Se­crets & the free­dom of speech of the press

The Asian Age - - Edit - A. G. Noorani By ar­range­ment with Dawn

Myan­mar’s civil­ian leader Aung San Suu Kyi’s charge that the two Reuters re­porters con­victed un­der the colo­nial- era Of­fi­cial Se­crets Act ( OSA) and sen­tenced to seven years in prison were not jailed for their jour­nal­ism but be­cause they had been han­dling of­fi­cial se­crets re­veals the kind of ig­no­rance that comes nat­u­rally to ones ine­bri­ated with the first taste of power.

Ed­u­cated in Eng­land, she could not be ig­no­rant of its pro­longed de­bate on jour­nal­is­tic free­dom and of­fi­cial se­crecy. There is scarcely a jour­nal­ist of any re­pute who has not at some point han­dled doc­u­ments marked “SE­CRET” by a civil ser­vant.

This fun­da­men­tally im­por­tant is­sue was ad­dressed as far back as 1952 in a clas­sic ed­i­to­rial by the Times ( Lon­don). Lord Derby, due to be­come prime min­is­ter, lec­tured the press — a sport which peo­ple in power still play — to be re­spon­si­ble. The ed­i­to­rial de­clared the in­de­pen­dence of the press in lan­guage and ar­gu­ment that would en­dure.

It said: “We can­not ad­mit that its ( the press’) main pur­pose is to share the labours of states­man­ship ... The pur­poses and the du­ties of the two pow­ers are con­stantly sep­a­rate, gen­er­ally in­de­pen­dent, some­times di­a­met­ri­cally op­po­site. … To per­form its du­ties with en­tire in­de­pen­dence, and con­se­quently with the ut­most pub­lic ad­van­tage, the press can en­ter into no close or bind­ing al­liances with the states­men of the day, nor can it sur­ren­der its per­ma­nent in­ter­ests to the con­ve­nience of the ephemeral power of any Gov­ern­ment.

“The first duty of the press is to ob­tain the ear­li­est and most cor­rect in­tel­li­gence of the events of the time, and in­stantly, by dis­clos­ing them, to make them the com­mon prop­erty of the na­tion. ... The re­spon­si­bil­i­ties of the two pow­ers are as much at vari­ance as their du­ties. For us, with whom pub­lic­ity and truth are the air and light of ex­is­tence, there can be no greater dis­grace than to re­coil from the frank and ac­cu­rate dis­clo­sure of facts as they are. We are bound to tell the truth as we find it, with­out fear of con­se­quence — to lend no con­ve­nient shel­ter to acts of in­jus­tice and op­pres­sion, but to con­sign them at once to the judg­ment of the world.”

Bri­tain’s first OSA be­came law in 1889 af­ter a tem­po­rary clerk in the For­eign Of­fice had learnt by heart, and sold to a Lon­don evening pa­per, the 11 clauses of the An­gloRus­sian treaty ne­go­ti­ated at the 1878 Con­gress of Berlin. Stiffer laws were passed.

Colo­nial rulers in In­dia en­acted the OSA in 1889 and later in 1923. But while Bri­tain re­formed its law in 1989, In­dia did not. How­ever, even in the high noon of the Raj, In­dia’s press as­serted a right to re­veal in­for­ma­tion of pub­lic in­ter­est even if it was clas­si­fied as se­cret. In Oc­to­ber 1889, Amrit Bazar Pa­trika pub­lished the full text of a mem­o­ran­dum by for­eign sec­re­tary H. M. Du­rand, dated May 6, 1888, op­pos­ing the Bri­tish res­i­dent in Kash­mir — s Plow­den’s pro­posal to an­nex Gil­git. The pa­per teas­ingly wrote that viceroy Lans­downe would find the orig­i­nal doc­u­ment in the For­eign Of­fice.

The pub­li­ca­tion was used as a pre­text for a se­crets law, the In­dian Of­fi­cial Se­crets ( Amend­ment) Act, 1904. It was tren­chantly crit­i­cised in the Im­pe­rial Leg­isla­tive Assem­bly by Gopal Kr­ishna Gokhale, Ashutosh Mukher­jee and oth­ers. He said: “The proper and only rem­edy wor­thy of the Bri­tish gov­ern­ment is not to gag news­pa­pers as pro­posed in this bill but to dis­cour­age the is­sue of con­fi­den­tial cir­cu­lars ... The crit­i­cism of the In­dian press is the only out­ward check op­er­at­ing con­tin­u­ously upon the con­duct of a bu­reau­cracy pos­sess­ing ab­so­lute and un­con­trolled power.”

The press will breach “of­fi­cial se­crecy” once it smells of­fi­cial de­cep­tion.

Clive Ponting, as­sis­tant sec­re­tary in the Min­istry of De­fence sensed of­fi­cial de­ceit on the sink­ing of Ar­gentina’s war­ship, ARA Gen­eral Bel­grano, dur­ing the Falk­lands War. He gave two doc­u­ments to MP Tam Da­lyell, a critic of the gov­ern­ment. He was pros­e­cuted for breach of the OSA. It was ad­mit­ted that na­tional se­cu­rity was not dam­aged. In his charge to the jury, jus­tice McCowan di­rected it to con­strue the “in­ter­ests of the state” as be­ing syn­ony­mous with those of the gov­ern­ment. The jury re­jected this and ac­quit­ted Ponting.

In the Pen­tagon Papers case, too, the US Supreme Court ruled in favour of the New York Times in June 1971 be­cause the papers ex­posed more than 20 years of of­fi­cial de­cep­tion on the Viet­nam War. There is, of course, a case for pro­tect­ing of­fi­cial se­crets; but in the in­ter­ests of the na­tion — not those of the gov­ern­ment.

The Press Coun­cil of In­dia pro­posed this amend­ment: “Noth­ing shall be an of­fence un­der the sec­tion if it pre­dom­i­nantly and sub­stan­tially sub­serves pub­lic in­ter­est un­less the com­mu­ni­ca­tion or use of the “of­fi­cial se­cret” is made for the ben­e­fit of any for­eign power or in any man­ner prej­u­di­cial to the safety of the state.”

With­out it, the law would vi­o­late the fun­da­men­tal right to free speech.

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