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Right To Information v/s National Security: An In-Depth Anatomization Of The Official Secrets Act, 1923

After India acquired independence in 1947, the Official Secrets Act[1] that was established in 1923 remained in effect. The law, which is applicable to both government personnel and the general public, creates a solid framework to address and defeat espionage, sedition, and other potential threats to the nation's unity & security.

The law inter alia makes it unlawful to spy, exchange sensitive information, wear uniforms without authorization, withhold information, interfere with the military operations in prohibited or restricted areas. If found guilty, a person may be sentenced to up to 14 years in prison, a fine, or both.

This essay focuses on the Official Secret Act, highlighting notable instances of its application, the OSA's conflict with the RTI Act[2], and other related topics. Certain landmark rulings by the courts of law in India have been examined in this research article for better understanding the conflict between secrecy and freedom of information and suggestions have been provided to address this conflict.

Citizens are increasingly exercising their fundamental right to information under the Right to Information Act because of the increased awareness of participatory democracy.

The ideas of accountability, public authority and openness of government actions are what make participatory democracy possible. While the public actively seeks information from public authorities, the government aggressively holds onto information in accordance with the Official Secrets Act under the wide, vague definition of "secrecy" or "confidentiality." At this point, the democratic battleground is engaged by the clash between the public interests of the population and the protected interests of the government. When the safety of the public is put at risk as a result of such revelation, public interest is put to risk.

Due to this, the article analyses the areas of contention between the Official Secrets Act[3] and the RTI Act[4] and conducts a comparative analysis of the Official Secrets Act's existence and the right to freedom of information in common law nations. Arguments are presented against the existence of the Official Secrets Act while analysing the judicial pronouncements and the actions of the Central Information Commission on the issue, with a focus on the abuse of section 5 of the OSA.[5]

Introduction
The Official Secrets Act of 1923[6] is one of India's most oppressive laws currently in effect. As a relic of the British Raj, it has often resulted in terrible miscarriages that have tarnished our judicial record and tarnished our standing among democratic countries. Respected jurists and civil rights advocates have said categorically that the notorious Act should be repealed.

Veerappa Moily, the chairman of the Second Administrative Reforms Commission, which has previously proposed its abolition, has said that it has no right to exist since the passage of the Right to Information Act in 2005.[7] Unfortunately, the Home Ministry officials rejected the plan due to protests from the intelligence services.

The grounds for its continued existence are predicated on the premise that this will impede the prosecution of spies. The opposite could not be farther from the truth. It is vital to examine the law's past to comprehend why it was established and if it is still applicable now.[8]

Therefore, a study upon Official Secret Act[9] becomes imperative since in a democratic country all citizens enjoy right to information under Article 19 (1) (a)[10] of the Indian Constitution and this law comes in direct clash with the fundamental right of right to information.

Research Questions:
  • What is the contention between the Official Secrets Act and the RTI Act?
  • How does India's Official Secrets Act's vary from such legislation from other common law countries?
Research Objective
Research and Analysis

View of the Judiciary on the Conflict between OSA and RTI

Prior to the passage of the RTI Act in 2005,[11] the issue of the government withholding information on the grounds that it would harm the public interest was addressed in the famous Judges Transfer Case.[12] In that case, the Hon'ble Supreme Court held that "disclosure of information regarding the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands."

They understood the value of the right to know in a free and democratic society.[13] The Hon'ble Apex Court ruled that it is not in the public's interest to conceal routine business under a veil of secrecy in another case of non-disclosure in the public interest. Rarely can such secrecy be legitimately desired. The main defence against tyranny and corruption is the obligation of authorities to explain and defend their actions.[14]

Central Information Commission perspective concomitantly to the Supreme Court:
The OSA, 1923 and RTI Act, 2005 both have their own inherent problems that the Hon. Supreme Court and Central Information Commission (CIC) have attempted to resolve. In Sama Alana Abdulla v. The State of Gujarat[15], the Apex Court explained that the word "secret" has only been used to refer to or in connection 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 in confidence.

The court must choose a position that minimises the secrecy while yet upholding the need for public interest.[16] Regarding Section 22[17] of the RTI Act, 2005's overriding nature, the Hon'ble Supreme Court noted in Namit Sharma v. Union of India[18] 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 any conflict.

The RTI Act's most important clause grants the Act the authority to supersede existing laws and practises, both current and historical, in order to promote openness.[19] The Honourable Supreme Court stated clearly in Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors.[20] that courts and information commissions enforcing the RTI Act, 2005's provisions must adopt a purposive construction, involving a reasonable and balanced approach that harmonises the two objects of the Act, when interpreting Section 8[21] and the other provisions of the Act. It is thus clear that the Judiciary and CIC have made an effort to limit the OSA, 1923's vast scope.

Comparative Study

Singapore

Section 5[22] of the Singapore Official Secrets Act, 1935, which is similar to section 5[23] of the Indian Official Secrets Act, permits the alleged offender to demonstrate that the communication of the code word, countersign, password, photograph, drawing, plan, model, article, note, or document was against his will. In the absence of a freedom of information act, this statute controls all information dissemination.

Hong Kong

Section 12-26 of part III of the Official Secrets Ordinance (Cap. 521)[24] addresses unauthorised disclosures in Hong Kong. This is like the Official Secrets Act of 1989 in the United Kingdom.[25] The 1995 Code on Access to Information permits the public to request information from public entities, but exempts the disclosure of information on security, defence, and other reasons. However, this code is riddled with deficiencies, such as[26]:

Canada

In 2001, the Officials Secret Act was amended and rechristened the Security of Information Act. The revised Act, among other things, modernises the espionage provisions and introduces new concepts, such as "special operational information" and "persons permanently bound to secrecy.[27] Access to Information Act (R.S.C., 1985, c. A-1) a complementary Act to the Security of Information Act allows the access to information under the control of the Government of Canada.

India

India has a vague OSA which gives the government a blanket cover to prevent disclosure of information. There are no criteria laid down in the Act to classify information as prejudicial to national security, such as the damaging test available in the OSA, 1989 of the United Kingdom and Hong Kong. India's OSA also does not provide a defence of proving that the accused had no knowledge that the communication was unlawful.

Fun Fact
The overlap between the Official Secrets Act and the Acts of the Army, Navy, and Air Force is an intriguing element. The special legislation of the Navy, Army, and Air Force enacted after independence incorporated both violations, i.e. espionage and improper disclosure of military secrets, while significantly increasing the penalties. Under the Navy Act,[28] espionage and inappropriate communication with treasonous purpose are punishable by death, while other improper and improper communication is punishable by 14 years in prison. Interestingly, this also applies to civilians.

Misuse of OSA, 1923

In accordance with the OSA, the fury of the government awaits courageous individuals who, in the public good, expose the government's maladministration often. One such occurrence occurred in 1988, when Captain B.K. Subbarao was charged under Section 5 of the OSA[29]. He was refused bail for one year based solely on the fact that he was transporting abroad his previously filed Ph.D. thesis.[30]

Iftikar Gilani, a Kashmiri Times journalist, was prosecuted in 2002 under the Official Secrets Act for holding sensitive material, which was nothing more than a brochure given publicly by a Pakistan Institute describing the deployment of Indian soldiers in Jammu and Kashmir.

In 2007, when Maj. Gen. V.K. Singh wrote India's External Intelligence, a book that showed corruption and carelessness inside RAW, he was accused under the OSA for disclosing secret material. Frequently, journalists are attacked for their exposes. The 2nd Administrative Reforms commission, the Shourie Commission,[31] and the Law Commission of India in its 43rd Report on Offences against National Security, 1971, have seen section 5[32] as a catch-all clause on many occasions.

As there is no definition for the term 'secret,' any kind of material that is classified as such might fall under this section. Therefore, public workers have the freedom to categorize anything they want as "secret".[33]

Conclusion
The Official Secrets Act is a comprehensive statute that applies to every Indian government official and every Indian citizen living inside or outside the country. Its purpose is to maintain the security and integrity of the country by protecting it from spies sent by enemies or the improper communication of sensitive information to anyone other than the authorised official.

This regulation during the British period was first enacted to restrict the speech and activities of national publications that opposed the Raj. Frequently, issues are raised about the Act's continued applicability in the twenty-first century. The Act's categorization of confidential materials has been called into doubt. It is frequently believed that the purpose of this Act is to prevent individuals from questioning government actions.

It is believed that the Officials Secret Act violates the right to access information. Even if examples have shown the supremacy of the RTI, there are still instances in which injustice and unfairness are concealed under the guise of national interest. With cases of spies being apprehended and important information being divulged, the repeal of this act would place the nation in a perilous position. Thus, a review and modifications are required.

Suggestions
Therefore, moving forward, the OSA, 1923 needs to be repealed and its provisions subsumed in a consolidated National Security Act as recommended by the Law Commission of India in its 43rd Report (1971) thus effectively creating a National Security Act as a substantial law.

Meanwhile, to balance the conflicting public interest and Official interest under the proposed National Security Act, it is further necessary to incorporate in it the damage tests concepts of the United Kingdom's OSA, 1989 and place the burden of proof on the Government of India to prove the damaging nature of the disclosure.

This will prevent the blatant persecution on mere suspicion by the Government of India. Further, a defense ground should be made available to the accused of proving that, at the time of commission of the alleged offence, he had no knowledge and had no reasonable cause to believe, that the information's disclosure would be prejudicial to Nation's security as provided in the United Kingdom's OSA, 1989.

Similarly, a defense of proving that the communication of the information was contrary to his desire as provided in the Singapore's OSA, 1935 should be made available to accused. This will eliminate innocent communications and unnecessary prosecutions thereon. Finally, the RTI Act, 2005 and the proposed new consolidated National Security Act must be made complementary to each other, to prevent subsequent conflicts.

Index of Authority
Cases:
  • Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors (2011)8 SCC 497
  • Manjit Singh v. Department of Posts, Second Appeal No.: CIC/POSTS/A/2017/131334
  • Namit Sharma v. Union of India (2013) 1 SCC 745
  • S.P.Gupta v. Union of India and Others, AIR 1982 SC 149
  • Sama Alana Abdulla v. The State of Gujarat 1996 SCC (1) 427; Reliance is also made on the case Sunil Ranjan Das v. The State Criminal Rev. No 908 of 197
  • State of Maharashtra v. Dr. B.K. Subbarao and Another 1993 CriLJ 2984 (Bomaby HC)
  • State of Uttar Pradesh v. Raj Narain AIR 1975 SC 865
Statutes:
  • Official Secrets Act, 1989, Acts of Parliament, 1989 (United Kingdom)
  • Official Secrets Ordinance, 1997, Acts of Parliament, 1997 (Hong Kong)
  • The Navy Act, 1957, Acts of Parliament, 1957 (India)
  • The Official Secrets Act, 1923, 5, Acts of Parliament, 1923 (India)
  • The Official Secrets Act, 1923, Acts of Parliament, 1923 (India)
  • The Official Secrets Act, 1935, 5, Acts of Parliament, 1935 (Singapore)
  • The Right to Information Act, 2005, 22, Acts of Parliament, 2005 (India)
  • The Right to Information Act, 2005, 5, Acts of Parliament, 2005 (India)
  • The Right to Information Act, 2005, Acts of Parliament, 2005 (India)
Other Authorities
  • Government of Canada, Operational Standard for the Security of Information Act, GOVERNMENT OF
  • Legislative Council Secretariat, Information Note: Freedom of information law in selected places (2018)
  • Major General VK Singh (Retd), The Official Secrets Act 1923 A Troubled Legacy, Journal of the United Service Institution of India, Vol. CXXXIX, No. 575, January-March 2009
  • Second Administrative Reforms Commission
  • Shourie Committee: Report of the Working Group, Right to Information and Transparency, 1997
Constitutional Provisions
  • INDIA CONST. art. 19(1)(a)
References
Books
  1. MP Jain, Principles of Administrative Law, (LexisNexis 2017)
Articles
  1. Raj Krishna, Official Secrets Act: A Critique, Times of India (Nov. 12, 2022, 9:44 PM), https://timesofindia.indiatimes.com/readersblog/my-tryst-with-law/official-secrets-act-a-critique-45147/
  2. Shoronya Banerjee, Official Secrets Act, 1923: A Critical Analysis, IPleaders (Nov. 12, 2022, 9:34 PM), https://blog.ipleaders.in/official-secrets-act-1923-critical-analysis/
  3. Lekshmi Priya L, Analysing the Incessant Battlefront: Conflict of Public Interest with Official Secrets, 3 IJLMH 310, 310-318 (2020) https://www.ijlmh.com/wp-content/uploads/Analysing-the-Incessant-Battlefront-Conflict-of-Public-Interest-with-Official-Secrets.pdf
  4. The Official Secrets Act 1923 A Troubled Legacy, Usiofindia.org (2020), https://usiofindia.org/publication/usi-journal/the-official-secrets-act-1923-a-troubled-legacy-2/ (last visited Nov 13, 2022).
  5. The Official Secrets Act, Unacademy (2022), https://unacademy.com/content/upsc/study-material/national-security/the-official-secrets-act/ (last visited Nov 13, 2022).
  6. Official Secrets Act:
    Maintaining Confidentiality in the governance of the country - Getlegal India, Getlegal India (2022), https://getlegalindia.com/official-secrets-act/#What_is_the_official_secrets_act (last visited Nov 13, 2022).
  7. Patil Amruta, Official Secrets Act 1923:
    Internal Security Notes, Prepp (2022), https://prepp.in/news/e-492-official-secrets-act-1923-internal-security-notes (last visited Nov 13, 2022).
     
  8. Wikipedia Contributors, Official Secrets Act (India), Wikipedia (2022), https://en.wikipedia.org/wiki/Official_Secrets_Act_(India) (last visited Nov 13, 2022).
  9. Santhosh Kumar, Official Secrets Act 1923 of India v/s RTI | UPSC - IAS EXPRESS, IAS EXPRESS (2019), https://www.iasexpress.net/official-secrets-act-upsc-ias-gk/ (last visited Nov 13, 2022).
  10. shanKariasacademy, Official Secrets Act:
    Rafale Deal Case | Current Affairs, Iasparliament.com (2019), https://www.iasparliament.com/current-affairs/official-secrets-act-rafale-deal-case (last visited Nov 13, 2022)
  11. InsightsIAS, India's Official Secrets Act, its history and use:
    Insightsias, Insightsias (2019), https://www.insightsonindia.com/2019/03/10/indias-official-secrets-act-its-history-and-use/ (last visited Nov 13, 2022).
     
End-Notes:
  1. The Official Secrets Act, 1923, Acts of Parliament, 1923 (India)
  2. The Right to Information Act, 2005, Acts of Parliament, 2005 (India)
  3. The Official Secrets Act, 1923, Acts of Parliament, 1923 (India)
  4. The Right to Information Act, 2005, Acts of Parliament, 2005 (India)
  5. The Official Secrets Act, 1923, 5, Acts of Parliament, 1923 (India)
  6. The Official Secrets Act, 1923, Acts of Parliament, 1923 (India)
  7. The Right to Information Act, 2005, 5, Acts of Parliament, 2005 (India)
  8. Major General VK Singh (Retd), The Official Secrets Act 1923 A Troubled Legacy, Journal of the United Service Institution of India, Vol. CXXXIX, No. 575, January-March 2009.
  9. The Official Secrets Act, 1923, Acts of Parliament, 1923 (India)
  10. INDIA CONST. art. 19(1)(a)
  11. The Right to Information Act, 2005, Acts of Parliament, 2005 (India)
  12. S.P.Gupta v. Union of India and Others, AIR 1982 SC 149
  13. Id. para 57, 63, 66
  14. State of Uttar Pradesh v. Raj Narain AIR 1975 SC 865
  15. Sama Alana Abdulla v. The State of Gujarat 1996 SCC (1) 427; Reliance is also made on the case Sunil Ranjan Das v. The State Criminal Rev. No 908 of 197
  16. S.P.Gupta v. Union of India and Others, AIR 1982 SC 149
  17. The Right to Information Act, 2005, 22, Acts of Parliament, 2005 (India)
  18. Namit Sharma v. Union of India (2013) 1 SCC 745.
  19. Manjit Singh v. Department of Posts, Second Appeal No.: CIC/POSTS/A/2017/131334.
  20. Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors (2011)8 SCC 497.
  21. The Official Secrets Act, 1923, 8, Acts of Parliament, 1923 (India)
  22. The Official Secrets Act, 1935, 5, Acts of Parliament, 1935 (Singapore)
  23. The Official Secrets Act, 1923, 5, Acts of Parliament, 1923 (India)
  24. Official Secrets Ordinance, 1997, Acts of Parliament, 1997 (Hong Kong)
  25. Official Secrets Act, 1989, Acts of Parliament, 1989 (United Kingdom)
  26. Legislative Council Secretariat, Information Note: Freedom of information law in selected places (2018), Legislative Council (Nov. 112, 2022, 07:30 PM), https://www.legco.gov.hk/researchpublications/english/1718in10-freedom-of-information-law-in-selected-places-20180525-e.pdf
  27. Government of Canada, Operational Standard for the Security of Information Act, Government Of Canada (Dec. 01, 2020, 07:40 PM), https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12323
  28. The Navy Act, 1957, Acts of Parliament, 1957 (India)
  29. The Official Secrets Act, 1923, 5, Acts of Parliament, 1923 (India)
  30. State of Maharashtra v. Dr. B.K. Subbarao and Another 1993 CriLJ 2984 (Bomaby HC)
  31. Shourie Committee: Report of the Working Group, Right to Information and Transparency, 1997.
  32. The Official Secrets Act, 1923, 5, Acts of Parliament, 1923 (India)
  33. Second Administrative Reforms Commission

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