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End of a witch-hunt

Print edition : Jan 31, 2003 T+T-

The Home Ministry bureaucracy finally gives up an extended drive to implicate a journalist. The government now has much explaining to do on the matter.

in New Delhi

THE journalist Syed Iftikar Gilani, son-in-law of the Hurriyat leader Syed Ali Shah Geelani, arrested under the provisions of the Official Secrets Act, 1923 (OSA), and other legal provisions, was released on January 13 from Delhi's Tihar Jail and all charges against him were withdrawn. The Union government had kept him in jail even after the Directorate-General Military Intelligence (DGMI) had revised its opinion with regard to the classification of a document, that was available in the public domain, the possession of which constituted the main charge against him. Evidently, the government relented in the face of a sustained campaign by rights activists and other sections of democratic opinion.

Indications that the government had decided to back off had come when an application was moved by the prosecution on January 10 before the Chief Metropolitan Magistrate, Sangeeta Dhingra Sehgal, which stated that the Lieutenant-Governor of Delhi had in the "public interest" decided to withdraw the case, considering the facts on record. But unfortunately this came after the journalist had suffered seven months of incarceration.

Gilani, the chief of news bureau of Kashmir Times, a Jammu-based publication, was arrested from his South Delhi home on June 9, 2002 on the charge that he had stored sensitive information relating to the country's security in his personal computer. He was booked under Sections 3 (spying) and 9 (attempt to abet the commission of offence) of the OSA, Section 120-B of the Indian Penal Code relating to sedition, besides provisions relating to the circulation of pornographic material. Section 3 of the OSA could attract a prison term of 14 years.

The scope of Section 3 is wide. A person can be held guilty if he or she is found to be in possession of any document which is "calculated to be or might be is intended to be, directly or indirectly useful to the enemy" or "obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article, or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the state or friendly relations with foreign states."

A raid on Gilani's house was conducted by the Income Tax Department. During the raid, a five-page file titled "Forces" was found in his computer. It contained information about the strength of troops of the Indian Army and paramilitary forces deployed. This information was sent to the Delhi Police, which forwarded the matter to the DGMI. The first information report (FIR), invoking Section 3 of the OSA, stated: "The information contained in the five page document is calculated to be or might be or intended to be directly or indirectly, useful to an enemy and it relates to a matter, the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the state and friendly relations with foreign states." Another document, a photocopy of a list of annexures, was also seized. The information in both the documents was identical. Allegedly there was some pornographic material as well. Also spotted were some blank forms to apply for Pakistani visas. Gilani and his family members were alleged to have had financial transactions to the tune of Rs.20 lakhs with unknown sources. Other documents seized and data in the hard disk of the computer showed an alleged inclination towards the liberation'' of Kashmir.

Part of the material was in fact information downloaded from a Pakistani website. The data were at least nine years old and part of a publication titled "Denial of Freedom and Human Rights (A Review of Indian Repression in Kashmir)" written by Dr. Nazir Kamal and published by the Institute of Strategic Studies, Islamabad in January 1996. The document was circulated at a human rights conference in Geneva and mailed to at least 10 institutes in India. The paper was available in the libraries of the Institute of Defence Studies and Analyses, the School of International Studies (SIS), Jawaharlal Nehru University, the Centre for Policy Research and the Indian Council of World Affairs, all in Delhi.

The government sanctioned Gilani's prosecution after seeking the DGMI's opinion. The DGMI held that the document had "not originated'' from the Army and stated that it appeared to be information compiled by an agent specifically tasked to observe and report the strength and location of the troops and that the information was directly useful to the adversary. The opinion was conveyed to the Delhi Police on June 14.

The data actually constituted a detailed ORBAT (Order of Battle) of the Army, the Rashtriya Rifles and other paramilitary forces deployed in the operational area of the Northern Command in Jammu and Kashmir. In specific terms, it gave the location, state and strength of formations and units deployed. "The information contained is prejudicial to the security of the country and has serious ramifications on our operational plans in J&K," stated the June 14 opinion of the DGMI. This military document, marked "confidential", added that "the information contained in the document is directly related to the defence matters of our country."

But the DGMI revised its opinion a few months later, a fact the Home Ministry did not make public. On December 12, Lieutenant-Colonel N.P. Singh of the DGMI wrote to R.S. Gupta, Commissioner of Police, Delhi that while giving its earlier opinion, the DGMI was not in possession of the second set of documents, which led to "erroneous over-estimates of the sensitivity of the documents." It was now felt that the documents were of negligible security value, stated the DGMI's communication, adding that the earlier analysis was based on inputs then available and the time-frame provided. It stated: "On further examination, it was found that the information contained in the documents is easily available, like in a published booklet. The published data has indicated locations, strengths of Army formations, etc. It is thus obvious that this document carries no security classified information and the information seems to have been gathered from open sources."

But the Home Ministry seemed to be in a hurry. In a letter dated December 11 sent to the Special Cell, Joint Commissioner of Police, Delhi, it forwarded the June 14 opinion of the DGMI with two more additions from the Ministry's end that underscored the need to employ Section 3 of the OSA. The revised opinion of the DGMI was sent on December 12 to the Commissioner of Police. The Delhi Police had two different opinions with it now, one of the Home Ministry and the other of the DGMI. When V.K. Ohri, counsel for Gilani, placed on record the DGMI's letter of December 12, the court noted the contradictions in the two letters - the one sent in June and the one sent in December. The court summoned Joint Commissioner of Police Neeraj Kumar and Director, Military Intelligence, Lt. Gen. O.S. Lochab. Lochab submitted that the December 12 letter was sent in continuation of the earlier one.

The court then asked B.R. Dhiman, Under Secretary in the Ministry, to clarify the position. On January 7 Dhiman told the court that the government had considered the second report at the appropriate level and it was deemed to be not relevant and tenable. On December 26, under the chairmanship of A.K. Bhandari, Special Secretary (Jammu and Kashmir Affairs), Ministry of Home Affairs, the government's stand was deliberated. Apart from Home Ministry officials, the Commissioner of Police was present. The main subject under discussion appeared to be the DGMI's second opinion, which had unsettled the Home Ministry. According to the minutes of the meeting, the officials felt that the DGMI was required to give its opinion having regard to the nature of the information contained in the document, irrespective of its source. It was observed that the government had examined the contention that the information was available in the public domain and had accorded sanction to prosecute Gilani on September 5. The contents of both the documents being the same, the nature of the information was prejudicial to the safety and security of the country, it was held. The second opinion, the high-level meeting concluded, was not tenable. The Law Ministry, which was consulted subsequently, also held that the DGMI's second opinion was not tenable. The twin opinions of the MHA and the Law Ministry were conveyed to the court.

Informed sources say that Deputy Prime Minister and Home Minister L.K. Advani was kept in the dark on the matter as the bureaucrats sought to take control of Gilani's fate. But when the situation became unsavoury, especially with the revelation regarding the DGMI's second opinion, Advani decided to intervene. Perhaps to avoid further embarrassment, the government decided to give in.

The government's filing an application on January 10 withdrawing the case was met with some surprise. For only three days earlier the Home Ministry had submitted before the court that the views of the DGMI were untenable.

The Communist Party of India (Marxist), the People's Union for Democratic Rights and the Delhi Union of Journalists, among others, had been consistently critical of Gilani's unlawful detention. The Press Council of India, a statutory body created by Parliament and whose intervention was sought by the DUJ, observed that information displayed on the Internet cannot be treated as confidential and the reproduction or possession of such matter may not attract the provisions of the OSA. As the matter was sub judice, however, the PCI refrained from commenting on the specific case.

The government now has a lot of explaining to do. The use of the OSA has once again come under scrutiny, more so the manner in which governments can interpret its provisions to further their own ends. Gilani's case may have been forgotten had not sections of the journalistic community and certain political parties pursued the matter relentlessly. With minority bashing becoming a national pastime and a government driven by jingoistic zeal in the saddle, such dangers may well be endless.