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Above: Calling the Official Secrets Act as “obnoxious”, N Ram of The Hindu has said that his newspaper is “totally justified” in publishing the information on Rafale

By Inderjit Badhwar

Veteran Editor N Ram of The Hindu, who was in the forefront of exposing illegal payments in finalising the purchase of the Bofors gun for the Indian military during Rajiv Gandhi’s premiership in the mid-1980s—and hailed by the BJP as a hero—is today facing flak from the BJP as an anti-national traitor.

So much so that the government’s attorney general, KK Venugopal, has argued in the Supreme Court, alluding to Ram, that the Official Secrets Act (OFA) should be invoked against him for publishing “stolen documents” indicating malfeasance by the Modi government—indeed by the Prime Minister’s Office—in the deal with France for the purchase of 36 Rafale multi-role fighter planes for the Indian Air Force.

The details of the allegations—which include favouritism and contract manipulation—have been widely reported by most media outlets, especially online portals. What is important is that these allegations are not hearsay or gossip or based on talks with anonymous sources but rather founded on official documents and notations. It is ironical that most of the Bofors revelations, which helped bring Rajiv Gandhi down, were also based on government documents often sourced by The Hindu and other publications from the very political party that is now denouncing Ram as a traitor who should be locked up under the Official Secrets Act. Next, they will probably raise the demand that reporters and editors who touch this sensitive subject, which is an election issue, should be tried for treason.

Ram has already called the OFA “obnoxious”—a piece of legislation that should be junked because it was formulated by the British to protect the Raj and its imperialist crimes from public scrutiny and debate. His newspaper, he said, is  “totally justified” in publishing the information related to the Rafale fighter jets deal and underlined that he and the newspaper are protected by the law.

He has pledged not to reveal the identity of his sources. In several interactions with the media, Ram has stated: “You may call it stolen documents…we are not concerned. We got it from confidential sources and we are committed to protecting these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.”

Investigative journalism, especially when aimed at the government, always inflames the powers that be and they shroud their wrongdoings with the cover of national security and patriotism, which, as a famous saying goes, are the last refuge of scoundrels.

Ram has referred to US Daniel Ellsberg (above), who leaked the Pentagon Papers to The New York Times
Ram has referred to US Daniel Ellsberg (above), who leaked the Pentagon Papers to The New York Times

“We are fully protected under Article 19(1)(a) of the Constitution of India which gives expression of freedom, and also by the Right to Information Act, specifically Sections 8(1)(i) and 8(2), which overwrites the Official Secrets Act of 1920,” Ram has publicly stated.

He added: “All I can say is that we are fully justified in publishing this information. The investigative journalism comes into play precisely when the information which should be in the public domain is not there, or is consciously suppressed as a cover-up. And I think it’s our duty to (unearth such details) provided the issue is relevant and of the larger public interest.”

The Editors Guild of India unequivocally condemned the attorney general’s comments before the Supreme Court pertaining to documents based on which the media, including The Hindu, had reported on the Rafale deal.

Venugopal had sought dismissal of a petition for a review of the apex court’s earlier judgment, giving the government a clean chit, on the ground that the fresh petition had relied on documents that were “stolen” from the defence ministry and that investigations were going on to find out if it was a crime and violative of the Official Secrets Act.

The Guild said that although the attorney general later clarified that the investigation and contemplated action would not be initiated against journalists or lawyers who used these documents, “the Guild is perturbed over such threats. These will intimidate the media in general and curb its freedom to report and comment on the Rafale deal in particular. Any attempt to use the Official Secrets Act against the media is as reprehensible as asking the journalists to disclose their sources.

“The Guild denounces these threats and urges the government to refrain from initiating any action that might undermine the media’s freedom and independence.”

What I found of equal interest were the Supreme Court’s comments. Venugopal argued that the review petition must be dismissed because the documents on which it was based were not admissible. “Having these documents is an offence under the secrecy act. The government is planning to launch a prosecution.” Justice KM Joseph stated: “The issue here is that the law of the country has been broken by corrupted practices. Even stolen evidence can be looked into, provided it is relevant and authentic. You must talk about the law.”

When the government insisted that the Court cannot look into the documents unless the source is known and is lawful, Justice Joseph observed: “There were allegations of corruption in Bofors. Now will you say the same thing that a criminal court shouldn’t look into any such document?…. We are here to enunciate the law…. Now where do we get an authority which says if a document comes from an unknown or unlawful source, documents cannot be looked into?”

Justice SK Kaul then intervened: “If the documents were stolen, the government should put its own house in order. It is one thing to say that we should look at these documents with suspicion. But to say we can’t even look at those documents may not be a correct submission in law.”

The government also argued that the plea for an inquiry into the Rafale deal should be dismissed also on the grounds that Pakistan had used F-16 aircraft during the recent cross-border dogfights. “Recent incidents have shown how vulnerable we are. When others have superior F-16 aircraft, should we also not buy better aircrafts? There will be damage done to the country by seeking a CBI inquiry,” the government argued. Justice Joseph disagreed: “Are you going to take shelter under national security when the allegation is of grave crime, corruption?”

Central to this entire exchange is who represents or defines the national interest—a government which has a vested interest in hiding embarrassing information or the Press or whistleblowers who feel it is their duty to expose waste, fraud and corruption?

The US has a strong Whistleblower Protection Act which is premised on the constitutional doctrine that government employees owe their allegiance not to their political bosses, but to the constitution and to the people of America who are sovereign, and must therefore be protected from official retaliation when they expose wrongdoing and lies by their departments, agencies or political superiors.

Perhaps the most celebrated whistleblower of our time is Daniel Ellsberg, the former top security US military analyst and government contractor. He disclosed a classified government study about the Vietnam war, later known as the “Pentagon Papers”. Ellsberg’s act, according to US watchdog group Government Accountability Project (GAP) proved several administrations had directly lied to the Congress and the public about their intentions and actions in Vietnam. This ultimately led to protests, contributed to the resignation of President Richard Nixon, and emboldened the media when the Supreme Court decided against prior restraint against publishing stories in New York Times Co. v. United States.

There was a mention of US laws and precedents during the Indian Supreme Court hearing. And Ram has referred to Ellsberg, a reference many Indians may have missed. To quote directly from his official biography:

“Inspired by a young Harvard graduate named Randy Kehler who worked with the War Resisters League and was imprisoned for refusing to cooperate with the military draft—as well as by reading Thoreau, Gandhi and Dr. Martin Luther King—Ellsberg decided to end what he saw as his complicity with the Vietnam War and start working to bring about its end. He recalled, ‘Their example put the question in my head: What could I do to help shorten this war, now that I’m prepared to go to prison for it?’

“In late 1969, with the help of former RAND colleague Anthony Russo, Ellsberg began secretly photocopying the entire Pentagon Papers. He privately offered the Papers to several Congressmen, including the influential J William Fulbright, but none was willing to make them public or hold hearings about them. So, in March 1971, Ellsberg leaked the Pentagon Papers to The New York Times, which began publishing them three months later.

“When the Times was slapped with an injunction ordering a stop to publication, Ellsberg provided the Pentagon Papers to The Washington Post and then to 15 other newspapers. The case, entitled New York Times Co. v. United States, ultimately went all the way to the United States Supreme Court, which on June 30, 1971, issued a landmark 6-3 decision authorising the newspapers to print the Pentagon Papers without risk of government censure.

“Not specifically because Ellsberg released the Pentagon Papers—which covered only the period up to 1968 and therefore did not implicate the Nixon administration—but rather because they feared, incorrectly, that he possessed documents concerning Nixon’s secret plans to escalate the Vietnam war (including contingency plans involving the use of nuclear weapons), Nixon and Kissinger embarked on a fanatical campaign to discredit him. An FBI agent named G Gordon Liddy and a CIA operative named Howard Hunt—a duo dubbed “the Plumbers”—wiretapped Ellsberg’s phone and broke into the office of his psychiatrist, Dr Lewis Fielding, searching for materials with which to blackmail Ellsberg. Similar ‘dirty tricks’ by ‘the Plumbers’ eventually led to Nixon’s downfall in the Watergate scandal.

“For leaking the Pentagon Papers, Ellsberg was charged with theft, conspiracy and violations of the Espionage Act, but his case was dismissed as a mistrial when evidence surfaced about the government-ordered wiretapping and break-ins.

“Ever since his leak of the Pentagon Papers, Ellsberg has remained active as a scholar and anti-war, anti-nuclear weapons activist. He has authored three books: Papers on the War (1971), Secrets: A Memoir of Vietnam and the Pentagon Papers (2002) and Risk, Ambiguity and Decision (2001) as well as countless articles on economics, foreign policy and nuclear disarmament. In 2006, he received the Right Livelihood Award, known as the ‘Alternative Nobel Prize’, ‘for putting peace and truth first, at considerable personal risk, and dedicating his life to inspiring others to follow his example’”.

America has a rich history of whistleblowers and massive retaliation against them. If they, like Ellsberg, received any protection, it was from the free press and the courts. There was no legislation to safeguard their rights until 1989, when the Whistleblower Protection Act (WPA) came into being.

The Whistleblower Protection Act of 1989 is a law that protects federal government employees in the United States from retaliatory action for voluntarily disclosing information about dishonest or illegal activities occurring in a government organisation.

WPA, also prohibits a federal agency from taking action or threatening to take action against an employee or applicant for disclosing information that he or she believes violated a law, compliance rule or another regulation. The disclosed information could include reports of management wrongdoing, waste of funds, abuse of authority and a potential risk to public health or safety.

The US Office of Special Counsel has jurisdiction over allegations of federal whistleblower retaliation and investigates federal whistleblower complaints.

A whistleblower is anyone who uncovers activities that could be illegal, unethical or inappropriate and then reports that activity to authorities or otherwise makes the activities known—i.e., reporting the wrongdoing to a news outlet.

A whistleblower can be someone working in or with the public sector at the local, state or federal government level. A whistleblower may also be someone working in or with private, for-profit companies, as well as non-profit entities.

In India, proposed legislation on this subject has been languishing. And perhaps justice and protection will come from the courts and judiciary rather than the Executive.

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