Collegium puts intelligence agencies at risk of losing anonymity by openly sharing their confidential inputs

Successive governments have been in the habit of revealing far too many sensitive information under political, judicial and diplomatic pressure

Last week, the Supreme Court reiterated its recommendation to appoint three controversial lawyers as judges of the High Courts. While doing so, it committed a serious breach of security by publishing on its website the objections cited by Research and Analysis Wing (RAW) and Intelligence Bureau (IB) to their appointments. The Union law minister Kiren Rijjju rightly called it 'a matter of grave concern' but stopped short of saying that the collegium had violated guidelines on securing confidentiality of communication from agencies, thus making them liable for prosecution. By now, CBI should have been investigating the lapse and questioning them but it is unthinkable in India where law is enforced keeping in view the position and power of those on the wrong side of law. Look at what the US President Joe Biden is facing. He is being investigated by the FBI for taking confidential documents to his residences while he was the vice-President. The difference in the two cases is - one keeps secret papers in unauthorised place and the other launders them in public.

It was expected of the judges of collegium to know that inputs and analysis provided by intelligence agencies are classified regardless of their merit and can only be shared with authorised consumers. In this case, judges were the authorised consumers and not the public at large. The forum for debunking opinion of RAW and IB to reinforce their preference for their nominees could not be the website but dialogue with the government. They perhaps felt that since the information was already in public knowledge and the inference drawn from them by agencies was neither logical nor based on evidence, they had every right to disagree and make people aware of their stand. But the issue here was not convincing the people but the government and desist from disseminating secret reports.

The collegium had clearly erred on three counts. First, they exposed (so far it was in the realm of speculations) that RAW conducts secret inquiries against individuals abroad, though it has no statutory backing to do so. Second, it carries out secret inquiries against Swedish citizens without the local government's authorization. Third, it has its officers stationed in Sweden for collecting intelligence by subverting their citizens. Just, think of the possible consequences that could flow out of this indiscretion! RAW officers can be expelled from Sweden for indulging in inappropriate diplomatic activities and its unit, if there is one over there, shut down permanently. If Swedish government is kind enough not to retaliate so aggressively, it will certainly ask its counter intelligence units to place RAW officers under rigorous surveillance, rendering their operational output to zero.

The centre also cannot absolve itself of an error of judgement. It should have passed the information without attributing it to RAW and IB. It is a cardinal principle that sources are never revealed. The government seems to have erroneously thought of naming the agencies in order to lend credence to its case. Since input of RAW is not considered evidence in the sense that trial courts understand, and is not verifiable because sources operate from behind curtains and cannot be seen or questioned, collegium's reaction was a foregone conclusion. So, why share the source with them?

It's not a one-off lapse. Successive governments have been in the habit of revealing far too many sensitive information under political, judicial and diplomatic pressure. This has harmed operational capacity of agencies and defence forces. They do not realize that their generosity can ruin career and take away lives of leaders and individuals who provide critical inputs and help us from behind the scene apart from deterring prospective sources from working in future for fear of exposure. The government owes to camouflage sources both as a matter of gratitude and necessity. In the instant case, it should have properly weighed which of the two options would serve country's security interests better - getting reports of RAW and IB ridiculed publicly or letting problematic lawyers become judges in the absence of non-availability of more qualified lawyers in the country.

(Amar Bhushan worked with the Research and Analysis Wing for 24 years after briefly serving in the BSF intelligence, State Special Branch and Intelligence Bureau. He served as the Special Secretary in the Cabinet Secretariat before he retired in 2005.)

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