Officials146; secret acts

Government can decide to not share some information. But that decision can8217;t be made by opaque, dangerous and silly rules

Why do civil servants have designations with the word 8216;secretary8217; in them? It is more than a British legacy. It is a legacy we adopted readily. The Latin root is 8216;secretus8217;, meaning to set apart and keep withdrawn or hidden. 8216;Secret8217;, 8216;secretary8217; and 8216;secretariat8217; have the same etymology. A civil servant8217;s job is to keep a secret, not part with it. In mid-1990s a friend of mine used to be a joint secretary JS in North Block and when he glanced through pink papers in the morning, he read the equivalent of the gossip column on the op-ed page first. That was the only way, he claimed, he got to know what other joint secretaries and those above them in North Block were contemplating as policy changes. Also in the mid-1990s, a Moynihan Commission on 8216;Protecting and Reducing Government Secrecy8217; was set up in the US and a report was submitted in 1997. That report found, at the top-level alone, 400,000 new 8216;secrets8217; were created in the US every year. Civil servants also kept these secrets from politicians. The Commission8217;s conclusions were: secrecy is a form of government regulation; excessive secrecy is against national interest, because policy-makers have incomplete information; government is not accountable; and the public cannot debate policy matters because their information is also incomplete.

The Moynihan Commission quoted from Max Weber8217;s Essays in Sociology. 8220;Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret8230; Bureaucracy naturally welcomes a poorly informed and hence a powerless parliament 8212; at least in so far as ignorance somehow agrees with the bureaucracy8217;s interests.8221; Had the Moynihan Commission been British, it might also have quoted Sir Humphrey Appleby from Yes Prime Minister. 8220;The Official Secrets Act is not there to protect secrets. It8217;s there to protect officials.8221; Information is power, don8217;t part with information. And if you part with information, you may become accountable and reveal how stupid you have been. How does one reconcile our Official Secrets Act OSA of 1923 with initiatives like right to information and citizens8217; charters? We do have colonial legacies in our laws, and some of them are anachronistic because they were meant to suppress ignorant natives. While the OSA is anachronistic, it is not quite colonial in that sense. There is a triple problem with the OSA.

First, it is ostensibly against spying and that apparently gives it some legitimacy. Second, it reflects a 1923 mindset and doesn8217;t recognise advances in technology. For instance, it prevents the taking of photographs at airports even civilian ones, a provision that no sensible country anywhere in the world has any more. If one intended to use such pictures for anti-national purposes, more efficient ways of accessing such photographs are possible. Third, the OSA doesn8217;t define what a secret is. So V.K. Singh is absolutely right when he says, 8220;Even a circular for a tea party in RAW is secret. Your TA claim and cheque slip is secret. You take them out and you will be hauled up for it.8221; Indeed, it gets more bizarre. If something is in the public domain, it can continue to be a secret. No wonder that in the 1986 Ram Swaroop case, the court said, 8220;Secret information is an information which may not be secret but relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of State or friendly relation with foreign State or useful to an enemy.8221; Even if the secret is not a secret and is known, it can be held to be a secret under the OSA if it 8216;adversely affects8217; India8217;s security interests. This sounds like stuff straight out of Alice in Wonderland. A word can mean what I choose it to mean.

As often happens in situations like these, courts aren8217;t culpable. Notwithstanding our common law tradition and barring constitutional issues, courts don8217;t create the law. They interpret it, and the problem is with the text of OSA, a problem that might have got solved had the Iftikhar Gilani case gone through its logical conclusion, instead of the government backtracking in 2003. Gilani was imprisoned under the OSA some IPC sections were thrown in, because he had information on

Indian troop deployments in Kashmir, obtained from a monograph published by a Pakistani research institute. Read Gilani8217;s book My Days in Prison to discover how the ministry of home affairs MHA, the Delhi Police, the IB and the Directorate General of Military Intelligence DGMI couldn8217;t figure out, among other things, whether a violation of the OSA was involved and whether information in public domain could adversely affect India8217;s security interests. A quote from the book says it all. A senior home ministry official said, Gilani had a document 8220;published in Pakistan8221;. The home ministry, interestingly and instructively, withdrew the charge 8220;for administrative reasons and in the public interest8221;.

The arrest was in public interest and later, withdrawal was in public interest. The issue isn8217;t the Gilani case. But had the Gilani case proceeded, we would probably have debated the OSA. But now V.K. Singh has resurrected the debate. There can8217;t be any argument against the government keeping secrets as long as there is a classification system that is transparent. Developed countries have such classification systems, like top secret, secret, confidential and restricted. So apparently do we, but our classification is vague, non-transparent and arbitrary and the OSA encourages this trend. It is small comfort that China8217;s classification is just as vague. Becoming developed, for both India and China, means becoming more transparent, accountable and open; GDP growth alone is insufficient.

Let us not also forget that the ancestor of our the OSA, the 1911 OSA in the UK, was passed at a time when there was a scare about foreign spies infiltrating society8217;s top echelons. That is surely not our scare now.

The writer is a noted economist