"If Brig Dasgupta is not guilty, then the Government is."

"If Brig Dasgupta  is not guilty then the Government is."

In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently, he who moulds public sentiment goes deeper than he who enacts statutes or pronounces decisions.
--Abraham Lincoln
But the Dreyfus Affair...is not fixed in space and time. The combat of the individual against society, truth against deception, is specific neither to France nor to the end of the nineteenth century.
--Jean-Denis Bredin [1]
What rationale could have possibly been strong enough for France's generally apolitical Army to fabricate an elaborate case against one of its own? Who could possibly let himself believe such a thing, that the honorable men entrusted with the defense of the nation against their immediate, and very threatening enemies, the Germans, could be capable of such an outrage? Had not the Minister of War, General Auguste Mercier, assured the military editor of the influential newspaper Figaro that, from the beginning they had "proofs that cried aloud the treason of Dreyfus" and that his "guilt was absolutely certain"? [6]
Mercier's parliamentary aide, General Riu, put it this way, "Today one must be either for Mercier or for Dreyfus; I am for Mercier." "If Dreyfus is acquitted, Mercier goes," said the royalist-leaning l'Autorite, and a military colleague demonstrated his grasp of what was at stake by noting that, if in a retrial "Captain Dreyfus is acquitted, it is General Mercier who becomes the traitor." L'Autorite raised the stakes one step higher by observing that, since Mercier was a member of the government, "If Dreyfus is not guilty then the Government is."

Just read this famous case:

http://en.wikipedia.org/wiki/Dreyfus_affair
http://www.dreyfus.culture.fr/en/
http://www.dreyfus.culture.fr/en/the-long-road-to-justice/
http://www.dreyfus.culture.fr/en/the-long-road-to-justice/towards-the-quashing-of-the-case-without-appeal/the-captain-s-affair.htm
Text of J'accuse! (in English and French) a "masterpiece" of polemics and a literary achievement "of imperishable beauty."  No other newspaper article has ever provoked such public debate and controversy or had such an impact on law, justice, and society.
"J'ACCUSE ...!" EMILE ZOLA, ALFRED DREYFUS, AND THE GREATEST NEWSPAPER ARTICLE IN HISTORY Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.


We have found India's Dreyfus !
Where is India's Emile Zola?

Burden of Proof: Relevant Questions in the case of OSA 1923

  

Burden of Proof
The relevant question to ask the Prosecution if the prosecution fails to establish evidence of committal of the offense under Official Secrets Act 1923  (Click link to go to Google document before you read further)

Troubling Facts

1. Brig UDasgupta was never indicted for compromising codes, agents, or war plans.
2. Brig UDasgupta was never charged with treason. [Legally, treason is a charge that is only applicable when one spies for an enemy state in time of war.]
3. Brig UDasgupta was never accused of acting with  intent to harm India.
4. Foremost  is the fact that RAW  and prosecution were unable to provide the court with concrete examples of Brig UDasgupta  having actually harmed our national security.
5. The intelligence agency's damage asessment of  Brig Dasgupta's actions were neither made at all nor was not made available to the courts or to the public.
6. Consisting at best of a series of highly improbable worst-case scenarios, RAW's damage assessment could at best be characterised as  a thinly veiled attempt to portray USA as a reckless and unreliable ally. If not, why the cooperation of the USA was not sought to establish the case against the accused?
7. What is not so clear, however, is why so many people allowed the unwarranted trashing of Brig Dasgupta's character to be used as an indirect means of undermining the perception of USA as one of our country's dependable allies.
8. During the punishment phase of an espionage trial, a judge is supposed to weigh three critical factors: motives, harm and benefit. This is why morally corrupt individuals caught spying for hostile states are usually given extremely harsh sentences, even if the actual damage they caused wasn't that substantial.
9. In Brig Dasgupta's case, although the country he  alleggedly spied for was legally defined as a major ally, RAW and the prosecution went out of the way to  successfully manouvre the courts  into believing  an extremely biased asessment of Brig Dasgupta's actions.
10. Whatever the RAW's motives in characterizing Brig UDasgupta as a bête noire, they are arrogantly undeclared, patently anachronistic and irresponsibly vindictive.
11. Sadly, judging by the continued refusal to address these issues, it would seem that fear has indeed triumphed over due process and common decency. 
12. Brig UDasgupta was purported to be accused of  only one crime:of having a USB in his possession of a private rental agreement the passing of which along with "possible concealed secret information" to an ally USA. 
13. RAW or Prosecution was not able to establish what that secret information was.
14. The maximum punishment : ..he shall be punishable with imprisonment for a term which may extend to fourteen years and in other cases (other than  for offenses not connected with Army, Navy, Air Force etc.) to three years. (See OAS 1923 Para 3 (1) C)
15. The offence allegged has nothing to do with  any work of defense, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp , ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government . Hence the punishment is ONLY 3 years!
16. Being jailed for 5 years with out a charge to defend against is itself a gross  crime against human rights and has  resulted in substantial failure of justice.
17. The fair, moral and principled thing for the President, the Nation, the government,  the prosecution and the courts  to do is release Brig U Dasgupta immediately.
18. Just as the law should not be bent to release Brig Dasgupta, neither should it be bent to keep him behind bars!

HABEAS CORPUS THE MOST EXTRAORDINARY WRIT

  
HABEAS CORPUS
THE MOST EXTRAORDINARY WRIT

Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show cause why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty�s restraint. Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of American use of Habeas Corpus.

ENGLISH HISTORY OF HABEAS CORPUS: The history of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon common law origin. Clearly, it precedes Magna Carta in 1215. Although the precise origin of Habeas Corpus is uncertain in light of it�s antiquity, its principle effect was achieved in the middle ages by various writs, the sum collection of which gave a similar effect as the modern writ. Although practice surrounding the writ has evolved over time, Habeas Corpus has since the earliest times been employed to compel the appearance of a person who is in custody to be brought before a court. And while Habeas Corpus originally was the prerogative writ of the King and his courts, the passage of hundreds of years time has permitted it to evolve into a prerogative writ initiated by the person restrained, or someone acting in his interest rather than by the King or his courts. Magna Carta obliquely makes reference to Habeas Corpus through express reference to �the law of the land�. From Magna Carta the exact quote is: �...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.� The practice and right of Habeas Corpus was settled practice and law at the time of Magna Carta and was thus a fundamental part of the unwritten common �law of the land� as was expressly recognized by Magna Carta.

CIVIL LAW VS. COMMON LAW: However, Habeas Corpus was generally unknown to the various civil law systems of Europe which are generally devolved from Roman and/or Justinian law. European civil law systems tend to favor collective authority from the top down while the Anglo-Saxon common law tends to favor the individual. Thus, it is altogether understandable that the ultimate right to determine the propriety of restraint upon the liberty of an individual is an almost unique feature derived from the ancient Anglo-Saxon common law of England. Indeed, the Magna Carta itself is arguably a reaction to the incursion of European civil law into the English common law legal system via William in 1066. The running tension and contest between the civil law of the �Norman intruders� intrusively confronting the ancient Anglo-Saxon common law continued throughout the period 1066 to the 1640�s when, following the English Civil War, and the beheading of King Charles I in 1649, the people�s parliament clearly established the respective position of King and citizen. In this crucible of contest, the confrontation of top down authoritarian civil law principles clashed and continuously competed with, but then yielded to, the ancient �good old� common law of the land. In the final analysis, the strength and resilience, and I might add common sense, of the evolved, time tested, common law prevailed. The interest of the people as reflected in their common law won a several centuries old contest with the civil law brought to England by the Norman conquest. Habeas Corpus is merely one feature, albeit it an important one, of the common law. As a feature of common law, the right of Habeas Corpus reflects the age old contest between the individual and the state. Habeas Corpus empowers the individual in holding accountable the exercise of the state�s awesome power to restrain liberty.

The frequent use of the great writ reflected the tension between common and civil law practice during the period 1485 thru 1509, generally the reign of Henry VII. At that time Habeas Corpus was employed to secure the liberty of those imprisoned by the Chancellor, the King�s Privy Counsel, the Courts of Admiralty, The Court of High Commission and its prerogative courts including its inquisitorial processes featured by the hated �star chamber court� at Westminster, so called because of the stars on its ceiling. Conversely, the common law preference of accusatorial processes had long been a fixture of Anglo-Saxon history. The modern writ of Habeas Corpus dates from this history. During this period, the sheer frequency of which Habeas Corpus was employed together with its procedure and results, established the Writ of Habeas Corpus as a powerful tool to check the power of the state and to preserve the rights of individuals against the arbitrary power of the King and his Counsel together with the King�s courts. It was the King�s prerogative courts which were given to inquisitorial practices while the parallel system of common law courts employed purely common law accusatorial practices. Thus the arbitrary character of civil law power devolved in England since William�s Norman intrusion was largely checked through employment of the Writ of Habeas Corpus by the first part of the sixteenth century. And Habeas Corpus saw frequent use and growth in prominence throughout the reign of Charles I which, in turn, found its bloody end on the chopping block in 1649.

THE HABEAS CORPUS ACT: The English common law practice and procedure respecting Habeas Corpus was codified by Parliament in 1679 by enactment of the Habeas Corpus Act. This historic act of the English Parliament empowered English courts to issue Writs of Habeas Corpus even during periods when the court was not in session and provided significant penalties to the judge, personally, who disobeyed the statute. And while great hypocrisy surrounded the practice of the Habeas Corpus Act in the late 17th century, Habeas Corpus was nevertheless establishing itself as the primary means by which individual liberty was empowered at the expense of the arbitrary exercise of power by the state. During the 19th century the Writ of Habeas Corpus was further expanded to include those held by a purely private process other than that of the state.

AMERICAN DEVELOPMENT OF HABEAS CORPUS: As with other features of English common law and practice, by the time of the American Revolutionary War, the Writ of Habeas Corpus was clearly established in all of the British colonies in New England and was generally regarded as part of the fundamental protections guaranteed by law to each citizen. The American Constitution at Article I, Section 9 states that: �The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.� It is important to note that the framers of the Constitution for the United States of America choose to include in the body of the Constitution the Writ of Habeas Corpus while other important individual rights, arguably as an afterthought, were included in the first ten amendments which were popularly called the Bill of Rights. The �afterthought�, that is to say the Bill of Rights, was not included even as amendments until James Madison single handedly, but persistently and successfully, argued before congress for its adoption and passage on 15 December 1791, some two years after the constitution was ratified. This fact sheds light on the importance of the Writ of Habeas Corpus as viewed by the framers of the American Constitution at the time it was established.

CIVIL WAR & HABEAS CORPUS: The most famous American Habeas Corpus action prior to the civil war was the case of Ex parte Dred Scott. Dred Scott was a slave owned by a physician. Upon the death of his master, it was promised that Dred Scott would be set free. However, at that time Dred Scott was still being detained as a slave. Dred Scott petitioned the Federal Court for a Writ of Habeas Corpus. Habeas Corpus was granted by the Federal District Court and subsequently upheld by the Federal Court of Appeals. However, the Habeas Corpus was overturned by the United States Supreme Court on the grounds that Dred Scott, as a slave, was not a �person� as contemplated by the United States Constitution and therefore did not have the right to petition the Federal Courts for a Writ of Habeas Corpus. As to Dred Scott, the extraordinary writ, the great writ as Sir William Blackstone put it, was effectively suspended. This notable case remains as one of the most controversial Habeas Corpus actions in American history.

As is generally known, the Writ of Habeas Corpus was suspended by President Lincoln during the civil war. Chief Justice Roger Tanney, in the case of Ex parte Merryman (See: Ex parte Merryman, 17 Fed. Cas. No.9, 487, p.144 (1861)) strongly excepted suspension of Habeas Corpus by a sitting president and concluded that only the congress had the power of suspension under Article I Section 9 of the constitution. The ruling of the Supreme Court was apparently ignored by the President and the military during the civil war. Congress later authorized the already presidential suspension of the writ in 1863. After 1863, and acting on congressional authorization, the military was permitted to temporarily hold people who were to be turned over to and adjudicated by the civil courts. After the assassination of President Lincoln, and in the case of Ex parte Milligan (See: Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866)) the United States Supreme Court granted the writ and once again established that only Congress had the power to suspend the Writ of Habeas Corpus and that the military had no jurisdiction over the trial of civilians in the post civil war South.

THE MODERN WRIT OF HABEAS CORPUS: Today the Writ of Habeas Corpus is used in many different ways. It applies to post conviction relief in criminal matters even where the judgment of judge and jury is final. It applies to those who are in police custody but who are not charged with a crime. It applies to those who are awaiting trial but who have not been able to make an excessive bail. It applies to death row prisoners who challenge their death sentence. It applies to prisoners who remain in custody after the expiration of their lawful sentence. Additionally, Habeas Corpus applies to both adults and children who are restrained of their liberty in some meaningful manner but who are not in the actual custody of police or other public authority. For example, Writs of Habeas Corpus have been issued in civil cases on application of a parent where a child�s custody is being sought against the wishes of the other parent who allegedly �restrains� the child. It applies equally to those who have been held because of their mental condition. And the writ applies equally for any other fact or circumstance, civil or criminal, in which the liberty of someone is restrained in any meaningful manner. Habeas Corpus extends even to those who are already released from actual custody on bail and who are contesting the manner and/or authority of the restrictions which bail places on their liberty or the charge for which they have been required to make bail. And although, research by this writer has failed to reveal any cases to date, home schooling contest are subject to the writ of Habeas Corpus. Parents whose authority to home school their own children and who are challenged by the state or other authority may properly file a Writ of Habeas Corpus to adjudicate the dispute as in any other child custody case. And, the writ may properly be signed and filed by an attorney - or - by �any other person� (See: Texas Code of Criminal Procedure, Article 11.12 and 11.13.) who has knowledge of the improvident restraint of liberty. In fact, there is legal precedent recognizing the duty of any citizen to proceed by Writ of Habeas Corpus to notice a court and to invoke the duty of the court as to Habeas Corpus when any illegal restraint of any other citizen is observed.

CAVEAT & SUMMARY: On a more ominous note, the Writ of Habeas Corpus is not without its detractors today. Movement is underway throughout the United States and each of the states to curtail the employment and exercise of Habeas Corpus. This questionable, if not highly suspicious, exercise can be divided generally into two camps. Congressional restrictions on the writ; and judicial restrictions on the writ. For example, the United States Congress enacted the anti terrorism act in April of 1996 which effectively stripped the Supreme Court of its power to review lower federal court rulings in Habeas Corpus cases. However, the Supreme Court retained its power to review petitions for Habeas Corpus which are directly submitted to the court. Additionally, and more disturbingly, there is evidence that the Writ of Habeas Corpus has in some jurisdictions been selectively suspended in certain types of cases.

For example, frequently State courts selectively ignore, as a practical matter, the effect of the writ in cases where citizens are charged with the �unauthorized practice of law�. In most of these jurisdictions, it is disturbing to note that it is an agency of the state Supreme Court itself which makes the complaint and then prosecutes the charge. In these cases the supreme court is making the charge, prosecuting the charge only to later sit in final adjudication of the charge before their own court. The consolidation of power as reflected in this practice against the liberty of individual citizens smacks of star chamber practice and should be condemned by state legislators as was the star chamber itself condemned by the English Parliament in 1641. Additionally, many of these cases result in imprisonment of the defendant in a purely civil case only to thereafter be effectively denied review by the Writ of Habeas Corpus. Tragically, in these cases the ordinary review by appeal is also denied leaving the defendant with no adequate remedy under law. The Writ of Habeas Corpus in such cases is simply �overruled� without comment or findings or supporting law. It is precisely this practice which was sought to be avoided by those constitutional provisions pertaining to the separation of powers as well as the constitutional provisions that the Writ of Habeas Corpus is never to be suspended. While all states have constitutional provisions pertaining to the separation of powers only a few states have provisions prohibiting the suspension of Habeas Corpus. Nevertheless, the Extraordinary Writ of Habeas Corpus remains as the final and most fundamental process by which one may test the propriety of a restraint on individual liberty.

Joseph Dale Robertson

Steganography: A Brief Video Survey

  
Steganography





Steganography: S-tools



Hiding files in a .jpg (any type of file)

What we can all do?

  
A small body of determined spirits fired by an unquenchable faith in their mission can alter the course of history!!! Mohandas Gandhi

1. Study import of the archaic Black Law of OSA and the effect on the RTI and highlight in public media.
2. Write to your Parliamentarian about the misuse of OSA for silencing those who are in the know how of what is wrong within government departments.
3. Write to human Rights commission and organizations around the world of abuses in the name of official Secrets
4. Bring media attention to the Black Law of OSA through letters to the Editor in English and all regional newspapers.

Official Secrets Act: State of Black Art around Commonwealth

The Official Secrets Act is any of several Acts of the United Kingdom Parliament for the protection of official information, mainly related to national security. The latest revision is Official Secrets Act 1989 (1989 chapter 6), which removed the public interest defence by repealing section 2 of Official Secrets Act 1911.

People working with sensitive information are commonly required to sign a statement to the effect that they agree to abide by the restrictions of the Official Secrets Act. This is popularly referred to as "signing the Official Secrets Act". Signing this has no effect on which actions are legal as the act is not a contract. As the act is law individuals are bound by it whether or not they have signed it. Signing it is intended more as a reminder to the person that they are under such obligations. To this end, it is common to sign this statement both before and after a period of employment that involves access to secrets.

Proposed Revisions in the Age of Terror

The ISC annual report for 2005-2006 on UK intelligence services states:

"Official Secrets Act113. The Home Office has bid for a legislative slot in the next session to amend theOfficial Secrets Act 1989. (At the time of publication it was still awaitingconfirmation of its place in the timetable.) The Home Office has informed theCommittee that, in its view, the proposed Bill should remove the common lawdefence of ‘duress of circumstance' in order to address unauthorised disclosure bymembers, or former members, of the intelligence and security Agencies. The Billshould also put an element of the associated ‘authorisation to disclose' procedureonto a statutory footing and increase penalties. This proposal has yet to receivepolicy clearance across Whitehall." (emphasis added)

The full report can be found here:http://www.cabinetoffice.gov.uk/publications/reports/intelligence/annualir0506.pdf

History and Function of 'Duress of Circumstance'

Terms of the 1911 Act

The act applies in England, Wales, Scotland, Northern Ireland, the Isle of Man, the Channel Islands, and in overseas crown territories and colonies. It also applies to British subjects anywhere else in the world.
* Section 1 - spying. The section is very broadly drafted, and if spying is proved by the prosecution then the section specifically puts the burden of proof on the defendant to show that he acted with innocent motives. The maximum sentence is 14 years in prison. British spy George Blake was sentenced to a total of 42 years for offences under this section.
* Section 7 - harbouring spies. 2 years.
*Section 8 - prosecutions under this act require the permission of the Attorney General.
*Section 9 - search warrants. Very unusually, this section gives senior police officers (of the rank superintendent) the power to issue a search warrant in an emergency, if there is no time to obtain one from a judge.

Terms of the 1920 Act

*Section 1 - wearing false uniforms, making false statements, forging official documents, impersonating people, keeping documents or codes etc. without authorisation, and other offences. All punishable by 2 years in prison.
*Section 2 - a specific rule of evidence in prosecutions under section 1 of the 1911 Act. Communicating with a foreign agent is admissible as evidence that the defendant intended to help an enemy.
*Section 3 - misleading or obstructing a police officer or soldier on duty at a prohibited place. ("Prohibited place" is defined at length by section 3 of the 1911 Act.) 2 years.
*Section 6 - refusing to cooperate with a police investigation into a suspected offence under section 1 of the 1911 Act. 2 years.
*Section 7 - attempting, inciting, or aiding or abetting an offence under the 1911 or 1920 acts. This section also makes it an offence to prepare to commit an offence under either act. This is much wider than ordinary British attempt law.
*Section 8 - sets the penalties for the offences under both acts.

Terms of the 1989 Act

The act applies in England, Wales, Scotland, Northern Ireland, the Isle of Man, the Channel Islands, and in overseas crown territories and colonies. Unusually, the terms of the act apply to affected persons (who are generally employees of the British government) wherever they are in the world.
* Section 1 - disclosure of security and intelligence information. It applies only to members of the security and intelligence services, and to others who work with security and intelligence information (and who have been informed that they are affected by section 1).
* Section 2 - disclosure of defense information. This section applies only to crown servants and government contractors (defined in section 12)
* Section 3 - disclosure of information concerning international relations. This section applies only to crown servants and government contractors.
* Section 4 - disclosure of law enforcement information which would assist a criminal or the commission of a crime. This section applies only to crown servants and government contractors.
* Section 5 - further disclosure or publication of information obtained in contravention of other sections of the act. It allows, for example, the prosecution of newspapers or journalists who publish secret information leaked to them by a crown servant in contravention of section 3. This section applies to everyone, regardless of whether they are a government employee, or whether they have signed the act.
* Section 6 - secret information belonging to foreign governments or international organisations. This section is intended to protect secrets shared by foreign governments and those of international organisations such as NATO and Interpol.
* Section 7 - defines the circumstances under which a disclosure of secret information is officially published. It is not a crime to disclose information that has been officially published according to the mechanism described in this section.
* Section 8 - makes it a crime for a crown servant or government contractor to retain information beyond their official need for it, and obligates them to properly protect secret information from accidential disclosure.
* Section 9 - limits the circumstances under which a prosecution under the act may take place. Prosecutions under section 4 require the permission of the Director of Public Prosecutions, or his equivalent in Northern Ireland. Prosecutions under other sections require the permission of the Attorney General or his equivalent in Northern Ireland.
* Section 10 - sets the penalties for contravening the act. Persons convicted under sections 4,5, and 8 are subject to six months in prison and a fine; persons convicted under other sections are subject to two years imprisonment and a fine.
* Section 11 - amends existing police legislation, making contraventions of this act arrestable offences and allowing for the issuance of search warrants.
* Section 12 - defines who is a crown servant and government contractor. This includes civil servants, members of the government, members of the armed forces and their reserve equivalents (including the Territorial Army), police officers, and employees and contract employees of government departments and agencies defined by the Home Secretary.
* Section 15 - makes it a crime for British citizens and crown servants to disclose information abroad which would be illegal for them to do so in the UK. This is intended to cover espionage (where someone travels to a foreign country and discloses secret information to a foreign power) and cases where someone travels to a foreign country and discloses secret information, perhaps to a newspaper. The terms of this section do not apply to disclosures covered by sections 4,5, and 8.

Sections (12,13,14, and 16) are present in the act for technical reasons.

In order for a crime to be committed, the following conditions must apply:# the disclosure must not be by means permitted in section 7# the person making the disclosure must know, or should know, that their disclosure is unauthorised# the disclosure must cause harm to the UK or its interests, or it could reasonably be believed that harm could occur, and# the person making the disclosure must know, or should know, that such harm could occur

The sections pertaining to crown servants, intelligence officers, and government contractors apply only to information obtained by that person in the course of their official duties; these sections do not apply if the information was obtained by other means (although section 5 would apply).

It is not a defence under the act that the disclosure is in the national or public interest.

Other countries

The phrase official secrets act may also be used to refer to statutes of a similar nature in other countries such as India's Official Secrets Act 1923. Canada has similar legislation titled the Security of Information Act. The U.S. also has several laws, see Espionage Act.

In the Republic of Ireland the Official Secrets Act, 1963, repealed previous British legislation of 1911 and 1920. The Official Secrets Act, as amended, applies to all civil servants and potentially anyone within the state. A suit may only be instigated at the approval of the Attorney General of Ireland, additionally proceedings may occur in camera but the verdict and any sentence must occur in public.

New Zealand had a 1951 Official Secrets Act. It was replaced by the Official Information Act in 1983.

See also

* Al Jazeera bombing memo
* Clive Ponting, whose successful Public Interest defence (to a prosecution under the 1911 Act) led to that clause being removed in the 1989 revision.
* David Shayler, former MI5 agent prosecuted under the Act after passing documents to the Mail on Sunday newspaper.
* O'Connor - Keogh official secrets trial
* Richard Tomlinson, former MI6 agent imprisoned in 1997 for breaking the 1989 Act, by attempting to publish a book detailing his career.
*Katherine Gunn, Former GCHQ translator arrested under the act whose case was later dropped by the goverment.

External links

* Official Secrets Act 1989 (official text from Office of Public Sector Information, formerly HMSO)
* BBC News: Troubled history of Official Secrets Act
* Security of Information Act (Canada)

Read from source:

http://en.allexperts.com/e/o/of/official_secrets_act.htm

Brigadier Ujjal Dasgupta is in Bad shape and needs Reassurance

 

Brigadier Ujjal Dasgupta is in bad shape (both physically and more importantly in spirits) and needs reassurance  that his friends and associates still think high of him and have NOT deserted him.

Please read General VK Singh's mail:
__________________________________________________________________________
Dear Friends,

UD is in bad shape. What is most worrying is that now his spirit also seems to be breaking. Unless something is done, he will remain where he is for many more years to come.

I think we need to highlight his case in the media. Also, efforts have to me made through human rights groups and NGOs. We are not asking that he should be released without trials. Once the trial begins, he will be acquitted since there is really no evidence. But at least he can be released on bail. If convicts can be given bail (including Sanjay Dutt), why not an under trial?

Sadly, the organisation that he served for so long has not come out in his defence. CPC has outlined the reasons - it is part of our culture. I know, beacsue the same happened in my case too. (As you know, my case is still going on. Mercifully, I applied fro anticipatory well which was later converted into regular bail. And all that I did was expose corruption in RAW. So much for the Whistle BLowers' Resolution).

We must also press for repeal of the infamous  Official Secrets Act. This was recommended by Veerappa Moily when he was Chairman of the Administrative Reforms Commission. Now that he is the Law Minister, he can do it. I have reminded him, but nothing seems to be moving, thanks to the clout of the Intelligence Agencies.

I did a lot of research on the OSA. I attaching an article on that was published in the USI Journal last year.

VK Singh

THE OFFICIAL SECRETS ACT 1923 – A TROUBLED LEGACY

By

Maj Gen V.K. Singh

Introduction

          The Official Secrets Act, 1923 is one of the most draconian laws still in force in India. A legacy of the British Raj, it had often resulted in grave miscarriages that have blotted the record books of our judiciary and sullied our reputation among democratic nations. Eminent jurists and civil rights activists have unequivocally voiced the opinion that the infamous statute should be scrapped, lock stock and barrel.  After the enactment of the Right to Information Act in 2005, it has no right to exist, a fact that has been pointed out by Veerappa Moily, heading the Second Administrative Reforms Commission that has already recommended its repeal. Unfortunately, the proposal was shot down by the bureaucrats in the Home Ministry, based on objections from the intelligence agencies. The arguments advanced for its survival are based on the hypothesis that this will hamper the prosecution of spies. In fact, nothing could be further from the truth. It is necessary to go back into the history of the law to understand why it was enacted and whether it is still relevant today. 

The Indian Official Secrets Act, 1889 

      The first record of a regulation dealing with official secrets is a Notification issued by the Foreign Department of the Government of India on 30 August 1843 which prohibited officials from making official documents public. At that time government officials often became correspondents for newspapers, especially during war. On 8 July 1875 the Home Department issued a Resolution that an official could become a correspondent for a newspaper only after obtaining permission from his office, which was normally granted. On 3 June 1885 the Home Department issued another Resolution that stated that the Viceroy had noticed that information of a confidential nature frequently appeared in newspapers. It advised government officials to be ‘as reserved in respect of to all matters that may come within their cognizance during discharge of their public duties as lawyers, bankers and other professional men in regard to the affairs of their clients’. 1

            In September 1887 the British Colony of Gibraltar issued an Ordinance that prohibited making a sketch, drawing or photograph of any fortification in the garrison. A similar law had been enacted in France a year earlier. All British colonies were advised to issue similar Ordinances. In October 1887 the Secretary of State in London wrote to India, informing them of the advice to the Colonies. The Commander –in-Chief asked for a similar law to be enacted in India. On 1 June 1888 the Adjutant General in India forwarded a draft Bill to the Military department to prevent unauthorised entry and making of sketches of Military and Naval stations, to be called the Indian Fortifications Act, 1888.

            On 9 June 1888 the Pioneer Newspaper reported that the Official Secrets Bill had been introduced in the British Parliament. Shortly afterwards a copy of the draft Bill was received in India. Since the Bill covered the points that were intended to be included in the Bill proposed by the Army, it was decided to wait for the enactment of the law in Britain.  In September 1889 the Official Secrets Act was passed in Britain. It was applicable to India, but since it was considered unsuitable to the Indian legal system, it was decided to enact a separate law for India. The Indian Official Secrets Act (Act XIV) of 1889 was passed by the Viceroy’s Executive Council on 17 October 1889. There was no discussion. The Viceroy, Lord Lansdowne, gave his assent on the same date.2

The Indian Official Secrets (Amendment) Act, 1904

      In 1896 two persons – one a globe trotter and the other a local photographer - were arrested for taking photographs in Bombay harbour. It was found that the 1889 Act could not be used against them since wrongful intent could not be proved. The Army authorities urged a change in the law, making it more stringent and shifting the burden of proof on the accused. Lord Curzon did not approve, and the matter was dropped.

      In 1901 the Army again pressed for a change in the law, after a Parsee was found taking a harmless photograph of Colaba Fort. Curzon reluctantly approved the amending Bill in March 1902, stating that ‘it was the anti-thesis of everything that I had previously thought or written.’ The draft Bill was sent to the Secretary of State in London, who raised certain objections. The Bill was redrafted. Curzon approved it, but did not read the revised draft. Later, he accepted the blame for approving it, and wrote: ‘it deserved the worst things that have been said about it in the Press.’   

      In January 1904 the Bill was sent to a Select Committee, which gave its report a month later. Several members, including GK Gokhale, gave dissenting opinions. Pandit Madan Mohan Malaviya wrote a strong letter of protest against the Bill, which was considered in the Viceroy’s Executive Council and passed on 1 March 1904, after incorporating some amendments suggested by Gokhale and Dr. Ashutosh Mukherjee. The Indian Official Secrets (Amendment) Act, 1904 received the Assent of the Governor General on 4 March 1904. 3 

Defence of India Act of 1915 

      Though not dealing directly with official secrets, another statute that was enacted during World War I was the Defence of India (Criminal Law Amendment) Act of 1915. The Partition of Bengal in 1905 created considerable resentment and unrest in Bengal. There were several cases of subversion and sabotage, including attacks on police officers and government officials. This caused alarm even in Britain, prompting the Secretary of State to write to the Viceroy. It was decided to enact a new law similar to the Irish Act of 1881, which envisaged trial by tribunals, against which there was no appeal. Act No XIV was passed in December 1908, which provided for speedy trial of certain offences and prohibition of dangerous associations. It was to apply in Bengal and Assam.

      In December 1914, The Lieutenant Governor of Punjab, Sir Michael O’Dwyer, wrote to the Viceroy, asking for the enactment of an Ordinance to deal with the Ghadrites and the Komagata Maru returnees who had become very active in the Punjab. He wanted a law on the lines of the Frontier Crimes Regulation and Frontier Murderous Outrages Regulation of 1901 that were in force in the North West Frontier province. The draft of the Ordinance forwarded by Punjab envisaged arrest without warrant and trials by special tribunals against which there was no appeal. Before taking a decision on the Ordinance, the Viceroy asked for it to be circulated among the members of the Executive Council. Except for Sir R.H. Craddock, the Home Member, the other five members, including the Commander-In-Chief, General Sir Beauchamp Duff, were against the Ordinance. Lord Hardinge ordered that that the Ordinance in its present form was not immediately desirable, but another on the lines of the Ingress of India Ordinance should be prepared.

      Conditions in Punjab deteriorated and there were several dacoities in banks, attacks on police stations and murders of government officials. In March 1915, O’Dwyer again wrote to the Calcutta, giving instances of terrorist attacks to buttress his arguments. Finally, the Viceroy relented. But he did not approve the Ordinance that O’Dwyer wanted. Instead, he ordered a Bill to be introduced in the Council to enact a law on the lines of the Defence of Realm Act that had been enacted in Britain shortly after the commencement of World War I. The Bill for enactment of the Defence of India Act was introduced in the Executive Council on 12 March 1915. It provided for the issue of regulations by the local government. Offenders could be tried by commissioners appointed for this purpose, instead of the normal courts. There was no appeal against the sentences.

      During the debate, the Bill was strongly opposed by Madan Mohan Malviya and Surendra Nath Banerjee, but was passed on 18 March 1915. The Defence of India Act was made applicable to three divisions - Lahore , Jullunder and Multan – and not the whole of the Punjab. Later, it was also made applicable to Meerut and Benares districts of the United Provinces. It was to remain in force until six months after the end of the War, after which it would automatically lapse. 4

The Indian Official Secrets Act, 1923 

      We now come to the Indian Official Secrets Act, 1923 and its convoluted journey. In 1911, a new Official Secrets Act was enacted in Britain, repealing the British Act of 1889.  The Bill, intended primarily to meet military requirements, was introduced shortly after the Portsmouth spy scare and the debates in both Houses were centred on military espionage. The Act was made applicable to India also, along with the Indian Official Secrets Act of 1889 as amended in 1904. However, the maximum punishment in the British Act of 1911 was reduced to 7 years, whereas in the Indian Act it remained transportation for life.   

      On 26 February 1914 a German Jew called Hahn was found loitering near the Karachi Port where manoeuvres were being held. On the same date an Englishman called Chapman was arrested after he entered the Brigade Office at Karachi. Hahn was tried but discharged by the Magistrate, since espionage as such was not an offence under the Indian Act unless committed by an employee.  Chapman was also released, since the Brigade Office was held not to be a prohibited place, as defined in the Act. The British Act of 1911 covered such offences and could have been used, but the magistrates were not aware of this. Quoting the above instances, in July 1914 the Army asked the Home Department to amend the law in India in line with the British law. After getting the opinion of the Legislative Department the matter was put up to the Viceroy, who approved it. A letter was sent to the Secretary of State in London, asking for his approval.  

            In his reply, the Secretary of State asked for an assurance that the proposed Bill would not revive the controversy that occurred after the amendment in 1904. After getting opinions from members of his Council, the Viceroy, Lord Hardinge decided to postpone the legislation. On 7 January 1915 he noted: “After careful study of the notes, this conviction is borne in upon me that the proposed legislation will present opportunities for endless and bitter controversies which is greatly to be deprecated ….I do not consider the present time opportune for dealing with the  question by legislation. I hope His Excellency the Commander-in-Chief will agree with me in these views and postpone the proposed legislation to a more peaceful date.’

            In December 1916, the proposal was again submitted to the new Viceroy, Lord Chelmsford, who directed that it should be deferred till after the War. 

            After the end of World War I, the Defence of India Act 1915 lapsed.  However, the Army wished to continue with its provisions, which were more powerful than the Indian Official Secrets Act of 1889.  The proposal to consolidate the law in India relating to official secrets was again initiated in 1919. The Viceroy again deferred it, because of the bitter experience of the violent protests that had followed the Amending Act of 1904. Soon afterwards, a new Official Secrets Act was enacted in England in 1920, amending the previous Act of 1911. The new Act had more stringent provisions, but did not apply to India.  

            In 1921 the proposal to amend the law in India was initiated for the fourth time. The Law Member, Mr. TB Sapru advised postponement. The matter was referred to the Chief of General Staff, General C.W. Jacob, who justified the urgency from the military point of view. The reasons given were increase in Bolshevik activity; troubles on North West Frontier; threat from Afghanistan; increase in Japanese activity; danger from other  enemy powers since war plans were being revised; and the possibility of racial war between Japan and USA affecting India. The Viceroy, Lord Reading, agreed to the Bill being drafted and introduced.  The penalty for spying under Section 3 was maximum 14 and minimum 3 years; under Section 5, 6, 7, 8 and 9 it was two years; and under Section 10 (harbouring spies) it was one year.  

            The draft was sent to local governments, high courts and bar associations for their opinions. It was also published in Gazette of India and local gazettes in English and vernacular.  After their replies had been received, the Assembly met on 6 September 1922 to debate the bill. It was opposed by several members, including KC Neogy, M. Chintamani and MTV Seshagiri Ayyar, who questioned necessity of Bill. It was decided to refer the Bill to a Select Committee.

            The Select Committee submitted its report on 30 January 1923, with a Dissenting Note by Mr. KC Neogy. His major objection was the provision in Section 3(2)  which said that ‘it will not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety and interest of the State and notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose  was a purpose prejudicial to the safety  and interests of the State.’  

                  The Select Committee tried to address the major objections of the members, especially Mr. Neogy, making a few changes in the Bill. The maximum sentence for military offences was 14 years, while for non-military offences it was three years. The provision of a minimum sentence was removed. The special rule of evidence, wherein it was not necessary to prove that the purpose was prejudicial to the safety or interests of the State, was made applicable only to military offences. For the non-military offences, the ordinary rules of evidence would apply. Military offences would be cognisable and non bailable, while the non-military offences would be non-cognisable and bailable. However, Mr. Neogy was not fully satisfied and gave a dissenting note. 

                  The Assembly met on 14 and 24 February 1923 to consider the report of the Select Committee and debate the provisions of the Bill. There were heated exchanges and most of the amendments proposed by members were negatived after being put to vote. Among those who opposed the Bill were Dr. HS Gour, Mr. KBL Agnihotri; TV Seshagiri Ayyar and Mr. KC Neogy. The Bill was finally passed and sent to the Council, which suggested some minor amendments. The Bill was accepted and passed by the Legislative Assembly on 21 March 1923. The Governor General and Viceroy, Lord Reading, gave his Assent to the Indian Official Secrets Act (Act No XIX of 1923) on 2 April 1923. It was published in the Gazette of India on 14 April 1923 and has remained in force ever since. 5  

After Independence 

                  After Independence, the Official Secrets Act was amended by Act 3 of 1951 and Amending Act 24 of 1967.  The latter is important, as it made several changes, nullifying the efforts of stalwarts such as Gokhale and Neogy, who had succeeded in making the Act somewhat less draconian than what was initially intended. Interestingly, the Act of 1967 was passed in both Houses of Parliament of the largest democracy in the World, with little serious debate, a sad commentary not only of our democratic credentials but the calibre of our law makers.  

      The Bill to amend the Official Secrets Act was introduced in the Rajya Sabha on 23 June 1967. Moving the Bill on 24 July 1967, Shri Vidya Charan Shukla, the Minister of State for Home Affairs, said :    “ ….this is only an amending Bill. There is not much that has to be said about it, and before I give a reply or say anything about this Bill I would like to hear honorable members of the House. Therefore, I move that this Bill be taken into consideration”.

      This was objected to by several members, including Shri Loknath Misra, Rajendra Pratap Singh, Bhupesh Gupta, Raj Narain and PN Sapru, who raised a point of order on the Minister’s inability to make a statement while moving the Bill. They accused the Minister of being unprepared (he did not even have a copy of the Bill) and requested the Chairman to adjourn the House. The House was adjourned for lunch and re-assembled after two hours. After considering some other matters for a few minutes, the House resumed the discussion of the Indian Official Secrets (Amendment) Act, 1967. In his introduction, Shri Vidya Charan Shukla stated:  ‘…. because of the kinds of methods used to gain access to official secrets and secret documents and the variety of unscrupulous methods which are used by various foreign Powers to get our official secrets it is necessary to amend this Act to make it more efficacious and more effective.’       

            One of the most important changes introduced in the Bill was in Section 3, regarding the necessity of showing that the accused person was guilty of any particular act in order to prove a purpose prejudicial to the safety and interest of the State, which KC Neogy had objected to in 1923, and which had been made applicable only to military offences in the Act of 1923. The Bill sought to make it applicable to all offences under Section 3. This was done by the simple expedient of omitting the words “with simple imprisonment which may extend to fourteen years” from Section 3(2) of the Act.

      While explaining this particular amendment, Shri Shukla stated : ‘Under Section 3(2) of the Act imprisonment of 14 years has been prescribed for certain offences under this clause. Now we have to amend this clause to provide that the provisions apply to all offences of spying punishable under Section 3(1), that is to say, of the preceding section of this particular section which is being amended”. It was obvious that Shri Shukla had not understood the implication of the amendment. Section 3(2) did not prescribe any punishment – it only implied that for military offences, it will not be necessary to produce any evidence. The words ‘simple imprisonment which may extend to fourteen years’ were used only to bring out the distinction between military and non-military offences. However, this escaped the notice of the House.  

      The other major changes proposed in the Bill were to make all offences cognizable and non-bailable, and enhance the punishments of Section 5, 6, 7 and 8 from 2 to 3 years and of Section 10 from 1 to 3 years. No reasons were given for these severe amendments.  

            The Rajya Sabah debated the Bill on 24 July, 31 July and 31 August 1967. There were many speakers but most raised extraneous issues not connected with the Bill.  Shri Bhupesh Gupta  spoke at length about the case of Sunil Das, who was arrested from the AICC office for snooping; the letter of General Thimayya after his resignation which was leaked to the Statesman; Shri AK Roy, an ex Auditor General who was later employed as a Director in a private company; General’s Kaul’s book on the 1962 operations; General Chaudhury working as a correspondent for the Statesman; the report on the Ruby General Insurance Company and the New Asiatic Insurance Company; the abolition of privy purses etc. Dewan Chaman Lal spoke about the necessity for a law to deal with treason.  Shri Raj Narain  raised a point of order that the Minister had  not given any list of specific instances when the existing Act was found wanting, mentioned a book in which the map of India did not show the State of Assam, the necessity of using the words directly and indirectly; and many other issues. Shri Sunder Singh Bhandari spoke about the Chinese road in Aksai China and cases in West Bengal where Police officers dismissed for espionage had been reinstated. Shri Niren Ghosh spoke about the ford Foundation gathering secrets of the eastern region; Mr Dharam Teja’s letter to the Deputy Prime Minister and Dr Nagendra Singh; the CBI inquiry into the Pyare Lal group and so on.  

            It was obvious that like the Minister of State for Home Affairs, several other members had also not under stood the provisions of the Bill. Shri MP Bharagava, a senior member, gave a long speech and went over each clause of the Bill. While dealing with the proposed amendment in section 3(2) of the Act, which said ‘the words with imprisonment for a term which may extend to fourteen years shall be omitted’, he said “This is a repetition because in the preceding para this has been clearly provided. So this repetition is not necessary”. The words were not a repetition but had been used in lieu of military offences.  Surprisingly, many members including Shri RT Parthasarthy and Shri Vidya Charan Shukla complimented him for his speech and analysis of the Bill! 

            Another member who did not comprehend the meaning of the amendment in Section 3(20 was Shri M. Ruthnuswamy, who said : ‘ And why then should the term of fourteen years imprisonment be omitted from sub-section(2) of Section 3 of the principal act? I think such severe punishment must be accorded for such offences as the unauthorised revelation of official secrets….”. To be fair to Shri Ruthnaswamy, he goes on to state that the provision of it not being necessary to prove that the accused acted for a purpose prejudicial to the safety and interests of the State, as given in the Statement of Objects and Reasons, was ‘ a very dangerous provision because the conduct and the character of the man and so on are vague things.’ With rare prescience, he made plea for a Special Security Service on the lines of the MI Bureau in UK and the Deuxienne Bureau in France ( RAW came into being a year later, in 1968). 7

      The Lok Sabha debated the Bill on 12 August 1967, where it was moved by Shri Vidya Charan Shukla.  Like the Rajya Sabha, many members spoke on extraneous issues. However, one member who analysed the proposed amendments was Shri Nambiar, who felt that they were draconian and likely to be misused to harass innocent citizens. (He had been convicted under the Official Secrets Act in 1948). He questioned the necessity of making the special rule of evidence applicable to all offences, enhancing the punishments and making all offences cognizable and non-bailable. He felt that the new wording of section 3:  ‘which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States’, was very loosely worded. “Who will decide whether a particular disclosure affects the sovereignty and integrity of India”, he asked? All the amendments proposed by members were negatived and the Bill was passed by the Lok Sabha on 12 August 1967. 8 

      The genesis of the Official Secrets Act was the need to prevent spying and wrongful communication of military secrets. The maximum punishment for ‘spying’ in respect of defence forces in the Act was 14 years while for wrongful communication it was 3 years. The punishments under other sections in the original Act of 1923 were between 1 to 2 years. These were enhanced to 3 years in the Amending Act of 1967. Another amendment was that the proviso of it not being necessary to prove that the action of the accused acted for a purpose prejudicial to the safety and interest of the State, which earlier applied only to military offences, was made applicable to all offences under Section 3.  These amendments nullified the efforts of stalwarts such GK Gokhale and KC Neogy and who had opposed it vehemently in 1904 and 1923, and forced the British authorities to make the changes which were reversed in 1967. The Indian Official Secrets (Amendment) Act, 1967 made the Act much more draconian than it was under British rule.  

      It is plain that neither the Minister nor most of the law makers who approved the Bill in 1967 were aware of its implications. The time when this happened is relevant. It was 20 years after Independence. The necessity for such an amendment had not been felt after the 1947-48 war with Pakistan or the 1962 war with China. Unlike all previous enactments, the Army had not asked for it – their own laws were much more stringent.  Apparently, even the political leadership did not initiate it. Indira Gandhi had come to power only a year earlier; the Home Minister YB Chavan had recently moved from Defence to Home; and the Minister of State, VC Shukla, was oblivious about its provisions. Perhaps the intelligence agencies, or rather the IB – RAW was yet to be formed –was behind it. Taking advantage of the inexperience of the political leadership – Nehru or Shastri would never have consented to it, having spent half their lives in jails – they got this draconian law enacted.

The Army, Navy and Air Force Acts

                An interesting aspect is the overlap between the Official Secrets Act and the Acts of the Army, Navy and Air Force. The special acts of the Navy, Army and Air Force after Independence have absorbed both the infringements i.e. spying and wrongful communication of military secrets, while dramatically enhancing the punishments. Under the Navy Act, spying and wrongful communication with traitorous intent is death, while other wrongful and improper communication attracts 14 years. Interestingly, even civilians are covered by this. Relevant Sections of the Navy Act, 1957 are given below:

    38. Penalty for spying. – Every person not otherwise subject to naval law who acts as a spy for the enemy shall be punished under this act with death or such other  punishment as is hereinafter mentioned as if he were a person subject to naval law.

          39. Correspondence etc, with the enemy. –Every person subject to naval law, who, -

    (a) traitorously holds correspondence with the enemy or gives   intelligence to the enemy; or

    (b) fails to make known to the proper authorities any information he may have received from the enemy;’ or

                      (c) assists the enemy with any supplies; or

    (d) having been made a prisoner of war, voluntarily serves with or aids to enemy

    shall be punished with death or such other punishment as is hereinafter mentioned.

    40. Improper communication with the enemy. – Every person subject to naval  law who without traitorous intention hold any improper communication with the enemy shall be punished with imprisonment for a term which may extend to fourteen years or such other punishment as is hereinafter mentioned.

    The provisions of sections 38 and 39 of the Navy Act, 1957 are covered by the Army Act, 1950 and the Air Force Act, 1950 under sub sections 34 (d), (e) & (i). The provisions of Section 40 of the Navy Act are taken care of under sub-section 35 (b) of the Army Act as well as the Air Force Act.

Conclusion

                As already mentioned the Administrative Reforms Commission chaired by Shri Veerappa Moily had recommended the repeal of the Official Secrets Act. This was opposed by the Ministry of Home Affairs and the intelligence agencies who contended that this will tie their hands and it will not be able to prosecute offenders such as those involved in the Naval War Room leak case.  Another argument advanced for its continuation is that ‘it has stood the test of time’ and the conviction rate for charges under this Act is very high. The first point is not really valid, because there are adequate safeguards to cater for military offences in the military Acts themselves, which are in fact more stringent than the Official Secrets Act.  Hence, even if the OSA is repealed, it would not make much of a difference. The second point of a high conviction rate is fallacious. The high conviction rate is because of the draconian provision whereby the offence does not have to be proved by evidence, and the accused can be convicted merely on suspicion. Not surprisingly, there have been several instances when innocent persons have been convicted under the Act, which has become a handy tool to deal with those create problems for the bureaucrats. In fact, instances of the Official Secrets Act being utilised to prosecute actual spies and moles are rare. On the other hand, cases of its misuse are legion. Hundreds of innocent citizens have suffered long periods of incarceration under the infamous Act. Examples are the soldiers involved in the Samba Spy case; the scientists prosecuted in the ISRO case; Captain BK Subbarao of the Indian Navy; newspaper correspondent Iftikhar Gilani and many others. Is it not time we consigned the Official Secrets Act to the dustbin of history?  

(4800 words)

End notes

1. Home Department Proceedings – Public A; June 1885, Nos 162-163, National Archives if India (NAI).
2. Indian Official Secrets Act 1889; Legislative Department Proceedings, October 1889, Nos 219-240, National Archives if India (NAI).
3. Act No V of 1904; Legislative Department Proceedings, 1904, Nos 23-66, NAI.
4. Act No IV of 1915; Home Department, Political – Deposit, September 1915, NAI.
5. Legislative Department; Assembly and Council – A, October 1923, Nos 55-75, NAI.
6. Rajya Sabha Debates, 24 July 1967.
7. Rajya Sabha Debates, 24 & 31 July; 7 August 1967.
8. Lok Sabha Debates, 12 Augsut 1967

5 years of injustice and Human Rights Violation

Now it is more than 5 years since our friend, Brig Ujjal Dasgupta is rotting in the Tihar Cental jail meant for hard core criminals.

We avoid talking about it because of a misplaced feeling that it is unpleasant and that his name will get further spoiled (as if people already do not know the incident, the case or the aftermath)

Another pernicious tendency is to distance oneself from the accused because it is his battle. This tendency comes from the received wisdom during the service tenure where all people cut off any contact with the one who has come under the cloud for ones own career risk avoidance reasons. (You know exactly what I am talking about!)

https://docs.google.com/fileview?id=0B5gmTyGHnWOjMmEyNDViNDctZjRlYi00NThmLWE0NGUtNGMzZGU1NGVlOWI1&hl=en

https://docs.google.com/fileview?id=0B5gmTyGHnWOjZWU2NzBjZWEtNzE1Mi00NzcxLWI3YWQtODRhZWY4NGM1MTNj&hl=en&invite=CKfN5bMB

The whole thing is total bogus will be seen from the analysis of the above.
Here are some of the questions I raised after some research and analysis of  the above:

1. Has UD obtained a soft copy (electronic) of the JPEG document  from the forensic lab
   
2. Has he got the binary of the MCTE stegnography software anywhere?
3. Has he got the soft copy of the carrier file ( the rental agreement file)?
4. Have the Forensic lab carried out a number of trials with images and steg coding and their analysis to establish the level of accuracy of the tool especially when they believe the encoding was dome by the software in the thumb drive?
5. Have they established  average probability and threshold of detecting stenography in the case of Known-Stego Attack :When you conduct this type of attack, you have knowledge of the algorithm that is used to create the stenographic content, and the original file, and the file that has the hidden information are available to you. If the average probability  in such experiments are high, then you know 38% probability reported is too low.
6. 38% probability of presence of stenography is same as 62% probability of absence of stenography. Instead of 38%, even if it is very high probability  of presence, in such tools there is a very high false positives. Is UD aware of this?
7. Is UD aware that these Forensic lab people are NOT "experts" in stenography but they just run the tool and collect the results. Ability to drive a car does not mean a person is expert in automobile engineering. Is UD and his lawyer aware that the so called "expert" can be pinned down by appropriate questioning ?
8. Isn't UD aware that even if the presence of stenographic encoding is proved "beyond reasonable doubt" it does not prove the crime. The burden of proof of crime is still left with the prosecution because
   
1. Possession of stenographic software by itself is not a crime. There are many available in public domain.
2. Possession of the JPEG file of the rental agreement is NOT a crime.
3. Possession of a encoded file on which the software is run is NOT a crime because any one including a school student can run the software. ( UD's statement that he does not even know how to run the software wont contain any weight at all.)
4. The fact that UD knows how to conceal messages in stegnography is also NOT a crime.
9. Was active steganalysis in addition to passive steganalysis done and was any credible message derived out of the purported sample? (Passive steganalysis: Detect the presence or absence of a secret message in an observed message. Active steganalysis: Extract a (possibly approximate) version of the secret message from a stego message.  This task is much easier in this instant case because the only unknown is the secret message encoded and the rest are presumably known.)
10. What is the actual charge sheet  which the prosecution will have to prove "beyond reasonable doubt".?

Here is some material for reading:
 http://www.fbi.gov/hq/lab/fsc/backissu/july2004/research/2004_03_research01.htm


I am getting in touch with some researchers working in this area. It is not difficult to prove some of the facts about the large  false positives  in case of stegnoanalysis.


Ask UD to cheer up because it is tough for prosecution to prove any crime "beyond reasonable doubt".(I know it is easier said than to believe considering his state of mind in the current situation.)  There may be delays due to court red tapes but essentially prosecution has a very weak case. Technology can not obfuscate the basic difficulty.


In the meanwhile I am continuing with my study and analysis.



If page 5 of  https://docs.google.com/fileview?id=0B5gmTyGHnWOjZWU2NzBjZWEtNzE1Mi00NzcxLWI3YWQtODRhZWY4NGM1MTNj&hl=en&invite=CKfN5bMB is the country's  secret that he purported to have concealed in his thumb drive, and for which he is  incarcerated in Thihar jail for 5 long years along with the hard core criminals of the country, GOD save our government and  the justice system  of our glorious nation!

We need to raise the conscience of our course mates, veterans and the country against the human rights violation being committed against our friend. He is one of the finest officers amongst us needs no emphasis and yet no ones conscience is pricked by the injustice meted out to him by the very nation that he served gloriously for 40 years.
Nath