Last week, 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. So, in this discussion let us understand about The Official Secrets Act and also the reason for tighter norms and concerns about the recent government decision.The Official Secrets Act, 1923 has its roots in the British colonial era. Its predecessor law, The Indian
Official Secrets Act, 1904 was enacted during the time of Lord Curzon, Viceroy of India from 1899 to 1905. The Indian Official Secrets Act, 1904 was an amended and more stringent version of The Indian Official Secrets Act (Act XIV) of 1889, which was brought in at a time when a large number of powerful newspapers had emerged in several languages across India who were publishing news against rising British imperialism. Fearless editors opposed British policies on a daily basis and this helped in building political consciousness among the people. One of the main purposes of this Act was to muzzle the voice of nationalist publications. In April 1923, a newer version of the Official Secrets Act was notified. The Indian Official Secrets Act (Act No XIX of 1923) replaced the earlier Act, and was extended to all matters of secrecy and
confidentiality in governance in the country.
Important Provisions of Official Secrets Act
The OSA, 1923 broadly deals with two aspects — Penalty for Spying or espionage, which is dealt with in Section 3 of the Act.
Disclosure of other secret information of the government, which is dealt with in Section 5. Under Section 5, both the person communicating the secret information, and the person receiving the information, can be punished by the prosecuting agency. OSA targets officials and civilians who have documents/code/materials etc which can be classified as “secret information.”
Secret Information – The secret information can be any official code, password, sketch, plan, model,article, note, document or information. Since the classification of secret information is so broad, it is argued that the colonial law is in direct conflict with the Right to Information Act.
Observation of Supreme Court – RTI v OSA
The Bench reserved its orders on two preliminary issues:
i)The admissibility of “stolen” documents as evidence and
ii) The claim of “privileged information” raised by the government. SC pointed out three provisions of RTI Act, 2005 which clearly overrides the OSA in certain situations: Section 22 of the RTI Act, declares that the RTI will have an “overriding effect” over OSA, 1923.
Section 24 mandates even security and intelligence organisations to disclose information on corruption and human rights violations.
Section 8(2) compels the government to disclose information “if public interest in disclosure outweighs the harm to protected interests.”
Section 8(2) of RTI Act mentions – Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.