The official secrecy law brought in yore by
the British has been preferred by powers-that-be until this day to
deprive people of their right to know and selectively use it as and
when it may suit the State despite fears of this coming in the way of
people's right to information.
History has taught us that it is often internal decadence and
corruption and not external aggression that has resulted in the
destruction of many nations. Decadence and corruption stem from opaque
and draconian laws, dispossessing people of their rights. Societies
that compromise the freedom to know, limit the choice of the people and
cripple their right to decide. Transparency on the other hand opens the
doors to progress and empowers people on a just basis. The need for
transparency in government functioning is a basic tenet of democratic
governance. Importantly, information belongs not to the State, the
government of the day or civil servants, but to the public.
One
such opaque law is the
Official Secrets Act, OSA for short. This Act is of colonial - 1923 --
vintage. It was introduced in England after the Marvin (1878) and
Anderson (1889) affairs. It was observed that common law was
insufficient when it came to prosecuting spies. The spies merely
borrowed documents and there was no element of theft involved.
Therefore, the Officials Secrets Act of England 1889 was introduced.
This law was replicated in India in 1923. In UK, the Officials Secrets
Act of England 1889 was used as a resistance to the freedom of
information legislation thereby creating a climate of secrecy in civil
services, which greatly hampered the efforts of those who wished to
obtain and publish information about the working of the government.
However although in 1989 in England the law was changed, both in India
and Pakistan the imperial law of official secrecy continues.
As stated above the law was initially designed by the British to
protect the executive and to develop a strategy to ban dissemination of
official information to the public. Only top government officials/civil
servants had access to these classified documents. This same law was
duplicated and enacted by the Indian legislature as purely a
consolidation measure. However after the Indo-Pak war the ambit of this
act was considerably widened simultaneously increasing the penalties
and facilitating prosecution.
The most surprising fact is that till date there are very few
precedents relating to this act. In a judgment passed by the Delhi High
Court it was held that even an information which may not be secret but
which relates to a matter, the disclosure of which is likely to affect
the sovereignty and integrity of the State or friendly relations with a
foreign state or useful to an enemy is an offence under Section 3 of
OSA. In Nand Lal More Vs. the State, budget leaks were held to fall
within the ambit of Section 5 . In Sama Alana Abdulla Vs. State of
Gujarat , the Supreme Court, affirming the view taken by the Calcutta
High Court in Sunil Rajan Das Vs. State , held that the word 'secret'
in clause (c.) of sub-section (1) of Section 3 qualifies only the words
"official code or password" and not "any sketch, plan, model, article,
note, document or other information." Therefore, a sketch, plan, model,
article, note or document need not even be secret in order to avail of
the protection under the Act. Any sketch, plan, model, document, etc.,
as the government determines to be an 'Official Secret' will therefore
avail of the protection under the OSA. This was further upheld in Govt.
of NCT of Delhi Vs. Jaspal Singh . The provisions of section 3(2)
dealing with presumption or burden of proof are also onerous as they
practically deny any defence to the accused .
Taking into consideration what has been stated above a question arises
as to whether such a law should at all be in existence when the
citizens of the country are demanding transparency and accountability
in the daily functioning of the governments. This has arisen due to the
large-scale corruption, which is so rampant in India. Although India
boasts of being the largest democracy in the world on paper, demands
are being made for a participatory democracy so that people can
actually participate in the democratic process. The Vohra Committee
Report of 2003 speaks of rampant corruption at all levels of governance
from top to bottom. The judiciary has too joined this elite list. Nexus
between politicians and criminals has been proved to exist, with the
bureaucracy playing an active role.
The recent raids by the Central Bureau of Investigation on the house of
a retired officer of the Research & Analyses Wing for alleged
violations of the Official Secrets Act has ignited a public debate on
the role of this act in preventing greater openness and transparency in
government.
Similarly religious fundamentalism is once again on the rise in the
country. Incidences of communal violence show that these forces have no
regard for the basic constitutional commitments of the country. It is
not just secularism but democracy that is at stake. The police and the
local administration, rather than protecting the victims of the
minority communities, get involved and help in the communal carnage.
The executive, and even the judiciary, have tilted mostly in favour of
permitting the uniformed forces to break the law of the land with
impunity even to kill, especially in times of perceived threats to
national integrity. The recent convictions of the police officials in
Gujarat as well as Punjab lend credibility to the public belief that
the police is supporting and abetting communal political parties and
criminals in instigating riots and gruesomely and brutally killing
innocent people.
Therefore, is it justifiable for an Act such as the OSA to exist, when
it is evident that these laws are regularly misused by corrupt highly
placed officials to target minority groups for the purpose of
exploitation.
The second Administrative Reforms Commission has recommended that the
Official Secrets Act, 1923, be repealed, as it is incongruous with the
regime of transparency in a democratic society. Chairman of the
Commission, Veerappa Moily, opined that safeguards for State security
should be incorporated in the National Security Act. The latest example
of the misuse of the law is the case of Major General (retired) V K
Singh who was charged under the Act for writing on corruption in the
RAW. This case bought into limelight the direct conflict between the
OSA and the Right to Information Act.
The Chief Information Commissioner Wajahat Habibullah in his statement
to the press said, "The OSA is a colonial law that protects the
government from the public. In a democracy, the public is the
government. Earlier, OSA was the guiding principle in terms of custody
of information held by the government. Now custody of information held
by the government has been given to the RTI Act."
The recent raids by the Central Bureau of Investigation on the house of
a retired officer of the research and analyses wing for alleged
violations of the Official Secrets Act has ignited a public debate on
the role of this Act in preventing greater openness and transparency in
government. Although Mr. Wajahat Habibullah on being asked if the OSA
was a bottleneck in RTI success, he has made it clear that the RTI will
prevail if there is a direct conflict between RTI and OSA, the question
as to whether OSA ought to be scrapped or not still remains open.
http://www.combatlaw.org/information.php?article_id=1036&issue_id=37
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