OFFICIAL SECRETS ACT, 1923 – THE RIGHT TO KNOW V. THE RIGHT NOT TO KNOW
– Anushri Maskara,
D.E.S. Navalmal Firodia Law College, Pune
Government is vested with an indispensible duty to ensure security of the nation. Official SecretsAct, 1923 empowers government to withhold certain sensitive information from general public and maintainits confidentiality purelyinthe interest of national security. With the legislation of Right to InformationAct, 2005, the general public sought for information shielded under the cloak of Official Secrets Act. The co-existence of the colonial law with the contemporary law led to futile controversies and has created a ‘non-existent’ grey area which is inhabited by mistrust and suspicion. This article aims at striking a balance between the Right to Know to encourage transparency and accountability and the Right Not to Know so as to prevent jeopardizing the national security. It attempts to portray an insight as to the need for Official Secrets Act.
Security of nation has been a chief area of concern for theGovernment and has ever since stimulated its actions in all aspects. National Securitycan be defined as’a state or condition where our most cherished values andbeliefs, our democratic way of life, our institutions of governance and our unity, welfare andwell-being as a nation and people are permanently protected and continuously enhanced’1. It is vital for a State to preserve its longevity and stability by exercising political, economic and military power.
The threat to security of a nation subsists due to a variety of reasons. It may include other nation-States, non-State actors as well as internal disturbances.Among economic, political and military power to safeguard the nation, information can give an unparalleled leverage to the other party, adversely compromising the securityof a nation. While managing the affairs of the country, the Government has to face the menace of spying by the citizens of the country, may be in Government service or in private business or just thriving over this nefarious act.Spying is also being done by foreigners settled in the country, by visiting tourists, by the staff and officers employed in foreign missions, by missionaries and by organisations of Indian or foreign origin 2.
The official information and State secrets are the classified information from which the public is kept aloof with the sole objective to ensure the security of the nation, internal as well as external.They constitute an indispensible part of internal security.When information is labelled as official or a State secret, the people who work for government and who are aware about it are prohibited from discussing about the same with people who do not work for government and are required to keep it confidential.The maintenance of this confidentiality is governed by Official Secrets Act, 1923.
THE EVOLUTION OF OFFICIAL SECRETS ACT, 1923
Official Secrets Act, 1923 is not an Indian output; rather it is a British legacy that dates back to the time when India was a colony under British rule.In the year 1848, a notification dealing with official secrets was issued by the Foreign Department of Government of India prohibiting the officials from publicising the official documents. In 1875, the British Colony of Gibraltar issued an Ordinance prohibiting the sketching, drawing or taking a photograph of fortification in the garrison.
In the year 1889, the Official SecretsAct (Act No. 16 of 1889) was enacted in Britain which was enforceable in India as well. However, it was considered unsuitable for the Indian Legal System and consequently, a new, separate act, the ‘Indian Official Secrets Act of 1889’ was legislated and executed.
There were certain shortcomings in theAct. Thus, the Army urged for a sterner Act. Certain amendments were proposed by the army authorities and the Bill was redrafted. In 1904, the drafted Amendment Bill was passed.
In 1915, another statute called ‘The Defence of India (Criminal Law Amendment) Act’ was enacted. There had been widespread unrest and resentment in Punjabin 1914 and the Gadharites and the KomagataMaru returnees had become very active. There were numerous instances of subversion and sabotage.There were occurrences of terrorist attacks as well. Therefore, the-then Viceroy ordered to propose in the Council a Bill on the lines of Defence of Realm Act enacted in Britain. TheBill was accordingly introduced in 1915 for the enactment of Defence of India Act. Though the Bill was strongly opposed, it was still implemented and was to remain in force until six months post-World War Isubsequent to which it would automatically terminate.
The Official Secrets Act was amended and executed in 1911 in Britain to fulfil the military requirements. The Army recommended the Home Department thrice to further amend the Indian Official Secrets Act of 1904in lines with the new Official Secrets Act, 1911 enacted in Britain. However every time, it was deferred because of the resentment and violent protests that followed the amendment made in 1904.
After the end of World War I, though the Defence of India Act lapsed, theArmy continued to implement its provisions for it was harsher than the Official Secrets Act. Meanwhile, the Official Secrets Act of 1911 was further amended and was made more stringent.
The proposal for amendment of the Official Secrets Act was put forth for the fourth time in 1921. After a lot of deliberations, the appointed Select Committee submitted its Report in 1923, the several provisions of which were vehemently debated and negatived. Finally, after much struggle, the Bill was passed by the Legislative Assembly and received assent of the- then Governor General and Viceroy, Lord Reading. It was published in the Official Gazette of India onApril 14, 1923 and since then, it has remained in force.
OFFICIAL SECRETS ACT, 1923
It can be observed that since the first notification issued in 1848, the intent was to prevent the officials from revealing the official documents and making the information available to the general public. With consecutive amendments, laws were made stringent gradually. The Official
Secrets Act, 1923 was legislated with the prime objective to deal with cases pertinent to espionage and communication of sensitive information detrimental to the security of the State.
The Act is stern with its provisions. The officials who are vested with the authority can only handle classified information and any other person who handles such information becomes liable for punishment. Intention is immaterial. Aperson may be prosecuted under the Act for dealing with such information, irrespective of how good his intention might be. It is the ‘disclosure’ which is punishable and not the purposeof disclosure or its prejudicial effect on certain interests deserving ofprotection in the national interest.3
Depending on the level of sensitivity of the information and the implications of its disclosure for national security – which would be to cause “exceptionally grave damage” to simply “damage”
– they are (i) Top Secret, (ii) Secret, (iii) Confidential and (iv) Restricted.4 The damage expected to be caused with the disclosure of such information go in decreasing order, i.e., the information labelled as ‘top secret’, if disclosed, may cause an exceptionally grave damage whereas a ‘restricted’ information, a simple damage. ‘Top secret’, as the name suggests, is reserved for nation’s closest secrets. ‘Secret’ is applied for extremely important matters, the exposure of which may result in serious damage to the national security. ‘Confidential’ is for the information that might prejudice the national security, causing damage to the nation. ‘Restricted’ is meant for information ofofficial use that is not to be communicated in any form to any person, except for official purposes.
Though the classification of information has been explained by the Government, the Ministry of Home Affairs refrains from disclosing the procedure as per which the classification of confidentiality is made. The classification ofinformation is explained in Manual of Departmental Security Instructions (MODSI). This decision of Government to restrict the disclosure of classified information has been backed byCentral Information Commission. The Home Ministry Central Public Information Officer, S K Malhotra said that the manual deals with “safeguarding such information in the possession of the government, the unauthorised disclosure of which would cause damage to national security or would cause embarrassment to the government in its functioning or would be prejudicial to national security.” 5
However, numerous attempts have been made by several RTI (Right to Information Act) activists requesting the Government to provide the manual including all office memoranda, circulars and standing orders relating to ‘procedural matters’ connected with classification of official records.Every attempt made has ended on the same note that any such disclosure holds the tendency to prejudice the security of the nation.
Secret as per OSA, 1923
The term ‘secret’ has not been defined anywhere in the Act. The only reference that can be made to it is with the application of the term. This Act is relevant to all kinds of information which is referred as ‘secret’ by the Government Authorities. It incorporates any official code, sketch, plan, password, model and all the other forms of information that are signified as ‘secret’. It must be noted that the term is confined to official secrets, i.e., secrets of Ministryor Government Department. It is the government that treats an information secret,even though there is no danger to national security or public safetyor anyother public interest, just because it will embarrass the government, thatis, the politicalparty in power.6
Manual of Departmental Security Instructions (MODSI)
Manual of Departmental Security Instructions is a book that encompasses a comprehensive set of rules and instructions governing the classification of confidential information into ‘top secret’, ‘secret’, ‘confidential’ and ‘restricted’. It was first issued in 1966 and was then revised and updated frequently by Ministry of Home Affairs. The access to this manual is denied to everyone but the Ministry, solely to prevent its misuse by the actual and potential terrorists.
OFFICIAL SECRETS ACT OR RIGHT TO INFORMATION ACT
All the classified information that is embraced by the term’secret’ under Official Secrets Act, 1923 are kept confidential from the general public and only specified officials are permitted to have access to it and handle it. Information labelled as ‘Top Secret’ is under the authorisation of Officer of Joint Secretary Rank and above, ‘Secret’ under Officer of Deputy Secretary Rank and above and ‘Confidential’ under Officer of Under Secretary Rank and above. The Government is obstinate and doesn’t find it prudent to disclose these documents to public scrutiny. The Central Information Commission’s decision backs the government’s plea that “individuals hostile to the nation” must not get to know the details of security strategy.7
With the enactment of Right to Information Act in 2005, the co-existence of the vintage legislationwas fervently debated with the modern, progressive and transparent legislation. It grabbed the limelight when the demand to de-classify the secret files of Government on NetajiSubhash Chandra Bose was put forth.
This anomaly has gained some lucidity through some of the provisions mentioned in the Right to InformationAct. When Official Secrets Act serves as a hindrance in the way of Right to Information Act, the latter prevails over the former. This has been specifically mentioned under Sections 8(2) and 22 of the Right to InformationAct. Section 22 makes it crystal clear by stating that the Act will have over-riding effect over the Official Secrets Act, 1923 in case of inconsistency between the two. Furthermore, Section 8(2) of the Act empowers the public authorities to provide access to informationifpublic interest in disclosure outweighs the harm to the protected interests.
Corresponding to these provisions, the Right to Information Act also provides for sections that exempt from making disclosures where national interest is jeopardized. Section 8(1) enlists situations where no obligation is imposed on the government to make any disclosure under distinct circumstances. The first clause of Section 8(1), i.e., Section 8(1)(a) lucidly states that the disclosures that would prejudicially affect the interest of the nation may not be published. Hence, on a broader perspective, it can be derived that national interest is over and above any disclosurethat may or may not be demanded in public interest. Likewise, there are ten clauses in toto that highlights the instances where the Government can abstain from releasing any information or document.It can further be inferred that the Right to Information Act partly conformsto the essence of Official Secrets Act.
THE RIGHT NOT TO KNOW
The implementation of Right to InformationAct, when Official Secrets Act already subsists, has proposed an imperative demarcation between serving ‘public interest’ and ‘specific interest’.
The Official SecretsAct strives to keep sensitive information confidential on account of national interest or public interest. However, the archaic act may be exploited by the government officials to conceal the gloomy and obscure details of Government. Here, the public interest may be subjugated by specific interest of the officials. The mirage of public interest may shroud the governmental misconducts.With the letters of the law expressly stating that The Right to InformationAct willsupersede OfficialSecretsAct, it partiallyterminated the whinesand complaints of the cognizant and conscious citizens as it granted access to comprehensive information with respect to the actions and decisions undertaken by the Government with the ultimate aim to serve the nation and its people.
It has become the right of the public to be well informed of the actions being executed and activitiesbeing undertaken by the government in the nation. However, what people fail to understand is that the Right to Know is accompanied by the Right Not to Know. People have vehemently debated that it is for the State’s welfare that people are accorded allthe information to ensure transparency and circumvent the corrupt activities of bureaucrats and politicians. Instead, this unchecked access to all sorts of information holds the tendency to compromise the security of the nation.
Some information is core to the national security and they demand utmost heed and vigilance. Thisinformation can, at no cost, be disseminated to common people for if the hostile people become acquainted with it, it can jeopardize national security.This can be comprehended as the Right Not to Know.When people compel for such disclosures and press publishes those secrets, it tramples not only the public’s right not to know, but nation’s privacy and safety.
We, the people of India, live in a democratic nation where we stand and constitute our government to effectively run the nation, where we are vested with the power to elect our representatives and where our grievances are resolved and activities are undertaken for social welfare by the government elected by us. Where it is we, who run the government, we, who elect our government and us, whose interest are fostered, there we need to bestow upon government some faiththat when the government says that confidentiality ofcertain information is to ensure security of the nation, we must respect it. We must understand the perspective ofgovernment for it is endowed with the duty to balance national interest with individual rights. When an individual’s rights come into conflict with national interest, it is “inevitable” that the country’s welfare prevails.8
The bare text of Right to Information explicitly states that its fundamental aim is’to secure citizens access to information under the control of public authorities, in order to promote transparencyand accountability in the working of every public authority’.9 The spirit of the law is not to invade the security of nation, but to provide accessibility to information to ensure transparency and accountability. This can be inferred from Sections 8(1) and 9 of Right to InformationAct which overtly provides the ‘Exemptions from Disclosure of Information’ and grounds for rejection to access to certain information respectively.
Hence, where there is an over-riding effect conferred to Right to InformationAct, there essential restrictions have also been imposed. It is vital to strike a balance between the two and scrap out the ambiguitythat only damages the political and social environment ofthe nation, creating an ambience of mistrust and aggression sullying the honour and reputation of government in the eyes of common people.
Official Secrets Act is regarded as one of the most draconian laws in force in India, merely because it prevents disclosure of certain information.People pay no heed to the type and purpose for such secrecy and brand it with such phrases. Little do they realise that the absence of these legislations may have a draconian consequence rather.
Eminent jurists argue that Official Secrets Act must be discarded. However, in the era of transparency and Right to Information, the survivalof Official Secrets Act is crucial. The glitch in their co-existence is the conflict between demanding of information by the public in the exercise oftheir right and withholding the same by the government officials to serve the national interest accompanied by the uncertainty that prevails in the legislation worsening the situation. This deadlock needs to be broken and clarity must be established to prevent any such dispute that imbibes within itself the tendency to rupture the national interest and security in the name of exercising a right.