IN the last few months, the press in India has declared open season on leaks which expose ministers. This is particularly true of reports by the comptroller and auditor general of India.
That the ministers affected froth at the mouth and civil servants feel uneasy is but to be expected. It is the doubt in some sections of civil society which is disturbing. For it betrays an abysmal ignorance of the duty and the role of a free press in a democracy. The leak is as old as the press itself.
Perhaps the most eloquent expression of this responsibility of the press came from John Delane, editor of The Times. Lord Derby, prime minister-in-waiting, had lectured “as in these days the English press aspires to share the influence of statesmen, so also must it share in the responsibilities of statesmen”. Some things never change. Even in the 21st century, we hear ministers asking the press to be ‘responsible’; the sub-text being do not ‘influence’ the people to oppose us.
Delane picked up the challenge and retorted in an editorial on Feb 6, 1852, which ranks as a classic for all time. “The press can enter into no close or binding alliances with the statesmen of the day, nor can it surrender its permanent interests to the convenience of the ephemeral power of any government. The first duty of the press is to obtain the earliest and most correct intelligence of the events of the time, and instantly, by disclosing them, to make them the common property of the nation. … The press lives by disclosures; whatever passes into its keeping becomes a part of the knowledge and the history of our times: it is daily and forever appealing to the enlightened force of public opinion. … The statesman’s duty is precisely the reverse.
“For us, with whom publicity and truth are the air and light of existence, there can be no greater disgrace than to recoil from the frank and accurate disclosure of facts as they are. We are bound to tell the truth as we find it, without fear of consequences to lend no convenient shelter to acts of injustice and oppression, but to consign them at once to the judgment of the world.”
As a reporter, Delane had published a secret proposal of the czar to partition Turkey and an Anglo-French ultimatum offering war or peace to Russia. The czar learnt of it from The Times. Its Paris correspondent O. Henri Opper de Blowitz scooped the historic 1878 Treaty of Berlin which drew the frontiers of the Balkans. Bismarck is said to have lifted the tablecloth at the conference once to be “to see if Blowitz is underneath”.
Even during British rule, the press did not shirk from its duty of exposure. The Amrita Bazar Patrika published a highly secret opinion of the formidable foreign secretary Sir H. Mortimer Durand dated May 6, 1889 on a proposal to annex Gilgit with the viceroy Lord Dufferin’s “Very well”. The paper teasingly informed his successor Lord Lansdowne that he “will find in the foreign office” the original of the document.
It is too late now for anyone to issue edicts against leaks to and disclosures by the press. The Indian Official Secrets Act, 1899 sought to do just that but with little success. In Britain, the Official Secrets act 1911 was enacted following publication of the secret treaty between Russia and Japan.
But, as the cabinet secretary reminded Jim Hacker, the ship of state is the only ship which leaks from the top. Ministers and civil servants leak information all the time and not always to inform public opinion either. Not seldom the leak is aimed at an irksome colleague. As a great judge Lord Devlin remarked, the law “installs as the judges of what ought to be revealed men whose interest it is to conceal”.
Fortunately, courts have begun to interpret the expression “in the interest of the state” in a liberal sense. In 1971, the Sunday Telegraph, its editor and two others along the chain of communication were prosecuted when the paper published a confidential assessment of the situation in Nigeria written by the defence adviser at the British high commission in Lagos. They were all acquitted.
In the case of Clive Ponting, a senior official of the defence ministry, the trial judge Justice McCowan in his summing up to the jury interpreted the words “in the interests of the state” to mean “the policies of the state”, adding “the policies of the state mean the policies laid down by those recognised organs of government and authority”. The jury rejected the interpretation and brought a verdict of ‘not guilty’. In Lord Denning’s view, the words mean “the interests of the country or realm”.
A great authority on constitutional law, Prof H.W.R Wade, testified at the Ponting trial that if a civil servant was convinced of deception by the minister, it “might be in the public interest for him to give his information direct to parliament”, as is done by accounting officers. “For, the government of the country could not be run as it does now if parliament was consistently fed with wrong information.”
This is crucial. Official deception justifies leaks. When the senior journalists of The New York Times met in the office of the legendary James Reston on April 20, 1971, the key question they debated on the publication of the Pentagon Papers was “journalistically, did the story warrant defying the government and possible government legal action, did the documents in fact betray a pattern of deception?” The Supreme Court upheld the publication.
In Britain, publication of a committee report, in the press before its presentation to the House will not be considered a breach of privilege unless it is “against the public interest”. In 1975, the editor and reporter of The Economist were recommended for exclusion from the precincts of the House for six months by the committee of privileges.
The House rejected this recommendation on a free vote 64–55. The Times likewise escaped punishment by a 158–124 vote in May 1986. The managing director of Granada TV bluntly told a committee of privileges which reported on ‘Premature disclosure of proceedings of select committees’ in 1985: “Confidentiality is a legitimate interest of MPs. Disclosure is the legitimate business of the media.”
The writer is an author and lawyer based in Mumbai.