has been imposed through an amendment to the Central Civil
Services (Pension) Rules, 1972. It is unconstitutional for two
reasons. It does not cover members of the armed forces, civil servants
and ministers who are no less privy to "sensitive" information.
It, therefore, violates the fundamental right to equality. It
violates, no less, the right to freedom of speech which members of the
IB & RAW possess and, relatedly, the citizens' right to know.
The gag comes close on the heels of Major General V K Singh's book on
RAW for which the CBI has chargesheeted him. It amends the pension
rules in two ways. By imposing a ban and requiring a written
undertaking when the official retires. They are almost identically
A former member of the two services shall not, without the prior
approval of a competent authority, "make any publication... Relating
to sensitive information the disclosure of which would prejudice the
sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the state or in
relation with a foreign state, or which would lead to incitement of an
This is far too wide. No time limit is prescribed. It binds the
official for the rest of his life. "Publication" includes press and TV
interviews. "Information" includes "opinion, advice" held or acquired
while in service. Branch of the undertaking would be regarded as
"grave misconduct" entailing reduction or withdrawal of pension.
The state already has ample power to prosecute offenders under the
Official Secrets Act, 1923. But, with the Right to Information Act the
courts cannot reject the defence of disclosure in the public interest.
The ban and its companion under-taking bypass the law and make the
govern-ment judge in its own cause. The reasonableness of a
restriction on freedom of speech is entirely for the courts to decide,
not the government.
But the undertaking lists the seven grounds and adds these lethal
words: "I further agree that in the event of any failure of the above
undertaking by me, the decision of the government as to whether it was
likely to prejudicially affect any of the seven aspects stated above
shall be binding on me".
In law this is utterly worthless. The Supreme Court has ruled
repeatedly that the fundamental rights simply cannot be waived.
Exclude the waiver and the ban would still be void because it is an
unreasonable restriction on free speech. It lacks balance and is far
too wide. Restrictions may not be "imposed beyond the strict
requirement of public need".
The ban applies to statements of facts and opinions, not only to
classified documents. A government embarrassed by the official's
article on foreign policy will be free to penalise him. No curb can
protect a state against the honest whistle-blower.
The Pentagon Papers were stolen property. Yet, the US Supreme Court
ruled against their suppression because "paramount among the
responsibilities of a free press is the duty to prevent any part of
the government from deceiving the people".
Inscribed on a wall in the CIA's headquarters are the words from the
Bible: "And ye shall know the truth, and the truth shall make you
free". The IB and RAW might inscribe these words at some prominent
place in their heavily-guarded offices.
(The writer is a Mumbai-based lawyer.) SUBVERSE: Don't spook them-Editorial-Opinion-The Times of India