With the government threatening to prosecute The Hindu under the Official Secrets Act of 1923, it’s time to ask that question again: Should the fourth estate be worried if it is tilled by an Act that was promulgated more to keep an enslaved India in cowering fear of retribution from the Raj?
When the British brought in the law it had wide bandwidth since it loosely employed the label of espionage and spying as cardinal sins. This encompassed any activity including pamphleteering or demanding freedom from oppression through word or deed and, perhaps, even thought. Suspicion was enough grounds for hauling someone in.
In 2017 Parliament debated on easing up on its draconian scope and aligning it with the Right to Information Act of 2005 but let it lie. So, technically the 96-year-old totally out-of-line act still has mandate.
The essence of the Act concentrates on any activity that helps the enemy state and can be in the form of communicating a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy (Section 3.1.b and 3.1.c).
None of this makes for any valid grounds for prosecuting The Hindu for its reportage on the Rafale deal.
Documentation that is brought to light against the government’s actions definitely does not fit the bill of helping the ‘enemy’. Unless, of course, the government is the enemy of the people. As such anything any individual or group offers as evidence in the public interest cannot be construed as an act of espionage. Again, even in legal parlance, the materials so produced cannot be seen as the fruit of the poisonous tree and be excluded because they are stolen.
If that was the case in a democratic set up Richard Nixon would never have been marched out of the White House and Carl Bernstein and Bob Woodward and the Washington Post would have been punished for violating an official secrets act, the burglary at Watergate. Ergo, how The Hindu accessed the papers pertaining to the Rafale deal is mutually exclusive from the contents therein. If the government wishes to embarrass itself it can charge The Hindu with simple theft but not espionage. Especially because since 2009, in the Shantanu Saikia case, the high court concluded that merely because a document is marked ‘secret’ it does not render the journalist liable for action for publicising its contents. This is what Justice S Ravindra Bhat said, quoting Stanford Smith of the American Newspaper Publishers Association: “The newsman is but the surrogate for the people in a never-ending search to uncover the truth.” (Stanford Smith, American Newspaper Publishers Association).
The punishment under the Act is three to 14 years if found guilty. Surely, this government’s case cannot be predicated to this legal fiat. If it does proceed on what is profoundly a rocky road it has to first cement three premises:
i) That anything negative on buying these 36 jets is an act of espionage and anti-national.
ii) That the right to information and the expression of that information regarding this purchase to the public compromises national security and places the country in jeopardy.
iii) That, and this requires repetition, the government can ipso facto decide what is sedition and what is not without giving just cause.
Although nothing much has happened yet and there is no call to jump the gun, it is going to be very sticky for the government’s counsel to follow this line of argument. Perhaps it is this realisation that made Attorney General KK Venugopal change his mind about the papers were stolen or copied.
The provisions exist under this act to throw the book at the editor, publisher and management but it is a horrible precedent to establish.