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The Security Trap

While reading the “Era of Darkness” by Shashi Tharoor I came across a passage on the detritus of British Laws still extant in the Indian Penal Code. I quote – “In the process, while codifying the legal system and instituting an Indian Penal Code, the British have saddled India with colonial-era prejudices…that remain entrenched in India causing untold misery to millions.…criminal offences codified in colonial-era British legislation that India has proved unable or unwilling to outgrow”. How does this affect our geospatial world? For an answer consider the Official Secrets Act of 1923.

This act was introduced by the British as the Official Secrets Act,1923. It is a comprehensive document relating to official secrets and defines a number of offences like spying and wrongful communication of any secret official code, password or any such sketch, plan, model, article , note , document or information (emphasis added) to maintain the security of the state against the leakage of information, sabotage, and the like. In 1923 the British Government in India was jittery about the Germans and the Communists, but they were more worried about the Nationalist movement and the possibility that the Indians fighting for freedom from the British would kowtow with them. Therefore it is clear that this act was to protect itself some its subjects in India, particularly the freedom fighters. Sadly, in 1967, 20 years after Independence, the Government of Independent India examined this infamous act and actually made its provisions more stringent on the grounds that there was danger from Pakistan and China!

In spite of recommendations of Administrative Reforms Committee, whose Chairman said that it provided, “…a convenient smokescreen to deny members of the public access to information”, on August 13, 2013 a terse PIB note said “The report of the 2nd Administrative Reforms Commission (ARC) titled “Right to Information: Master Key to Good Governance” was considered by the Group of Ministers (GoM) wherein, it was, inter-alia, decided that the Ministry of Home Affairs will come up with a legislation for amendment in the Official Secrets Act, 1923 after due consideration. Accordingly, the matter is under consideration of the Government and being a policy matter, no time frame can be indicated to finalise the matter”.

On May 6, 2015 another PIB release had this to say, “The Second Administrative Reforms Commission (ARC), in its Report of June 2006, had, inter-alia, recommended that the Official Secrets Act (OSA), 1923 should be repealed, and substituted by a chapter in the National Security Act, containing provisions relating to official secrets”.

It further said that, “The ARC had made this recommendation ostensibly on the ground that the Law Commission had recommended in 1971 that an ‘umbrella Act’ should be passed to bring together all Acts/Laws relating to national security. However, in 1980, the National Security Act (NSA) was enacted only to provide for preventive powers to deal with likely threats to maintenance of public order and security of the country etc., besides maintenance of essential services. In such a situation, the Government decided not to repeal the OSA as the other enactments relating to national security such as the Unlawful Activities (Prevention) Act, 1967, the Criminal Law Amendment Act, Chapters 6 and 7 of the Indian Penal Code etc. have also not been merged in the NSA”.

The main problem with the Act is that it is not possible for anyone to know with certitude that some information is ‘secret’ or is likely to be useful for an enemy. It seems that there is a manual by the Ministry of Home Affairs which deals with classification of documents. However, that manual itself is treated as ‘secret’. When an RTI activist tried to obtain the copy of the manual, it was declined as it was ‘confidential’.

On further representation by the activist during a hearing by the Chief Information Commissioner, the government stated that, “In this connection it is stated that the ‘Manual of Departmental Security Instructions’ deals with the safeguarding of such information in the procession (possession?) of the Government, the unauthorised disclosure of which would cause damage to national security or would cause embarrassment to the Government in its functioning or would be prejudicial to the national interest. National Security covers not only the matters concerning defence and foreign relations but also political and economic stability as well as public order. The said Manual contains instructions and procedures for classification of documents as “top secret, “secret” and “confidential”. The Manual also contains guidelines for officers competent to classify a document, upgrading and downgrading of a classified document, safe custody, typing, reproduction, microfilming and computer storage etc. of classified documents. According to the said Manual, “Top Secret” classification is applied to information and material the unauthorised disclosure of which could be expected to cause exceptionally grave damage to the national security or national interest. It may be worth mentioning that this category is reserved for the closest secrets and is to be used with great reserve. The “Secret” classification is applied to the information and material, the unauthorised disclosure of which could be expected to cause serious embarrassment to the Government in its functioning. This classification is used for highly important matters and is the highest classification normally used. The “Confidential” classification is applied to information and material, the unauthorised disclosure of which could be expected to cause damage to the national security or would be prejudicial to the national interest or would embarrass the Government in its functioning”. He further submitted that “Each Ministry/Department is required to identify the information which deserves to be given a security classification”. (Taken from the official record with emphasis added).

What’s the catch?

Herein lies the catch. Definition of ‘document’ under this Act is so broad that virtually any bit of information can be interpreted as classified. For example ‘Sketch’ includes ‘photograph or other mode of representing any place or thing’ and further clarifies that ‘photograph’ includes undeveloped film or plate. Now add to this the freedom given to the individual departments to “identify the information which deserves to be given a security classification” and we have the complete picture of the situation today where we have a Remote Sensing Policy, A Map Policy, an Aerial Data Acquisition Policy and an Aerial Survey Policy, to name a few, which take their parentage from the Official Secrets Act and the Manual of Departmental Security Instructions. To add to this confusion there are three more policies in the draft stage, the UAV Policy, Space Act and National Geospatial Policy which will further impact geospatial data acquisition, distribution and usage. I need not remind readers that the now mothballed Geospatial Information Regulation Bill was of a piece with the OSA 1923 as modified in 1967. To know more about the bill click here.

There are other conditions in the classification. Secret documents have to be handled by officers at the Joint Secretary level or, for specific purposes, with the permission of the JS, by an Under Secretary. Restricted data can be handled only by Class 1 gazetted officers. Thus, data which is secret or restricted cannot be given to persons outside the government. They can only access the data if it is a part of a government project and under the supervision of a gazetted officer.

Further, the Aerial Photography Policy is dated 2006 and only pays lip service to modern day aerial geospatial data acquisition techniques. It is too dated to recognise UAV data acquisition as well because there were no drones in 2006, at least not in India. To know more click here. The Map Policy as reissued on December 5, 2017 by the Ministry of Defence is a further expression of how the OSA is impacting the sale, publication and distribution of maps. Even though this order mentions the need of the revision as due to “the liberal economic regime and to accommodate the technological changes that have taken place in the field of Cartography and advancement in space based technology”, the contents basically tightens up the process further. To know more about the Map policy click here. Even the Remote Sensing Policy of 2011, though comparatively rational, goes overboard with the data below one metre. Private players in India can only access this data through a government department for a project commissioned by the department to them.

In a document entitled “National Information Security Policy and Guidelines” dated October 9, 2014, it is stated that “Even though the lifecycle of information remains the same in electronic documents and online transactions, the methods to secure information in electronic environment are different. In the present age, the “Manual of Departmental Security Instructions”, issued in 1994, is no longer sufficient to protect against the threats facing electronic forms of information”. Very true, however, this document simply ‘digitises’ the entire process of security keeping in mind the four fold classification, the restrictions and the protection against new threats arising out of going digital.

Meanwhile a committee, comprising Home Secretary L.C. Goyal, Law Secretary P.K. Malhotra and Secretary, Department of Personnel and Training, Sanjay Kothari, was constituted in February to start a long-awaited process to do away with excessive secrecy through amendments in the Official Secrets Act, a law enacted by the British in 1923. “The idea is to do away with excessive secrecy without compromising on national security. On the one hand, we have an act that makes seeking information a right and on the other, there is an enactment that bars sharing information. The committee will look at removing the contradictions between the two,” said an official of the MHA to The Hindu. On July 28, 2017 the Times of India reported that, “After a review of the Official Secrets Act 1923, the ministry has submitted a report to the Cabinet Secretariat with suggestions on how to go about the act at a time when the country has embraced a transparency law”. So, has the Cabinet seen this and what are its decisions?