Despite there being a time-frame to declassify documents, the government is wary of doing so and several legal provisions protect its right to do so
By Somi Das
“Silence becomes cowardice when occasion demands speaking out the whole truth and acting accordingly.”
In the first week of April, India Today’s cover story based on two files decla-ssified by the Intelligence Bureau (IB) revealed that the family of Netaji Subhas Chandra Bose was spied upon for nearly two decades between 1948 and 1968 under the prime ministership of Jawaharlal Nehru. The BJP and the Congress politicized this issue to the hilt, accusing each other of not telling the whole truth. While the Congress, in all the years it was in power, never entertained demands for declassifying either the Netaji files or the Henderson-Brooks Report on the 1962 Indo-China war, the BJP was accused of selective and sinister release of information.
The commotion subsided in a few days. On May 5, Minister of State for Home Haribhai Parathibhai Chaudhary told the Lok Sabha that the government had no intentions of ordering a probe into the reports of snooping on family members of Netaji by the IB. Neither is there any clarity on whether we will ever know the truth about Netaji’s death which many people term as a “disappearance”.
When it was in opposition, the BJP had promised that once it came to power, it would declassify the controversial papers that could help solve the mystery around Netaji’s death. Chandrachur Ghose, founder member of “Mission Netaji”, writes in Swarajya magazine: “The BJP kept making the right and, at times, very encouraging noises as long as they remained in opposition. The people had a right to know what happened to Netaji, they said. The government must declassify all files, they said. That is, until they became the government in May 2014. Then, a curtain of silence fell on all those who were the most vociferous. New Prime Minister Narendra Modi would talk much about ‘Subhas babu’ but not about the need to tell the country about papers locked away in the secret vaults.”
However, the issue is not just about the Netaji files, but about India’s policy on releasing classified documents that tell us our history. Although there is a standard 30-year rule for releasing classified documents, the Indian government can withhold them for an indefinite period, citing reasons such as “extremely sensitive”, “of current operational value”, affecting the “country’s sovereignty and integrity”, etc.
“The BJP kept making the right noises as long as they remained in opposition. The people had a right to know what happened to Netaji, they said. That is, until they became the government in May 2014. Then, a curtain of silence fell….” —Chandrachur Ghose, founder member of “Mission Netaji” in Swarajya magazine
Classified documents can be any piece of government document such as a cabinet note, records or balance sheets that are accessed only by people officially authorized to see it. Several legal provisions protect the government’s right to keep such documents classified for years. The Official Secrets Act (OSA), 1923, is one legal measure that allows secrecy of unpublished official documents. Sections 123 and 124 of the Indian Evidence Act, 1872, allow the head of the department concerned to refuse to disclose unpublished official documents even to a court of law.
Activists, however, thought that with the advent of the Right to Information Act, 2005, it would be easy to access classified information. In his Swarajya article, Ghose writes that “Mission Netaji” has vigorously used RTI to get several documents on Netaji declassified. According to him, in 2007, the Central Information Commission (CIC) asked the home ministry to provide one of their members over 100 documents related to the first two inquiries on Bose’s disappearance overruling the home secretary’s contention that if those files were made public, there would be a serious law and order problem in the country, especially Bengal. With the exception of close to two dozen documents deemed “highly sensitive”, the government did release other files that were demanded.
Classified documents come in three categories: top secret, secret and confidential. The rules and regulations about how and why a document is classified are explained in the Manual of Departmental Security of Instruc-tions maintained and updated by the home ministry.
However, RTI doesn’t prove to be useful always. The degree of government’s paranoia about guarding secret documents can be gauged by the outcome of an RTI filed in 2009 by activist Venkatesh Nayak, who asked why a document is deemed classified by the government. He asked for a copy of the above manual. He didn’t get it, for it turned out that the manual too was classified. The bottom-line is that not only are secret documents out of reach of the common man, but the definition and criterion of why a certain document is secret is also classified.
Nayak writes in one of his articles: “This is a funny situation as they do not tell you on what grounds classification is done but still deny information, saying a document is classified. So it is not possible to challenge the security classification before the CIC.”
1962 India-China War
Australian journalist Neville Maxwell (above) leaked documents related to the India-China war of 1962 that blamed Nehru for the debacle
Similarly, veteran journalist Kuldip Nayar failed to secure a copy of the Henderson-Brooks Report on the Indo-China war after doggedly filing RTIs for four years from 2005. He argued that when the US can make public the embarrassing details of the Vietnam War, the Indian government should be comfortable with releasing papers on a war that was half-a-century old. However, his plea was declined under Section 8 of the RTI Act.
Para 8 (1) (a) of the Right to Information Act 2005 states that “notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence”.
Eventually, Australian journalist Neville Maxwell leaked parts of the documents that squarely put the blame of the 1962 debacle on Nehru, causing much embarrassment to the UPA government before the general elections. Maxwell claimed that he had approached many Indian media houses to publish the papers but no one did. As a result, he decided to leak the papers online.
NSA chief Ajit Doval (right) expressed his concern to Cabinet Secretary Ajit Seth (left) that media had breached the Official Secrets Act with impunity.
One can’t blame the Indian media’s reluctance to publish these leaked documents considering how the government of the day would react to it. Prashant Reddy T writes in The Hoot: “Part of the reason for the silence and lack of independent reporting by the media on the issue of national security is probably the OSA. This legislation is of 1920s vintage and is deadly ambiguous, the kind of ambiguity that leads to self-censorship by editors.”
Section 3(c) of the OSA lays down that spying is when someone “obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy (or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States)”.
The maximum punishment for this extends to 14 years.
This provision has been used against journalists several times in the past. Recently, there has been renewed vigor in protecting government secrets and a crackdown on media for reporting on classified information. In Dec-ember 2014, Aaj Tak reported on “a series of government notes highlighting concerns over the leakage of information to the media”, expressed by Ajit Doval. The NSA chief pointed out in a letter to Cabinet Secretary Ajit Kumar Seth on October 13, 2014, that media had breached OSA with impunity on several occasions. He said “firm action needs to be taken in such cases that undermine the national secu-rity of the country”.
With strictures on media and with RTI being ineffective in getting classified documents, the walls of secrecy in government offices are practically impregnable. We can get a peek into our past and come to terms with the mistakes our governments have made only if they voluntarily release classified documents. Given the ruling dispensation’s aversion to ensuring smooth functioning of the RTI mechanism and the U-turn on the promise of declassifying the Netaji files, there isn’t much hope.
“No law requires the government to classify files”
VENKATESH NAYAK, program coordinator of the Commonwealth Human Rights Initiative, has been working on the legalities of classified documents by filing RTIs on the issue. He tells SOMI DAS why governments prefer not to declassify documents and how RTI could help
There was a demand recently for de
classification of the Netaji files after the snooping controversy. What stops the government from sharing the documents?
I would not like to speculate. But if they are marked “Secret” or “Confidential”, then one of the criteria for these classificatory labels is “embarrassment to the government”. If the classification is “Top Secret”, the reasons that the government gives for not declassifying is prejudice to foreign relations. But this is simply not the criteria for such a classification, as stated by the GoI Manual on Depart-mental Security Instructions. Thus, the classification becomes entirely arbitrary. This manual is not open. We used to think that the manual was based on the Official Secrets Act (OSA). However, earlier this week (early May), the Ministry of Home Affairs replied in the Lok Sabha that classification of official documents is not based on the OSA. So there is no law that requires the government to classify files. It is based only on an administrative manual.
My hunch is that if the government had knowledge of the whereabouts of Netaji after August 1945, then, it might have been compelled to turn him over to the victorious Allied Powers who were trying all surviving leaders of the Axis powers for war crimes in Germany and Japan. That would have created enormous problems for India—how do you hand over such a popular freedom fighter and a darling of the masses for trial abroad? This hunch is based on the presumption that Netaji did survive the crash. If he did not survive the crash, then the reasons for keeping the files classified cannot be surmised until we have more information.
Can we seek information regarding classified papers through RTI?
As the RTI Act overrides all other laws, you can ask for even classified information and it cannot be denied only on the ground that it is classified ‘Secret’ or ‘Top secret’. The reason for rejection must match with the grounds for “harm test” (amount of damage it can do) mentioned in Section 8 of the RTI Act. If they match, you will not get it. If they do not match, then, because of the overriding effect of the RTI law, it will have to be given. For example, I asked for cabinet notes relating to the Whistleblowers Protection Bill and the Nuclear Safety Regulatory Authority Bill at different points of time. The Central Information Commission ordered their disclosure, even though the cabinet notes were marked “Top Secret” (this is a mandatory classification for all cabinet notes).
Does India have a stipulated time-period to release classified documents? What are the rules regarding this in other democracies like the US and the UK?
No, there is no time period for declassification of classified records. Public Records Act and the Rules under it do not contain any such time limit. There is also no law that prohibits the government from destroying a classified record without declassifying and archiving it. However, under the RTI Act, any information that is more than 20 years old can be revealed, provided it doesn’t fall under Section 8(1)(a), (c) and (i). The other seven exemptions will not apply for information that is 20 years old or older. It will have to be given.
In the UK, the limit is 20 years for most classified records. In the US, there are different systems for declassification in federal and state governments.
The only papers we talk about are the Netaji files and the 1962 documents. The BJP promised to declassify papers, but didn’t do much. Why do these papers get embroiled in a political war of words, rather than be seen as a source of vital information?
Though the BJP promised declassification, it has reversed its stand now. Is it because its leaders have read what is in those classified records and agree with the reasons for continued secrecy? Or is it because the bureaucracy prevailed upon them to change their stand? Or are they merely following their oath of secrecy taken at the time of assuming office? It is difficult to pinpoint one reason. But, what has not been given serious attention is Netaji’s family’s right to get closure on the subject of his whereabouts. It is often recognized in international human rights law and in the domestic laws of several Latin American countries that in cases of disappea-rances, the family has a right to know and their suffering and agony must reach a point of closure. It would be inhuman to prolong the suffering. Unfortunately, this principle is not well-recognized by bureaucrats in India and I have not come across jurisprudence on the family’s and public’s right to know the truth in such cases.
Are there other classified papers which too should be made available to the public?
Yes, the annexes to the NN Vohra Committee Report on politician-bureaucrat-criminal nexus have never been made public. Even the Supreme Court said they would not be made public (See Dinesh Trivedi vs Union of India case, 6th attachment). As a result, we do not know if those annexures still exist or have been destroyed. Another example is the President-PM correspondence after the Gujarat riots in 2002. There could be several more such instances. This is why the National Data Sharing and Accessibility Policy, adopted in 2012, says that every government department must declare a negative list containing categories of information that will not be shared with the public. This will make matters transparent.