Official Secrets Act Is a Blot on India’s Democracy – Will SC Act?

Attorney General KK Venugopal’s arguments in the Rafale hearing demonstrate that our democracy needs protection now.

Attorney General KK Venugopal’s comments threatening prosecution under the Official Secrets Act for journalists is dangerous for democracy.

(Photo: Shruti Mathur/The Quint)

(This story was first published on 10 March 2019, then updated on 14 March, and is now being republished in light of the Supreme Court’s imminent order on 10 April on whether or not to admit certain ‘confidential’ documents as evidence when conducting the review in the Rafale case.)

Attorney General KK Venugopal kicked up a storm on Wednesday by telling the Supreme Court that the government was considering criminal action against journalists and the petitioners against the judgement of 18 December 2018 for revealing top secret information about the controversial Rafale deal.

According to the attorney general, these documents, revealed by N Ram and other journalists and submitted to the Supreme Court with the Rafale review petitions, were “stolen” from the Defence Ministry, and disclosing them was a threat to national security.

He said the government was investigating how the documents were leaked, and that those who’d published them as well as those who’d submitted them to the court were guilty of offences under the Official Secrets Act 1923. He also demanded to know the source behind the leak of the documents.

These statements immediately caused consternation in the courtroom, and were the subject of outrage on social media and among journalists for the underlying threat they posed to the free press. The Editors Guild of India issued a statement on Thursday, 7 March, in which they condemned the A-G’s comments as “threats” and urged the government “to refrain from initiating any action that might undermine the media’s freedom and independence.”

This. Is. Dangerous.

Was this outrage justified? Without a shadow of doubt.

Think, for a moment, about what these statements really meant. Behind the veil of nationalistic self-righteousness is something far more dangerous: a clear, unambiguous threat to journalists, whistleblowers, lawyers, anybody speaking truth to power, anyone who has put the government on the spot.

Lest someone try to absolve the government of being the one making this threat, remember that Venugopal was not speaking as a private individual. He was arguing on behalf of the Union Government, in his capacity as attorney general.

As attorney general of India, he should have in fact resisted this line of argument – the post he holds is not of a ‘government lawyer’ after all, but is a constitutional office. An attorney general isn’t just supposed to argue whatever the government wants, but provide the government with legal advice that is accurate and true to the ethos of the Constitution.

There have undoubtedly been A-Gs who’ve not just toed the government line, but submissively remained a million miles behind it, especially during Indira Gandhi’s time. However, the Niren De’s of this world are hardly the models Venugopal should be looking to emulate.

He would be far better served by following the example of Sally Yates, the acting attorney general of the USA who stood her ground over Donald Trump’s ‘Muslim ban’. She may have been fired for this act of conscience and the ban eventually upheld, but at least she retained her dignity and stood up to a government which was propagating injustice.

However, I digress. It was certainly disturbing to see that the government could get the holder of a constitutional office to make these comments and other irrelevant arguments, but that’s an issue for another time.

The bigger issue at play here is that the government is actively adopting a position where it would rather ‘shoot the messenger’ than address the serious questions the messenger is asking.

It is no doubt in character for a government led by a prime minister who refuses to attend press conferences to prefer to avoid answering uncomfortable questions. But just because this has become the new normal, doesn’t mean it is any less dangerous.

Let’s look at the implications of the government’s stance:
- If journalists are going to get prosecuted for revealing the truth about issues of public interest just because they’ve relied on leaked documents, that is a death knell for accountability.
- If people who use such documents to take the government to court are considered criminals for doing so, that is a death knell for the rule of law.

And what is a democracy without accountability or the rule of law?

Official Secrets Act: Go Directly to Patriotism, Do Not Pass Logic

What makes this whole sorry situation even worse is the fact that the government’s ‘threat’ has been made using the Official Secrets Act. The OSA is basically an anti-espionage law, introduced by the colonial government to silence socialist dissenters and freedom fighters, and only cosmetically amended since Independence.

The anti-espionage nature of the Act is the ace in the hole for the government. Invoking the OSA allows them to tap into patriotic fervour as well as that most beloved of bogeymen, national security.

When you accuse someone of disclosing the country’s secrets, you can skirt around the fact that the information reveals irregularities or misconduct, because it’s no longer a matter of logic and rules, but emotion and sentiment.

In the climate of the country post the Pulwama attack and the airstrikes, the power of a legislation like the OSA is even more potent. The prime minister has already gone around saying the country needs the Rafale aircraft so that it can get the better of Pakistan in aerial engagements, and the attorney general took up this baton in the court by stridently saying we needed the Rafale jets to fight their F16s.

Brandishing the OSA adds to this same argument, and puts anyone questioning the deal at a disadvantage.

This isn’t just about public perception, by the way. As Manu Sebastian discusses here in LiveLaw, judges are more likely to deny bail if the OSA is on the table, because national security is at play. Nobody wants to be seen as a pencil pusher who cares more about red tape and rules when the safety of India is at stake.

The OSA doesn’t care about whether releasing the information was in the public interest or not. Section 5 of the Act, which deals with ‘wrongful communication of information’, is focused on whether or not the publication of the information could assist an enemy of India, affect our relations with foreign states, affect the “security of the State”, or affect the “sovereignty and integrity of India”. These are fairly nebulous terms and the government has a lot of discretion to say that these conditions are fulfilled.

And even if the courts eventually say these conditions weren’t fulfilled, the accused has still been stuck in jail for months if not years, and even if not in jail, they have a Sword of Damocles hanging over their heads till the trial is over, which makes it difficult to travel and go about their lives. As Sebastian says,

“Very often the process itself becomes the punishment, resulting in a chilling effect on press freedom.”

The Supreme Court Must Act

The OSA, then, clearly has the potential to be misused against journalists to shut down reporting that the government doesn’t like, all without having to show that the journalists are a threat to public order or have links to terrorist organisations (which they’d have to do to throw other draconian legislations like the National Security Act or the Unlawful Activities (Prevention) Act).

Examples include:

• Iftikhar Gilani (Kashmir Times), arrested in 2002 for allegedly disclosing secret military information to terrorists. The documents he relied on were actually available in the public domain, and the NDA government finally had to withdraw the case after he’d been lodged in Tihar Jail for seven months.
• Tarakant Dwivedi (Mid-Day), arrested in 2011 for a report on how weapons bought by the Government Railway Police after 26/11 were rotting due to water leakage. He got bail after a week, but the case dragged on till 2013 before the Bombay High Court finally dismissed charges against him.
• Poonam Agarwal (The Quint), booked in 2017 for her report on the abuse of the ‘sahayak’ system in the Army, on the basis she had shot footage inside an Army camp. The use of OSA meant it took one month for her to get bail and saw the lower courts try to cancel her bail. The case has not progressed in almost two years, and the use of OSA has also caused her quashing petition against the FIR to drag on.

The Modi government isn’t the first to use the OSA for this purpose, and it won’t be the last. However, there are grounds to show they are actively looking to use the OSA against journalists – after all, National Security Advisor Ajit Doval expressly directed ministries to use the OSA against journalists reporting on leaks from them in October 2014, Aaj Tak reported.

The current hyper-nationalistic climate makes this even more of a concern, and the A-G’s comments in court only emphasise the urgent need to ensure that the OSA isn’t abused to stifle reporting.

Remember that prosecution numbers or conviction numbers aren’t the point, even mere threats to use the Act can have a chilling effect, as Human Rights Watch has pointed out.

This is hardly likely to come in the form of amendments to the law by Parliament, regardless of who comes to power in the general elections. Which leaves the call in the courts’ court.

Fortunately, there is already a petition in the Supreme Court which could provide the opportunity to do so. Poonam Agarwal filed a writ petition back in 2017 after the OSA was thrown at her and a veteran jawan who’d assisted her.

Instead of just asking for this OSA charge to be dropped, Agarwal’s petition asks for the Supreme Court to “issue suitable guidelines/directions giving a strict and controlling interpretation to the provisions of Official Secret Act, 1923 to prevent its abuse and bring them in line with the scheme of the Constitution, particularly Articles enshrined in Part III - Fundamental Rights of the Constitution of India.” (sic)

The court issued notice in the case, but the Centre has failed to respond to it despite repeated notifications. Hopefully Chief Justice Ranjan Gogoi will be willing to list this case in the coming weeks/months, in light of the awareness created by the attorney general’s comments.

Guidelines could include public interest exceptions, bars against it being thrown at those using secret documents in court proceedings, and an assessment of consequences similar to how sedition cannot be invoked (in theory) unless there’s incitement to imminent violence.

These are only some thoughts, and better suggestions will no doubt abound if the court takes this up. Surely nobody is comfortable with the thought of an India where the government can wield such a powerful tool unfettered, to the detriment of our democracy.

NB: The Editors Guild statement notes that the A-G “later clarified that the investigation and contemplated action would not be initiated against journalists or lawyers who used these documents”. The only source for this appears to be a similar line in a report on the hearings in the Times of India. However, this clarification was not made in court nor in a public statement by the attorney general – it is unclear when and whether the government has changed its stance.

Note: The FIR against Poonam Agarwal  also includes an accusation of abetment of suicide of one of the jawans who spoke about the sahayak system, who was later found dead. The OSA charge is entirely separate from this accusation, but has affected bail and quashing of the FIR for the other charges as well. You can read about why none of these charges are supported in law here.