A report by The Times of India on Saturday credited the National Security Adviser Ajit Doval for initiating the investigation that culminated in the arrest of 12 people in Delhi over charges of leaking and trading in government documents from the ministries of petroleum, coal and power. Those arrested have been booked for theft and trespass, but Delhi police could invoke the Official Secrets Act against them at a later stage.
By pressing for an investigation into leaks from economic ministries, the national security adviser seems to have taken a wider view of his role which essentially involves overseeing the defence of India from external and internal threats. According to the Times of India report, not only did Doval initiate the probe, once the agencies – presumably intelligence agencies, although the paper does not clearly spell it out – found enough evidence of the leaks, they informed the NSA about "the breakthrough." Delhi police was asked to pick up the leads and begin the crackdown.
While the leaks from the economic ministries might be worrisome for what they reveal of the jostling among corporate groups to access and influence government decision-making, and the attempts to stem them are welcome, it is not clear how the leaks constituted a threat to India's security. In 2009, hearing a case involving the publication of a leaked document on the government's disinvestment policy, a court in Delhi ruled that it was "unlikely to affect the sovereignty and integrity of India, or the security of the state or friendly relations with foreign states." It struck down the case made under the Official Secrets Act against, coincidentally, journalist Santanu Saikia, one of the 12 people arrested in the ongoing probe.
What makes the involvement of Ajit Doval in the current case, if the Times of India report is accurate, even more ironic is the recent consensus over the need to reduce the scope of the Official Secrets Act to strictly matters of national security. The colonial era law passed in 1923 has been criticised for the way it leaves the term "secret" undefined, allowing for its misuse by governments.
In 2006, an administrative reforms commission recommended that the Official Secrets Act be repealed. The commission drew upon the observations made by a Law Commission in 1971 and a Working Group headed by H. D. Shourie in 1997. Here are excerpts from the administrative reforms commission's report and recommendations:
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By pressing for an investigation into leaks from economic ministries, the national security adviser seems to have taken a wider view of his role which essentially involves overseeing the defence of India from external and internal threats. According to the Times of India report, not only did Doval initiate the probe, once the agencies – presumably intelligence agencies, although the paper does not clearly spell it out – found enough evidence of the leaks, they informed the NSA about "the breakthrough." Delhi police was asked to pick up the leads and begin the crackdown.
While the leaks from the economic ministries might be worrisome for what they reveal of the jostling among corporate groups to access and influence government decision-making, and the attempts to stem them are welcome, it is not clear how the leaks constituted a threat to India's security. In 2009, hearing a case involving the publication of a leaked document on the government's disinvestment policy, a court in Delhi ruled that it was "unlikely to affect the sovereignty and integrity of India, or the security of the state or friendly relations with foreign states." It struck down the case made under the Official Secrets Act against, coincidentally, journalist Santanu Saikia, one of the 12 people arrested in the ongoing probe.
What makes the involvement of Ajit Doval in the current case, if the Times of India report is accurate, even more ironic is the recent consensus over the need to reduce the scope of the Official Secrets Act to strictly matters of national security. The colonial era law passed in 1923 has been criticised for the way it leaves the term "secret" undefined, allowing for its misuse by governments.
In 2006, an administrative reforms commission recommended that the Official Secrets Act be repealed. The commission drew upon the observations made by a Law Commission in 1971 and a Working Group headed by H. D. Shourie in 1997. Here are excerpts from the administrative reforms commission's report and recommendations:
"The Official Secrets Act, 1923 enacted during the colonial era, governs all matters of secrecy and confidentiality in governance. The law largely deals with matters of security and provides a framework for dealing with espionage, sedition and other assaults on the unity and integrity of the nation. However, given the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, OSA created a culture of secrecy. Confidentiality became the norm and disclosure the exception. While Section 5 of OSA was obviously intended to deal with potential breaches of national security, the wording of the law and the colonial times in which it was implemented made it into a catch-all legal provision converting practically every issue of governance into a confidential matter.
This tendency was buttressed by the Civil Service Conduct Rules, 1964 which prohibit communication of an official document to anyone without authorization. Not surprisingly, Section 123 of the Indian Evidence Act, enacted in 1872, prohibits the giving of evidence from unpublished official records without the permission of the Head of the Department, who has abundant discretion in the matter. Needless to say even the instructions issued for classification of documents for security purposes and the official procedures displayed this tendency of holding back information.
The Law Commission in its 43rd Report (1971), summarised the difficulties encountered with the all inclusive nature of Section 5 of OSA, in the absence of a clear and concise definition of ‘official secret’, in the following words:
"The wide language of section 5 (1) may lead to some controversy. It penalizes not only the communication of information useful to the enemy or any information which is vital to national security, but also includes the act of communicating in any unauthorized manner any kind of secret information which a Government servant has obtained by virtue of his office. Thus, every noting in the Secretariat file to which an officer of the Secretariat has access is intended to be kept secret. But it is notorious that such information is generally communicated not only to other Government servants but even to some of the non-official public in an unauthorized manner. Every such information will not necessarily be useful to the enemy or prejudicial to national security."
The Commission agrees with the recommendation of the Law Commission that all laws relating to national security should be consolidated. The Law Commission’s recommendation was made in 1971. The National Security Act (NSA), subsequently enacted in 1980, essentially replaced the earlier Maintenance of Internal Security Act and deals only with preventive detention. Therefore, a new chapter needs to be added to the NSA incorporating relevant provisions of OSA and other laws dealing with national security.
Recommendations:
a. The Official Secrets Act, 1923 should be repealed, and substituted by a chapter in the National Security Act, containing provisions relating to official secrets.
b. The equivalent of the existing Section 5, in the new law may be on the lines recommended by the Shourie Committee as quoted below.
5(1) If any person, having in his possession or control any official secret which has come into his possession or control by virtue of:- b1. his holding or having held an office with or under government, or b2. a contract with the government, or b3. it being entrusted to him in confidence by another person holding or having held an office under or with the government, or in any other manner,
i. communicates, without due authority such official secret to another person or uses it for a purpose other than a purpose for which he is permitted to use it under any law for the time being in force
or ii. fails to take reasonable care of, or so conducts himself as to endanger the safety of the official secret
or iii. wilfully fails to return the official secret when it is his duty to return it, shall be guilty of an offence under this section.
5(2) Any person voluntarily receiving any official secret knowing or having reasonable ground to believe, at the time he receives it, that the official secret is communicated in contravention of this Act, shall be guilty of an offence under this section.
5(3) A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
Explanation: For the purpose of this section, ‘Official Secret’ means any information the disclosure of which is likely to prejudicially affect the sovereignty and integrity of India, the security of State, friendly relations with foreign states, economic, commercial, scientific and technological matters relating to national security and includes: any secret code, password, sketch plan, model, article, note or document in relation to a prohibited place.”