Tortured, Jailed, Freed!

As many people are being arrested and jailed across India under the Official Secrets Act, THE WEEK unearths official and court records revealing the misuse of the law

By Syed Nazakat

Half past noon on September 14, 2009, a team of Manipur Police Commandos (MPC) burst into Imphal's Tulihal Airport and arrested Jiten Yumnam. Two men grabbed him tightly as a group of heavily-armed commandos covered them in a circle. They held his head down and forced him into a police vehicle. His crime? Yumnam, 32, an environmental and human rights campaigner, had been demanding an inquiry into the killing of two people by MPC on July 23, 2009. What put him in trouble were his emails to international human rights monitors such as Amnesty International. The police charged him with leaking out state secrets to enemy. In custody, he was certain that the authorities were determined to silence him. “I still fail to understand how was I booked under the Official Secrets Act. I had just written an open letter to human rights organisations about a fake encounter in my state,” said Yumnam. “When I came to know that I'm charged with spying, I was devastated.” After a year of court arguments and mass protests, and when the government realised that the case would lead to serious embarrassment, he was released.

Yumnam is one of the many victims of the Official Secrets Act, India's anti-espionage law inherited from British raj. The law makes it a criminal offence to disclose anything the government calls, no matter how insignificant,an official secret. Under the law, any person who reveals such secrets is subject to arrest and, if convicted, to a maximum sentence of fourteen years in prison. 

“I was virtually picked up from the street and declared a traitor,” said Yumnam. A day after he was arrested, he said, he was taken to the police headquarters and was thrown blindfolded into an underground cell. “I was given electric shocks in my genitals and a police officer put a pistol on my head and threatened to kill me,” he said.

Jiten's story leads to a raft of cases in which scores of people were arrested in various parts of India under the OSA without charges and without court trails for years. The current crop of accused comes in the form of serving or retired armed forces personnel, technicians, businessman, engineers, journalists, students, farmers, drivers and vegetable vendors. As per the Union home ministry records, 395 people have been booked and lodged in various prisons under the OSA in the past 10 years. Home ministry spokesperson Onkar Kedia, however, said the OSA cases are being investigated by the state governments and “the total number of cases registered and the number of convictions secured are not centrally maintained.” The National Crime Records Bureau also has no pan-Indian figures on the people arrested under the Act and the convictions. “We have no records on the OSA cases,” said Alok Kumar Verma, chief statistical officer of NCRB.

THE WEEK has unearthed official and court records that shed  light on the misuse of the OSA, and heard the stories of those who were wrongly jailed for years. Havaldar Sabhajit Yadav, one of them, was arrested with Girija Shanker Pandey, a former Navy sailor, in Delhi on May 14, 2000. Yadav was branded an Inter-Services Intelligence operative and accused of passing 'sensitive information' to a Pakistani agent in Kathmandu.

The chargesheet, however, had nothing about the documents he was alleged to have carried and nothing was produced before the court. He was not allowed to speak in court, and if he did the police tortured him. After spending eight years in Tihar jail, Yadav, along with Pandey, was acquitted by Delhi's Tis Hazari court on January 28, 2009. The court slammed the police for failing to prove the charges against him and said even the date and time of the arrest were given wrong. “If the accused persons were not arrested on the date and time as claimed by the prosecution, the alleged recovery from them becomes doubtful,” said the court. Nobody, however, was punished for wrongly jailing them for eight years. In the case of  Brig. Ujjal Dasgupta, director (computers), Research and Analysis Wing, who was arrested on July 19, 2006 for allegedly passing on sensitive information to a US embassy employee working undercover for the CIA, the police are yet to frame the charges. After four years in jail, he was released on bail last month.

More recently advocate Ramananda Taorem, 50, a lawyer, was arrested by the Imphal Police under the OSA on September 14, 2009. A year later the government released him and withdrew the cases. A cardiac patient and now suffering from monoparesis (partial loss of movement of a single body part), Taorem had a minor stroke in jail and a major one after the release. He is yet to regain his ability to speak.

  

An examination of stacks of the OSA files show the border states like J&K, Punjab and Rajasthan are one of the prime targets of the OSA cases. One of the recent one is of 62-year-old Moinuddin Rizvi, a former Uttar Pradesh's public works department official. He along with his son Ghulam Dastigir was arrested in Delhi on May 25, 2007 for espionage.

They were accused of giving maps of military installations to a Pakistani agent. In its chargesheet, the police claimed that they were arrested at Subhash Park in Old Delhi, but Rizvi's wife Munawara Sultan, told THE WEEK that they were arrested at Hotel Romana in Old Delhi. Dastigir, after spending a year in jail, was acquitted by a Delhi court. Rizvi is still in Tihar jail facing trial.

“He [Rizvi] and Dastigir were in Delhi to publish his book Nimazeh Rasool. We don't know why they were arrested,” said Munawara. She said it was perhaps her husband's visit to Pakistan which brought the trouble. The Partition had separated Rizvi's family. While he stayed back in India, his two sisters and a brother migrated to Pakistan. In 2006, said a family member, he visited Karachi to attend the last rites of his brother. According to the police, Rizvi came in touch with the ISI during his Karachi visit and the Pak agency asked him to work for them. “The arrest memo of the police doesn't have the name of the police station and by which authority the accused were arrested. It does not mention the vehicle numbers which were used by the police in the operation and, worse, the court has found the police guilty of fudging the date of arrest,” said defence counsel R.S. Soni. On July 1, 2010, home ministry official Virender Kumar appeared before the Tis Hazari court and confirmed that the date of arrest was overwritten. “My question is if Rizvi and his son were arrested on May 25, 2007 how come the police got their confession on May 24?” asked Soni.

Additional Deputy Commissioner Rajan Bhagat, who is Delhi Police spokesperson, refused to give details of the specific case but said there was no question of planting evidence against anybody. “We work on investigation and specific information. We produce suspects in the court,” he said. “The verdict is in the hands of court.”

The OSA is in practice in India since 1921 but its use had been limited till the terrorist attack on Parliament in 2001. After that the Act became, according to a former intelligence official, an abomination. What was intended for a discrete set of suspects was started being used against people on mere suspicion. The monetary awards and promotions for such arrests added to the rampant misuse. Seven OSA cases were registered in a year after the Parliament attack, including the one against Delhi-based journalist Iftikar Geelani, who was jailed for almost a year.

The arrests and trials in the OSA cases follow a strikingly similar pattern. The accused are brought to court in heavy security cover. In court, all proceedings are held in camera. The evidences are kept in files marked 'secret', and are never disclosed to the designated party. “In dozens of cases the police have used hand-drawn sketches of Army cantonments as evidence against the accused. The language of chargesheets and confessional statements often read similar as if they were written by the same person,” said Supreme Court lawyer Balwant Singh Bilowria, who has handled many OSA cases. Bilowria mentions the sketches of the Meerut cantonment, which have been used in different cases against different people in different parts of the country. On May 27, yet another person, Chand Kumar Prasad, a 24-year-old aircraft mechanic in the Navy's Aircraft Maintenance Unit in Mumbai, was arrested for allegedly carrying a bunch of 'secret' documents that included photographs of Meerut. He is now in Tihar Jail.

With more and more people booked under the OSA, calls are mounting for an explanation why no official is prosecuted for the misuse of the Act. Among those calling for a review of the Act is former President A.P.J. Abdul Kalam. In the 1990s two of his friends, space scientists S. Nambi Narayanan and D. Sasikumaran, were wrongly booked under the OSA for being part of a spy ring. Union Law Minister Veerappa Moily, as head of the Administrative Reforms Commission, has recommended that the OSA should be repealed and safeguards to protect the security of state should be incorporated in the National Security Act. The home ministry, however, does not agree with the recommendations. An inter-ministerial group is studying the report.

The most disturbing part of the OSA, said Delhi-based journalist Preeti Singh (name changed), is that any person can be detained under it if it is proven that he had been in touch with a foreigner. Herself a victim of the Act, Preeti still does not know why she was arrested and detained for more than three years. “My only crime was that I was a journalist who was writing on Nepal. I used to frequent the Nepal embassy [in Delhi] and perhaps that is the reason I came under the scanner of intelligence agencies and was dubbed a spy,” she said. The Delhi High Court acquitted her of all charges but the prosecution has gone in appeal to the Supreme Court.

In Preeti's case the High Court said that the prosecution had relied mainly on the statement of one witness and that chief metropolitan magistrate had convicted her without assessing whether the documents that the police claimed to have recovered from her were likely to affect the security and integrity of India. She had denied that any document was recovered from her. “I'm estranged from my husband for the past 20 years. After my arrest there was no one to take care of my children. They were left with no option but to fetch food from temple,” she said.

Preeti's story shows how at times the OSA curbs freedom of press. Even in civil and financial affairs, the Act restricts coverage of important issues. A scoop landed former Financial Express reporter Santanu Saikia in trouble. He got a Union cabinet note on divestment of public sector enterprises a day before the cabinet meeting. The newspaper published the story the next day. Three years after a CBI internal probe to find out how the document was leaked, Saikia was booked under the OSA. After ten years of legal fight, a Delhi court acquitted him on February 26, 2009. The court said, 'the publication of the disinvestment document was unlikely to affect the sovereignty and integrity of India and that the publication of a document merely labelled 'secret' shall not render a journalist liable under the OSA'. “It was the biggest mental torture to appear before the court every month for ten years,” said Saikia.  “It all happened just for a genuine story.”

The competing needs for secrecy and the public's right to know have long posed a dilemma for the governments. Though at times the government has allowed intelligence officers to write books on their work and the agencies including one by former Additional Secretary of RAW B Raman that accuses Rajiv Gandhi of covering up the Bofors probe, often it goes after those who speak about the secret world. Former secretary of the R&AW, Major General (retd) V.K. Singh's book, India's External intelligence―Secrets of the Research & Analysis Wing, exposed corruption and a series of abuses in the agency. Three months after the book was published, Singh's house was raided and he was booked under the OSA. “There are senior intelligence officials who have written on the R&AW and the IB. In their books they have given even operations' details. They were never touched,” said Singh. “I became victim of personal vendetta.” The irony is that while Singh is facing trial, his book is available in India.

Clearly it is not always the sensitive issues of national security that make the authorities angry. Social activist Medha Patkar was arrested for saying that the Gujarat government was quietly raising the height of the Sardar Sarovar dam, which would endanger the homes and livelihood of people living in the surrounding villages. She was immediately booked under the OSA for leaking 'state secrets' to the public. The government, however, succumbed to public pressure and released her.

“We launched a campaign against the Sardar Sarovar dam in 1988. The Gujarat government notified the dam site as prohibited area under the OSA. It was a draconian order. We did a unique protest against the Act. We chose 14 people, symbolising the maximum number of years of punishment under the OSA, and marched towards the prohibited dam site,” said Patkar. “The OSA is a colonial law that protects the government from the public.”

It took Dr B.K Subbarao, a retired captain of the Navy, five years of legal fight to prove that the 'top-secret document' of India's nuclear submarine found in his suitcase was in fact his own PhD thesis at the IIT-Bombay. The other document, he said, which the police had claimed to have recovered from him, was available in the library. He was jailed for 20 months on charges of espionage.

The Mumbai High Court acquitted him of all charges, and the verdict was upheld by the Supreme Court. “It is not that every scrap of paper or every document relating to those authorities is to be classified, and even if a classification is put down, such classification may not hold for all time and that it is basic duty of the prosecution to point out how the disclosure of these documents would be a threat to the security of the country,” said the court.

Subbarao has spent the past two decades campaigning for those who were wrongly arrested and jailed. “So many innocent people have been wrongly arrested and jailed under this act. Yet not a single government official or policeman has been punished for ruining somebody's life,” he said.

For Yumnam, who is married and has a two-year-old daughter, life has begun afresh after his release from jail. Yet the dark memories of the torture cell and espionage charges haunt him. “I'm still traumatised. Every time I see a cop I shiver with fear,” he said. “It is not easy to be called a foreign agent, a traitor, and then have a normal life.”

(THE WEEK, Dec 7, 2010)

Troubled History of the OSA

TIME LINE

Troubled History of the OSA

1923-The OSA of Great Britain (enacted in 1889) was "replicated in India in 1923. The act's position in India, still a British colony, is to prevent disclosure of information that the government believes would undermine the state.

1951-After independece, the act was amended , basis of the act was the need to prevent spying and wrongful communication of military secrets.

1967-Amendments were brought post Indo-Pakistan War. It was no longer incumbent upon the police or any investigating agency to "prove the guilt" of a person accused of spying. It was enough to judge his/her character and the circumstances of the case to be prosecuted .

1977-Press Commission observed that merely because a circular is marked secret or confidential, it should not attract the provisions of the Act, if the publication thereof is in the interest of the Public and no question of National Emergency and interest of the State as such arises."

1978-Samba spy case surfaced which led to India's biggest military intelligence goof-up. 60 Army officers, personnel werearrested under the act at the instance of Sarwan Dass.

1985-16 government officials arrested and charged with violations of the Act. Among them: T.N. Kher, the personal assistant to P C Alexander, a top aide to both Indira and Rajiv Gandhi.

1988 - Gujarat Govt clamped the Official Secrets Act in 12 villages for almost 5 months due to the rising upheaval against the Sardar Sarovar Dam.

1988- B K Subbarao, a scientist monitoring India's nuclear submarine project, was arrested for possession of his thesis and was wrongly jailed for 20 months.

2002- Delhi based journalist Iftikar Gilani was arrested under the Act for possessing a paper avilable on internet, the court found him innocent.

1989- Prime Minister V P Singh called for throwing up the act, initiated an examination of questions relating to secrecy, accountability and transparency.

1990 -India's two bright scientists- S. Nambinarayanan and D. Sasikumaran were jailed for being a part of a spy-ring managed by two Maldivian women. The charges were investigated by the CBI and found baseless.

2006:Second Administrative Reforms Commission headed by former Karnataka chief minister Veerappa Moily asked Prime Minister Manmohan Singh to scrap the Official Secrets Act (OSA),

1923, saying that the Act in its current form is incongruous with the regime of transparency in the right to information era.

2007: Home Minister Shivraj Patil told the parliament that the government did not favour a repeal of the Act but was considering an amendment to an existing section.

2009 - The Delhi high court reduced the powers of the act by ruling publication of a document merely labelled ``secret`` shall not render the journalist liable under the law

2010 - Madhuri Gupta, Indian diplomat posted at the Indian high commission at Islamabad, was arrested on the charges of spying for Pakistan.

2010- Minister of state MHA Ajay Maken told the parliament that the government is not proposing to repeal the act particularly in view of the promulgation of RTI act.

Interview oF Major General (retd) V.K. Singh, former joint secretary, R&AW

"I became victim of personal vendetta "

No government likes it when its spies talk about their jobs. In fact, under the Official Secrets Act, employees of security services are not allowed to disclose anything to anyone about any aspect of their work. Even after retirement, these officers are discouraged to write and speak on intelligence matters. When Major General (retd) V.K. Singh published his book, India's External Intelligence―Secrets of the Research & Analysis Wing, he was charged with the crime of violating the OSA. His house was ransacked and his passport seized. In an interview with THE WEEK, he speaks about the legal struggle, holes in the case against him and how he became a victim of personal vendetta.

Had you ever thought that your book would bring you such trouble?

I had no idea that the book would invite such a reaction from the authorities. While I was in R&AW, I noticed several aberrations such as indiscipline, lack of accountability and corruption. The professionalism and pride that one associates with a premier organisation were absent. I felt that these anomalies should be corrected and this would only happen if they were brought to the notice of the public. In fact, the most important issue that I wanted to raise was corruption. During my stay, I noticed a few cases in R&AW as well as the SPG, where equipment appeared to have been procured from foreign vendors at exorbitant prices or without the mandatory security checks.

What are the charges that have been levelled against you?

The main charges against me are that I have given the charter of R&AW recommended by the Group of Ministers on National Security in 2001; that I revealed the names of officers and locations of R&AW stations; and that I gave details about certain projects in R&AW.

Firstly, the contents of the GOM report were the subject of several articles in 2001, some of which I have referred to in my book. At the time of its formal release on May 23, 2001, the chapter on intelligence was deleted. The report, minus the deleted portions, is still available on the web site of the ministry of defence. The names of all the officers are available on the Department of Personnel and Training web site. In August 2009, the CBI held its biennial conference at Vigyan Bhavan, in Delhi. The list of attendees was circulated to all departments of the government. It had the names and appointments of about 30 officers of R&AW. In a recent decision, the Central Information Commission has ordered the DoPT to give the names of all officers above the rank of joint secretary posted to R&AW from 2001 to 2008. So, the anonymity of R&AW officers is a myth. It is common knowledge that R&AW officers are posted in foreign countries. The location of R&AW stations in India is also known to vendors who are given turn-key projects for installation of equipment, such as VSAT terminals.

Q. There are couple of books written by former intelligence officials including one by B. Raman that accuses Rajiv Gandhi of covering up the Bofors probe. The authors were never harassed. Why were you then booked under the OSA?

The other authors, such as Raman, [former R&AW chief] Sankaran Nair and [former IB joint director] Maloy Dhar, were insiders, who know much more than what they have written. If they are prosecuted, they will reveal many things which would be even more embarrassing. I was an outsider, and thus no threat to them. I became the victim of a personal vendetta. In my book I had mentioned the names of many officers in R&AW who were inefficient and involved in corruption. I had also mentioned a senior officer who did not attend office for eight months after being overlooked for promotion. Though I have not mentioned his name in the book, it was common knowledge that the man was Ashok Chaturvedi, who later became the R&AW chief. I am told he was furious at the mention of this incident in the book. He and his number two, Sanjiv Tripathi, were instrumental in launching the case against me.

Q. Mr. Chaturvedi was your classmate.
A. No, we were in different schools in Allahabad in the fifties and he was several years my junior. His father was in the Police and so was mine.  I often find it hard to convince myself that he can go to such lengths.  I heard from some people that he even advised many RAW officers whose names are mentioned in the book to file defamation cases against me in the court. I wish they had. But by framing me under the OSA they killed two birds with one stone.

Are you saying that there were many attempts to harass and implicate you?

Yes, there were. While I was in R&AW, I had been given a Maruti car, without a driver, to commute. I was then staying at RK Puram. One night the car was stolen from outside my flat. I lodged an FIR next morning but the car was never found. A few months after the case against me was initiated, I came to know that some people in R&AW were trying to locate the person who had been my orderly at that time. They planned to pay him a large sum, and get him to state that the car was not stolen but had been sold by me.

They also tried to plant documents on me. I remember a few weeks before my home was raided on September 21, 2007, a person by the name of Shakti Prakash called me up. He said that he had read my book and that he was being harassed by R&AW as he was being forced to become an agent. I told him that I had retired and had nothing to do with R&AW now, but he pleaded for a meeting. I along with an Army colleague, who had also been with me in R&AW, met him at USI Library in Delhi. He handed over to me a bunch of papers and asked me to go through them and advise him what to do. The folder had letters addressed to the President, Prime Minster and many others, complaining of harassment by R&AW. I brought the folder home and forgot all about it. Later, when the CBI raided my house they took away the folder and produced it in court when they opposed my plea for anticipatory bail. I still don't know whether Shakti Prakash was a plant, or a genuine sufferer at the hands of R&AW.

Q. It is almost three years now since you were booked under the OSA. Have you got any relief from the court?A. The case is still going on in the court. I don't know how much time it will take. After my home was raided, the CBI had taken away my computer, diaries, notebooks and passport. By a court order, some diaries and the passport were returned. I found that the passport was defaced. When I brought this to the notice of the Court the CBI said it had been done by mistake. I then applied for a fresh passport which has been issued. The court has also granted me permission to use several documents that were listed in the evidence in a petition in a service matter that I intend filing soon. Copies of those documents concerning my appointment, salary etc. are already held by me in my personal file.

Q. Are you writing a book on Official Secret Act?
A. Perhaps I will. I have done some research and collected a lot of material from the National Archives on the genesis of the Act. Surprisingly, it was made more draconian after Independence. The Administrative Reforms Commission chaired by Veerappa Moily had recommended that it should be scrapped or amended, after the enactment of the RTI Act. After he became the Law Minister, we thought this would be one of the first things he would do, as part of the judicial reforms agenda. But this has not happened, due to opposition from the Home Ministry.  I think it is a draconian law and should be repealed.

Q. Many insist that, if no action had been taken against you, it would have given the green light to any disaffected former intelligence officers to write about intelligence agencies?A. Not all officers who write books are disaffected. People like Sankaran Nair, (RAW Chief). T. Subramaniam (Cabinet Secretary), General V.P. Malik (Army Chief) had reached the top of their professions. They can hardly be considered ‘disaffected’. Recently, an official history of MI-6, the British intelligence agency, has been published. There are several books written by officers who have served in the CIA. Such books form a part of history. As you are aware, in 2008 a gag order has been issued through a gazette, according to which all officers serving in such agencies will have to give an undertaking that they will not write anything after retirement. If they do, the officer will forfeit his pension. I believe the DOPT has asked the Ministry of Defence also to publish a similar gazette for armed forces personnel. If that happens, soon there will be no Indian military history.

Q. What is the biggest drawback in the Official Secret Act?
A. The OSA violates all tenets of humanitarian law. The rules of evidence do not apply. A person can be convicted merely on suspicion, his character or past conduct. If one has the telephone number of a foreigner in his diary or cell phone, he is presumed to have been in communication with a foreign agent.

How easy is it for intelligence agencies to wrongly implicate a person?

Very easy. The Samba spy case is a perfect example. Innocent people spent 14 years in jail on charges trumped up by military intelligence. More recently, Captain B.K. Subbarao and Iftikar Geelani were similarly prosecuted and later acquitted. Unlike the famous Dreyfus case in France, where the persons who had falsely implicated him were punished, in India this never happens. On the other hand, they get out-of-turn promotions and monetary awards.

(THE WEEK, Dec 7, 2010)