Friday, November 27, 2020

Secrecy laws

The important distinction between the public interest and the interest of the central government of the day appears to have been lost on Attorney General K K Venugopal’s claims that documents pertaining to purchase of Rafale fighter aircrafts published and telecast by the media have been ‘stolen’ amounts to conclusive admission that they are genuine. The documentary evidence published so far indicates that ‘parallel parleys’ held at the behest of the Prime Minister’s Office undermined the Indian Negotiating Team’s (INT) discussions with the French side. The objections raised included internal question about the absence of bank guarantees to hedge against possible default by the vendor. Secondly, that the absence of bank guarantee had an adverse impact on the pricing of the 36 fighter jets to be brought in fly-away condition from the Dassault Aviation. There is no doubt that these revelations advance the public interest and have no impact on the national security. But in the whole episode during the course of arguments in the Supreme Court, the theft of the documents from the Ministry of Defense has been blamed on the petitioners and the media which presented the documents in the court and published in the media. This is not for the first time that such an allegation has been leveled against the media when the revelations have been embarrassing for the central government. The latter wanted to get out of this mess and blamed the media for ‘creating confusion about the whole issue’ instead of setting the record straight before the court and give satisfactory replies to the questioned raised therein the public interest. It is unfortunate that the central government in an attempt to cover up the murky deals on Rafale aircrafts put the blame on the media and petitioners when it did not find any other pretext for evading the questions. The leakage and publication of the documents and news reports based on them constitute the legitimate exercise of the freedom of the press. The threat of a criminal investigation under the Official Secrets Act, 1923 (OSA) is disappointing, if not downright perverse. The government is also on weak legal ground when it claims the court should not rely on ‘stolen’ documents while hearing petitions seeking a review of its judgment declining a probe into the Rafale deal. As the Bench, headed by Chief Justice of India Ranjan Gogoi, pointed out, the manner in which a document has been procured is immaterial, if it is relevant to an adjudication. As one of the judges asked, can the government seek shelter behind the notion of national security if a corrupt practice had indeed taken place? Apart from diverting the attention of the Supreme Court from the basic issue of holding probe into the process adopted by the government in the procurement of the Rafale fighter jets, the government’s attempt to take shelter under OSA is unfortunate. Though it has been used rarely by the government against some of the newspapers and other media organizations in the past but it is certain that OSA has been misused only when revelations by the media have been too embarrassing for the government. The OSA primarily targets officials entrusted with secret documents, codes and other material, but Section 5 criminalizes voluntarily receiving and possessing such documents, if given to them in contravention of the Act. In a limited examination of this section, the Law Commission observed in a 1971 report that its wording was quite wide. However, it was left to the government to decide against prosecution, if the information leak did not materially affect the state’s interest. There is undoubtedly a case for distinguishing between an act that helps the enemy or affects national security, and one that advances legitimate public interest. In times when information freedom is seen as salutary for democracy, laws such as the OSA should yield to the moral imperative behind the Right to Information Act. This reasoning is embedded in Section 8(2) of the RTI Act, which says that notwithstanding the provisions of the OSA, ‘a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests’. The central government should refrain from using its secrecy laws to contend with embarrassing media revelations. It should respond responsibly to questions thrown up by the revelations made by the media in the recent past.