New Delhi: Former Research and Analysis Wing (RAW) chief Amarjit Singh Dulat’s new book — A Life in the Shadows: A Memoir (2022), which talks about the national security advisor, operation ‘Black Thunder’ and more — was published without any “clearance from the competent authority”, intelligence sources told ThePrint.
While this is seen as an alleged violation of a June 2021 government notification, Dulat told ThePrint that he isn’t bound by any notification. “I am not aware of any such notification,” he said. “Nothing was conveyed to me officially.”
According to the June 2021 notification, the central government amended the pension rules for civil servants, prohibiting retired officials in intelligence-or security-related organisations to publish any information related to their organisation without clearance from the competent authority.
The notification vested this power in the head of the organisation to decide whether the proposed material for publication is sensitive or non-sensitive, and whether it falls in the domain of the organisation.
This includes any material relating to and including “domain of the organisation, including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation”; and “sensitive information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, or relation with a foreign State, or which would lead to incitement of an offence”.
Despite the notification, many retired officers who have held sensitive postings continue to write books and columns without seeking the required permission and no action has been taken against any retired official till now. However, there are also many others who are following the rules by submitting their work for clearance.
ThePrint contacted the Department of Personnel & Training (DoPT) to ask how the government ensures the notification is enforced and due process is followed, and if any action has been taken against any retired officer in the past. The DoPT spokesperson, however, refused to comment on the issue.
Retired officers ThePrint spoke to said there was no need for such an amendment when the Official Secrets Act, 1923 (OSA), already exists and the State can, under it, prosecute officials and former officials who reveal information prejudicial to the State.
“Pension is a right that accrues to every government servant for the service put in while in the government. It is subject only to future good conduct and cannot be taken away except for conviction for serious crime or grave misconduct,” said a retired officer who wished to not be named.
“If writing about certain matters amounts to grave misconduct, the government can certainly take action, as per law, to deprive the former official of his or her pension,” he added. “The objective of ensuring that retirees do not divulge any sensitive material to the detriment of the nation’s security is best achieved by reiteration of the Official Secrets Act and stern action thereunder.”
A second retired officer told ThePrint that only those who have been involved in security related matters — internal or external — can speak with authority and credibility, and thus should not be stopped from writing these memoirs.
Also read: Why Pakistan lies at the heart of Intelligence Bureau’s lack of imagination in Kashmir
‘No pension can be stopped by executive order, needs a court order’
According to another retired officer, the UPA government in 2008 had tried to introduce such an order for officers who had served in The Intelligence Bureau (IB) and RAW. The order was widely criticised and eventually withdrawn.
“The well-known lawyer A.G. Noorani had pointed out at that time that the fundamental right to freedom of speech, which includes the right to know, is not absolute. But the state can impose only ‘reasonable restrictions’ on the right, on grounds specified in Article 19 and only by ‘law’ and not by an executive fiat,” the officer said.
Speaking to ThePrint, Vappala Balachandran, former IPS officer and security and intelligence specialist, said no pension can be stopped by an executive order.
“Pension is a long-term compensation for government servants for the service rendered by them and are not mere bounties or given out of generosity by the employer but something that an employee earns by virtue of his long, continuous service,” he said. “No pension can be stopped by an executive order. It needs a court order. There are enough judgments by the Supreme Court that say pensions cannot be stopped.”
Balachandran further said the 2021 notification is difficult to implement and seems more of an “empty threat”.
“The point here is, how is the government going to keep a watch on everything that is published in every nook and corner of the world? It is impossible. Why issue an instruction that cannot be implemented? This is more like an empty threat and completely unconstitutional,” he said.
He also said that it is against the principle of equality as it is not applicable to officers of the army, military and foreign services, but added that he has taken permission for the books he wrote.
“I have taken clearance for my work because I feel, having worked for a sensitive organisation, it is imperative to do so,” Balachandran said.
Legal standing of the notification
According to legal experts and former intelligence officers, there is no legal standing for the said notification since there is a Supreme Court judgment to say the government cannot stop an employee’s pension.
Speaking to ThePrint, Advocate Gyanant Singh, who deals with civil service law, said that while the notification is valid, it may not be legally enforceable. “The Supreme Court has made it clear in many judgments that pensions cannot be withheld,” he said, adding that the service rules cannot be amended and then applied to everyone retrospectively.
“If this notification came in June 2021, the rules do not apply to officers who had joined service before that. They cannot be pulled up and prosecuted for what they did in the past,” he said.
“Moreover, in this case, if the government takes action against any retired officer, who has violated the notification, then he or she can always move the court and challenge it and the decision will be in favour of the employee,” he added.
Advocate Govind Swaroop Chaturvedi, however, explained that pension is payable on “future good conduct” and action can be taken against pensioners for any misconduct.
“The pension can be stopped in accordance with the Central Civil Services (Pension) Amendment Rules, 2020. Nothing can be more sacrosanct than the security and integrity of the nation. Although it can be challenged, this aspect will be upheld in any court,” said Chaturvedi. “The disciplinary action cannot be initiated if the cause of action is more than four years old.”
(Edited by Zinnia Ray Chaudhuri)
Also read: How spymasters from India and Pakistan almost made a secret peace deal on Kashmir