When India got its independence in 1947, the Official Secrets Act, which was passed in 1923, was still in effect. The law, which applies to both government employees and the general public, establishes a solid foundation for combating espionage, sedition, and other possible dangers to national unity and security.
The law makes it illegal to spy, share sensitive information, wear uniforms without permission, keep information from the military, or get in the way of military operations in restricted or banned areas. A person may be punished with up to 14 years in prison, a fine, or both if found guilty.
This essay focuses on the Official Secrets Act, highlighting prominent examples of its implementation, as well as the OSA’s clash with the RTI Act and other relevant themes. This research study looks at a number of important decisions made by the courts of law in India in order to show how secrecy and freedom of information are at odds with each other. Suggestions are also made for resolving this issue.
As people learn more about participatory democracy, they are more likely to use their right to access information under the Right to Information Act.
Participatory democracy is made possible by the concepts of accountability, public authority, and transparency of government activities. The public is very interested in getting information from public officials, but the government is very good at keeping information secret, thanks to the Official Secrets Act and the vague, broad definitions of “secrecy” and “confidentiality.” At this time, the democratic battlefield is occupied by the conflict between the public interests of the populace and the government’s protected interests. When public safety is jeopardized as a result of such disclosure, the public’s interest is jeopardized.
Due to this, the article examines the areas of disagreement between the Official Secrets Act and the RTI Act and provides a comparative analysis of the existence of the Official Secrets Act and the right to freedom of information in common law nations. Arguments against the existence of the Official Secrets Act are offered while analyzing the judicial pronouncements and activities of the Central Information Commission on the matter, with a focus on the misuse of section 5 of the OSA.
Introduction To RTI and Official Secrets Act
The Official Secrets Act of 1923 is currently one of India’s most draconian laws. As a vestige of the British Raj, it has frequently resulted in dreadful miscarriages that have stained our judicial record and reputation among democratic nations. Respected jurists and proponents of civil rights have stated explicitly that the infamous Act should be repealed.
Since the Right to Information Act was passed in 2005, the head of the Second Administrative Reforms Commission, Veerappa Moily, has said that it has no right to exist. Earlier, he had suggested getting rid of it. Unfortunately, the idea was turned down by the Home Ministry because intelligence services were worried about it.
The fact that it still exists is explained by the idea that it makes it hard to catch spies. The opposite is far from true. It is important to look into the law’s past to find out why it was made and whether or not it still applies.
This necessitates a study of the Official Secrets Act since, under Article 19(1)(a) of the Indian Constitution, all citizens possess the right to information in a democratic nation, and this statute directly contradicts this fundamental right.
What is the disagreement between the Official Secrets Act and the RTI?
How does India’s Official Secrets Act differ from similar laws in other common-law nations?
The Judiciary’s Perspective on the Conflict between OSA and RTI
Prior to the implementation of the RTI Act in 2005, the famous Judges Transfer Case addressed the issue of the government concealing information on the grounds that it would be detrimental to the public interest.
In that instance, the Supreme Court ruled that “disclosure of information regarding the operation of the government must be the rule and secrecy an exception justified only when the highest level of public interest requires it.”
They understood the importance of the right to know in a democratic and free society.
In another case of keeping something secret, because it is in the public interest, the Supreme Court decided that it is not in the public interest to hide normal business behind a veil of secrecy. Such anonymity is rarely properly desired. The best way to stop tyranny and corruption is for people in power to explain and defend what they do.
Corollary: The Central Information Commission’s perspective on the Supreme Court:
Both the OSA, 1923 and the RTI Act, 2005, have inherent issues that the Honorable Supreme Court and the Central Information Commission (CIC) have endeavored to address. In Sama Alana Abdulla v. The State of Gujarat. the Supreme Court clarified that the term “secret” has only been used to refer to or in conjunction with official codes or passwords and that the legislature did not intend for sketches, plans, models, articles, notes, documents, or information to also be kept confidential.
The court must take a stance that minimizes secrecy while maintaining public interest.
Regarding the overriding nature of Section 22 of the RTI Act, 2005, the Supreme Court of India stated in Namit Sharma v. Union of India that the RTI Act, 2005, is to prevail over the specified acts and instruments to the extent of any inconsistency between the two and that the question of repugnancy would not arise where the provisions of any other law can be applied harmoniously, without conflict.
The most important part of the RTI Act is that it can replace other laws and rules in order to make things more open and honest.
In Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors. the Supreme Court stated clearly that courts and information commissions enforcing the RTI Act, 2005’s provisions must adopt a purposeful construction, involving a reasonable and balanced approach that harmonizes the two objectives of the Act, when interpreting Section 8 and the other provisions of the Act. Thus, it is evident that the judiciary and CIC have attempted to restrict the expansive scope of the OSA, 1923.
Comparative Analysis of Singapore
Section 5 of the Singapore Official Secrets Act, 1935, which is similar to Section 5 of the Indian Official Secrets Act, lets the alleged offender show that he was forced to reveal the code word, countersign, password, photograph, drawing, plan, model, article, note, or document. In the absence of freedom of information legislation, this law governs the distribution of all information.
Hong Kong
In Hong Kong, unauthorized disclosures are governed under Sections 12-26 of Part III of the Official Secrets Ordinance (Cap. The Official Secrets Act of 1989 in the United Kingdom is similar to this law. The Access to Information Act of 1995 lets the public ask public entities for information. However, information that is needed for security, defense, and other reasons cannot be given out. However, this code contains numerous flaws, such as:
Canada
The Officials’ Secrets Act was revised and renamed the Security of Information Act in 2001. In addition to modernizing the espionage prohibitions, the amended Act contains new terms such as “special operational information” and “persons permanently bound to secrecy.” The Access to Information Act (R.S.C., 1985, c. A-1), a companion act to the Security of Information Act, permits access to government-controlled information.
India
India’s ambiguous OSA provides the government with sweeping protection against the revelation of information. The Act does not specify any criteria for classifying material as detrimental to national security, such as the negative test found in the OSA, 1989 of the United Kingdom and Hong Kong. Also, India’s OSA doesn’t let the accused say that they didn’t know the communication was illegal as a defense.
Fun Fact
An intriguing aspect is an overlap between the Official Secrets Act and the Acts of the Army, Navy, and Air Force. After the country got its independence, the Navy, Army, and Air Force passed laws that punished both espionage and leaking military secrets without permission and made the penalties much harsher. Espionage and improper communication with traitorous intent are punishable by death under the Navy Act [28], whereas another improper and improper communication is punishable by 14 years in prison. Interestingly, the same holds true for civilians.
1923 Misuse of OSA
The OSA says that the government will punish people who are brave enough to point out how badly the government is run in the public interest. In 1988, Captain B.K. Subbarao was indicted for violating Section 5 of the OSA. He couldn’t get out of jail for a year because he was taking his already-submitted Ph.D. thesis abroad.
Iftikar Gilani, a journalist for the Kashmiri Times, was charged in 2002 under the Official Secrets Act for having sensitive information. This information was in the form of a pamphlet about the Indian military’s deployment in Jammu and Kashmir that was made public by a Pakistan Institute.
When Maj. Gen. V.K. Singh published India’s External Intelligence in 2007, a book that showed how corrupt and careless RAW was, he was accused of breaking the OSA by giving out classified information. Journalists are frequently targeted for their exposés. Section 5[32] was viewed as a catch-all provision by the 2nd Administrative Reforms Commission, the Shourie Commission, and the Law Commission of India in their respective 43rd Reports on Offenses Against National Security, 1971.
As there is no definition for the term “secret,” this section may contain any material that is categorized as such. Therefore, governmental employees are able to classify whatever they like as “secret.”
Also Read Key Difference between Arbitration and mediation 2023
Conclusion to RTI and Official Secrets Act
The Official Secrets Act is a law that covers everyone who works for the Indian government or is an Indian citizen, no matter where they live or outside of the country. Its goal is to protect the security and integrity of the country by keeping out spies sent by enemies and keeping sensitive information from getting out to people who aren’t authorized to see it.
During the British era, this restriction was initially implemented to limit the speech and activity of national periodicals that challenged the Raj. It is frequently questioned whether the Act remains applicable in the twenty-first century. The classification of confidential materials under the Act has been questioned. It is a common misconception that the goal of this law is to discourage citizens from challenging government activities.
The Official’s Secret Act is thought to violate the right to access information. Even if cases have demonstrated the superiority of the RTI, injustice, and unfairness continue to be veiled under the pretense of national interest. Because spies are being caught and sensitive information is being leaked, getting rid of this act would put the country in danger. Consequently, a review and adjustments are necessary.
Suggestions
Therefore, moving forward, the OSA, 1923 must be abolished and its provisions incorporated into a consolidated National Security Act, as recommended by the Law Commission of India in its 43rd Report (1971), effectively establishing a National Security Act as a substantive law.
To strike a balance between the competing public and official interests under the proposed National Security Act, it is necessary to incorporate the damage tests concepts of the United Kingdom’s Official Secrets Act of 1989 and to place the burden of proof on the Government of India to demonstrate that the disclosure was damaging.
This will stop the Indian government from punishing people just because they are suspected of doing something wrong. The accused should also be able to show that, at the time of the alleged crime, he didn’t know or have a good reason to think that revealing the information would hurt national security, as required by the Official Secrets Act of the United Kingdom (1989).
Similarly, the accused should have the option of establishing that sharing the information was done against his will, as stipulated in the OSA of Singapore from 1935. This will eliminate unwarranted indictments based on innocent exchanges. To keep fights from happening in the future, the RTI Act of 2005 and the planned new National Security Act should work together.
Read More Divorce in 2023
