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Monday, June 14, 2021

Centre must stop trying to muzzle retired officers

The Pension Amendment Rules, which put severe restrictions on the writings of retired officers from several organisations dealing with security and intelligence, will not stand scrutiny in a court of law.

Written by Madhav Godbole |
Updated: June 8, 2021 7:49:24 am
Raisina Hill in New Delhi. The present pension rules are reported to have been approved by the committee of secretaries four years ago. (File photo)

The Pension Amendment Rules notified by the central government on May 31 have put severe restrictions on the writings of retired officers from several organisations dealing with security and intelligence. Such an effort was made in 2008 by the then Manmohan Singh government but it pertained to only two organisations, namely the IB and R&AW. However, because of the adverse reactions to the move, the policy was never implemented.

The present rules are reported to have been approved by the committee of secretaries four years ago. If I were a member of the committee — which, as Union home secretary, I would have been — I would have never recommended them for the government’s approval. To give the committee the benefit of doubt, perhaps, it had given only an in-principle approval. While drafting the rules, their ambit may have been unduly enlarged making them untenable. I am sure the rules will not stand scrutiny in a court of law.

Apparently, the provocation for the 2008 orders was a book written by an army officer, who was on deputation to R&AW. As far as I am aware, the case filed against him is still pending in court. However, the book in question was not banned by the government.

The issues need to be examined in a proper perspective. One can count on one’s fingertips the number of books written by retired officers dealing with national security that have raised concerns. Such cases could have been dealt with individually. Having failed to do so, for whatever reasons, to put such wide-ranging, irrational restrictions on all retired officers seems to be totally unjustified.

At the outset, it must be noted that as compared to the very large pool of retired officers, only a few have been writing and speaking in the media regularly. By and large, the writings of retired officers have done a great deal to educate public opinion on important issues, such as police reforms, communal violence, security policies and organisational weaknesses. Such writings are valuable because they are by officers with years of experience and reflect their distilled wisdom. Their writings also offer insights into the government’s decision-making processes — such insights have great significance in empowering people. It is only by creating informed public opinion that democracy can be strengthened.

The new rules notified by the government can be faulted on several points. They pertain to “any publication”, and “any material”. “Expertise or knowledge gained by virtue of working in that organisation” is not to be used, even if it is supplemented by extensive reading, research and thinking by the retirees. The head of the organisation is to take a decision in each case and has to decide whether the material for publication is sensitive and if it falls in the jurisdiction of his organisation. These restrictions are far too wide and give untrammeled discretion to the government. I will not be surprised if some heads of organisations — those more loyal than the king — interpret the rules to also cover comments made or interviews given by retirees. Henceforth, all officers are expected to give an undertaking to abide by the rules and, in case of default, show their willingness to forfeit full or part of their pension. It seems that the restrictions are to be applicable for the life of the retirees. As a result, Julio Ribeiro, a venerable IPS officer, who has been speaking and writing on public policy issues extensively and who is 92 years old, will also be covered by these rules and will now have to seek prior permission before publishing anything. Effectively, retired officers are sought to be bound for life. I would strongly advocate that the rules should at least specify the period for which these restrictions are to be applicable after retirement.

Even if some restrictions are to be put in place, they must be reasonable and transparent and not leave scope for varying interpretations. For example, the word “sensitive”. Its interpretation will change according to context, situation and time. An item may not be sensitive forever. The heads of organisations, who are to take decisions in such cases, are bound to appoint authorised officers to deal with them. There are cases in which a retired officer may have worked in more than one designated organisation. His writing will then have to be cleared by the heads of all these organisations. To leave the interpretation of the rules to different officers in different organisations will lead to a cure worse than the disease.

Instead, the government should create a part-time standing authority to decide such cases. This will bring uniformity and standardisation in the interpretation of orders. No final decision should be pronounced by such an authority without giving a hearing to the officer concerned. As for the composition of the authority, it should not consist of only serving officers, but should have persons from civil society with judicial experience, legal expertise and administrative background. Obviously, this will be a time-consuming exercise and should be invoked only for books and papers written for important conferences, etc. In these matters, the committee must decide in three to four weeks. In all other matters, such as articles written for the media, speeches, comments and interviews, it will be best to leave them to the judgment of individual officers. If necessary, in exceptional cases, action may be initiated against the erring retiree.

Ideally, the government should review the whole matter and withdraw the rule, or at least modify it, as suggested. Failing which, there will be no alternative but to seek redressal from the Supreme Court.

This column first appeared in the print edition on June 8, 2021 under the title ‘Thou shalt not write’. The writer is a former Union home secretary and secretary, justice. His next book, India-A Federal Union of States: Fault Lines, Challenges and Opportunities, is under publication.

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