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By Venkatesh Nayak*
A few weeks ago a major headline in the print and electronic media was the allegation that the family members of Netaji Subhash Chandra Bose were being snooped upon by Government of India. One positive outcome of the hullaballoo around this ‘snoopgate’ was the reported announcement of a committee to review the Official Secrets Act, 1923 (OSA) under which officials can classify a sarkari document – “top secret”, “secret’ or “confidential” – to remain as such decade after decade. This announcement was reportedly based on an assurance given by the Prime Minister during his meeting with Netaji’s kin in Germany. The media also reported that the Prime Minister had assured Netaji’s kin that the Government would look into the demand for declassifying the top secret files relating to Netaji. This announcement was in keeping with the National Democratic Alliance’s promise of increased transparency and accountability in Government. So far so good.
Another set of media reports called it an high level committee comprising of the Secretaries of Home, Personnel and Law which was already constituted in February 2015 but was activated after the meeting of the Prime Minister with Netaji’s kin in Germany. There is no reference to the Cabinet Secretary in this committee at all (click HERE to read).
Another set of media reports called it an inter-ministerial committee headed by the Cabinet Secretary and comprising of ‘officials’ of the Prime Minister’s Office (PMO), Research and Analysis Wing (R&AW) of the Cabinet Secretariat and the Intelligence Bureau (IB). There is no mention of the Secretaries of Law or Personnel Ministries as members of the Committee in these reports (click HERE to read).
A fourth set of media reports include officials from the Foreign Ministry but make no mention of the Secretaries of Law and Personnel or officials from the PMO as members. Readers may look up one such (click HERE to read).
Even the terms of reference of the OSA Review Committee have been reported variously by the media. Some linked it to the declassification of files relating to Netaji. Others linked it to a plain and simple review of declassification exercise, while a third set of reports linked it to harmonising the OSA with the requirements of transparency and confidentiality under various provisions of the Right to Information Act, 2005 (RTI Act). One can recall, this was an important recommendation made by the Second Administrative Reforms Commission in its first report on the RTI Act published in 2006.
In other words, complete confusion about both the membership and terms of reference if the one were to go purely by media reports.
The only reply is that some files relating to a Committee and another Commission of Inquiry that looked into the issues surrounding the disappearance/death of Netaji have been declassified and sent to the National Archives and that the Government continues to hold some classified files on the issue. The reply also states that the Government of West Bengal has some classified files. There is no mention of the assurance given by the Prime Minister about looking into the declassification of the Netaji files held by the Cabinet Secretariat, the PMO and the MHA. Either the Prime Minister’s directions have not been handed over in writing to the MHA or it has proceeded to completely disregard the assurance that the PM gave to Netaji’s kin. This is an enormously serious matter and deserves public debate. What is the true nature of the assurance made to Netaji’s kin by this Government?
The second starred Question #557 clarifies the composition of the OSA Review Committee. It comprises of the Secretaries of the MHA, the Department of Personnel and Training (DoPT) and the Legal Affairs Department. It is a major revelation that the classification of records as ‘top secret’, ‘secret’ and ‘confidential’ has no statutory basis (i.e. under OSA) according to the reply given against query # (d) and (e).
All classification and declassification exercises are done as per the Manual of Departmental Security Instructions, which is itself a secret document. It is not known under what authority this Manual has been prepared if it is no connected to a statute. The Central Information Commission (CIC) refused to order disclosure of the Manual in 2009 when I asked for it under the RTI Act, saying it would threaten national security. In no sane democracy the criteria for classification are kept secret. Laws, rules and regulations, including criteria for classification of official records, must be made public. In several advanced and developing countries these criteria are publicly accessible.
I gave examples of such practices to the CIC which refused to consider it seriously. However, the Andaman and Nicobar administration has made the classification criteria public in its office manual. More recently, the Ministry of Defence has made the classification criteria public while issuing instructions to private companies involved in defence equipment manufacture about records management. So the first exercise that the OSA Review Committee must do is to declassify the Manual containing the criteria for classification and the procedures for downgrading and declassification. But the MHA’s reply did not explain the exact terms of reference of the OSA Review Committee.
So the next best thing to do was call up the concerned offices. One can see how these Ministries played soccer with me over the resolution/order/notification about the OSA review committee over the last three weeks. Names and telephone numbers are not being revealed here in order to prevent internal harassment of those officers.
I first called up the Department of Personnel and Training (DoPT) which is responsible for implementing the RTI Act. They directed me to a private website (click HERE for the link) on RTI which displayed primarily the content of the media reports but not a copy of the resolution/order or notification setting up the review committee. So the next step was to call the MHA. The website of the MHA states that the Coordination Division is responsible for the custody of all classified records of the Ministry (click HERE for the link).
Upon calling the number advertised on that webpage, the official suggested that I speak with the Deputy Secretary (DS) in that Division. However, he also said, the DS was away at a meeting, so he may not be available. Instead on the condition that I do not reveal him as the source of information the kind soul gave me a telephone number of another DS in the same Division who was said to be knowledgeable about this issue.
That other DS was indeed very chatty and said, anybody could walk into his room as the door was open, but he did not have any information about the OSA Review Committee. Instead, he explained the pecking order in the following words: “If the media reports state that the Cabinet Secretary will chair this committee, how can MHA issue the order/resolution/notification? The Cabinet Secretary is of 1974 batch but the Home Secretary is of 1979 batch, so MHA could not possibly issue any notification/order/resolution about the OSA Review Committee. So you must ask the Cabinet Secretariat for this information.”
So I call up the Cabinet Secretariat’s reception number and explained what information I am looking for. The lady promptly gave me the number of their RTI Cell. The RTI Cell denied any knowledge of the order/resolution/notification and suggested that I speak with an Under Secretary in the same office. Upon dialing that number the Under Secretary was, fortunately, accessible and I explained to him what I wanted. This time round I got a brief lecture about the Allocation of Business Rules, 1961 (AoBR). Under the AoBR, OSA falls within the jurisdiction of the MHA (which is true). So even though the Cabinet Secretary is the chair of the OSA review Committee, it is MHA which will issue the order/resolution/notification. “So please contact Mr. XXX, in MHA’s Internal Security Division (IS Div)” Deputy Secretary (not a third one)”, MHA, was the sound advice I got.
A second round of calls to the MHA led to the disclosure that their concerned Deputy Secretary (DS) is, of course, away at a meeting and is not expected to be back until late. So I was given the number of another DS in the Internal Security Division (IS Div). This fourth DS is also away at a meeting and will not be back until 6 pm, so I was advised to speak with an Under Secretary who I was told knows everything that I was asking about. Now this Under Secretary was also not at his desk and his Assistant suggested that I speak with the Section Officer of the same division as he is knowledgeable about this issue. The Section Officer came online on the next call and made a clean breast of it: “Such matters are simply not handled at my level in MHA, so I have no information to give you.” That is when my patience began running out.
But being a great believer in the present government’s commitment to transparency I decided call up the highest office, namely that of the Prime Minister. I first called up the Information Officer (not the PIO) listed on the PMO website. He was not available as he had gone out for a meeting at 7 Race Course Road. So I tried calling up the Public Relations Officer of the PMO. Interestingly the PRO turned out to be the same as the Information Officer. This time the Assistant was kind enough to give the IO/PRO’s mobile number.
When I called him up on the mobile, he claimed that he did not have a copy of any resolution/order/OM setting up the Review Committee. The blessed soul told me that he handled only media-related matters and had no information about the setting up of the OSA Review Committee. So the next port of call was the RTI Cell. The DS, RTI Cell, was of course not available. His Assistant advised that I speak with the Under Secretary (US), RTI Cell, I called up the US’s number several times over three days at different points of time, but nobody picked up the phone.
So the only option left was the time tested method – submit an RTI application asking for the order/notification/resolution establishing the OSA Review Committee and its terms of reference. I sent the RTI application to the Home Ministry on April 17 as this quest had begun soon after the media reported the activation of the OSA Review Committee. The application was delivered on the 20th and acknowledged on April 29. I am still waiting for a reply from the MHA. If denied information, I have recourse to appellate mechanisms in the MHA and later on at the Central Information Commission.
But the question to ask is: How will we ever reach the day when Section 4(2) of the RTI Act will become a practical reality – where public authorities put out more and more information in the public domain voluntarily that people’s need for using the RTI Act to ask for information formally is progressively reduced? When will we ever reach the day when routine government information becomes accessible to people through a simple telephone call?
I guess I am firmly on the path to being described as an “RTI professional” who has no other business but to file application after application seeking even basic information. But is that my fault?
—
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, Delhi
A few weeks ago a major headline in the print and electronic media was the allegation that the family members of Netaji Subhash Chandra Bose were being snooped upon by Government of India. One positive outcome of the hullaballoo around this ‘snoopgate’ was the reported announcement of a committee to review the Official Secrets Act, 1923 (OSA) under which officials can classify a sarkari document – “top secret”, “secret’ or “confidential” – to remain as such decade after decade. This announcement was reportedly based on an assurance given by the Prime Minister during his meeting with Netaji’s kin in Germany. The media also reported that the Prime Minister had assured Netaji’s kin that the Government would look into the demand for declassifying the top secret files relating to Netaji. This announcement was in keeping with the National Democratic Alliance’s promise of increased transparency and accountability in Government. So far so good.
Who is on the committee and what are its terms of reference?
The print and electronic media promptly reported that the Committee to review the OSA would meet a day after this announcement was made on April 14, 2015. Everything else about this committee had remained nebulous till May 5, 2015. For example, one set of media reports state that the Review Committee is chaired by the Cabinet Secretary with the Secretaries of the Ministries of Home Affairs (MHA), Personnel and Law being the members (click HERE to read).Another set of media reports called it an high level committee comprising of the Secretaries of Home, Personnel and Law which was already constituted in February 2015 but was activated after the meeting of the Prime Minister with Netaji’s kin in Germany. There is no reference to the Cabinet Secretary in this committee at all (click HERE to read).
Another set of media reports called it an inter-ministerial committee headed by the Cabinet Secretary and comprising of ‘officials’ of the Prime Minister’s Office (PMO), Research and Analysis Wing (R&AW) of the Cabinet Secretariat and the Intelligence Bureau (IB). There is no mention of the Secretaries of Law or Personnel Ministries as members of the Committee in these reports (click HERE to read).
A fourth set of media reports include officials from the Foreign Ministry but make no mention of the Secretaries of Law and Personnel or officials from the PMO as members. Readers may look up one such (click HERE to read).
Even the terms of reference of the OSA Review Committee have been reported variously by the media. Some linked it to the declassification of files relating to Netaji. Others linked it to a plain and simple review of declassification exercise, while a third set of reports linked it to harmonising the OSA with the requirements of transparency and confidentiality under various provisions of the Right to Information Act, 2005 (RTI Act). One can recall, this was an important recommendation made by the Second Administrative Reforms Commission in its first report on the RTI Act published in 2006.
In other words, complete confusion about both the membership and terms of reference if the one were to go purely by media reports.
Government’s reply in Parliament on May 5, 2015
Two questions raised by MPs in the Lok Sabha were answered on May 5, 2015 by the Home Ministry in relation to (a) declassification of files relating to Netaji, and (b) review of the OSA in the light of the RTI Act. The reply to Starred Question #556 relating to declassification of files relating to Netaji belie the assurance said to have been given by the Prime Minister to Netaji’s kin in Germany. The MHA has simply not responded to the first query – whether the Government of India proposes to declassify files relating to Netaji or not?The only reply is that some files relating to a Committee and another Commission of Inquiry that looked into the issues surrounding the disappearance/death of Netaji have been declassified and sent to the National Archives and that the Government continues to hold some classified files on the issue. The reply also states that the Government of West Bengal has some classified files. There is no mention of the assurance given by the Prime Minister about looking into the declassification of the Netaji files held by the Cabinet Secretariat, the PMO and the MHA. Either the Prime Minister’s directions have not been handed over in writing to the MHA or it has proceeded to completely disregard the assurance that the PM gave to Netaji’s kin. This is an enormously serious matter and deserves public debate. What is the true nature of the assurance made to Netaji’s kin by this Government?
The second starred Question #557 clarifies the composition of the OSA Review Committee. It comprises of the Secretaries of the MHA, the Department of Personnel and Training (DoPT) and the Legal Affairs Department. It is a major revelation that the classification of records as ‘top secret’, ‘secret’ and ‘confidential’ has no statutory basis (i.e. under OSA) according to the reply given against query # (d) and (e).
All classification and declassification exercises are done as per the Manual of Departmental Security Instructions, which is itself a secret document. It is not known under what authority this Manual has been prepared if it is no connected to a statute. The Central Information Commission (CIC) refused to order disclosure of the Manual in 2009 when I asked for it under the RTI Act, saying it would threaten national security. In no sane democracy the criteria for classification are kept secret. Laws, rules and regulations, including criteria for classification of official records, must be made public. In several advanced and developing countries these criteria are publicly accessible.
I gave examples of such practices to the CIC which refused to consider it seriously. However, the Andaman and Nicobar administration has made the classification criteria public in its office manual. More recently, the Ministry of Defence has made the classification criteria public while issuing instructions to private companies involved in defence equipment manufacture about records management. So the first exercise that the OSA Review Committee must do is to declassify the Manual containing the criteria for classification and the procedures for downgrading and declassification. But the MHA’s reply did not explain the exact terms of reference of the OSA Review Committee.
Looking for official information about the OSA Review Committee
So the next followed the task of looking up the websites of the concerned public authorities for the order/resolution/notification of the OSA Review Committee. I found no such document on the official websites of the Cabinet Secretariat, PMO or the Ministries of Home, Personnel, Law or External Affairs. The ‘Press Release’ link on the official websites of the Cabinet Secretariat and the Ministry of Home Affairs do not contain any information whatsoever. IB and R&AW being intelligence agencies shy away from the public gaze in many ways; they do not have websites of their own. There was no information on the website of the Press Information Bureau – the official media outlet of the Government of India – either.So the next best thing to do was call up the concerned offices. One can see how these Ministries played soccer with me over the resolution/order/notification about the OSA review committee over the last three weeks. Names and telephone numbers are not being revealed here in order to prevent internal harassment of those officers.
I first called up the Department of Personnel and Training (DoPT) which is responsible for implementing the RTI Act. They directed me to a private website (click HERE for the link) on RTI which displayed primarily the content of the media reports but not a copy of the resolution/order or notification setting up the review committee. So the next step was to call the MHA. The website of the MHA states that the Coordination Division is responsible for the custody of all classified records of the Ministry (click HERE for the link).
Upon calling the number advertised on that webpage, the official suggested that I speak with the Deputy Secretary (DS) in that Division. However, he also said, the DS was away at a meeting, so he may not be available. Instead on the condition that I do not reveal him as the source of information the kind soul gave me a telephone number of another DS in the same Division who was said to be knowledgeable about this issue.
That other DS was indeed very chatty and said, anybody could walk into his room as the door was open, but he did not have any information about the OSA Review Committee. Instead, he explained the pecking order in the following words: “If the media reports state that the Cabinet Secretary will chair this committee, how can MHA issue the order/resolution/notification? The Cabinet Secretary is of 1974 batch but the Home Secretary is of 1979 batch, so MHA could not possibly issue any notification/order/resolution about the OSA Review Committee. So you must ask the Cabinet Secretariat for this information.”
So I call up the Cabinet Secretariat’s reception number and explained what information I am looking for. The lady promptly gave me the number of their RTI Cell. The RTI Cell denied any knowledge of the order/resolution/notification and suggested that I speak with an Under Secretary in the same office. Upon dialing that number the Under Secretary was, fortunately, accessible and I explained to him what I wanted. This time round I got a brief lecture about the Allocation of Business Rules, 1961 (AoBR). Under the AoBR, OSA falls within the jurisdiction of the MHA (which is true). So even though the Cabinet Secretary is the chair of the OSA review Committee, it is MHA which will issue the order/resolution/notification. “So please contact Mr. XXX, in MHA’s Internal Security Division (IS Div)” Deputy Secretary (not a third one)”, MHA, was the sound advice I got.
A second round of calls to the MHA led to the disclosure that their concerned Deputy Secretary (DS) is, of course, away at a meeting and is not expected to be back until late. So I was given the number of another DS in the Internal Security Division (IS Div). This fourth DS is also away at a meeting and will not be back until 6 pm, so I was advised to speak with an Under Secretary who I was told knows everything that I was asking about. Now this Under Secretary was also not at his desk and his Assistant suggested that I speak with the Section Officer of the same division as he is knowledgeable about this issue. The Section Officer came online on the next call and made a clean breast of it: “Such matters are simply not handled at my level in MHA, so I have no information to give you.” That is when my patience began running out.
But being a great believer in the present government’s commitment to transparency I decided call up the highest office, namely that of the Prime Minister. I first called up the Information Officer (not the PIO) listed on the PMO website. He was not available as he had gone out for a meeting at 7 Race Course Road. So I tried calling up the Public Relations Officer of the PMO. Interestingly the PRO turned out to be the same as the Information Officer. This time the Assistant was kind enough to give the IO/PRO’s mobile number.
When I called him up on the mobile, he claimed that he did not have a copy of any resolution/order/OM setting up the Review Committee. The blessed soul told me that he handled only media-related matters and had no information about the setting up of the OSA Review Committee. So the next port of call was the RTI Cell. The DS, RTI Cell, was of course not available. His Assistant advised that I speak with the Under Secretary (US), RTI Cell, I called up the US’s number several times over three days at different points of time, but nobody picked up the phone.
So the only option left was the time tested method – submit an RTI application asking for the order/notification/resolution establishing the OSA Review Committee and its terms of reference. I sent the RTI application to the Home Ministry on April 17 as this quest had begun soon after the media reported the activation of the OSA Review Committee. The application was delivered on the 20th and acknowledged on April 29. I am still waiting for a reply from the MHA. If denied information, I have recourse to appellate mechanisms in the MHA and later on at the Central Information Commission.
But the question to ask is: How will we ever reach the day when Section 4(2) of the RTI Act will become a practical reality – where public authorities put out more and more information in the public domain voluntarily that people’s need for using the RTI Act to ask for information formally is progressively reduced? When will we ever reach the day when routine government information becomes accessible to people through a simple telephone call?
I guess I am firmly on the path to being described as an “RTI professional” who has no other business but to file application after application seeking even basic information. But is that my fault?
—
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, Delhi
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