Official
Secrets Act has become an instrument of oppression at the hands of the
establishment to witch-hunt those who dare to ask uncomfortable questions
Amidst the
Vietnam war, the board of management of ‘The Washington Post’ was caught up in
a severe dilemma as to whether it should publish sensitive and classified
defense documents which revealed that the U.S Government had been always aware
that there was no chance of winning the war, and that despite such concrete
knowledge successive governments escalated the war propaganda solely to reap
political benefits. The leaked documents made it clear that the U.S was waging
a futile war, and thousands of young men were sent to die only for the sake of
whipping up jingoistic frenzy. While the management was apprehensive of
inviting the wrath of the then President Richard Nixon, the Editor-in-Chief Ben
Bradlee was very resolute in his decision that the paper should publish the
documents which showed that successive US Governments have been lying about the
Vietnam war for past 30 years. “If we don’t hold them accountable, who
will?”, asks him.
This
incident of Washington Post publishing Pentagon documents belying the
Government’s claim about winning Vietnam war has been recreated in cinematic
form in the recent Hollywood movie “The Post”. Directed by Steven Spielberg, this
film has been nominated for Best Picture in Oscar Awards. Veteran actor Tom
Hanks plays the role of Ben Bradlee, the editor.
“What will happen if we
don’t publish? We will lose! The country will lose!”, asserts the character of
Tom Hanks, which nudges Katharine Graham, the heiress of the newspaper family,
to take a firm decision, overcoming her initial tentativeness. Meryl Streep plays the role of Katharine
Graham, who, has to make a tougher call as she has to
negotiate strong chauvinistic prejudices in the male-dominated board of
management, apart from dealing with apprehensions about legal and financial
consequences of publication.
‘The Newyork
Times’ had already published a part of the documents, which resulted in legal proceedings under the U.S
Espionage Act for breaching national security, and it was restrained from
publishing as per injunction orders passed by Courts. It was in that backdrop
that ‘The Washington Post’ decided to publish the rest of the
information. Both the papers had to
ultimately approach the U.S Supreme Court to protect their right to publish. In
a landmark decision, Newyork Times v. U.S.A, the U.S Supreme
Court upheld the right of the newspapers to publish the documents. By
a 6:3 majority, the Court held that the Constitution did not permit prior
restraint on press freedom on whatever grounds.
The
press was to serve the governed, not the governors. The Government's power to
censor the press was abolished so that the press would remain forever free to
censure the Government. The press was protected so that it could bare the
secrets of government and inform the people. Only a free and unrestrained press
can effectively expose deception in government. And paramount among the
responsibilities of a free press is the duty to prevent any part of the
government from deceiving the people and sending them off to distant lands to
die of foreign fevers and foreign shot and shell, Justice Hugo Black
emphatically observed in the judgment.
“The
Post” is a riveting account of the above historical developments. The movie’s moral compass points at the right
direction, as its setting and tenor make the viewer root for the triumph of
truth and liberty. Perhaps this is why
Dushyant Dave, Senior Advocate, remarked during the hearing of Loya case that “your
Lordships should watch ‘The Post’”.
Official
Secrets Act 1923- the Indian counter-part of Espionage Act.
The
US Government tried to restrain publication of Pentagon papers invoking Section
793 of the Espionage Act, which criminalized possession of information relating
to ‘national defence’, which the possessor has ‘reasons to believe’
’could be used to the injury of the United States or the advantage of any
foreign nation’. The US Supreme Court held that this penal provision cannot
be invoked to impose prior restraint on publication.
The
Indian counter-part of the said provision of U.S Espionage Act is the Official
Secrets Act 1923- a short colonial legislation which reflects imperialistic
fervour than constitutional temperance. It criminalizes disclosure of
information which is likely to affect sovereignty and integrity of India,
the security of state or friendly relation with foreign states’(Section 5).
The Act also criminalizes disclosure of information which might be directly
or indirectly useful to an enemy(Section 3). As per the interpretation
given to the provision by the Supreme Court in Sama Alana Abdullah v. State
of Gujarat AIR 1996 SC 569, the information need not be even ‘secret’, and
if it is likely to be useful to an enemy, the offence is said to have been
committed. Therefore, there is a lot of subjectivity involved here, as the
conviction is based on an arbitrary and uncertain test of information being
useful to an enemy. In an article published in the blog
‘Indian Constitutional Law Philosophy’ , it is articulated that the
constitutional validity of the Official Secrets Act(OSA) is highly doubtful on
account of its vagueness, subjectivity and over-breadth in creation of
offences. Various incidents in India
demonstrate that the OSA has been misused to clip the wings of bona fide press
reportage, and Indian Courts are not keen to follow the American example of
protecting press freedom when OSA is involved.
Instances
of misuse galore.
Journalist
Santanu Saika was booked under Official Secrets Act in 1998 for publishing the
contents of a cabinet note on disinvestment policy. This was widely perceived
as an instance of official high-handedness, as the nexus between disinvestment
policy and national security seemed too remote. When the Court acquitted Saika on the grounds that the publication of the
disinvestment document, though marked “secret”, was unlikely to affect the
sovereignty and integrity of India or the security of the state or friendly
relations with foreign states, it was 2009, and by that time he had undergone considerable
period under detention.
In 2002, Kashmiri journalist
Iftikar Gilani had to face prosecution under the Act on ground that he
disclosed classified military information to terrorists. This had led to huge
furore, and was seen as an attempt of the establishment to break the morale of
Kashmiri journalists. The Committee for Protection of Journalists and
Reporters Sans Frontiers, two international organisations, had written to the then Deputy Prime Minister L.K
Advani urging him to drop the charges. In trial, the military officials
conceded that the information found in possession of Gilani was freely
available in public domain, resulting
in his acquittal.
During the same period, Tehelka had to face action under the Act on ground that it
published sensitive government information, making many wonder if it was a
vindictive response from the Government after the Tehelka sting operation
exposed corruption in arms deal, which resulted in the exit of the then Defence
Minister George Fernandes and then BJP President Bangaru Laxman. 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; but only to be freed subsequently
by Court.
Recently,
in 2017, Poonam Agarwal, a reporter of online portal ‘Quint’, published a video
story which showed that senior army officers in Nashik Army Camp were
improperly compelling subordinate officers to do their personal work and
household chores. One of the soldiers
interviewed in the report, Roy Mathews, was found dead a few days later,
reportedly a case of suicide. Poonam Agarwal’s story irked the establishment,
and she was charged under Official Secrets Act.
"This is nothing but
an attempt by the Indian Army to shut up journalists from exposing wrongdoings
in the institution. It will set a very bad precedent, because in future, an
editor or reporter will think twice before raising their voices against the
Army.", Agarwal remarked about the developments.
Apart from these reported
instances, there are many other low-profile instances of journalists facing
harassment under this Act across the country. The mere mention of Official
Secrets Act by the prosecution is enough for the Magistrates to deny release on
bail. Magistrates rarely venture to question the prosecution opposition on
ground of ‘national security’. Very often the process itself becomes the
punishment, resulting in a chilling effect on press freedom.
The main problem with the Act
is that it is not possible for anyone to know with certitude that some
information is ‘secret’ or is likely to be useful for an enemy. It seems that
there is a manual by the Ministry of Home Affairs which deals with
classification of documents. However, that manual itself is treated as
‘secret’. When an RTI activist tried to obtain the copy of the manual, it was
declined stating that it was ‘confidential’. The CCI upheld the decision of
Ministry in denying the copy of manual.
This is a bizarre situation, leaving too much to the subjective whim of
the prosecution. Therefore, it is not surprising that OSA has become an
instrument of oppression at the hands of the establishment to witch-hunt those
who dare to ask uncomfortable questions.
The OSA is an anachronism in
this age which has recognized the citizen’s right to information as sacrosanct.
It is interesting to note that the RTI Act has an overriding power over OSA, as
expressly stated in Section 22. The
Administrative Reforms Committee recommended
in 2006 that the OSA should be repealed as it was incongruous with the
transparency regime. But no further action was taken in that regard.
The Act has no redeeming
provision, which protects disclosure of information in public interest. The
reports of Mid-Day and The Quint mentioned above definitely had public interest
element in them, as they revealed wrong-doings on the part of military
establishment. Yet, they were subjected
to charges under OSA. Such instances
will deter whistle-blowers and activists from using information to which they
are privy in order to openly question misdeeds of government.
‘National security’ and
‘defence’ are holy cows in Indian scenario, which cannot be questioned. In this
backdrop, it is difficult to say whether Indian media can fearlessly report
about botched up military operations and expose hollow claims of national
security, as did by Washington Post and New York Times during Vietnam War. ‘The
Post’ moment for the Indian scenario may never happen.
