The recent incident of the Indian government seeking action against The Hindu newspaper and news agency ANI under the Official Secrets Act, 1923 (OSA) for publicizing confidential documents related to India’s Rafale jet deal with France has sparked off a debate. This debate is centered around the OSA vis-a-vis the Right to Information Act, 2005 (RTI). We delve into the complexities of this issue in this article.
Legal Position
Whenever there is a contest between the RTI and the OSA, the former’s provisions take precedence. As per Section 22 of the RTI Act, its stipulations will hold effect despite any contradicting aspect of the OSA. Furthermore, under Section 8(2) of the RTI Act, any public authority may permit access to information protected under the OSA in case the public interest in disclosure outweighs potential harm to safeguarded interests.
Understanding Issues with OSA
Colonial Legacy
Introduced by the British in 1923, the OSA was designed to maintain certain types of information as confidential. These usually included, but weren’t limited to, aspects of national security, state affairs, espionage, diplomacy, and other state secrets.
Vague Terms
The OSA contains broad and ambiguous provisions that often lead to unpredictability. For example, Section 2(8)(d) defines a “prohibited place” as “any railway, road, way or channel or other means of communication by land or water…” that can be notified by the Central government. Section 3 proposes penalization for anyone found near a prohibited place, even if innocently. On top of that, it also condemns the conveyance of any information acquired in violation of the Act, irrespective of whether it is crucial to national security or friendly foreign relations. This provision presents significant challenges for whistle-blowers and investigative journalists.
Against the Constitutional Values
The OSA runs counter to the fundamental logic of a democratic republic where transparency between the state and its citizens is imperative.
Important Facts about OSA and RTI Act
| Act | Year | Purpose |
|---|---|---|
| OSA | 1923 | Keep certain information confidential |
| RTI Act | 2005 | Provide the right to information for citizens |
Seeking Reforms within OSA
In its report “Right to Information: Master Key to Good Governance”, the second administrative reforms commission suggested repealing the OSA. However, the government chose not to follow this advice, defending that the OSA is the only legislation capable of handling cases of espionage, unauthorized possession, and communication of sensitive information potentially harmful to the state.
In 2006, the Home Ministry proposed significant modifications to the OSA in alignment with the privacy regime established by the RTI. Calls for replacing the OSA with a National Security Act have also been frequent. This proposed act, it is argued, would better align with the values of a transparent and democratic republic.
