“Know yourself, Know your enemy

A hundred battles, A thousand Victories”

                                                                    Sun Tzu

With this ominous quote of the Chinese war philosopher begins the over 100-page “top secret”part of the classified Henderson-Brooks Report. The report reviews the reasons behind India’s military debacle in 1962 in detail.The philosophical beginning to the report leads to a maze of some long known-hidden facts, which have now sparked off a debate on the preparedness of the Indian Army to take on the Chinese. The report, uploaded online by an Australian journalist, also highlights former Prime Minister Jawaharlal Nehru’s failure to gauge the on-ground realities of the war, thus holding him “personally responsible” for India’s humiliating defeat.

The Henderson Brooks Report, after 50 years of its existence is still a classified document. We would have never been privy to the facts of the case if not for Australian journalist Neville Maxwell, who put it on his website. (His blog has been reproduced on Indian Defence Review’s website. Maxwell’s website is currently not available).

In his blog titled, “My Henderson Brooks Albatross”, 88-year-old Maxwell says that he got access to the documents while researching for his study on the Sino-Indian border dispute. He says his source laid down no conditions as to how he should use it. His book ‘India’s China war’, published in 1970, was essentially a “gist of the report”. Having possessed the classified documents for almost half-a-century, Maxwell’s belief that the Indian government “would release it after a decent interval” started dwindling. Finally, he decided to go online with the report.

The report being made public has not only embarrassed the United Progressive Alliance (UPA) government just before the elections but has also prompted the Bharatiya Janata Party (BJP) to demand publication of the report (although they did not do so themselves when they were in power from 1999 to 2004). Despite such demands from different quarters, the Defence Ministry has made it clear that the 1962 war report would continue to remain classified. The ministry issued a statement saying that the content of the report is “extremely sensitive” and “of current operational value”.

WHAT IS CLASSIFIED?

In India, the government can keep any document classified for an indefinite period citing reasons such as “extremely sensitive”, “of current operational value” and “country’s sovereignty and integrity”, etc. Classified documents could be any Cabinet note, records, balance sheets or any government document that can be perused only by people officially authorised to see it. A series of legal provisions safeguard the government’s right to keep such documents classified for years together. Venkatesh Nayak, Programme Coordinator of Commonwealth Human Rights Initiative, explains – “Official Secrets Act 1923 is one such legal measure that allows secrecy of unpublished official document [sic]. Similarly, Section 123 and 124 of the Indian Evidence Act allows the head of the department concerned to refuse to disclose unpublished official documents even to the court of law”.

The advent of the RTI Act (Right To Information), however, ushered in an era of easy availability of information that the general public didn’t have access to before. Saikat Datta, National Security Editor of Hindustan Times says that RTI could be an effective tool in extracting information on classified documents. “The RTI Act clearly says that all previous laws regarding secrecy of information except those mentioned in Section 8 of the Act will be superseded by the new law. It’s an Act passed by the Parliament. So why not follow the law?”

The reality, however, is not that rosy. There are enough air-tight arrangements to make sure that RTI cannot be used to obtain classified documents.

In 2005, journalist Kuldip Nayar filed an RTI application seeking a copy of the Henderson-Brooks report. As expected, he was denied the information. Nayar doggedly pursued the case for four years arguing that “the matter may be sensitive at a particular time and I can understand even for some years, but not after 44 years. In America, the papers relating to Vietnam were disclosed”. He failed to secure a copy of the report because its content fell under Section 8 of the RTI Act.

Para 8 (1) (a) of the Right to Information Act 2005 states that ‘Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence.’

Not only is RTI ineffective in getting hold of classified documents, it has also proved to be equally ineffective in getting any information on why and how a certain document is categorised as “classified”.

Classified documents can be categorised into three groups on the basis of the sensitive nature of the information they contain – top secret, secret and confidential. Nayak says, “The rules and regulations that define the criterion for a document to be classified under these three categories and why and how a document is classified are contained in the Manual of Departmental Security of Instructions”. However, the existence of this manual doesn’t mean you could pick up a copy of it from a book store and read the guidelines.

In 2009, Nayak filed an RTI application asking for a copy of the manual. After several rounds of appeal, the only fact that Nayak came to know was that the manual defining the degree of secrecy of a classified document is itself a confidential document. The RTI response stated that the details in the manual fell under Section8(1)a of the RTI Act. According to Nayak, “Even though RTI promotes transparency in a big way, certain kind of top secret information can be kept away from public scrutiny infinitely by saying that disclosure will harm our national security”.

Understandably, if not for Maxwell, there was no way we could have ever got a peek into the Henderson-Brooks report. The legal safeguards and absence of a timeframe to declassify confidential documents leaves us with little chance of ever knowing a large part of our administrative, executive, financial and military history. It also prevents us from truly coming to terms with the mistakes that our decision-makers might have made in the past.

In the United Kingdom, there is a fixed timeframe within which all classified documents are released into the public domain. The recent example, which coincidentally involves India, is the release of the papers relating to the UK government’s role in Operation Blue Star. The papers were released under the 30 year rule. According to the UK national archives, in 1967 the 50 year rule of secrecy was reduced to 30 years. In 2012, the time period of releasing confidential government documents was further reduced to 20 years. This trend of a decreasing timeframe is a sign of a maturing democracy.

In the United States Of America while there is no such timeframe, the broad policy for classification and maintenance of sensitive information and criteria for classifying documents as“secret”, “top secret” and “confidential” are in the public domain.

Saikat Datta says, “In the US, the Supreme Court gave protection to the media to report on the publication of Pentagon Papers on the Vietnam War. This was 44 years ago, and that too for an ongoing war. Then why can’t India allow the declassification of the 1962 war documents even after 50 years? This would be in the interest of democracy and India must do it as a mature democracy.”

INDIAN MEDIA’S REACTION TO THE REPORT

In his blog, Maxwell not only comments on the Indian government’s stubborn guarding of its secrets but shows how Indian media is not comfortable with the idea of publishing a leaked classified report even in the “age of Wikileaks”.

Often, Indian journalists cite the example of the US press having immunity while publishing the Pentagon papers. Yet it was only after the US press took the lead of publishing the confidential papers risking legal action that the matter came into the public domain. Maxwell says in his blog that he approached not one, not two but five Indian editors before going online with the report. Each one of them had declined the offer fearing “the government would turn its rage upon those who had published it”. Interestingly, now that the documents are in the public domain all prominent news papers and channels have lapped up the issue.

In an email conversation with Newslaundry, Maxwell said, “the fact that major Indian papers have been sitting on the text for nearly two years is a significant part of this story. As for my timing, it was a matter of my deciding to get this fuss over and done with, the albatross off my neck at last. Certainly no political calculation!” However, he refused to divulge any further details about his experience with the Indian media.

We also spoke to editors of newspapers and news channels about Maxwell’s allegations and why it took an Australian journalist to bring these facts to light. According to Vishnu Som – NDTV  Editor, “I am not sure which editors refused to publish it.  Typically, our news media doesn’t play safe at all!  We never had access to it earlier. We do now and it’s being reported. No Indian journalist who tried to access the report was given the report. This veteran journalist, who has authored books on the subject, was an India-reporter during the time and managed to access the report”.

Saikat Datta says that most of the present crop of journalists was either not born or not active journalists at that time. He says, “Maxwell’s book, ‘India’s China War’, came out in 1970 and he had access to the classified documents even before that. Most of us weren’t even there at that time”. He adds that Maxwell must have approached the wrong people. “He should have come to us. If he had come to me I would have surely published it.”

Going back to Sun Tzu’s war call, “Know yourself, know your enemy”, but what if you are your own worst enemy? Here in our political culture of opaqueness facts lie hidden in government lockers. In 2012, the External Affairs Ministry for the first time declassified 70,000 files and moved them to the National Archive. Now that gives hope.