By Venkatesh Nayak*
The print and electronic media have extensively reported the recent apprehension of a person of Indian origin by Pakistan’s law enforcement agencies. Pakistan is said to have summoned India’s envoy to that country and issued a demarche about the alleged “interference by India in its internal affairs in Balochistan through its intelligence operative belonging to the Research & Analysis Wing” (R&AW) of the Cabinet Secretariat (Cab Sec). The Official Spokesperson for the Ministry of External Affairs has vehemently denied that charge while confirming that the apprehended individual is indeed a retired Indian Navy officer and has sought consular access to him. As no other details are officially available from the Indian government, it is not possible to state anything more about this incident given its security implications. Saying anything else will only amount to indulging in speculation that may have harmful effects in several quarters.
However, what should be of interest to the citizens in India is the complete lack of access to information about the measures that the Government of India has put in place to ensure the security of its intelligence operatives if and when they are arrested or harassed in any other manner by foreign law enforcement agencies abroad. There is no information in the public domain about what must be done, if, heavens forbid, if an Indian intelligence operative were to be murdered abroad. This is a concern that is very much valid even though it must not be taken as a comment on the latest incident of the apprehension of an Indian national in Pakistan.
In January 2016, I filed a formal information request application with the Cabinet Secretariat seeking the following information under The Right to Information Act, 2005 (RTI Act):
“1) A clear photocopy of all laws, rules and regulations that explain the nature and the extent of legal protection that the Government of India is committed to provide to officers and employees of the Research and Analysis Wing (R&AW) who are engaged in overseas intelligence operations;
2) A clear photocopy of all procedures, norms, instructions or guidelines by whatever name called, that contain details of the action that must be taken by the Government of India to defend the officers and employees of R&AW who are engaged in overseas intelligence operations when law enforcement agencies in those countries take any adverse action against them; and
3) A clear photocopy of all procedures, norms, instructions or guidelines by whatever name called, that contain details of the action that must be taken by the Government of India upon receipt of information about the death of any officer or employee of R&AW who was engaged in overseas intelligence operations, due to any adverse action taken against him/her by any agency in a foreign country.
In my RTI application I clarified that details of the manner in which officers of R&AW involved in overseas intelligence operations are trained to protect themselves against legal or illegal action by law enforcement agencies in foreign countries were not required. The purpose of including this clarification was to reassure the Cab Sec that I was not seeking information that would expose the training and other measures that India’s R&AW officers and other intelligence operatives are instructed to undertake to protect themselves as such disclosure would most likely endanger them and not be in the public interest at this stage.
A week later, Cab Sec transferred the RTI application to the Central Public Information Officer (CPIO) and Under Secretary of Cab Sec (SR) Section under Section 6(3) of the RTI Act. Two weeks later the CPIO of the EA-II Section of Cab Sec who is also the US (SR) and CPIO rejected the RTI application stating that all the information sought pertained to “the organisation mentioned at Serial #2 of the 2nd Schedule to the RTI Act” which is exempt from the purview of the RTI Act under Section 24 subject to other conditions stipulated in that Section. Interestingly, the CPIO does not even mention the name- R&AW in his reply. So high is the level of secrecy.
What is problematic with this reply?
The final reply from the CPIO, EA-II Section is in tune with past attempts which frustrate all efforts to secure basic transparency in the working of exempt organisations. Although the RTI application was never addressed to R&AW but to the Cabinet Secretariat, the first CPO transferred it to EA-II Section thereby facilitating its rejection under Section 24 of the RTI Act read with the 2nd Schedule. The refusal to part with the information amounts to stating that while Cab Sec/R&AW wants Indian citizens to work for them to gather and analyse intelligence for maintaining the external security of the country, they will not tell the people what mechanisms exist for ensuring their safety and security. One presumes that such information may at least be shared with those very intelligence operatives before they are deployed on official duty.
But this attitude is similar to another RTI reply that I received in 2014 from the Central Reserve Police Force (CRPF). The CRPF’s CPIO replied that the actions of left wing militants in blowing up a CRPF convoy resulting in the deaths of CRPF personnel in Bihar and Chhattisgarh during election duty did not amount to human rights violation of the deceased. I sincerely hope the same attitude is not adopted by the intelligence agencies in relation to their operatives who are posted abroad. The citizens of India have the right to know what measures the Government is required to undertake by law to ensure the safe return of its external intelligence operatives even though they may not have been involved in the latest case as clarified by the Government.
R&AW is also not transparent about the manner in which it deals with RTI applications year after year. The Central Information Commission’s Annual Report for 2014-15 lists only one instance of rejection of an RTI application under Section 24 for the entire year. It is highly unlikely that R&AW received only one RTI application during this period. The Intelligence Bureau (IB) which is listed at serial #1 on the 2nd Schedule of the RTI Act, received more than a thousand RTI applications in 2014-15. Of these 95.5% requests were rejected by invoking Section 24 of the RTI Act. The IB is reputed to be India’s premier internal intelligence agency.
When compared with IB, Cab Sec.’s figures do not seem very convincing. Interestingly, unlike IB which is registered with the IC as a separate public authority, R&AW is not even mentioned as a separate public authority under Cab Sec in any of the CIC’s Annual Reports since 2005. Nevertheless, those parts of Cab Sec which are fully covered by the RTI Act treat R&AW as a separate public authority for the purpose of transferring RTI applications under Section 6(3) as happened in my case. This is a major contradiction in their implementation of the RTI Act.
Two judgements of High Courts make it very clear that the reply of the CPIO EA-II are not in order. In the matter of High Court of Judicature of Rajasthan at Jaipur Bench suo motu vs State of Rajasthan [D.B. PIL Petition No. 14370/2014, judgement dated 8/9/2015] a Division Bench of the Rajasthan High Court held as follows:
“6. It is evident from the perusal of the reply and submissions of the learned Advocate General that all the Rules framed by the State of Rajasthan under Article 309 of Constitution of India have not been uploaded on the website of the Government and public authorities. If the rules, regulations and instructions issued by Government and public authorities are not made available to the public at large, it would defeat the purpose of the enactment of the Right to Information Act which is meant to bring transparency in the functioning of the Government and public authorities.”
In another case relating to the matter of Superintendent of Police vs M. Kannappan, W.P. No. 805 of 2012, judgement dated 28/11/2012 [(2013) MLJ 438], a single Judge Bench of the the Madras High Court directed the Directorate of Vigilance and Anti-Corruption to publicly disclose its Vigilance Manual even though it was exempted under Section 24 of the RTI Act by the Tamil Nadu Government. The Court observed as follows:
“9. In view of the judgment of the Division Bench read with the provisos to Section 24(4) of the RTI Act, I am of the view that the first respondent herein is entitled to have the manual of the DVAC. The manual cannot be kept as a secret document. It is nothing but a set of rules as to how the DVAC is functioning. I am not able to understand as to why the DVAC feels shy to furnish the manual. In fact, the information that were the subject matter before the Division Bench”[The Superintendent of Police vs R. Karthikeyan, W. A. No. 320 of 2010, judgement dated 06/04/2011] “were concerned with the corruption and the consequent action taken by the DVAC and those details were directed to be furnished. Hence, the DVAC cannot refuse to furnish the manual maintained by it.”
The judgements mentioned above make it abundantly clear that laws, rules and regulations cannot be kept secret by the Government even if they pertain to security and intelligence agencies exempted under the RTI Act. Keeping information about laws, rules and regulations applicable to State agencies is nothing but a violation of the concept of the ‘rule of law’ enshrined in the Constitution. Laws kept in secret cannot be enforced either, because courts always go by the understanding that ignorance of the law is no excuse for violating it. People must have access to laws, rules and regulations that are implemented by governments.
This is the only way they will be able to debate in an informed manner whether the steps taken by the Government are adequate or not and as required by the law to ensure the safe return of its intelligence operatives as and when they are apprehended by law enforcement agencies abroad in future. The slogan- “Sabka saath sabka vikaas” which the present Government used in its election campaign very effectively, must include Indian citizens who gather intelligence abroad for ensuring the country’s safety and security. The Central Government has a duty to publicise all laws, rules and regulations that have been put in place for ensuring the safety and security of the country’s intelligence personnel.
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi