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28.US Secrets and Security; Pentagon Papers: Can fundamental right of the people be denied on this excuse? The US Executive resisted publication of articles in Newspapers about Pentagon Papers, on similar grounds. But they failed. In 1967 Secretary of Defense Robert S. McNamara commissioned a "massive top-secret history of the United States role in Indochina". It's report CIC/NAIND/C/2017/605263 Page 25 of the office of the Secretary of Defense Vietnam Task Force, was popularly known as Pentagon Papers. Daniel Ellsberg, who had helped to produce the report, leaked 43 volumes of the 47-volume, 7,000-page report to reporter Neil Sheehan of The New York Times in March 1971 and the Newspaper began publishing articles outlining the findings revealing that the Johnson Administration "systematically lied, not only to the public but also to Congress". [Sheehan, Neil (1971-06-13). "Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement" (PDF) The New York Times] This article explained how clandestinely the US enlarged scope of Vietnam War with bombings of nearby Cambodia and Laos, coastal raids on North Vietnam and Marine Corps attacks, none which were reported in the mainstream media. [Frum, David (2000). How We Got Here: The '70s. New York: Basic Books. p. 43] The US charged the journalist with conspiracy, espionage and theft of government property, which were later dismissed by prosecutors. Ellsberg discussed the study with The New York Times reporter Neil Sheehan and gave 43 volumes to him. Times started publishing reports on June 13, 1971. [Correll, John T. "The Pentagon Papers" Air Force Magazine, February 2007] Nixon Administration obtained a federal court injunction forcing the New York Times to cease publication after three articles. Then the Times approached the Supreme Court. Meanwhile The Washington Post began publishing articles based on the Pantagon Papers given by Ellsberg.

37. Undefined Powers and Abuse: What are "official secrets"? The OSA did not define it. This law is unique as there are no provisions for rules and regulations. Thus it is totally left to the individual discretion of the officers without any guidance from anywhere. If an officer declares any file as CIC/NAIND/C/2017/605263 Page 30 prohibited, the possession of that document would attract severe penalty without looking into intention or purpose of the possession. Supreme Court restricted meaning of the term 'official secret' to "secret code or password mentioned in Section 3(c) of OSA'.[Sama Allana Abdulla vs State of Gujarat, AIR 1996 SC 569, para 7] Similarly the clause like sketches, maps, plans and documents used in OSA cannot be considered as "official secrets"? The OSA does not require all kinds of government-held information to be classified as "official secrets". That is why the MoDSI is not part of OSA. Most of documents are not connected to OSA at all. Why the Government not make MoDSI public? Thus the power to classify documents, irrespective of OSA is huge, undefined and also unguided. Even the routine matters are classified. There should be a file with file-notings and reasons for classification of documents by appropriate designated officer. A mere labeling or typing 'top secret' on the top of document make it 'top secret'. Is it appropriate? The OSA without definition of 'secrecy' leaving huge discretion with public servant, is not only threatening the freedom of press and people's right to information, but also essential civil liberties of the people. Recent example of misuse is the judgment of Supreme Court in case of Nambi Narayanan, ISRO Scientist who was victim of abuse of OSA & discretionary power of Police. For fifty days of wrongful imprisonment of the scientist, the SC ordered Rs 50 lakh compensation. What documents were classified, who classified, who leaked it, and what was illegal consideration? There was no trace of evidence on these questions at all. Over 24 years after Nambi Narayanan's career got "smothered" in the infamous ISRO (Indian Space Research Organisation) spy scandal case, a three-judge Bench led by Chief Justice of India Dipak Misra, on Sept 14, 2018, found him a victim of trumped-up allegations of espionage by the Kerala police. Bench agreed with contention that prosecution launched by the Kerala police had a "catastrophic effect" on his career and personal life besides setting back the technological advancement in space research. Bench said: "The criminal law was set in motion without any basis... His liberty and dignity, basic to his human rights, were jeopardised... Despite all the glory of the past, he was compelled to face cynical abhorrence," Chief Justice Misra CIC/NAIND/C/2017/605263 Page 31 wrote. Based on 'confessions' of two arrested foreigners, Kerala Police registered a case in 1994 under Section 3 and 4 of Official Secrets Act, 1923 alleging leak of secrets of ISRO by scientists. CJM Ernakulam found allegations false. Siby Mathew, head of SIT, was found by CBI to have surrendered his duties to IB and ordered indiscriminate arrest of scientist under OSA though no incriminating ISRO documents could be recovered, and no monies paid. They specifically stated "Shri Siby Mathew and his team miserably failed..." No document was recovered, no secrecy and no classification was proved, yet a scientist was arrested and tortured for 50 days. Apex court's decision proved how the state was left with absolute powers that were abused, in the hands of the police under OSA. While Nambi Narayanan was struggling for justice for several decades, the Kerala Government refused to take any action against the police team for this gross abuse, instead, appointed their head as the Chief Information Commissioner of Kerala (https://www.thehindu.com /news/national/sc-appoints-panel-to-look- into-harrowing-torture-of-nambi-narayanan/article24943213.ece).