Scroll.in: National: Monday,
October 24, 2016.
Why the
government needs to evolve a modern system of classifying, safeguarding and
declassifying national security information.
What is a
secret? Sometimes, it is a conundrum presented this way: The Indian “surgical
strikes” across the line of control are a secret at varying levels not only in
India, but also in Pakistan. In Islamabad, information on them is kept under
wraps because to acknowledge is to lose face. On the other hand, New Delhi is
cagey about giving any more details, because they were (a) more limited than
has been made out by those who want to use them for political effect and/or (b)
so as to keep the impact of the operation within manageable limits and (c) not
reveal the modus operandi of the forces.
To further
develop this point: In the 1993-2016 period, too, cross-border strikes were
carried out, but kept secret. Considering that the enemy who had been hit, knew
about them, why did the government of the day keep them a secret?
Likewise,
when the government buys equipment abroad, it provides specifications to
several foreign companies, yet, keeps them, as well as the acquisitions
procedure and processes, secret from the public.
Secrets
and secrets
The
government generates an enormous amount of information in its daily activity.
Some of this information is about future plans, the rest is part of the process
of governance actions taken or to be taken, after action reports, directives,
letters, notations, orders and so on. Some of it must be kept confidential or
secret for a period of time, otherwise governance would become difficult. Some
of it needs to be kept confidential so as not to damage relations with other
countries. And then, there is information about military plans and procedures,
the capabilities and capacities of military equipment and their deployment,
which could aid enemies of the country.
But there are
no absolute secrets. Decisions are implemented, directives acted upon, systems
selected and acquired and therefore the information about them is known at some
point in time, military equipment gets obsolete or so much more sophisticated
that old plans change. So secrets are limited in time and value, though there
is one category of secrets that are held very, very carefully that of high
level penetrations of the political, military, diplomatic and administrative
personnel of a target country.
These are
often, literally, kept forever. The reason is, of course, that such a high
level of betrayal is punishable by death in many countries. But, more
important, keeping their names secret is a means through which the recruiting
country assures potential future agents that their betrayal will never be
revealed, in other words it is an incentive for recruitment. After all if it is
known that a particular country is casual with its agents, it is unlikely to
remain in the business of what is known as Humint (human intelligence covert
intelligence-gathering by agents) for very long.
When the
British left India, the one thing they took with them in entirety were
intelligence files, and you can be sure there would be some very well known
names amongst our revered national leaders who were their informants. Likewise,
the Intelligence Bureau holds tight the list of its informants in various
political parties. Were these lists to be leaked, the IB would be out of the
business of political intelligence, which is its real bread and butter.
All parts of
the government, especially those involved in security like the armed forces,
intelligence agencies, and so on, have a system of ascending scale of
classification – confidential, restricted, secret and top secret which is
determined by section officers, under secretaries and deputy secretaries or
their equivalent officers.
Official
Secrets Act, 1923
The problem
often is in defining what exactly is a secret. The vagueness over what is
secret begins from the archaic Official Secrets Act of 1923 which was
essentially aimed at military threats against India and remains the main
legislation dealing with the issue of preserving secrets.
It seeks
punishment for any person who obtained “any secret code password, sketch, plan
model, article or note or any other document” that could adversely affect the
sovereignty and integrity of the country, its security, or friendly relations
with another country. Such a person was liable to be punished with three years
imprisonment. On the other hand, if this activity related to a military
facility, or the affairs of the military, the imprisonment could be up to 14
years.
The OSA’s
infirmities have been manifest in many a court decision where the prosecution
has fumbled on the issue of defining what is secret. Why do you think that this
country has never punished a spy with death or life imprisonment? It is not
that we are so patriotic that we have never had a spy or traitor who deserves
such a punishment, but that our law is as infirm as our counter-intelligence
capabilities.
But while the
OSA is clear, and does provide a legal definition, howsoever obsolete as to
what is secret, we have no clarity about the sanctity of the documents of the
other departments of government, including the Cabinet and the Prime Minister’s
Office or, for that matter, the Finance Ministry.
That is why,
you rarely get a prosecution of a person for stealing secrets and that is also
the reason that when the police catch low level ISI field agents, they are always
alleged to have a diary or maps and sketches with them. I say alleged, because
in the era of satellites and cameras, you don’t need sketches and maps to be
drawn by some low level operative. What an agent may need is the ability to
determine whether a particular bridge or culvert can hold a 50 tonne tank, and
none of the agents that are caught have either the equipment or the education
to determine that though they can probably purchase the information from the
government office where the designs are kept.
Declassification
of records
The
government of India has taken the progressive view that the public has right to
all information on governmental functioning and has passed two legislations the Right to Information Act in 2005 and the Public Records Act of 1993 to
create a practical regime for the citizens to secure access to information
under the control of public authorities. This has been done with a view of
encouraging transparency and accountability, but making information public
needs to be an end in itself.
However,
neither of the acts are working too well. The RTI is being used by people to
settle scores, while the Public Records Act is ignored. Because of faulty
procedures, many documents, particularly of field formations, exist as
functional files and kept only till they are current or useful, and they are
destroyed thereafter. The decisions are often made by junior officers with
little understanding of the historical value of a particular document or file.
They need to
understand the importance of the need to preserve past records for scrutiny
after an interval and through the due process of declassification. This enables
succeeding generation of government officials an invaluable past perspective on
a decision. It also enriches the field of historical research, they offer us a
means of accessing our past. Detailed information on past conflicts or
decisions is important for the succeeding generation of security officials to
learn lessons from.
Separating
the routine and the confidential is an important aspect of government policy.
Routine information should be easily available to the public, but equally, in
the interests of the people, the government needs to work out a uniform system
for classifying, safeguarding and declassifying national security related
information. It must set up classification standards, levels of classification,
categorise classification authority, duration of classification and the process
of declassification or downgrading the classification of a document. None of this
exists at present.
The
government needs to evolve a modern system of classifying, safeguarding and
declassifying national security information, if needs be by amending or
replacing the Official Secrets Act.
The
ministries of external affairs, defence and home affairs have taken up work on
one aspect of the Public Records Act that of creating special record rooms
where classified documents can be properly stored. However, they have largely
ignored the second, and more important, aspect declassifying old records and
passing them on to the National Archives where they can be accessible to the
citizen.
The big
problem they face is the issue of declassification. They simply lack the
manpower to deal with the issue.
(The writer is
a Distinguished Fellow, Observer Research Foundation)