Wikileaks Episode in India

By Team Legal Helpline India, December 26, 2014

The WikiLeaks episode in India has raised a serious legal question about the effectiveness of the Indian laws in taking action against such encroachments and publication of the classified information related to the diplomatic and strategic relations of the country. The Wikileaks episode in India has proved that the kind of information leak, extraction and publication has been done by WikiLeaks is a peculiar and unique phenomenon which triggers a large debate about the legality of the matter besides the other aspects of the matter. In India the legal set up for protecting the interests of the Indian State from unauthorized extraction and use of the classified information are mainly contained in The Officials Secrets Act, 1923, Indian Penal Code, 1860 and Information Technology Act, 2000.The above said act provide a basic framework for dealing with the matters related to the offences against the state including the extraction and leak of the secret official documents of the country and the manner in which such cases are to be handled under the Indian laws.

THE OFFICIALS SECRETS ACT, 1926:

This act was enacted to safeguard the strategic interest of the country; the basic act was enacted by the British rule in Indian and has been amended from time to time to suit the legal requirements. This act defines the prohibited information which can be of various types namely document, model, articles, photographs etc. under Section 2 of the act. It further provides a complete ban on leaking, forwarding any kind of secret information which may effect the sovereignty and integrity of India, the security of the state or relation with any foreign state or which may be useful to the enemy. It further defines the various types of penalties under the act for committing the prohibited acts by any person. It also defines the word foreign agents and imposes a restriction on sharing or forwarding any information to such foreign agents. It also imposes a restriction on the communication, use of the said information for the benefit of any foreign power which may be prejudicial to the safety of the state. It also contemplates penalty for harboring spies and in some cases denies the right to the accused to claim the copies of the documents against which prosecution has been launched against him by the state. The act also contemplates exclusion of public from proceedings. The Wikileaks episode in India has proved that the Indian laws are not so strong to deal with such situations as created by the Wikileaks.

The main thrust of the said act is to prevent the handling and misuse of the information which is basically secret or classified and can harm the strategic interests of the State. The entire scheme of the act is dealing with such cases of passing off the classified information to spies or foreign nationals. The Wikileaks episode in India has however proved the weaknesses of the said Act.

INDIAN PENAL CODE,1860:

The provisions of the Indian Penal Code of 1860 also deal with such cases wherein any act which amounts to an offence against the state has been committed by any person. Section 121 and 124-A of IPC deals with the offence related to waging of war or abetting waging of war against the Government of India. The said section is as under:

121. Waging or attempting to wage war or abetting waging of war against the Government of India.-Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war shall be punished with death, or imprisonment for life and shall also be liable to fine.

124-A.Sedition.- Whoever by words, either spoken or written, or by sings, or by visible representation, or otherwise, brings or attempts to bring into hatred or content, or excites or attempt to excites disaffection towards, the govern established by law in India, shall be punished with imprisonment for life, to which fine may be added , or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Besides this the Constitutional dignitaries by virtue of their oath are prohibited and restrained from disclosing any information related to the secrecy of the state. The employees of the Government, defense services are bound by their conduct rules and are restrained from disclosing any information which they deal with during their incidence of employment with the government. The provisions to deal with such instances of leak of the official information are dealt according to their service rules. The entire legal set up in this regard has remained operative and has remained by and large successful till date. The Wikileaks episode in India has however proved the ineffectiveness of the said provisions as no such offence is made out in the present case.

THE INFORMATION TECHNOLOGY ACT, 2000:

The provisions relating to offence of Hacking in India has been made under the Information Technology Act of 2000 wherein the unauthorized use of the contents of a particular website or information has been prohibited. The Indian Legal system is not much prepared to deal with the matters pertaining to hacking of the websites or hacking servers to extricate information in any unauthorized manner by any hacker. As a matter of fact the entire set up of the Information Technology law in India has been recently enacted which has failed to keep the speed at which the technology is growing as a result of the same, the entire legal set up become outdated and ineffective to deal with the offences related to the hacking or unauthorized extraction of information by anybody. The Wikileaks episode in India has shown that the said provisions as contained under the IT Act are also ineffective in dealing with such situation.

Section 43 of the Information Technology Act, 2000 deals with such situations but is mildly worded hence the violation of the said provision by any hacker or even WikiLeaks does not attract criminal prosecution as the said section does not provide for any criminal prosecution for hacking and only provides for monetary compensation to the party whose system has been unauthorized entered by any person. The main provisions of the said Section 43 are as under:

Penalty for damage to computer, computer system, etc-If any person without permission of the owner or any other person who is in-charge of the computer, computer system or computer network,

(a)accesses or secures access to such computer, computer system or computer new or;

(b) downloads, copies or extracts any data , computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;

(c)

(d)

(e)

(f)

(g)

(h)

He shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected. The said act also provides a general penalty in Section 44 against other violations of the Act. Section 66 of the said act deals with Hacking although the word hacking has not been defined under the act neither any specific explanation of the said word has been made. The said section reads as under:

Hacking with Computer System.- (1)Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.

(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.

THE RIGHT TO INFORMATION ACT, 2005:

The paradox now with the Indian democracy is the provisions contained in the Right to Information Act of 2005 which gives freedom to the citizen of India to get almost all kinds of the Information from a Government department. This act empowers the Indian citizen to apply and get the desired information after paying nominal fees. The citizen is thus entitled to ask and collect whatever information they want under this act. All kinds of government records are supplied under this act to the applicants. There is specific bar under section 8 of this act regarding information related to the defense strategy, foreign policy and other diplomatic and strategic issues. Such information can not be supplied which is excluded under Section 8 of the said act which mainly relates to the strategic details, defense forces information and other vital information related to the country. Section 8 of the said act reads as under:

Exemption from disclosure of information.-(1) notwithstanding anything contained in this Act, there shall be no obligation to give any citizen.

(a) information , disclosure of which would prejudicially affect the sovereignty and integrity of India, the security , strategic, scientific or economic interest of the State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

Wikileaks episode in India

Wiki Leaks is a website launched in 2006 which is controlled by an international non-profit organization which in engaged in publishing of private, secret and classified information from its sources which are kept anonymous. Wiki Leaks names it as”media” from news sources and news leaks. The persons associated with the international non-profit organization are journalists, and various other kinds of technocrats from various countries like US, Australia, China, South Africa etc. It claims Julian Assange who is an Australian born as its Director. Wiki Leaks through its website displays volumes of leaked documents related to various corporate activities, diplomatic activities of various countries which have generated a global debate amongst its supporters and the people opposing it. The people who support Wiki Leaks have appreciated it for bringing to the notice of the world various unethical corporate secrets and increasing transparency in internal as well external affairs of the countries. They claim that it has enhanced the process of democratic disclosures. The persons who oppose the activities of the Wiki Leaks say that it compromises with the diplomatic, strategic and political relations amongst different nations which is not good for the international community. Wikileaks episode in India has however proved the ineffectiveness of the set of laws governing the upkeep and sharing of information and more particularly the state secrets.

The US Department of Justice initiated a criminal probe after the leak of its diplomatic cables and tried to cover the leaks under the Espionage Act however it was argued that the American Constitution protects the re-publication of illegally obtained information provided the publisher did not themselves break any laws in acquiring the said information. The US Government also attempted to prosecute Wiki Leaks for trafficking in stolen government property, but the leaked diplomatic cables were intellectual rather physical property hence this attempt also failed. Several other countries also tried to initiate criminal prosecutions against the Wiki Leaks organization or Assange but their existing legal setup did not comprehend such acts as illegal or criminal. In the meanwhile several right wing forums and forums for democratic freedom are openly coming in support of Wiki Leaks thereby making the issue more conspicuous and debatable. Wikileaks episode in India has further proved the limitations of the set of laws governing the growing domain of IT which is a global phenomenon now.

Wikileaks episode in India has displayed certain internal information related to India which has created hype in the media and the political parties are now agitating this issue against each other. Wikileaks episode in India has shown the limitations of the Government of India and the Government of India finds it in a helpless spot as the information displayed by Wiki Leaks is neither classified nor a restricted information. Wikeleaks episode in India has thus shown the limitations of the set of laws governing the Indian laws. It also does not violate the provisions of the Officials Secrets Act as the source of information has not been disclosed by Wiki Leaks. The act of Wiki Leaks in leaking the information related to the country would hardly amount to any criminal offence in India, more so there is no specific provision of law under which any criminal or any legal action can be taken against Wiki Leaks. Most important is the fact that the Wiki Leaks has not disclosed the source neither it has shown its presence in the country thereby making the law enforcing agencies a helpless spectator of the acts of Wiki Leaks. As per the claim of Wiki Leaks, it acts as intermediary in leaking the information. The person with the information leaks it to the website of the Wiki Leaks which in turns leaks the said information to the public. The servers are scattered throughout the world and amongst the countries where the journalist rights are most protected hence they are legally protected. The Wikileaks episode in India has thus proved the ineffectiveness of such laws.

Some of the notable Wiki Leaks are as under:

2006-8

  • December 2006-WikiLeaks posted the decision to assassinate government officials signed by Sheikh Hassan Dahir Aweys.
  • August 2007, a story about corruption by the family of the former Kenyan leader Daniel Moi.
  • In November 2007, a March 2003 copy of Standard Operating Procedures for Camp Delta detailing the protocol of the U.S. Army at the Guantanamo Bay detention camp was released. The document revealed that some prisoners were off-limits to the International Committee of the Red Cross, something that the U.S. military had in the past repeatedly denied.
  • In February 2008, Wiki Leaks released allegations of illegal activities at the Cayman Islands branch of the Swiss Bank.
  • In March 2008, Wiki Leaks published what they referred to as “the collected secret ‘bibles’ of Scientology,”
  • In September 2008, during the 2008 United States presidential election campaigns, the contents of a Yahoo account belonging to Sarah Palin (the running mate of Republican presidential nominee John McCain) were posted on Wiki Leaks after being hacked.
  • November 2008, the membership list of the far-right British National Party was posted to Wiki Leaks.
  • October 2009, another list of British National Party members was leaked.

2009

  • January 2009, Wiki Leaks released 86 telephone recordings of Peruvian politicians and businessmen involved in the 2008 Peru oil scandal.
  • February 2009, Wiki Leaks released 6,780 Congressional Research Service report followed in March, by a list of contributors to the Norm Coleman senatorial campaign in US.
  • July 2009, Wiki Leaks released a report relating to a serious nuclear accident that had occurred at the Iranian Natanz nuclear facility in 2009.
  • September, internal documents from Kaupthing Bank were leaked, from shortly before the collapse of Iceland’s banking sector, which led to the 2008–2010 Icelandic financial crisis. The document shows that suspiciously large sums of money were loaned to various owners of the bank, and large debts written off.
  • In October 2009, Joint Services Protocol 440, a British document advising the security services on how to avoid documents being leaked was published by Wiki Leaks.
  • In November 2009, they hosted copies of e-mail correspondence between climate scientists, although they were not originally leaked to Wiki Leaks.
  • During 2008 and 2009, Wiki Leaks published the alleged lists of forbidden or illegal web addresses for Australia, Denmark and Thailand. These were originally created to prevent access to child pornography and terrorism, but the leaks revealed that other sites covering unrelated subjects were also listed.
  • March 2010, Wiki Leaks released secret documents of U.S. Department of Defense Counter intelligence Analysis Report written in March 2008 discussing the leaking of material by Wiki Leaks and how it could be deterred.
  • April 2010, a classified video of the 12 July 2007 Baghdad air strike was released, showing two Reuters employees being fired at, after the pilots mistakenly thought the men were carrying weapons, which were in fact cameras.
  • June 2010, A 22-year-old US Army intelligence analyst, Bradley Manning, was arrested for leaking information to Wiki Leaks.
  • July, Wiki Leaks released 92,000 documents related to the war in Afghanistan between 2004 and the end of 2009 to The Guardian, The New York Times and Der Spiegel. The documents detail individual incidents including friendly fire and civilian casualties.
  • 20 August Wiki Leaks released a publication titled Love parade 2010 Duisburg planning documents, 2007-2010, which comprised 43 internal documents regarding the Love Parade 2010.
  • On 28 November 2010, Wiki Leaks and five major newspapers from Spain, France, Germany, the United Kingdom , and the United States started to simultaneously publish the first 220 of 251,287 leaked confidential but not top secret diplomatic cables from 274 US embassies around the world, dated from 28 December 1966 to 28 February 2010. Wiki Leaks plans to release the entirety of the cables in phases over several months.
  • The contents of the diplomatic cables include numerous unguarded comments and revelations regarding critiques and praises about the host countries of various US embassies; political maneuvering regarding climate change; discussion and resolutions towards ending ongoing tension in the Middle East; efforts and resistance towards nuclear disarmament; actions in the War on Terror; assessments of other threats around the world; dealings between various countries; US intelligence and counterintelligence efforts; and other diplomatic actions. Reactions to the United States diplomatic cables leak include stark criticism, anticipation, commendation, and quiescence. Consequent reactions to the US government include sympathy, bewilderment and dismay.

The disclosures of Wiki leaks in April 2013 relating to India have created a large scale debate about the conduct of the then politicians , some of the most controversial and important disclosures made by Wiki leaks are as under:

i) US Embassy had persons inside the family of the Indian Prime Minister Mrs. Indira Gandhi.

ii) The elder son of the then Prime Minister of India Mrs. Indira Gandhi; Mr. Rajiv Gandhi was acting as a middle man for aircraft company.

iii) Y B Chavan a leader in Congress during the Indira Gandhi regime was supposed to be a counter to Indira Gandhi.

iv) India was termed as a Begging Bowl during 70s.

v) Indira Gandhi was described as highly unpredictable in several cables issued by the US Ambassador.

vi) Several cables also describe Sanjay Gandhi and RK Dhawan as the most influential persons in the close circles of Indira Gandhi.

The Wiki Leaks phenomenon is a unique and peculiar phenomenon globally and for countries like India where the legal set up to deal with such situations is not year created, one can imagine more and more Wiki Leaks in near future which may be any information related to the country and its politicians or its strategic relations or its internal security etc. The countries will have to gear up for more secured classified information on their servers and more vigilance on the storage and upkeep of their official and secret information.The Wikileaks episode in India has shown the requirements of more dynamic and specific laws for such situations.

Recent Post