Retired officials barred from disclosing information

Context:

• Recently, the Government of India prohibited retired officials of security and intelligence organisations from publishing anything about their work or organisation without prior clearance from the head of the organisation.
• Serving civil servants are barred from expressing their personal opinion on policy matters and criticising the government. But once they retire, many of them take part in public debates and enrich our conversations.

Relevance:

GS-II: Polity and Governance

Dimensions of the Article:

1. Official Secrets Act 1923
2. Blindfolding The Democracy
3. Between the RTI Act and OSA
4. Changing the provisions of OSA
5. Need for Transparency: Step Towards Good Governance

Official Secrets Act 1923

• The Official Secrets Act 1923 is India’s anti-espionage act held over from the British colonial period.
• It states clearly that actions which involve helping an enemy state against India are strongly condemned.
• It also states that one cannot approach, inspect, or even pass over a prohibited government site or area like an electrical substation.
• According to this Act, helping the enemy state can be in the form of communicating a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy.
• A person prosecuted under this Act can be charged with the crime even if the action was unintentional and not intended to endanger the security of the state.
• The Act only empowers persons in positions of authority to handle official secrets, and others who handle it in prohibited areas or outside them are liable for punishment.
• Under the Act, search warrants may be issued at any time if the magistrate determines that based on the evidence there is enough danger to the security of the state.
• Uninterested members of the public may be excluded from court proceedings if the prosecution feels that any information which is going to be passed on during the proceedings is sensitive. This also includes media.
• Journalists have to help members of the police forces above the rank of the sub-Inspector and members of the military with investigation regarding an offense, up to and including revealing his sources of information.
• When a company is seen as the offender under this Act, everyone involved with the management of the company, including the board of directors, can be liable for punishment.

Blindfolding The Democracy

• The Official Secrets Act which was intended to protect the British Empire from its enemies has been used as a way for silencing questioning citizens.
• The law continues to remain in the statute book and finds inroads in every government irrespective of the political party in power, reinforcing the parent-child relationship between the state and its subjects.
• The idea that every information needs to flow from government to public with government getting to keep certain information away from the public domain in the name of national security, finds contradiction in the very idea of democracy where a true democracy stands to work for the people.
• The law also finds itself in the crossroads of Article 19 (1) which gives every citizen the fundamental right of freedom of speech and expression.
• The act does not clearly gives definition of “secret” documents or information, thus the Act can be misused with government authorities branding information or documents as official secrets as the government deems fit.
• The OSA has often been arbitrarily used against media houses and journalist who are found opposing the action of the government and questioning its policies.
• The law contradicts the Right to Information (RTI) Act that came into effect in 2005 and creates ample ground for corruption.

Between the RTI Act and OSA

• In the Official Secrets Act (OSA) clause 6, information from any governmental office is considered official information, hence it can be used to override Right to Information Act 2005 requests. This has drawn harsh criticism.
• The Supreme Court of India has also held that the RTI overrides OSA.
• Section 22 of the RTI Act provides for its primacy vis-a-vis provisions of other laws, including OSA. This gives the RTI Act an overriding effect, notwithstanding anything inconsistent with the provisions of OSA. So if there is any inconsistency in OSA with regard to furnishing of information, it will be superseded by the RTI Act.
• However, under Sections 8 and 9 of the RTI Act, the government can refuse information. Effectively, if the government classifies a document as “secret” under OSA Clause 6, that document can be kept outside the ambit of the RTI Act, and the government can invoke Sections 8 or 9. Legal experts see this as a loophole.

Changing the provisions of OSA

• In 1971, the Law Commission became the first official body to make an observation regarding OSA – observing that “it agrees with the contention” that “merely because a circular is marked secret or confidential, it should not attract the provisions of the Act if the publication thereof is in the interest of the public and no question of national emergency and interest of the State as such arises”. The Law Commission, however, did not recommend any changes to the Act.
• In 2006, the Second Administrative Reforms Commission (ARC) recommended that OSA be repealed, and replaced with a chapter in the National Security Act containing provisions relating to official secrets.
• The ARC referred to the 1971 Law Commission report that had called for an “umbrella Act” to be passed to bring together all laws relating to national security.
• In 2015, the government had set up a committee to look into provisions of the OSA in light of the RTI Act. It submitted its report to the Cabinet Secretariat in 2017, recommending that OSA be made more transparent and in line with the RTI Act.

Need for Transparency: Step Towards Good Governance

• Transparency and accountability are essential tools at the disposal of public opinion in order to ensure that the requirements of secrecy are not over-stated and people are not misled.
• Public welfare can best be served through the ability of the citizens to regularly question the policy and the intent behind its formulation.
• Questions of Economic welfare, social reform, public justice and individual liberty cannot be solely left to the state whose foremost goal is the consolidation of power.
• The media in today’s time acts as the champion of freedom and it is important that it remains independent from any type of coercion and must serve the governed, not those who govern.
• Information availability is not only a right of the people but an obligation on the part of the government to keep the people well informed.

-Source: The Hindu