Time to scrap it

In a charged atmosphere in the Supreme Court on March 14, while the hearing on a review petition in the Rafale deal case was going on, Attorney General K K Venugopal hinted at prosecuting the petitioners under Section 3 and 5 of the Official Secrets Act, 1923 (OSA). This was countered by Justice K M Joseph, who pointed to Section 22 of the Right to Information Act (RTI), which gives RTI an overriding impact over the OSA. Further, petitioner Prashant Bhushan cited Section 8(2) of RTI to indicate the primacy of public interest in disclosure of information. This revives the debate on co-existence of RTI vis-à-vis OSA.

The OSA is a pre-constitutional enactment which no longer enjoys the presumption of constitutionality as it is a creature of a non-democratic process (it traces its origin to the British Official Secrets Act, 1911 (British OSA). As per the Second Administrative Reforms Commission, the OSA was enacted in the colonial era to bring in a culture of secrecy and confidentiality in matters of governance. It spurred a culture of secrecy which resulted in confidentiality being the norm, disclosure an exception. The enactment of our Constitution, which codifies the right to freedom of speech and expression, marked a transition from the era of secrecy to transparency. The right to information, apart from being a statutory right by virtue of the RTI Act, has also been held to be an integral part of the right to freedom of speech and expression. This being the case, the RTI can only be restricted in terms of “reasonable restrictions” which conform to constitutional safeguards. Restrictions which are excessive or arbitrary or move beyond public interest are thus unreasonable.

Despite the undemocratic legacy of OSA and the mistrust which it accords to the people of our nation, it cannot be denied that confidentiality needs to be maintained in certain affairs of the State. This leaves us with a question: whether OSA and RTI can survive together. We argue that contemporaneous survival of these two is not possible without leaving a scar on our constitutional values. It is the conformity to public interest that dissociates the two, and renders harmonious construction an impossibility.

Section 22 of the RTI provides for RTI overriding the OSA. Dealing with a similar provision in the erstwhile Freedom of Information Act (predecessor to RTI), S P Sathe had stated that an attempted harmonious reading of the two laws would result in a substantially restricted information regime. This is because the edifice on which the two statutes stand is inconsistent. For OSA, the premise for triggering coercive action -- prosecution under the draconian provisions of the enactment -- is “disclosure” simplicitor and not the purpose of disclosure. This is fundamentally inconsistent with the pro-disclosure regime enacted under the RTI, wherein centrality has been accorded to public interest through Section 8(2).

Governments have a tendency to hold back information that may prove embarrassing to them even from Parliament. OSA facilitates this by equipping the government with a tool to punish disclosure even when public interest merits otherwise.

A glaring example of this tendency is the case of R vs Ponting (1985). Clive Ponting, a senior civil servant in the British Ministry of Defence was charged under Section 2 of the British OSA (analogous to Section 8, OSA) for passing of two official documents. These documents related to the sinking of an Argentinian cruiser by a British submarine during the Falklands War in 1982. While he admitted to passing two official documents to a Member of Parliament, he pleaded “not guilty”. His defence was that it was his duty in public interest to inform Parliament that it was being misled by concerned ministers on the matter. Despite his endeavour to protect the public interest, the judge directed the jury that Clive had no legal defence. It was only the collective conscience of the jury which eventually saved him by issuing a “not guilty” verdict.

While non-conformity to public interest per se imputes unreasonableness to OSA, OSA suffers from other vices, inter alia, over-breadth which inhibit it from passing the constitutional muster.

State ‘Secret’

Section 5 of the OSA gives carte blanche to the executive to prosecute anyone disclosing official information. The all-encompassing and obscure nature of this provision has been acknowledged by the 43rd Law Commission of India. This wide language penalises any unauthorised communication of “secret” information by a government servant. This becomes pertinent in the absence of a definition of the term “secret” or the phrase “official secrets”. Accordingly, public servants enjoy the discretion to classify anything as a secret whether or not it has a bearing on national security.

This non-conformity to public interest and unbridled discretion to public servants to classify information as secret depicts that harmonious construction of OSA with RTI is a virtual impossibility. Any attempt to artificially do the same will leave us with a restricted information regime.

No doubt OSA has mostly become redundant after the enactment of RTI. However, it still provides for sanctions regarding disclosure of classified information, which are absent in RTI. It may be argued that the survival of OSA is required to prevent this void. We see this as a brilliant opportunity for the legislature to repeal the draconian OSA and make appropriate amendments to the RTI to conform to constitutional values. For the same, we suggest that, first, phrases like “secret”, “official secret” must be precisely defined; second, guidelines for classification of information must be included in the RTI to further transparency and prevent excessive delegation; and third, primacy accorded to “public interest” for disclosure under Section 8(2) of the RTI must not be tampered with.

The colonial-era OSA does no good to our democracy. It is time for us to do away with it and make our information regime truly transparent.

(Utkarsh is a Law Researcher in the Supreme Court, Harpreet is a lawyer based in Mumbai)