Official Secrets Act Versus Right to Information Act

Recently, West Bengal Government has declassified certain documents related to Netaji Subhash Chandra Bose. The government in that state is further planning to digitize the records of the freedom struggle from 1937 to 1947 in order to preserve history. This topic has been appearing in newspapers frequently. Further, the Central Government has also said that it will gradually declassify such files beginning from January 2016.

We also observed the 10th anniversary of RTI Act recently. Section 8 of that act pertains to  and is subject to public demand to abolish it. This section keeps certain information outside the purview of public.

Further, in February 2015, the Union Home Ministry had constituted a committee (headed by LC Goyal ) to look around India’s Official Secrets Act and suggest  changes to the colonial law to complete the transition from the secrecy regime of the past century to a more modern and democratic transparency regime. This is a very important topic for GS Paper-II and is below backgrounder provides framework with little analysis.

The secrecy laws

During Lord Curzon’s times, the Indian Official Secrets Act (1904) was enacted mainly to restrict the freedom of the press. This act was replaced with Official Secrets Act, 1923 to govern all matters of secrecy and confidentiality in governance in India. The law also provides a framework for dealing with espionage, sedition and other assaults on the unity and integrity of the nation. Because of mistrust between British administration and people, the law had inculcated the culture of secrecy in India.

The tendency of secrecy has been furthered by Civil Service Conduct Rules, 1964, which prohibit the communication of an official document to anyone without authorization. Further, Section 123 of the Indian Evidence Act, 1872 prohibits giving of evidence from unpublished official records without the permission of the Head of the Department, who has abundant discretion in the matter. Even the RTI Act respects the need to keep certain information outside the purview of public. The Section 8 of the RTI Act lists out the exemptions under which the PIO need not give information.

Factors contributing to secrecy culture

A major contributor to the secrecy culture in India is the tendency to classify information even where such classification is clearly unwarranted. The Government of India has issued detailed guidelines pertaining to safeguarding information in its possession, the unauthorised disclosure of which would cause damage to national security or would cause embarrassment to the Government in its functioning or would be prejudicial to national interest. These guidelines, which are contained in the Manual of Departmental Security Instructions and the Manual of Office Procedure, lay down instructions to give a security classification to a record based on the degree of confidentiality required. They also describe the manner in which each of such classified information should be handled and the persons who can access such information.

The Manual of Departmental Security Instructions deals with classification of official documents and records involving sensitive matters and national security. Once information is classified it moves out of the public domain. Classification of official documents

Based on the level of sensitivity of the information and the implications of its disclosure for national security, the official documents in India are classified as: 1. Top Secret 2. Secret 3. Confidential and 4. Restricted.

Top Secret

It is for information whose unauthorised disclosure may cause “exceptionally grave damage” to national security or national Interest. This category is reserved for the nation’s closest secrets.

Secret

It is for information whose disclosure may result in “serious damage” to national security or national interest, or serious embarrassment to the government. It is generally used for “highly important matters”. Normally it is the highest classification used.

Confidential

It is for information that might cause “damage” to national security, be prejudicial to national interest, might embarrass the government.

Restricted

It is applied to information meant only for official use and is not to be published or communicated to any person except for official purposes.

Documents which are not classified are regarded as “Unclassified”.

Criteria for classification

Despite of requests from activists, the Ministry of Home Affairs (MHA) has not disclosed the criteria for classification. The Official Secrets Act does not define the term ‘secret’ or the phrase ‘official secrets’. Further, the public servants enjoy substantial discretion to classify anything as ‘secret’.

The classification is decided in accordance with Departmental Security Instructions issued by the MHA. The Central Secretariat Manual of Office Procedure (Thirteenth edition), published in September 2010, has details of how classified documents will be treated, but there is no mention of the criteria for classification of documents. According to the available information, “Top Secret” documents do not travel below the Joint Secretary level and “Secret” files do not go below the Under Secretary level.

Declassification

Declassification is a continuous process. According to the Public Records Act of 1993 and the Public Records Rules of 1997, “The records creating agency shall by an office order authorise an officer not below the rank of Under Secretary to the Government of India to evaluate and downgrade the classified records being maintained by it.” A declassified file which is considered fit for permanent preservation will be transferred to the National Archives. A review is undertaken for every five years and, normally, files more than 25 years old are transferred to the National Archives. However some files related to issues like “Nuclear Test at Pokhran, 1974” are not sent to National Archives and were retained by the PMO. The union government is also considering for review of the Public Records Act.

Impact of RTI on Official Secrets Act

While the OSA had legally perpetuated a culture of secrecy (and corruption) and denial of any rights against them, the RTI Act ushered India into an era of transparency and accountability. Thus, the real difference between these two acts is in the shift of cultures of the two regimes. However, the Official Secrets Act has NOT been totally overridden by the Right to Information Act, 2005.

According to the RTI Act of 2005, in case of a clash with the Official Secrets Act, the public interest will prevail. The section 8(2) of the RTI Act says, “Notwithstanding anything in the Official Secrets Act, 1923, nor any of the exemptions permissible in accordance with subsection 8(1) of RTI Act, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”The section 22 of the RTI Act says the Act’s provisions shall have effect notwithstanding anything inconsistent contained in the OSA or any other law or in any instrument having effect by virtue of any other law.

Demand for Repeal of OSA

For long, there has been a clamor to ensure a harmony between the two acts and ensure that citizens be made a part of decision making in governance of the country by disclosing the authentic information. In this regard, practices of certain other countries are cited. For example, UK declassifies its documents after a certain lock-in period, and Germany is now gradually opening up its archives  to scholars.

In India, the Second Administrative Reforms Commission (ARC) also said that “The Official Secrets Act, 1923 should be repealed.” But the recommendation to repeal OSA was rejected by the Government giving argument that it is the only law to deal with cases of espionage, wrongful possession and communication of sensitive information detrimental to the security of the State.

The ARC had also recommended that Departmental Security Instructions should be amended, and “ordinarily, only such information should be given a security classification which would qualify for exemption from disclosure under the RTI Act.” But the government said that it was “not possible to classify documents on the basis of various Sections of the RTI Act”.

Current Position

The main challenge is the interpretation of “public interest” mentioned in RTI Act. The secrecy in government operations is has to be limited by absolute necessity by keeping the confidentiality strictly time-bound. The NDA government has set up LC Goyal committee to look into the provisions of the Official Secrets Act, 1923 (OSA) in light of the Right to Information Act, 2005. The committee should recommend for amendment of Officials Secrets Act to promote transparency in governance.

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