Conflict Between Right To Information Act, 2005 And The Official Secrets Act, 1923
This Blog is written by Vidur Thanawala from Bennett University, Greater Noida. Edited by Ravikiran Shukre.
The recent purchase of the Rafale combat flights by the Indian Government ran into a controversy when a PIL was filed before the Hon’ble Supreme Court of India, the PIL was filed on the grounds that the government, allegedly has tried to suppress sensitive information regarding the purchase of the flights and was trying to cover up a scandal that was worth crores. The PIL was filed after a ‘document’ regarding the deal was leaked. This controversy gave rise to a very important debate which was can the government misuse its power under the Official Secrets Act, 1923 to suppress ‘information’ that would interest the society at large, and whether the people of India has the right to access sensitive information pertaining to national security under the Right to Information Act, 2005.
This is not the first time that the government has used the British Era Law to intimidate a journalist who penned an article that could incriminate the government, the basis was the article was a leaked document from the defence depart. One such attempt of curtailing sensitive issues that if leaked would harm the U.S. Government, the Government approached the Supreme Court of the United States to restrain the New York Post and Washington from publishing an article regarding the involvement of the U.S. Army in the war of Vietnam. The controversy was famously known as the ‘Pentagon Paper’
The main objective of this paper is to study the Official Secrets Act,1923, and the Right to Information Act, 2005, and understand which Act would Prevail in case there is a clash.
The Indian Official Secrets Act is a piece of legislation that was introduced by the Britishers in the year 1889. The main purpose of the British Government to implement this Act was to suppress the voice of media houses and independent journalists who worked around the clock to expose the actions of the government and oppose the policies that were put forward by the government. The Indian Official Secrets Act was amended in the year 1904 and finally, in the year 1923, the Indian Government enacted The Official Secrets Act, 1923 which gave the government a blanket immunity, and thus making all the administrative work in regards to the governance secret and official.
The Official Secrets Act, 1923 contains provisions that may be classified into two categories, the first being provisions concerning espionage, and the second category specifically deals with what official communication of the government can be released to the common people. In regards to espionage the law to totally government-centric and does not provide any relief to the accused. “The provisions of the Act state that an individual who is merely suspected for espionage under The Official Secrets Acts,1923 can be punished even if the evidence is not strong enough”. The other part of the Act contains provisions that specifically deal with the communication of official information in regards to outsiders.
“The Act makes it a penal offense for any person holding office under the government willfully to communicate any official information to any person, other than the person to whom it should be communicated”.  Not only this but the Official Secrets Act, 1923 not only punishes the person who steals the official information for the purpose of communicating it but also punishes the person who receives it.
Many eminent scholars and jurists refer this piece of legislation as the ‘draconian law’ because the Act does not take into consideration the intention of the parties involved, which implies that even innocent parties whose communication may not endanger the national security may be punished. This Act empowers the government to such an extent that they can restrict the media houses and the journalists from attending any court proceedings if the government feels that the information passed during the proceedings may be sensitive.
It can thus be concluded that “The Official Secrets Act has thus kept the people in the dark about what has been happening within the government. It was the catch-all the provisions of this statute which encouraged the political leadership to pursue courses of action highly detrimental to public morality”. 
The legislation could sense the government of India, misuse its power under OSA at various stages and cover up many scandals which if come into light could expose the government, thus the Right to Information Act, was introduced in the year 2005, which gave the people of India a chance to access the information on the working of the government.
The Right to Information Act 2005, was seen as an important piece of information in a democratic country like India, as one of the essential elements of “democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to be governed”. 
The Right to Information Act, 2005 since the hour of its establishment, from on viewpoint, has engaged the citizens by permitting them to look for data which belonged to different branches of the government, considering the government responsible to its citizens and in this manner can be considered as one of the most flourishing enactments passed by the Indian Parliament since India achieved its independence.
India, before the enactment of Right to Information Act, 2005 lacked laws that would let the people of India question the working of the government, the RTI Act, 2005 has offered a voice to the poor people and the underestimated areas of the general public to get to their essential privileges. It tends to be considered as a voice to the voiceless individuals.
“The concept of openness in governance has its origin in the right of freedom of speech and expression conferred in Article 19(1) of our Constitution. The Supreme Court has held that the right to freedom of speech and expression includes the right to receive and impart information”.  A country like India could be called democratic in its total sense only if the citizens of the country have an active say in the working of the government. The government would be enabled to take better decisions if they receive input from the people of the country. “It is only then that the citizens can fulfill their role and make democracy real and participatory”.  Otherwise as Madison warned, “a popular government without the popular information, or the means of obtaining it, is but a prologue to farce or tragedy or perhaps both”. 
One of the main objectives of the Right to Information Act is to provide access to the citizens of India, mainly access to that particular Information about themselves that is stored in the government sites and give them the liberty to change or correct any misleading information that pertains to them. This Act derives its existence from the United States of America, wherein the government misused its power, and deprived the citizens of their basic constitutional right, which was right to receive information.
The essence of the issue is to guarantee that the genuine security of the information is protected truly as the disclosure of the same would cause harm to the national security and to make sure that the information is not withheld to cover up a governmental controversy or a scam. When the government classifies a certain ‘document’ as classified or top secret it should provide a rationale nexus between the document and the objective behind classifying the document.
The Aim should be to achieve what “Edward Shils”  described as “an acceptable equilibrium between the claims for secrecy and the demands of the public disclosure”. 
THE TRANSITION FROM SECRECY TO AN ERA OF RIGHT TO INFORMATION:
Ever since India fought its way to Independence, the government of India always believed to keep it’s working a secret from the citizens of the country, thus not keeping transparency in its working, the government, when questioned from the judiciary as to why are certain information been marked classified and not made available in the public domain, to standard answer adopted by the government, was that the information that is classified is in the national interest, pertaining to its security, and if made available to the public could endanger the national security.
“What a democratic country demands are transparency in the working of the government. The hallmark of a meaningful democracy is the institutionalization of transparent and participative processes which gives the electorate access to information about the government it has brought to power and enables it to make an informed decision to remove that government from power if it chooses to”. 
Another problem that the judiciary found in The Official Secrets Act, 1923 was that even though the Act is called ‘The Official Secrets’ it fails to define the words ‘official’ or secrets’, another major flaw in the Act is that it does not confer the government with the power to classify documents into categories such as official documents and documents that can be shared with the general public at large. “Only an executive order called the Manual of Departmental Security Instruction (MODSI)”  of “Ministry of Home Affairs lays down the procedure for the classification of certain documents which cannot be disclosed”. 
Whatever an authority in a specific situation of pecking order thinks thus, that becomes a mystery. The self-assertive characterization of archives became an irrefutable force in the possession of a couple of officials, who would prefer not to lose it under any conditions. The incomprehensible degree of this culture of mystery in government can be clarified with this occasion. Under Article 77 of the Constitution, the President has the capacity to make rules for the more advantageous exchange of the matter of the Government of India and for the allotment among priests of the said business. Practicing this force, the President has encircled the Transaction of Business Rules and the Government of India (Allocation of Business) Rules, 1961, otherwise called the Rules of Business, being distributed until 1973 and was accessible to the open yet out of nowhere, the legislature, i.e., the civil servants began thinking about it as classified.
In what manner can these standards that notice the things of business distributed to every service or branch of the Government of India could be a mystery, and it is avoided whom? Except if the courts coordinated, these were not provided to the Court moreover. Abnormally, however, the President makes these standards under the Constitution, yet they are treated as private without the Constitution or some other law expressly giving any secrecy to them. Obviously, the official apparatus plans to conceal its own deformities, wrongs, and anomalies without even remotely associating with any open intrigue. It is likewise weird that any vote-based government utilizes this appointed enactment to keep individuals far off for standard business rules.
For the most part, while making designated enactment the United States and England follow broadly the procedure of meeting of the influenced interests is utilized widely, however in India the guidelines are commonly made in the mystery offices of the administration and “interview” is an extraordinary exemption.” The Center during the Emergency period gave Constitutional premise to thinking about these Rules of Business through the Constitution (Forty Second Amendment) Act, 1976 denying the individuals access to the Rules of Business. Luckily this was canceled by the Constitution (Forty-Fourth Amendment) 1978. This demonstrates nonappearance of lawful or protected ground for making rules of business out of reach.
Now that it has been established that a malafide intention is not to be established by the government to prosecute a citizen under The Official Secrets Act, this Act has been misused on several occasion, one of the recent cases was the case of “Nambi Narayan” , who is an ISRO scientist was falsely accused of espionage along with another scientist the government had booked both the accused under The Official Secrets Act, for selling information that was classified, it was related to India’s cryogenic engine. After over 30 years of legal battle the Supreme Court of India ordered the government of India to compensate the scientist as they were wrongly arrested and this held to mental harassment of the scientists. There have been several instances wherein journalists have fallen prey to this piece of legislation and have been falsely accused of crimes that they didn’t commit.
One such incident is the incident where a journalist named “Iftikhar Gilani”  hailing from Jammu and Kashmir was arrested under the OSA, 1923 on the charges that he downloaded and possessed a document that was a top-secret document, during the proceeding of the courts, the courts founded that the document that he possessed was not a top-secret and was available easily on the public domain. He was acquitted from spending 7 months of jail time for a crime that he didn’t commit.
Thus, this practice of the government of classifying certain information as a ‘secret’ without any authorization, places an unreasonable restriction on the rights of the Indian Citizen to receive information and the also puts an unreasonable restriction on the rights of the media house to impact information to the general population. This unreasonable restriction also is in direct violation with article 19(1) of the Indian Constitution. In the case of “S.P. Gupta v. President of India” , Justice Bhagwati held:
“Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document”. 
Finally, the government along with the legislation enacted the Freedom of Information Act 2002, which gave the people a right to access certain information which was earlier not disclosed on the pretext of it being classified. The Supreme Court in the landmark case of “Union of India v. Assn for Democratic Reforms” , held that it is the right of a citizen voting to know the background of the person who he is giving his vote.
The court in this case issued guidelines mandating every candidate who is contesting the election to furnish any criminal records, if any, along with this the candidate is also to furnish information relating to his qualification, his assets, etc. The court while deciding the case observed that the requirement of such information to be disclosed is derived from the fundamental right of a citizen that is guaranteed to them under Article 19(1) of the Indian Constitution.
The Test of clear and present danger:
The Hon’ble Supreme Court of India and The United States of America have developed a test known as the ‘Doctrine of clear and present danger’ which as to be relied upon while deciding cases wherein the government decides to withhold certain information on the pretext of it being classified.
In the case of “Schenck v. United States” , the Apex Court of the United States held that an activist with antiwar thinking would not be protected by the First Amendment and would have the right to advocate draft resistance.
Justice Oliver Wendell Holmes, Jr. while delivering the judgement first introduced the “test of clear and present danger”, and ever since this case the test become an integral part of the First Amendment. The test in is his words is:
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right”. 
The conflict between free speech and putting restriction over it started with the landmark case of “Pentagon Papers”  in the year 1949. The case began when an Analyst named Daniel Ellsberg leaked a top-secret document implicating the active participation of the US military in the war of Vietnam, to the New York Times. This flow of information was tried to be suppressed by the Nixon Government.
The government, in order to restrict this flow of information, issued orders of an injunction against both the New York Times and the Washington Post, both this newspaper approached the Supreme Court appealing against the injunction order.
The Supreme Court with a Majority of 6-3 ruled that the US Government had failed to establish the heavy burden or establish as to why had it issued orders of ‘prior restraint’ against the newspaper companies, thus ruling out the orders of an injunction issued by the government.
Similar is the position in India, in the case of “Raj Narain”  which was filed by the petitioner against the respondent Indira Gandhi, Raj Narain, in this case, had demanded the State of Uttar Pradesh to produce a document named the ‘Bule Book’ which lays the guidelines and the procedure that needs to be followed when the Prime Minister is traveling.
The Government refused to produce the document stating and relying on section 123 of the Indian Evidence Act, 1872 which states: “no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the Officer at the Head of the Department concerned who shall give or withhold such permission as he thinks fit”. 
The Supreme Court upheld the High Court’s Judgement in the case also rejecting the argument presented by the Government of Uttar Pradesh. The supreme court while deciding this case had to decide whether the “Bule-Book” was a confidential document and whether withholding the piece of the document was in favor of public interest. It previously held that the Court “has the abrogating capacity to deny a case of benefit brought by the State up in regard of an unpublished record relating to issues of State, yet in its prudence, the Court will practice its capacity just in remarkable conditions when open intrigue requests, that is, the point at which the open intrigue served by the exposure plainly exceeds that served by the nondisclosure.” Justice Matthew conveyed the Court’s agreeing feeling. He noticed that benefit existed regarding the administrative record and the option to forgo such benefit.
He perceived that the privilege of a gathering to postpone benefit doesn’t reach out to cases which may hurt open intrigue. The Court decided that a court may arrange government records to be revealed in a court continuing, regardless of whether official consent has not been acquired as required by the Evidence Act, if the open intrigue served by divulgence obviously exceeds that of mystery. This was the first run through the Supreme Court built up that the resident’s entitlement to know emerges from the basic right of the opportunity of articulation ensured by the Constitution.
In deciding that the administration needed to unveil reports in regards to security game plans for the Prime Minister’s movements inside the nation, insofar as exposure didn’t jeopardize their security or open request, the Court contemplated that individuals reserve the option to know all that is finished by open authorities in their official limit. This privilege is gotten from the idea of the right to speak freely of discourse, yet it isn’t outright and might be dependent upon limitations for reasons of open security.
Along these lines, it tends to be closed from the above discussion that the Right to Information has been recognized at national and international levels and various Conventions and Declarations have been marked to ensure the Right to Information.
A resident had no access to information held by the government. Indeed, even in issues influencing lawful privileges for such financed administrations as nourishment for work, wage business, essential training in human services, mature age benefits, and food security for dejected, it was difficult to look for the subtleties of the dynamic process that influenced him. Without access to significant data, it was unrealistic for a typical man to take an interest in an important banter on political and monetary alternatives or decisions accessible to him for acknowledging financial goals.
In this background, the Right to Information Act, 2005, was passed by the Indian Parliament to destroy the way of life of mystery and to change the outlook of the civil servants and political pioneers and to make conditions for making educated choices. Thus, having an overriding effect over the Official Secrets Act 1923, which means that when these two particular laws are in conflict the RTI Act would prevail.
The significance of the Act is to take into account more noteworthy integrity in the working of the Government divisions so as to advance straightforwardness and responsibility in the working of the open bodies and contain the scourge of defilement, which are basic for guaranteeing great administration and improvement.
There is plenty of enactment which straightforwardly or in a roundabout way, idly or plainly manage various aspects of the right to data in India yet its genuine authorization is missing behind. Whenever actualized effectively, the majority rule the government will achieve new statures, and wanted outcomes might be accomplished in evident letters and spirits.
. Jha, Vikas, “Demanding Accountability from the State: Experience of the Civil Society and the Citizens on Right to Information”, Participation and Governance 2:1 (Jan, 2009), pp. 14-33.
. K.G. Robertson, Secrecy and Open Government, 35 (1989).
. Shamshad, A, “Right to Information Issues of Administrative Efficiency, Public Accountability and Good Governance,
. David, Access to Government Information Laws 213 (2006).
. James Madison, An American Statesman, political theorist and the fourth president of The United States of America.
. A distinguished sociology professor at the University of Chicago
. S. Chadah, S, ‘Right to Information Regime in India: A Critical Appraisal’, Indian Journal of Public Administrative, 50:1 (Jan-March, 2006), pp. 1-17.
. Triranjan Raj and Sanjeev Kumar Sharma (2009), ‘Right to Information Act 2005: A Critique with the Governance and Administrative Reforms Perspective, in Indian Journal of Public Administration 55:3 (July-Sep; 2009) pp. 481-503.
. Navdeep Gupta v National Archives of India CIC order, 2018 SCC Online CIC 1551.
http://220.127.116.11:8080/jspui/bitstream/123456789/710/6/Secrecy%20in%20Government%20of%20India%20.pdf, and https://www.moneylife.in/article/how–exactly–istop–secret–secret–confidential–and–restricted–defined/39033.html
. Ibid at 15.
. Schenck v. United States, 249 U.S. 47 (1919). Facts: Charles Schenck and Elizabeth Baer were members of the Executive Committee of the Socialist Party in Philadelphia, of which Schenck was General Secretary. The executive committee authorized, and Schenck oversaw, printing and mailing more than 15,000 fliers to men slated for conscription (joining the army) during World War I. The fliers urged men not to submit to the draft, saying “Do not submit to intimidation”, “Assert your rights”, “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain,” and urged men not to comply with the draft on the grounds that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment. Schenck and Baer were convicted of violating Section 3 of the Espionage Act of 1917. They appealed to the United States Supreme Court, arguing that statute under which they were convicted was contrary to the First Amendment. It will have a “chilling effect” on free discussion of the war effort. Attempts made by speech or writing could be punished like other attempted crimes; the First Amendment did not protect speech encouraging men to resist induction, because, “when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” In other words, the court held, the circumstances of wartime allow greater restrictions on free speech than would be allowed during peacetime, if only because new and greater dangers are present.
. Ibid at 18.