The
Hindu: New Delhi: Monday, 20 April 2015.
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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