India - Government's sweeping gag on IB & Raw

The government's sweeping gag on retired members of the Intelligence Bureau and RAW is an assault on press freedom and a violation of the citizens' right to know. The Intelligence Organisations (Restriction of Rights) Act, 1985 bars serving intelligence officials from communicating with the press or publishing any material except with the prior permission of their superior. If the ban is to be extended to retired members of these bodies, legislation was necessary. It cannot be done by an executive order. The fundamental right to freedom of speech, which includes the right to know, is not absolute. But the state can impose only "reasonable restrictions" on the right on grounds specified in Article 19(2) and only by "law" and not by an executive fiat. The grounds are "the sovereignty and integrity of India, the secu-rity of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence". The gag has been imposed through an amendment to the Central Civil Services (Pension) Rules, 1972. It is unconstitutional for two reasons. It does not cover members of the armed forces, civil servants and ministers who are no less privy to "sensitive" information. It, therefore, violates the fundamental right to equality. It violates, no less, the right to freedom of speech which members of the IB & RAW possess and, relatedly, the citizens' right to know. The gag comes close on the heels of Major General V K Singh's book on RAW for which the CBI has chargesheeted him. It amends the pension rules in two ways. By imposing a ban and requiring a written undertaking when the official retires. They are almost identically worded. A former member of the two services shall not, without the prior approval of a competent authority, "make any publication... Relating to sensitive information the disclosure of which would prejudice the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state or in relation with a foreign state, or which would lead to incitement of an offence". This is far too wide. No time limit is prescribed. It binds the official for the rest of his life. "Publication" includes press and TV interviews. "Information" includes "opinion, advice" held or acquired while in service. Branch of the undertaking would be regarded as "grave misconduct" entailing reduction or withdrawal of pension. The state already has ample power to prosecute offenders under the Official Secrets Act, 1923. But, with the Right to Information Act the courts cannot reject the defence of disclosure in the public interest. The ban and its companion under-taking bypass the law and make the govern-ment judge in its own cause. The reasonableness of a restriction on freedom of speech is entirely for the courts to decide, not the government. But the undertaking lists the seven grounds and adds these lethal words: "I further agree that in the event of any failure of the above undertaking by me, the decision of the government as to whether it was likely to prejudicially affect any of the seven aspects stated above shall be binding on me". In law this is utterly worthless. The Supreme Court has ruled repeatedly that the fundamental rights simply cannot be waived. Exclude the waiver and the ban would still be void because it is an unreasonable restriction on free speech. It lacks balance and is far too wide. Restrictions may not be "imposed beyond the strict requirement of public need". The ban applies to statements of facts and opinions, not only to classified documents. A government embarrassed by the official's article on foreign policy will be free to penalise him. No curb can protect a state against the honest whistle-blower. The Pentagon Papers were stolen property. Yet, the US Supreme Court ruled against their suppression because "paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people". Inscribed on a wall in the CIA's headquarters are the words from the Bible: "And ye shall know the truth, and the truth shall make you free". The IB and RAW might inscribe these words at some prominent place in their heavily-guarded offices. (The writer is a Mumbai-based lawyer.)