Use of official secret Act poses threat to media

Relationship between the BJP-led NDA government of Prime Minister Narendra Modi and the media at has largely been one-way traffic with the former dictating and the latter following it or falling from grace to suffer financially and administrative harassment. 

Media at large and audio-visual in particular has been going through difficult times as it has come under lot of pressure from the government. It is more true in the case of corporate held and media.

This was, once again, more than evident on March 6 in the stand that Attorney General (AG) K. K. Venugopal took in the Supreme Court in the Rafael jet fighters purchase case.  He informed the apex court that “secret” papers published by a national daily-The Hindu- on the purchase of 36 Rafael jet fighters were “stolen” from the Ministry of Defence. Later it was changed that originals are with Government, but copies has been stolen.

In his submission, the country’s AG said publication of secret defencc documents had put national security at risk and had adversely affected relations with friendly foreign powers. He said the government was thinking of taking “criminal action” under the official secrets Act.

The AG went on to present a dangerous picture to the apex court: “In future, foreign countries will think twice. They will think defence purchases will have to go through Parliament, TV channels and then the judiciary. These defence purchases involve the very security of the state…. the purchase of the plane is essential for the survival of the nation, for the survival of each one of us.”

The government’s intent as reflected in the AG’s submission raises several vital issues that are fundamentally crucial to the functioning of democracy in the country. One of the foremost issue is related to the freedom of the press or should we replace media in place of press for giving a correct perspective. There cannot be any dispute that the freedom the media is closely related to the smooth conduct of democratic institutions because intimidation and fear are anti-democratic attributes.

The Editor’s Guild of India has condemned the government’s proposition that documents published by the media related to India’s Rafael fighter jet deal with France were “copies stolen” from the Defence Ministry. The Guild said it was “perturbed” by the government’s threats that criminal action would be initiated against journalists or lawyers who used these documents. “Any attempt to use the Official Secrets Act against the media is a reprehensible as asking the journalists to disclose their sources,” the Guild stressed.

In a joint statement, Press Club of India, Press Association and the Indian Women Press Corps expressed deep concern over the AG’s remarks. They said that his statement “that the publication of such reports and the documents imperiled national security and therefore should be deemed as criminal, has the potential of sending out a chilling effect to one and all in the media”. The implications and ramifications of such statements made by the top most legal officer of the government “are not only for the media but also for the sources of information that journalists rely on”, the media bodies pointed out.

The National Alliance of Journalists (NAJ) also condemned the government’s stand blasting it for threatening the media under the outdated OSA under the garb of national security.

Although the AG, later, clarified that the investigation and contemplated action would not be initiated against journalists or lawyers who used these documents but the fact that the government even thinks in this way is disturbing enough.

Like the Sedition Act, the Official Secrets Act (OSA) has its roots in the British colonial times and the two have been misused to intimidate, threaten and silence dissent and opposition. The OSA’s predecessor act, The Indian Official Secrets Act, 1904, was enacted during Lord Curzon’s regime when he was the Governor General from 1899 to 1905.

However, in 1923, a new version of the Act was notified that replaced the earlier Act and was extended to all aspects of secrecy and confidentiality in governance in the country. Need to expand the scope of the Act arose because large number of small and big newspapers had emerged that were opposing the British Raj policies boldly and fearlessly on a daily basis. Main objective of making the OSA stringent was to muzzle the press that was raising public consciousness about rights and freedom.

What is surprising and incomprehensible that an Act that was an effective instrument to continue and sustain the colonial rule that was exploitative in nature and oppressive in practice continues to be on the stature book and is being misused against own citizens who pursue truth by the elected governments.

The Vajpayee government had used this act against Kashmir Times journalist Iftikhar Gilani who was arrested and charged under the OSA in June 2002 for allegedly possessing secret documents related to deployment of troops in the valley that was an open secret as the same information was available on the internet. Gilani was harassed and torture by official agencies but the government withdrew the case after approximately a year.

Government world over love to suppress dissent because they fear criticism of their policies and acts. In this context, it is worth recalling one of the most determining observations in the US Supreme Court’s 1971 majority opinion that allowed the publication of Pentagon papers that contained the American government’s history of the US-Vietnam conflict. “The press was to serve the governed, not the governors”, the judgement observed.

When The Times, in June 1971, published the first three installments of a massive study documenting the US involvement in Vietnam, the Nixon Administration moved to the court for blocking the publication of further installments on the ground that it would hurt the national security.

First the Federal Courthouse temporarily restrained publication for three days to study the case. Then in a ruling that was upheld by an appellate court and the US Supreme Court, the Judge rejected the US government’s national security argument and affirmed the right of publication.

“A cantankerous press, an obstinate press, a ubiquitous press, must be suffered by those in authority in order to preserve  the even greater values of freedom of expression and the right of the people to know”, Judge M I Gurfein stated. “These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of the government than freedom of expression in any form,” he pointed out.

Whether country is facing troubled times or not, times are undoubtedly difficult and it is for the top court to reject such assertions by an elected government that result in misapprehensions in public mind.

Dr. Satish Misra is a Veteran Journalist & Research Associate with Observer Research Foundation.