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The pension amendment rules are flawed

They obliterate the distinction between serving and retired officials, misconstrue the idea of domain knowledge, and are selective in their application
By Vivek Katju
UPDATED ON JUN 04, 2021 05:55 PM IST

The amendment to the pension rules for officials who are working or have worked in intelligence organisations — which entails them getting prior clearance from the current heads of their former organisations before publishing any material that falls within the domain of the organisation — is flawed.

It is flawed because in one significant area, the publication of material, it obliterates the distinction between serving and retired officials in perpetuity. At the same time, it provides no rationale for extending in-service restriction on “publication of material” while ignoring other restrictions. The amendment is also flawed because it makes no distinction between “expertise and knowledge” acquired about the “domain” of work during the period of service and later. Importantly, it also does not distinguish between producers of intelligence and its consumers, who include both bureaucrats and political office-holders.

All intelligence agencies put onerous restrictions on their officials. These restraints are always more than those applicable to officials working in other civilian departments and organisations. They include not making disclosures about their workplace, its working methods and personnel. In some cases, they may include even not acknowledging the agency where they are employed.

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In addition, there are prohibitions on meeting foreign nationals, taking prior permission before making visits abroad and expressing views on official matters in the mainstream and social media. And, of course, all officials working in these organisations are required to not give even a hint of the information gathered by their organisations or the assessments they have conveyed to policymakers.

These requirements are valid and justified. The production of intelligence is, in many cases, a risky venture; in some cases, it puts lives in danger. Hence, special care has to be taken to ring intelligence outfits with protective layers. It is also perfectly legitimate to expect that those who have worked in these organisations will maintain complete confidentiality even after their retirement about aspects of the work they performed, and of the information they picked up during the course of their official duties. This would particularly pertain to matters relating to the manner in which the organisation conducts its work and its personnel and agents. This should be never be disclosed by retired officials, irrespective of when they retired.

There is, however, a fundamental difference between serving and retired officials.

After retirement, including from an intelligence agency, a person becomes an ordinary citizen of India and is subject to the same laws, rules and regulations as anyone else. These naturally include the Officials Secrets Act (OSA). The restrictions that were in place during the period of service cannot apply, except for what is generally referred to as a cooling-off period when specific classes of officers, for instance, are prohibited from taking up commercial employment. Even the cooling-off period is known to have been waived in some instances, including some notable ones. In the case of intelligence officials, more stringent restrictions covering a range of matters over a longer but finite period would also be in order. But this cannot be for all time to come.

Some officials who have worked in intelligence agencies, and in other parts of government, have published books over the past few years containing material which revealed how decisions were taken on sensitive foreign and domestic policy issues. In some cases, graphic descriptions were given and the names of those who attended meetings and the stand they took were disclosed. Many felt that these revelations were improper, even if they did not directly disclose any classified documents or records. Certainly, they were not tested on the anvil of OSA. It is not known if internal exercises took place within government to ascertain if they had infringed the Act. In any event, it would be proper for the government, in the light of the technological developments that are taking place, to examine the Act and bring in such modifications as needed.

But the derelictions of a few should not lead to questionable restrictions on all, and in only one respect, as the new pension rules have done. What is the logic of demanding that material for publication be cleared in advance but that retired officials be free to meet foreigners, attend Track 2 events, travel abroad, give lectures, and convey their views on the basis of their domain knowledge and expertise in events organised by think-tanks or academic institutions?

Surely, if the intention is that what they publicly reveal needs prior vetting, then what about the revelations they may make in these settings? If the answer is that these engagements would be covered by OSA, then that equally applies to publications.

The acquisition of domain knowledge and expertise is a continuous process. It would be legitimate to demand that information gained during the period of work requires to be vetted before publication, but logically then that should extend to any non-official forum. However, this restriction can hardly apply to post-retirement matters. Thus, if an intelligence officer writes on developments in India’s neighbourhood or even in India that have or are taking place after the official retired, how can that be considered domain knowledge and expertise requiring prior clearance?

Intelligence agencies produce information and give assessments. These are used by official advisers and political decision-makers. This information is sensitive, and all concerned affirm to keep it secret. Even if narrowly construed as not qualifying as domain knowledge, it is vital to keep this as secret, sometimes forever. If other bureaucrats, politicians and advisers are trusted and not subjected to prior clearance, should that trust not extend to retired intelligence officers?

The amended pension rules are illogical and, at a minimum, need to be drastically amended. Freedom of expression is a fundamental right and a public good. Restrictions must necessarily be reasonable and limited.

Vivek Katju is a retired diplomat

The views expressed are personal

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