To book top Reliance staff, Govt uses a law its own panel trashed

The specific provisions of the Official Secrets Act invoked against Reliance officials are the very ones that were proposed to be reformed by an expert committee of the Government.

FOUR YEARS AND ONE CASE

• The CBI took over the case after Delhi police recovered documents from the Reliance office in October 1998 while probing controversial businessman Romesh Sharma • The CBI conducted more raids the following month on Reliance premises in New Delhi and Mumbai • Given that burden of proof in an Official Secrets Act case is entirely on the accused, the CBI did not have much to investigate before filing the chargesheet • Yet, the CBI took three and half years to file the chargesheet with no public explanation for the delay

The Working Group on Right to Information and Promotion of Open and Transparent Government picked out Section 5 of the Act as it ‘‘provides for punishment for unauthorised disclosure of official secrets but omits to define official secrets.’’

The CBI has filed a chargesheet against Reliance Group President V. Balasubramanium and two other top executives under sub-sections (2) and (4) of Section 5 for allegedly possessing ‘‘secret documents’’ related to the Cabinet.

The Working Group, headed by H D Shourie, chairman of Common Cause, and consisting of Attorney General Soli Sorabjee and eight senior bureaucrats, proposed an amendment to Section 5 incorporating a definition of official secret and thus removing ‘‘its omnibus character.’’

This is the only recommendation the Working Group suggested in 1997 to the brief but notorious 16-clause law enacted way back in 1923 in the aftermath of World War I.

This law has long been notorious for its draconian procedures. All cases booked under it are tried entirely in camera because any proceedings involving the Official Secrets Act are also treated as an official secret.

Worse, the Act reverses the presumption of innocence and puts the burden of proof entirely on the accused.

Though the Government has since introduced the Freedom of Information Bill drafted by the Working Group, it has so far not taken any step to make the proposed amendment in the Official Secrets Act. This despite the Working Group’s observation that the Official Secrets Act is ‘‘primarily responsible for the excessive secrecy’’ in the Government’s functioning.

The proposed definition of official secret is ‘‘any information the disclosure of which is likely to prejudicially affect the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, economic, commercial, scientific and technological matters relating to national security and includes any secret code, password, sketch, plan, model, article, note or document in relation to a prohibited place.’’

Had the Government incorporated such a definition in Section 5, the CBI would probably have not been in a position to make out any case against the Reliance officials under the Official Secrets Act. This is because they have been arraigned for documents which have more commercial than security implications.

The Working Group has also decried the tendency in the Government ‘‘to classify information even where such classification is clearly unjustified’’ and ‘‘accord higher classification than is warranted.’’

It recommended amendments to the Manual of Departmental Security Instructions, which prescribes criteria for classifying official documents depending on the degree of sensitivity as ‘‘top secret’’, ‘‘secret’’, ‘‘confidential’’ and ‘‘restricted’’.

The manual classifies information according to, for instance, the degree of ‘‘embarrassment’’ it may cause to the Government. If something can cause ‘‘serious embarrassment to the Government,’’ it will have to be classified as ‘‘secret.’’ And if the embarrassment caused is likely to be less than serious, the document will be classified as ‘‘confidential.’’

Not surprisingly, the Working Group said such criteria are ‘‘too vague and general and need to be deleted.’’ If the Government had implemented this recommendation related to the Manual, the Reliance officials would again probably have not been liable under the Official Secrets Act.