As reported by Anirban Das Mahapatra on telegraphindia.com on 12 March 2008:
The Telegraph - Calcutta (Kolkata) | Opinion | Out of sync with the times
OUT OF SYNC WITH THE TIMES
Barely days after his book India’s External Intelligence: Secrets of the Research and Analysis Wing was published last year, V.K. Singh was in for the shock of his life. A retired army officer and former RAW staffer, Singh woke up on September 21 to a CBI raid, when sleuths barged into his Delhi home to confiscate his computer, passport, diaries and two files of research material. A few days later, Singh was produced in court and charged under the Official Secrets Act (OSA) for having supposedly revealed in his book critical secrets that could potentially harm national security.
“They didn’t even care to define what the secrets were,” says Singh, who sought anticipatory bail in the case, which drags on even today.
“Surprisingly, during the hearing, CBI said they hadn’t read the book, so they couldn’t tell the court exactly what information I had given away. Mere hypothesis was enough to land me in trouble,” he laughs.
While Singh didn’t have to go to jail courtesy the bail, others have not been as lucky. In 2002, Delhi-based journalist Iftikhar Gilani was arrested under the OSA for allegedly possessing confidential information about deployment of Indian troops in Kashmir. He was imprisoned for seven months, and was acquitted only after it was proved in court that the documents were obsolete and freely available on the Internet. In 1988, B.K. Subbarao, a scientist monitoring India’s nuclear submarine project, was arrested for possession of his thesis and was put away in jail for 20 months. The list of so-called offenders under the OSA just rolls on and on.
As these instances indicate, several arrests made under the OSA are indeed baseless, uncorroborated and whimsical. “It’s one of the draconian laws to exist within Indian legislation today, and the sad truth is that no one seems to be doing anything about it,” says Delhi-based advocate and Gilani’s counsel V.K. Ohri.
Drafted in 1923, the OSA was essentially implemented to render British governance opaque and unaccountable to commoners, apart from silencing any form of dissent by freedom fighters. It empowered the government to crack down on any person suspected of espionage or passing on information or “secrets” that could prove hazardous to the system of governance. Going by its words, when someone is arrested “it shall not be necessary to show that the accused person was guilty of any particular act”. The maximum punishment that can be handed out in such cases is a jail term of 14 years.
“The problem, however, is that while the Act seeks to safeguard sensitive information, it doesn’t lay down a concrete definition of ‘secrets’,” says Ohri. “Hence anything can be passed off by the government as a secret, as innocent people are rounded up for no apparent fault,” he says.
From possession of maps (in the age of Google Earth) to documents already available in the public domain — the reasons for which people are arrested are countless. Critics of the OSA in legal circles say that it gives those in the government a chance to abuse the law to harass others, if not to pass the buck for any serious lapse. “I believe someone settled scores by framing me,” says Singh. “After all, my book revealed nothing about the RAW that wasn’t known already.”
But if these are indeed the problems with the OSA, why are no steps being taken to rectify them? Well, experts point out that there have been attempts in recent times to set the law right. After the UPA government came to power, an Administrative Reforms Commission (ARC) was set up to review — among other laws — the OSA. In its report dated June 2006, the ARC had recommended that the OSA “should be repealed, and substituted by a chapter in the National Security Act, containing provisions related to official secrets”.
Not much, however, has happened since then. “We have submitted our report to the government, and it is up to them to take up the issue,” says an ARC official, declining to comment any further. Further to the ARC report, an inter-ministerial committee did suggest amending the Act, a recommendation far milder than the ARC’s. But no substantial progress has been made in that direction since and critics are not smiling. “The very fact that the government decided to amend the Act rather than repeal it proves that they aren’t interested in doing away with it altogether,” says Ohri.
What makes things worse after 2005, moreover, is the contradiction that the OSA poses in context to the Right to Information (RTI) Act, which is aimed at making governance more transparent. While the ARC report mentions that the RTI includes a clause which guarantees its efficiency “notwithstanding anything inconsistent contained in the Official Secrets Act”, it maintains that the OSA, along with other rules, “may impinge on the regime of freedom of information as they historically nurtured a culture of secrecy and non-disclosure"
Malay Dhar, former joint director of the Intelligence Bureau, an organisation that has more secrets to guard than most others in the country, agrees. “The state will always have secrets to keep, but one needs to realise that communication channels, technology and the times in general have changed and some things don’t make sense in today’s context anymore,” says Dhar. “What is needed today is a concrete definition of the word ‘secret’, followed by deciding exactly what qualifies as a secret and what doesn’t. That way, a perfect balance could be struck between the two laws,” he adds.
Whether or not the lawmakers go on to share Dhar’s view, however, is still a secret.