“No one who does good work will ever come to a bad end, either here or in the world to come”
― Shri Krishna, The Bhagwat Gita
1. I am Mrs Aparna Bakshi, wife of Col Hunny bakshi, VSM. As part of series of my articles; this article of mine highlights the convenience of the Official Secret Act – 1923.
2. In a response to an RTI, on Classification of Confidential, Secret and Top Secret, home ministry CPIO S K Malhotra said that the manual deals with:-
”Safeguarding such information in the possession of the government, the unauthorised disclosure of which would cause damage to national interest, or would cause embarrassment to the government in its functioning or would be prejudicial to national security.”
3. As we see the definition; there are three contents:
(a) cause damage to national interest,
(b) would cause embarrassment to the government in its functioning,
(c) would be prejudicial to national security.
4. A large number of persons have been sent to prison under various sections of the Official Secrets Act -1923 (An Act designed by the British to suit their interests in India to control the babus working for them). The Act is such that as per Para 13(3) of the OSA only the Govt or its authorised officer can file an FIR otherwise no court can take cognisance of any offence. The ruling is highlighted below:-
(a) OSA Para 13 (3) Restriction on trial of offences.—
“No court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from, the 28 [Appropriate Government] 29 [***] or some officer empowered by the 27 [Appropriate Government] in this behalf: 30 [**]”
5. Any citizen who is a victim or a witness to an incident can lodge an FIR/ complaint in a police station depending on whether it is a cognisable or non cognisable offence.
6. It is only in the cases under OSA that the government or an officer empowered by the government can file a complaint as per section 13 (3) of the Official Secrets Act 1923 and this right is not vested with any other citizen.
7. There is no doubt that an offence under OSA – 1923 falls under the category of cognisable offence i.e. Section 154 of the CrPC. It makes it compulsory to file an FIR.
8. Issue is that when a case comes to light that there have been leaks of information from a SECRET in army jargon (CLASSIFIED) document; is it not the constitutional duty of the army through its empowered officer to file an FIR under Section 154 of the Criminal Procedure Code 1973?
9. As mentioned above this duty is only of the government, because they are the ones who are privy to such information and are the custodians of such information.
10. As I have brought out in my earlier articles that certain “reputed” news papers published articles from the SECRET Bhatia report which was ordered by the then Army Chief Gen Bikram Singh, not only published but also claimed that it was from the Bhatia report and they had access to excerpts of the report. I have interacted with a few journalists who told me that they were called to South Block and briefed by officials to publish it; they refuse to reveal their source that is their professional issue. So there are no doubts that information of SECRET nature that could embarrass the govt and was prejudicial to national interest and security as per the CIC on the stand taken by the govt under RTI Act 8c(i) to my RTI, was being leaked purposefully by the custodians of this report, the same custodians who have gone to the CIC claiming privilege of the document.
11. I, as a responsible citizen, affected, both directly and indirectly sought the copy of the Lt Gen Vinod Bhatia led Board of Officers report through the RTI. It took me three long years to be finally heard by the CIC.
12. The reply to my RTIs’ is produced below:-
(i) CIC/RM/A/2014/001060/SD
(ii) CIC/RM/A/2014/001061/SD
(iii) CIC/RM/A/2014/001062/SD
Date of Final Decision: 10/08/2016
13. Extract from the decision of the CIC is as follows:-
“Commission observes after perusal of documents/files that invoking Section 10 of the RTI Act is not possible in this case because various issues finding mention in the reports/files shown to the Commission are interlinked and any disclosure would compromise on the strategic security of the country. Technical Support Division (TSD) of the Indian Army was a specialised Intelligence Unit set up under the Ministry of Defence. Any disclosure of information would reveal operational mechanism and functioning of the intelligence services. Further, the Report of the Board of officers has brought out various objectives of TSD, details of its methodology, tradecraft as well as operational expenditure of the Secret Service fund.
The Commission strongly believes that if information of this nature is put in public domain, it will invite unnecessary speculation and will have substantive bearing on national security and will have international implications. Commission invokes the provisions of Section 8(1)(a) of the RTI Act and disallows disclosure of the above reports. We have to bear in mind that intelligence gathering mechanism is, by its nature, very sensitive and impinges on the security of the Country. Disclosure of any information related to this will be prejudicious to national security.”
14. If the last line of the CIC’s order is to be believed and falls under the definition of the manual that defines SECRET, then the leakages fall under the purview of cognisable offence under the Official Secrets Act-1923. Why the government, the MOD and the Army failed to comply with its constitutional duty in not filing an FIR to investigate the source of such leaks and taking action against the journalists and the media houses that have been publishing material that encompasses the OSA.
15. In a PIL filed in the Delhi High court to find out what action has been taken to comply with its constitutional duty, the respondents lied that they have already taken action and they filed a sealed envelope written SECRET on it and took privilege of the said investigation/ action. Some officers who still regard my husband and have some loyalty with the nation and their conscience is still alive, informed me that the army fooled the Honourable Delhi High Court by producing the COI of Hav Shamdas D, who in any case was in custody before the Bhatia committee was convened. And I don’t think that he would have had access to the report and media reporters while he was in quarter guard under Col Suhag, the younger brother of Gen Suhag , COAS as CO, Army HQs Camp.
16. During the hearing of charge of my husband, Maj Gen Suresh Mamgain, SM, ADGMI(B), (he was also a member of the Lt Gen Vinod Bhatia led Board of Officers as a Brigadier and MI Rep), under whom MI 9, 10 & 11 come as part of counter Intelligence, and as per Regulation Army 525, all investigations in matter of loss of classified information has to be forwarded to MI- 11, DGMI, categorically on a specific question mentioned that no investigation was ordered in to the leaks from the Bhatia report, otherwise the copy of the investigation would had come to him. He too is an empowered officer, as the head of the Counter Intelligence Division of the Army, as a member he was privy to the report and the information that was being leaked, but preferred to remain silent like all others. So much for the star qualities of morality, integrity and loyalty, loyalty to whom, individual superiors or the nation, or self growth, where the lives of colleagues has been put under threat, this threat to life is the report prepared by the Intelligence Bureau, which too I got through the RTI and CIC. Infact this question of loyalty should be asked to all those who handled the file of my husband. I will bring out the reasons in the next few paras’.
17. Article 14 in the Constitution of India 1949. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
18. My husband Col Hunny Bakshi, VSM has been charged with OSA section failing to safeguard information, this section has a punishment of 5 Yrs RI.
19. A SECRET Operational Order (In original) of HQ 21 Mountain Division was lost in 2011/12 and never recovered or traced. Was Maj Gen NS Ghei, the then GOC, was the custodian of the SECRET document, was he charged under the same section of the OSA. He was a senior ranking officer, his culpability was more, but he was let off with a non recordable censure, he went to become a Lt Gen, get a HAG pay alongwith AVSM*. He was related to Gen Bikram Singh. Convenience at its height !!!!!
20. Another Sikh Brigadier from the highly sensitive Strategic Forces Command, was not even punished when his Buddy, R Khan was caught red handed, the documents his buddy had access to, were the documents that this Brigadier brought home from office. Paradoxically R Khan’s Summary of evidence was done at the same time as that of Hav Shamdas under the same CO, Col DS Suhag, brother of the then COAS Gen Suhag, on the orders of HQ Delhi Area.
21. The constitutional rights are different for different persons in the Army it is an open case of inequality, show me the face and rank of the person, or any parochial relationship and I will punish you accordingly.
22. The two CDs which are evidence in my husband’s case were not only tampered but doctored, two GOCs of Delhi Area went away on retirement without ordering disciplinary proceedings against my husband, it is only when Maj Gen Abhay Krishna, who was given a show cause notice by Gen VK Singh alongwith Gen DS Suhag for the infamous Jorhat Dacoity, took over as officiating GOC Delhi Area, that he got the chance to grind his axe, the COI was completed on 11 Oct 2013, my husband was attached under Army instruction 30/86 on 12 Oct 2015, after 2 yrs when Abhay Krishna took over as Officiating GOC. The attachment order was CONFIDENTIAL, it was signed on the eve of 12 Oct 15, my husband who was in Karu in Eastern ladakh came to know later but excerpts from the so called CONFIDENTIAL document were published in the Indian Express by Ritu Sarin, a person who had access virtually classified information pertaining to TSD, infact she published copies of some documents of the said SECRET COI too which was in then custody of HQ Delhi Area. How did she have access to such documents? Until somebody who was the custodian of such documents in Delhi Area.
23. Its written all over the wall that personal egos, interests, animosity, rivalries and vendetta have been the considerations for these actions. During the Hearing of Charge of my husband under Rule 22, the Commanding Officer Brig Dharmapuri, Commander 1 Armoured Brigade, had called for the CDs and an officer from Delhi Area who was aware of the case along with two other witnesses i.e. Lt Col Sooraj S and Lt Col V Bhardwaj, SM. When the prosecution and defence witnesses informed the CO that the CDs were not in order and were tampered, HQ Delhi area under the same Officiating GOC neither sent the CDs to Brig Dharmapuri, nor the witness from HQ Delhi Area, turned up. In the so called “robust systems” is in place as claimed by the army, the Brigadier without even checking the authenticity of the evidence or what was the information that my husband failed to safe guard? He ordered the summary of evidence to be reduced in writing. It is his duty as it is at this stage that he can drop charges. He is the person who has to ensure rights of my husband under Rule 22 were to be protected and provided with full opportunity to defend himself, something which he was not provided under Rule 180 either, during the COI, where also witnesses were not produced and he was asked to cross question these missing witnesses in their absence. Further he was not even allowed to make a statement or produce documents in his defence after AR 180 was invoked [it is mentioned in the proceedings at page 369 of the COI, page 370 is missing]. The COI was reassembled only to cure their infirmities etc. The exhibits which give out the chain of custody of the evidence have been removed, because they don’t match with the creation of the CD. The ultimate truth is no one even saw the clerk give the CD to the DRI.
24. As brought out every one who perused the file and gave their opinions knew that the mandatory rights have been violated, the evidence cannot stand the scrutiny of law and is in admissible, yet preferred to prove their loyalty to individual superiors rather than the organisation, the ethos and values of the army, I am not even talking about the nation here.
25. If army was so fair in its conduct and a robust system are in place, why have the others been let off and not investigated by the same hierarchy for leakage of information of matters pertaining to TSD when the SECRET Bhatia report which as per the stand of the army and MOD having substantive bearing on national security and will have international implications was being leaked and published in newspapers even before the COI of Hav Sham das was not even completed. The tampered COI on the basis of which my husband has been attached.
26. Is it not a marriage of convenience?
And yes, every newspaper questioned then, that how a unit was raised illegally by Gen VK Singh? In the extract of the order of the CIC, which was conveyed by the Army and MOD to the CIC, clearly brings out “Technical Support Division (TSD) of the Indian Army was a specialised Intelligence Unit set up under the Ministry of Defence.”
27. The Report of the Board of officers has brought out various objectives of TSD, details of its methodology, tradecraft as well as operational expenditure of the Secret Service fund.
28. If the funds were secret and information on the expenditures cannot be revealed, then how come Indian Express, India Today, The Hindu and many others were publishing details of such expenditures and methodologies? Which source got how much money? How many operations were conducted abroad? Who was providing such classified information to these newspapers? I am even told that this report is hand written. SHAME to all is I can say, SHAME !!!!
29. For two years, my husband was operating undercover, from safe houses; he was a field operative in the real sense. He met his family and friends only on pre decided rendezvous’, we met him once or twice in a month in some mall or such like places. Two years passed like this, mind you it was a peace posting for us, New Delhi. I don’t think he had a office in the literal sense as he was not to be seen anywhere around the fauji establishments.
30. In the hindsight, I realise, and advise to all army officers, that saving your data in a computer being handled by somebody else is more important than saving your country. 5 years of harassment, from day 1 everyone knew that the data is doctored, the Presiding officer of the COI stated in the GCM of Hav Shamdas that he doubted the authenticity of the CDs and recommended for their forensic analysis, it was not done, as the evidence would had become legally inadmissible, the prosecuting officer also agreed while cross questioning my husband that the CDs were tampered. The data presumably is from a computer that was not even in the custody of TSD, it was on loan and returned, so you know how a data which was year old came to the market exactly 20 days before Gen VK Singh was to retire.
31. With such blatant misuse of power and position by then officiating GOC Delhi Area and the Chiefs, just to satisfy their egos to target Gen VK Singh through my husband. I feel sad, we as human beings will come and go, the nation stays as does its history. Time will decide who was right and who was wrong? Whether people in high positions or lowly officers and NCOs.