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 The Latin root is ‘secretus’, meaning to set apart and keep withdrawn or hidden.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.
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