IS SECRECY IN THE PUBLIC INTEREST?

IS SECRECY IN THE PUBLIC INTEREST?

Secrecy is the hall mark of intelligence agencies. Some of them, such as RAW, are often referred to reverentially as ‘super secret’ agencies. The reason for this is difficult to fathom. In fact, going strictly by its charter - external intelligence - nothing in RAW should be graded secret, since whatever information it has pertains to foreign countries. RAW does not possess any information regarding India’s defence capability, war plans, nuclear potential, space facilities, missile technology etc. Disclosure of information held by RAW can harm the national security of foreign countries, not India. The Armed Forces have a clear policy in this regard. In situation reports (SITREPS), Part I that relates to enemy information is always transmitted in clear, with Part II concerning own troops being encoded. The logic for this is simple. Information about the enemy is already known to him, and encoding it would enable him to break the codes. The only reason for not making information held by intelligence agencies public is to protect the sources from which it was obtained. However the security grading of such information is naturally not on par with defence related information. To underline this distinction, the penalty for revealing defence related information in the OSA is 14 years, while it is only 3 years for others.

           

            Demands for repealing the OSA or amending it have been made by various human rights activists, lawyers, retired judges and constitutional experts. Recently, the Administrative Reforms Commission made a strong case for its repeal, its Chairman, Veerappa Moily stating that ‘after the enactment of the RTI Act, the OSA has no place to survive and even its relics may no longer remain’. Moily was only echoing the views of Abhishek Singhvi who wrote in 2001 that in order to empower society, the government should ‘reduce the culture of secrecy and limit the power of bureaucrats with the reform of the OSA’. Similar views have been expressed by former Prime Minister Atal Behari Vajpeyee, social activist Aruna Roy, journalists Manoj Joshi and Indrajit Hazra, and several others.

           

            Surprisingly, the demand for repealing the OSA finds wide acceptance within the intelligence community also. B. Raman, a former additional secretary of RAW and author of Kaoboys of RAW – why this book was not targeted is a mystery - writes extensively on security related issues. In a recent article he wrote: ‘There are two kinds of disclosures -- disclosures of genuine secrets and disclosures of wrong-doings inside intelligence and security agencies such as corruption, nepotism, financial irregularities etc. Can disclosures of wrong-doings be also projected as violation of laws relating to official secrets just because the concerned papers in an intelligence or security agency relating to those wrong-doings were marked secret or top secret? It has been accepted in the West over the years that a disclosure embarrassing to an intelligence or security agency cannot be projected as a disclosure damaging public or national interests to warrant arrest and prosecution under the Official Secrets Act’. 

Quoting extensively from a study conducted by the Helsinki Foundation for Human Rights and the Centre For National Security Studies of Washington DC, Raman brings out the role of the security services in the collapse of the Communist regimes of East Europe and the Russia. According to the study report;’ 'Some of the most serious violations of human rights and fundamental freedoms are justified by states as necessary to protect national security. Indeed, the security services played a central role in the former Communist regimes; their activities were conducted in secret, they were not held publicly accountable and they were at least partly responsible for the economic, social, and moral crises in Russia and the Eastern European countries. Even in democratic societies, the security services have often violated individual rights.' 

One of the important areas addressed by the study is the criteria for designation of official secrets. According to Principle 19, ‘A state may not categorically designate all information related to national security as official secrets, but shall designate in law only those specific and narrow categories of information that it is necessary to withhold in order to protect a legitimate national security interest. Any classification system shall permit classification only of publicly and specifically enumerated categories of information whose disclosure would cause identifiable harm to the national security which is not outweighed by the public interest in knowing the information.’

Another important document dealing with the subject is the Johannesburg Principles of National Security, Freedom of Expression and Access to Information (UN Document E/CN.4/1996/39). Principle 2 states: (a) A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government. (b) In particular a restriction sight to be justified on the ground of national security is not legitimate if its genuine and demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.’

            In a democracy, public interest is supreme. And public interest is best served by transparency in the functioning of public institutions, which are all finally accountable to the public, through Parliament.  It is in this light that we must examine the book India’s External Intelligence - Secrets of the Research and Analysis Wing (RAW). Does it serve the public interest, or does it merely wash dirty line? Does it reveal dark secrets of a public institution – RAW -  such as corruption, indiscipline and nepotism, or does it reveal secrets of the country that are likely to damage national security?  According to RAW, even their charter should not be disclosed to the public. In other words, the tax payer who pays for their upkeep should not know what they are being paid for? Will any employer accept such conditions before engaging an employee? If not, why should the Indian public?

            The book brings to light several instances of corruption and malfeasance. In one case antennae were procured at prices several times higher than the prices prevailing in the international market. Is exposing corruption not in the public interest? In another case concerning procurement of radio equipment for the SPG, not only were the prices paid excessive but the security of the system was also in doubt. As a result, the security of important personages such as the Prime Minister was endangered. Is exposure of such lacunae in our security not in the public interest?  Another case brings out the presence of vested interests that were opposed to the establishment of a secure communication system, which would have replaced the existing system that was insecure. Is the exposure of such vested interests - read moles – not in the public interest? Lack of leadership or even worse - collusion by other moles – resulted in the escape of Rabinder Singh, suspected to be an American mole.  Is exposure of the inept handing of his case not in the public interest? According to media reports an internal inquiry found about 65 officers of RAW to be involved in some way or the other. However, none of them have been punished. Will public interest be served by punishing these officers or protecting them?

15 Nov 2016