CAN LEAKAGE OF
CLASSIFIED DOCUMENTS TO MEDIA BE STOPPED?
By
Maj
Gen VK Singh, Veteran
In a news story datelined 30th
December 2014, India Today and Mail Today brought out the serious concern of
the government in recent instances of leakage of classified information to the
media and the steps being contemplated to stop it. It also published a copy of
the letter written by the National Security Adviser (NSA), Mr AjitDoval, KC, to
the Cabinet Secretary, Mr AK Seth on 13th October 2014, after
certain disclosures on a TV channels about the nuclear submarine Arihant.
Unfortunately, there is little that
can be done to curb this practice unless the laws are amended. At present, the
Official Secrets Act, 1923 itself gives protection to corrupt babus who leak classified data and
documents to TV channels and newspapers, which are ever willing to spend large
sums of money to get hold of such information in order to increase their TRPs
and circulation figures. Often, classified data about tenders for large defence
related projects are leaked to competitors, for monetary gain. I would like to
share my own experience in this field and offer a few suggestions.
During the last few years, I have
noticed several instances of classified information being published by the
print media. I reported these cases to the concerned authorities, including the
PMO, MHA and the NSCS. However, no action was taken on any of them. I filed RTI
applications in all these cases, some of which were escalated to the level of
the CIC. Finally, I filed criminal complaints under Section 156 (3) of the
Cr.P.C. in some of which notices have been issued to the concerned authors and
editors by the Chief Metropolitan Magistrate, Delhi. Unfortunately, due to the bar imposed by
Section 13 (3) of the Official Secrets Act 1923, the courts cannot proceed
against them. I am giving one example to explain.
During
the year 2008 I reported several instances of leakage of classified information
to the PMO, Cabinet Secretariat, MHA and NSCS. Sixteen such cases were heard
and decided by the CIC, Mr WajahatHabibullah on 10/10/2008. The CIC issued a
common order in seven cases (Complaint Nos. CIC/WB/C/2008/00634 to 640 all
dated 2/7/2008). Some of the important
directions given in the Decision Notice are as under:-
(a) The
CPIO of MHA, Shri J.P.S. Verma, DS IS-II will give a speaking response to the
complainant within ten working days.
(b) IS
Division of MHA should examine whether there are indeed grounds for prosecution
of the authors under the Official Secrets Act 1923 or Indian Penal Code 1860.
(c) CPIO
of NSCS Shri G. Rajeev will provide a reply within ten working days and will
also show cause why he should not be held liable for penalty of Rs. 250/ a day
from 6/7/2008 when it became due to the date when it is actually sent, not
exceeding Rs. 25,000/-.
In
compliance of the CIC’s order, Shri J.P.S. Verma wrote to me on 7/11//2008
informing me that “an offence under the
Official Secrets Act is investigated and prosecuted by the concerned
prosecuting agency .i.e. State Police or CBI as the case may be. The Ministry
of Home Affairs is not the prosecuting agency but only issues authorization u/s
13 of the Official Secrets Act, at the request/proposal of the said prosecuting
agency.”
A
month after the terrorist attack in Mumbai on 26/11/2008, an article titled What
Went Wrong: the Inside Story” written by Shishir Gupta appeared in the
Indian Express of 26/12/2008. In addition to giving out a lot of classified
information, the article contained scanned copies of Top Secret and Secret
letters. One was a Top Secret DO letter dated30thNovember 2007
written by the IB Director, PC Haldar to the DGP Maharashtra, PS Pasricha. In
this letter, Haldar informed Pasricha that reliable inputs indicated that the LeT
was planning a major terrorist strike and the action may involvefidayeen attack, standoff firing and use
of grenades. The second letter, classified Secret, was written by IB Joint
Director Ashok Prasad to the DGP Maharashtra on 24 September 2008. In this
letter, the IB alerted the Maharashtra Police that the LeT was planning an
attack in Mumbai and identified Taj Mahal Palace Hotel, Vallabhbhai Patel
Stadium, Sea Rock or Taj Land’s End Hotel, Juhu Airfield and JW Mariott Hotel
as likely targets.
In
view of the clarification received from the MHA, I reported this matter to the Director
CBI, Mr Ashwani Kumar through a letter dated 26/12/2008. Finding that no action
is being taken by the CBI, I filed a complaint under section 156(3) Cr.P.C. before
the Chief Metropolitan Magistrate, Delhi on 24/7/2009. After several hearings
spread over two and a half years the CMM finally issued an order on 6/2/2012
summoning the author Shishir Gupta, and the Editor of Indian Express. In his
order, the CMM stated: “from the perusal
of the article, I am satisfied that there is enough material therein for
proceedings against the accused for offences punishable u/s 3 and 5 of the
Official Secrets Act, 1923”.
As
was expected, both the author (Shishir Gupta) and the editor (SeemaChisti) have
appealed to the High Court u/s 482 CR.P.C. to quash the order issued by the
CMM. The main plank of their argument is the provision u/s 13(3) of the
Official Secrets Act, 1923 that clearly states that no court can take
cognizance of any offence under the OSA unless the complaint is made by an
appropriate authority in the government. In the instance quoted above, the IB
obviously leaked the classified information and the Secret and Top Secret
letters to save themselves from blame for the intelligence failure, for which
many people were baying for their blood. However, in most other cases,
information and copies of documents are sold, for a price. As the above example
clearly brings out, the people responsible for such leakagescannot be brought
to book due to the bar provided in 13(3) of the Official Secrets Act, 1923.
The
Indian Official Secrets Act was enacted in 1923, based on a similar law that
was in existence in UK viz. the Official Secrets Act, 1911. Before this,
leakage of sensitive information pertaining to the military was covered under
the Indian OfficialSecrets Act (Act XIV) of 1889. The aim of the clause barring
prosecution of offenders without the sanction of the Government was to protect
public servants from harassment based on frivolous complaints from the public.
It is relevant that at that time, almost all public servants in India were
British citizens. After Independence,
the Official Secrets Act was amended by Act 3 of 1951 and Amending Act 24 of
1967. The latter madeseveral changes, making the Act even more draconian than the
Act of 1923. Interestingly, the Act of 1967 was passed in both Houses of
Parliament of the largest democracy in the World,with little serious debate.
After
Independence, the rights of citizens in India are protected by the Constitution
and several other laws, including the Right to Information Act of 2005, whose provisions
directly contradict those of the Official Secrets Act 1923. There have been
demands from almost all quarters and human rights groups to scrap the Official
Secrets Act or amend it to bring it in line
with the RTI Act. However, due to pressure from the intelligence
agencies and bureaucracy, this has not come about. In case we wish to curb the
leakage of classified information to the media, there is a need to amend the
Official Secrets Act, 1923, doing away with the provision of a mandatory report
from a Government department. Unless this is done, none of the guilty will ever
be punished and the leakages will continue. (I have already written a letter to
the NSA, Mr Ajit Doval in this regard on 5th January 2015).
7 Jan 2015
No comments:
Post a Comment