Why in news : Rafale Deal – The Hindu Issue

Attorney-General’s request for “criminal action” against those responsible for making“stolen documents” on the Rafale deal public, has brought the Official Secrets Act into focus.

AG’s statement was in context of lead article in The Hindu on March 6, saying‘sensitive’ information like the price of the weapons is now in the public domain. The government had not wanted it disclosed for the sake of national security.

The colonial-era law meant for ensuring secrecy and confidentiality in governance,mostly on national security and espionage issues, has often been cited by authorities for refusing to divulge information. Governments have also faced criticism for misusing the law against journalists and whistle blowers.

About the Act

  • The Official Secrets Act was first enacted in 1923 and was retained after Independence.
  • This law is applicable to government servants and citizens, provides the framework for dealing with espionage, sedition, and other potential threats to the integrity of the nation.
  • The law makes spying, sharing ‘secret’ information, unauthorised use of uniforms, withholding information, interference with the armed forces in prohibited/restricted areas, among others, punishable offences. If guilty, a person may get up to 14 years’ imprisonment, a fine, or both.
  • The information could be any reference to a place belonging to or occupied by the government, documents, photographs, sketches, maps, plans, models,official codes or passwords.

Concerns of the Act

The primary critique of the Act is that​ it flips the constitutive logic of a democratic republic​, where the state is supposed to be transparent to its citizens.While it is nobody’s case that all information ought to be made public – for example,troop movements in wartime or confidential trade negotiation positions, to take two examples, obviously need to be secret – there should be a heavy presumption against secrecy.

Under the OSA state is given wide powers to place information off-limits to citizens,simply by stipulating that certain documents are secret and then draconian powers to punish them in case it is made public, regardless of the public interest involved. This makes whistle-blowing and investigative journalism a perilous enterprise, no matter how critically important it might be to have the information public.

Another​ contentious issue with the law is that its Section 5, which deals with potential breaches of national security, is often misinterpreted.​ The Section makes it a punishable offence to share information that may help an enemy state. The Section comes in handy for booking journalists when they publicise information that may cause embarrassment to the government or the armed forces.

The scope of the OSA has been somewhat diluted to some extent to the Right to Information Act. Section 22 of the RTI Act expressly says it overrides the OSA. In other words, it is not open to the government to deny access to a document demanded through an RTI question, on the basis that it has been marked secret under the OSA. Rather, the government will have to justify its decision to withhold information under the arguably narrower exception clauses of the RTI Act itself.

Way Forward

The Second Administrative Reforms Commission (SARC) Report, 2006,​ suggested that the Act should be substituted by a chapter in the National Security Act ​that incorporates the necessary provisions because it had become a contentious issue after the implementation of the Right to Information Act.

The OSA does not define “secret” or “official secrets”. Public servants could deny any information terming it a “secret” when asked under the RTI Act.

The SARC report stated that as the OSA’s background is the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens. It created a culture of secrecy. Confidentiality became the norm and disclosure the exception. This tendency was challenged when the Right to Information Act came into existence.

As recently as 2006, the Home Ministry recommended substantial changes to the OSA, in line with the privacy regime established by the RTI. From time to time, there are calls to repeal the OSA and replace it with a National Security Act that is more consistent with the aspirations of an open, democratic republic.

However, the OSA has proved resilient, and it would be reasonable to assume that we are stuck with it for at least the medium-term future.

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