The secrecy regime

April 20, 2015 01:02 am | Updated December 04, 2021 11:31 pm IST

A >committee set up by the Union government to look into the provisions of the Official Secrets Act, 1923 (OSA) in light of the Right to Information Act, 2005, had its first meeting recently. This marks a step in making a transition from a secrecy regime towards open and transparent governance. Although the move is currently entangled in specific controversies over >declassifying files relating to Netaji Subhas Chandra Bose , its broader and long-term implications are of enormous significance. The legal position is clear. Whenever there is a conflict between the two laws, the provisions of the RTI Act override those of the OSA. Section 22 of the RTI Act states that its provisions will have effect notwithstanding anything that is inconsistent with them in the OSA. Similarly, under Section 8(2) of the RTI Act a public authority may allow access to information covered under the OSA, “if the public interest in disclosure outweighs the harm to the protected interests”. It is the interpretation of ‘public interest’ that is the challenge. National security laws should balance the need to ensure state sovereignty with principles of transparency and accountability.

The draconian OSA was enacted in 1923 by the British rulers under very different political circumstances, and it was amended post-Independence, perpetuating the insulation of the government from public scrutiny. The statute has provisions that are too broad and vague, often leaving room for arbitrariness. For instance, under Section 2(8)(d) of the Act defining a “prohibited place”, “any railway, road, way or channel or other means of communication by land or water…” can be notified by the Central government as a ‘prohibited place’. Section 3 provides for penalty for spying to be imposed on anyone who is even found in the ‘vicinity’ of a prohibited place. Unsurprisingly, the law has been misused time and again. V.K. Singh, who >wrote a book detailing instances of corruption, nepotism and negligence within the Research and Analysis Wing , was charged with an offence under the OSA. The court had to intervene, granting the retired General anticipatory bail based on the finding that nothing in the book put any national secret in jeopardy. Dr. B.K. Subbarao, a former Navy Captain, was put in the lock-up for months on charges of violating the OSA. The Bombay High Court found his prosecution to be fraudulent. Secrecy in government operations is necessary, but it has to be limited by absolute necessity, keeping the confidentiality strictly time-bound. As part of the review, the Home Secretary will take inputs from security agencies; to make the process more representative, civil society should also be included in the dialogue.

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