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!