This article is written by Kartik Bohra, from Symbiosis Law School, Hyderabad. In this article, the conflict between Right to Information and Official Secrets Act, 1923 and the impact of RTI on OSA have been discussed.
Table of Contents
Introduction
The Official Secrets Act, 1923 had been in the media due to the controversy of Rafale deal in India. The Government of India has sought to claim action against newspaper agencies, including The Hindu newspaper and ANI for violating the provisions given under the Official Secrets Act, 1923. The reports published by these newspaper agencies suggested that the negotiating team and Ministry of Defence opposed the Rafale deal and the government did not follow the due procedure of procurement. The government claims that these newspaper agencies have violated the norms of the said Act by publishing the reports and documents related to deal with France to buy 36 Rafale jets. Thus, the government challenges the action of newspaper agencies in the court of law as they have violated the norms of the Official Secrets Act, 1923. The newspaper agencies in their defence have brought up the Right to Information Act, 2005 as their constitutional right.
Thus, this raised a conflict between Right to information and Official Secrets Act, 1923. The Attorney General of India on behalf of the government sought “criminal case” against the violators who are responsible and accountable for making the stolen documents public. The Official Secrets Act, 1923 (OSA) had commenced during the colonial rule to ensure and protect the confidentiality and secrecy related to the government’s work especially matters related to safety and security of a nation. On the contrary, the Right to Information Act (RTI) came into existence to know about the administration of the government. Thus, the government faced criticism over the controversy as the action of the government was violative of journalists right to freedom of speech and expression guaranteed under Article 19 of the Constitution of India.
What is this Official Secrets Act
The Official Secrets Act, 1923 was established during colonial rule. The OSA was first notified in 1904 during the time of Lord Curzon. The past provisions of the Act were the more stringent version of the present provisions and used by the British government to restrict freedom of speech and expression of journalists. In 1923, the Official Secret Act was repealed and replaced with the new Official Secrets Act. The new Act was notified and extended to the provisions of secrecy and confidentiality in working of the government. According to this Act, aiding and helping any enemy nation where communication of the information can be in the form of sketch, model, plan, passwords or an official code. This Act has been furthered by Civil Service Conduct Rules, 1964, which put a sanction on the sharing of official information or documents in the public domain without authorization.
The Official Secrets Act, 1923 was formulated for the purpose to maintain secrecy and confidentiality in the administration of the government especially in the matters of national security and espionage issues. It is generally used by the government and authorities for refusing to share vital and secret information which comes under the Right to Information Act, 2005. The Government of India often faces criticism for misusing it in the name of keeping secret and vital information to the public. The Act enshrined certain provisions for dealing with sedition, espionage information and a threat to the sovereignty and integrity of the country. This Act contains a provision in which if a person is guilty, he may be imprisoned up to 14 years, a fine or both. Therefore, the provisions of the OSA are in direct conflict with the provisions of Right to freedom of speech and expression enshrined under the constitution of India and Right to Information Act, 2005.
Classification of official information
There are no set criteria for the classification of the information under the OSA, 1923. After several requests from the human rights activists and organizations, the Ministry of Home Affairs of India has not revealed any set pattern of the classification of official information citing the reasons for a social and political threat to a nation. Further, the OSA does not provide any meaning of the term ‘Official Secrets’. Thus, public authorities and the government of India have full discretion and power to define any classic information as ‘secret’ and remove that from the purview of the Right to Information Act, 2005.
The classification of the official information is done by Departmental Security Instructions (DSI) in accordance with the prior approval from the Ministry of Home Affairs. The Central Secretariat Manual of Office Procedure provides for the details of the classified information and documents will be treated, but there are no set criteria for the classification of official information. The government has given reasons for not revealing the official information and provide any classification of official information such as a threat to the security and privacy of the nation and not revealing any information due to records and documents involving sensitive issues. Therefore, once the information is said to be classified, it never comes into the public domain by any means and can be defined as official or secret information or documents. However, there are certain criteria to classify the official information depending upon the level of sensitivity of the information are as follows:
Top secret
It is the information that is to be kept secret for the security of the nation, and its disclosure could cause “exceptionally grave damage” to the public interest in large. This is reserved for the utmost confidentiality in the workings of the government.
Secret
It is the information to promote the social security of the nation whose disclosure could cause “serious damage” to the security and confidentiality of the nation. This category is generally reserved for the matters highly important for the security of national interest.
Confidential
It is for information that can cause “threat or damage” to national interest and provide significant damage to the government if disclosure of information has been made without proper authorization. Further, the disclosure of the information would be prejudicial to the interest of the nation.
Restricted
It is that information which is communicated only for the purpose of official use and not to be shared without authorization to any person except for official use.
Impact of RTI on the Official Secrets Act
There is a huge contrast between these two Acts as the Official Secrets Act, 1923 was brought in India for the culture of secrecy and specific denial of any claim against the workings of the government and the RTI was established in India to bring transparency and accountability in the workings of the authorities and Government of India. Thus, the actual difference between these two is about the workings and shift of cultures of the two regimes. However, there are certain provisions enshrined under the RTI Act, which does not let the Official Secrets Act supersede it for public use and reduction in the abuse of power. Thus, RTI is not applicable to all the information and documents of the government as the information must be a ‘public authority’ to come within the purview of the RTI Act.
According to the provisions of the Right to Information Act, 2005, if there is a clash between the two laws, the public interest will prevail. Section 8(2) of the RTI Act, 2005 states that “Notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, nor any exemption is allowed in the provisions of Section 8(1) of the RTI Act, a public authority has a right and is allowed to access the information and documents, if done for the public interest in large or if the disclosure outweighs the harm to the protected interests.
Further, Section 22 of the RTI Act enumerates that the provisions of the RTI Act shall have effect notwithstanding anything against it, as mentioned in the OSA, 1923 or any other law for the time being or in any instrument having effect by virtue of any other law. Thus, the Right to Information Act is very significant in the present scenario where a lot of corruption and unscrupulous acts are happening in the activities of the government departments. The RTI Act was established with the sole purpose to provide a right to information for citizens of the country. Therefore, the new provisions added to the Right to Information Act ensures greater transparency and accountability in the workings of the government.
Arguments in favour of OSA
The Official Secrets Act, 1923 was formulated in the British colonial era with the aim to keep the secrecy and confidentiality in the workings of the government which are utmost significant for the development and growth of the nation. Recently, the OSA came into controversies and opposition as the government invoked it to defend the leakage of vital and secret information of ‘Rafale deal’ documents. The government stated that those shared the information in the public domain were guilty under the Official Secrets Act. Thus, there are some arguments in favour of OSA are as follows:
National credibility
It is argued before the court of law that there should be strict laws in the country to deal with the crime against the state and the government of India. This is necessary to prevent further crimes and undermines the credibility of the state.
National Security
There are several documents and information which needs to be kept secret to protect the interest of the state. It is necessary to maintain secrecy and confidentiality in matters which are crucial for the security and safety of the nation such as military operations and other vital information.
No Resistance
The official Secrets Act was formulated without any opposition and resistance by any legislature or commission as it is necessary to keep certain documents and information of the state secret for the security of the nation and public at large. However, it is required to make certain amendments in the provisions of the Act.
In the Rafale deal case, the Attorney General, on behalf of the government, stated that those who put documents and information of the Rafale deal were the culprit for contempt of court and must be charged under the Official Secrets Act. It was further stated that the report of The Hindu on Rafale deal forced the hearing in the court of law which is also an amount of contempt of court. The government claimed and wants that the court of law should refrain from doing inspection of the documents and information of the rafale deal which have already been published in the newspaper and media. It was argued that it does not come under the purview of the RTI Act and the court of law has no power of judicial review in this matter of secrecy and confidentiality.
The government also put forward the stance that the leakage of documents and information was a ‘conspiracy’ to downgrade the Rafale deal and jeopardize national security and confidentiality. It was further argued that according to Section 3 of the Act “if any person for any reason communicates, records or publishes any information and documents which is prejudicial to the interest of the nation shall be liable for imprisonment up to 14 years”. In the case, the government stated that the documents which were stolen from the ministry of defence and later “published” in the newspaper by The Hindu thereby qualifying as an offence under OSA.
Arguments against OSA
The idea of formulating the Official Secrets Act, 1923, was to keep documents and information limited to the government for maintaining secrecy and confidentiality. This itself is in the contradiction of democracy in the country where every person has the right to know all the information regarding the workings of the government. The law also finds itself against Article 19(1) of the Constitution of India which states that every person has freedom of speech and expression.
Right to Information
The RTI Act, 2005 provides guidelines to the government and states that it is the duty of the state to inform and disclose all the relevant information and documents in front of the general public for the purpose of good governance and democracy. RTI is a fundamental right guaranteed under Article 19(1) of the Constitution of India. Thus, the citizens of the country have the right to have information regarding the operations of the government. The important drawback of OSA is that there is a lack of a clear meaning of the term ‘secret’ in the Act and the government has immense power to declare any information or documents as secret. The OSA generally promotes secrecy and confidentiality in government operations which is against the provisions of the RTI. Sometimes, records which are generally kept aside for the purpose of secrecy are crucial in bringing it to the public notice. In every instance, the OSA hampers the progressive democracy in society. Further, it is also clear that provisions of the RTI override the OSA. The provisions of OSA are in clear transgression of the RTI and there are a lot of contradictions between the two laws.
There was an instance in which the Delhi High Court observed and held that “publication of information or a document making it labelled as ‘secret’ does not come under the purview of OSA and a journalist shall not be liable. This happened when the journalist named Santanu Saikia had published the cabinet note in the Financial express.
Freedom of Speech and Expression
It is noted that Article 19(1)(a) of the Constitution of India provides freedom of speech and expression which includes freedom of the press to every citizen of the country and it is considered as the backbone of the democratic country. However, Section 5 of OSA contains provisions against the breaches of national security and the criminal offence of espionage. It is sometimes misrepresented and used against the journalist to suppress their voice against the operations of the government and any other authorities. The credentials of democracy of a country lie upon the extent of the freedom of press enjoyed by the journalist in the society. It is believed that freedom of press will be safe and secure as long as journalists have the right to publish their reports without the fear of vindictive measures of the government and act of reprisal.
In Romesh Thappar v. State of Madras (1950), the Apex Court held that freedom of the press is not expressly mentioned within Article 19 of the Indian Constitution but interpreted within the ambit of this article. It was observed that freedom of press lays down the foundation of all democratic organizations and it can only be restricted if it comes within the ambit of restrictions enshrined under Article 19(2). It was further observed that where fundamental rights of an individual are in question, a court should be cautious while accepting the views in contradiction of it.
In Indian Express Newspaper v. Union of India (1985), the Supreme Court highlighted the importance of freedom of the press in a democratic society and held that the purpose of press is to spread awareness amongst the general public and it is considered as the heart of social and political intercourse. Court further observed that it is the duty of Indian Courts to protect and safeguard the freedom of the press and invalidate all the administrative actions which are contrary to it.
In the case of Sanskar Marathe v. State of Maharashtra (2015), the Supreme Court held that freedom of speech and expression cannot be encroached upon through any legislative action or any administrative action if there is no imminent threat to operations of the government and no incitement to violence with the intention of disrupting public order.
In the case of Kedar Nath v. State of Bihar (1962), the Supreme Court held that unless there is an incitement to violence or threat to public security or disorder, the criticism of the government however virulent will not amount to sedition or bring hatred against the operations of the government. The court further observed that incitement to violence or attempt to bring hatred against the operations of the government are an essential condition to constitute an offence under sedition. Sedition charges cannot be invoked merely on the grounds for criticizing the functions and policies of the government. It is necessary for a democratic society to provide true and current state affairs to the general public at large.
In Shreya Singhal v. Union of India (2015), the apex court held that freedom of press lies both in circulation and in content. Fundamental freedoms have always been checked on avail of proportionality. It is the duty of the court to check that the measures taken by the body are the least restrictive means to achieve the basic purpose. And if they aren’t, then restriction imposed on the freedom of speech and expression will be quashed using this doctrine.
In Reliance Petrochemicals Ltd. v. Proprietor of Indian Express Newspapers Bombay (P) Ltd. (1988), the Supreme Court held that any preventive injunction against the working of the press must be based on reasonable and relevant grounds for keeping the administration of justice unimpaired. Also, there must be reasonable grounds to believe that the act has caused or apprehended real and imminent danger that can’t be avoided.
Therefore, we can say that OSA is nothing but an act which encroaches upon the freedom of speech and expression enshrined under the Constitution of India. It is noted that freedom of speech and expression is not absolute under the constitution but what matters is that those restrictions imposed under Article 19(2) are not misused by political forces to limit public scrutiny of politics and actions that have an impact on the integrity of a nation. Therefore, the provisions of the act are against the basic principles of the Indian Constitution. The journalists use their freedom of the press to provide authentic information to the general public regarding the operations of the government and not to create panic amongst citizens.
In the light of the Constitution and the Right to Information Act, 2005, acts like OSA become obsolete and unconstitutional which is against the basic principle of a democratic society. We live in a society where everyone has the right to freedom of speech and expression, where a person can share his thoughts and opinions without fear of political and social influence. However, there is a certain restriction imposed under the constitution to maintain public order but these are misused by the government by charging them under sedition or OSA. The Act is completely irrelevant in the present scenario and creates an unnecessary burden on the Constitution of India.
Recommendations of various commissions
Due to the increase of unscrupulous and arbitrariness in the workings of government in the name of Official Secrets Act, 1923, various committees were formed to reform the provisions of the said Act:
- The law commission of India became the first authority to deal with the rampant issue of OSA and make an observation regarding the provisions of the Act in 1971. It was observed by the committee that “merely because a document or a piece of information is treated as secret and classified, it should not be taken into consideration under the purview of the OSA and its provisions. The law commission also mentioned that all the legislation pertaining to the security of the nation should be merged in one act and pass the “National Security Bill”. However, the commission had not suggested any changes and amendments under the Act.
- The Shourie Committee was formed with a view to making certain amendments in the provisions of the act. The committee suggested that there should be an amendment to Section 5(1) of the Act and stated that the penal provisions of the section should be applicable only to violations affecting the national interest. The commission also mentioned that the disclosure of information has to be the rule or norm and keeping it secret from the general public must be an exception.
- Further, the administrative reforms commission was set up to observe the provisions of the Act. The commission submitted its report and stated that “Right to Information is the master key to good governance in the country”. Thus, there is a need to repeal the Official Secrets Act, 1923. But the government rejected the view of commission as the OSA is the only law to prevent the prejudicial of national interest and deal with the cases of espionage and communication of secret and sensitive information or documents to the enemy of the country which could have a detrimental impact on the security of the nation.
Demand to repeal the OSA
There has been a long conflict between the two laws that is the Right to Information Act, 2005 and Official Secrets Act, 1923. According to various commissions, the OSA should be repealed to bring transparency and accountability in the workings of the government and to ensure that citizens should have certain rights to take part in the decision making in the governance of the nation by disclosure of documents and relevant information for the sake of public good. The authorities cited examples of various countries such as the UK declassifying its document and information to the general public and Germany is gradually progressing towards opening a document to the scholars and other officials.
In India, the Second Administrative Reforms Commission (ARC) also suggested that to bring transparency and accountability, the OSA should be repealed. But the suggestion of the commission was rejected by the government as it is the only law to deal with the offence of espionage and the disclosure of unauthorised information which could have a detrimental effect on the security of the country. The commission had also recommended that departmental security and confidentiality directions should be changed and only those communications should be classified as a secret which would be exempt from the RTI Act. Therefore, due to the vague provisions of the OSA, there is a demand to repeal it as it is against the basic provisions of the RTI Act and freedom of speech and expression enshrined under the Indian Constitution.
Conclusion
The most significant challenge in the OSA is that the term ‘secret’ is not defined anywhere in the Act and thus grants greater freedom to the authorities to misuse their power which would be detrimental to the public interest. Further, there is also a challenge in the RTI Act as it does not define the term ‘public interest’ anywhere and there is no interpretation of it given by the court of law. The secrecy and confidentiality in the workings of the government should be limited by keeping it time-bounded. The Government recently formed a committee under the chairmanship of LC Goyal to review the amendments under OSA to promote transparency and accountability in the government operations and to uphold the provisions of RTI Act, 2005.
The Supreme Court in the ‘Rafale deal’ case, gave the ruling in the favour of newspaper agencies to promote the RTI Act and observed that “whenever there will be a conflict of interest between the two laws, the RTI Act will supersede the OSA.” The Supreme Court also opined that the Act did not provide liberty to commit unscrupulous activities and corruption. These actions of the government are against the provisions of RTI and freedom of speech and expression under Article 19 of the Constitution of India. Therefore, the provisions of the RTI Act will prevail over the Official Secrets Act as per Section 22 of the Right to Information Act. Thus, we can say that the Official Secrets Act, 1923 is like any other laws which passed in British India and has no place in contemporary Indian society where public interest always prevails.
References
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