Official Secrets Act and Other Laws

  1. In a democracy, people are sovereign and the elected government and its functionaries are public servants. Therefore by the very nature of things, transparency should be the norm in all matters of governance. People should have the unhindered right to know the decisions of the Cabinet and the reasons for these, but not what actually transpires within the confines of the ‘Cabinet room’. The Act recognizes these confidentiality requirements in matters of State and Section 8 of the Act exempts all such matters from disclosure.
  2. The Official Secrets Act, 1923 (hereinafter referred to as OSA), enacted during the colonial era, governs all matters of secrecy and confidentiality in governance. The law largely deals with matters of security and provides a framework for dealing with espionage, sedition, and other assaults on the unity and integrity of the nation.
  3. While Section 5 of OSA was obviously intended to deal with potential breaches of national security, the wording of the law and the colonial times in which it was implemented made it into a catch-all legal provision converting practically every issue of governance into a confidential matter.
  4. This tendency was buttressed by the Civil Service Conduct Rules, 1964 which prohibits communication of an official document to anyone without authorization.
  5. Section 123 of the Indian Evidence Act, enacted in 1872, prohibits the giving of evidence from unpublished official records without the permission of the Head of the Department, who has abundant discretion in the matter.

Official Secrets Act

  • Sec. 8(2): Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible by subsection (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests”. “Sec.22 The provisions of this Act shall affect anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or any instrument affecting under any law other than this Act” The word secret or the phrase official secrets has not been denied in the Act. Therefore, public servants enjoy the discretion to classify anything as secret. This tendency was buttressed by the Civil Service Conduct Rules, 1964 which prohibit communication of an official document to anyone without authorization. The Official Secrets Act, 1923 is the main statute for fighting espionage Activities which vitally affect national security.
    1. Spying or entry into a prohibited place etc.
    2. Wrongful communication
    3. Harboring spies
    4. Unauthorized use of uniforms, falsification of reports, etc.
    5. Interference with the police or military, near a prohibited place.
  • Even information that does not have a bearing on national security cannot be disclosed if the public servant obtained or has access to it by virtue of holding office. Such illiberal and draconian provisions clearly bred a culture of secrecy. Though the RTI Act now overrides these provisions in relation to matters not exempted by the Act itself from disclosure, the fact remains that OSA in its current form in the statute books is an anachronism. The Law Commission also recommended consolidation of all laws dealing with national security and suggested a “National Security Bill” comprising of
    1. Chapters 6 and 7 of the Indian Penal Code.
    2. The Foreign Recruiting Act, 1874.
    3. The Official Secrets Act, 1923.
    4. The Criminal Law Amendment Act, 1938.
    5. The Criminal Law Amendment Act, 1961.
    6. The Unlawful Activities (Prevention) Act, 1967.
  • The Commission agrees with the recommendation of the Law Commission that all laws relating to national security should be consolidated. The Law Commission’s recommendation was made in 1971. The National Security Act (NSA), subsequently enacted in 1980, essentially replaced the earlier Maintenance of Internal Security Act and deals only with preventive detention. Therefore, a new chapter needs to be added to the NSA incorporating relevant provisions of OSA and other laws dealing with national security.
  • While recognizing the importance of keeping certain information secret in the national interest, the Commission is of the view that the disclosure of information has to be the norm, and keeping it secret should be an exception. OSA, in its present form, is an obstacle to the creation of a regime of freedom of information, and to that extent, the provisions of OSA need to be amended.
  • The Commission, on careful consideration, agrees with the amendment proposed by the Shourie Committee, as it reconciles harmoniously the need for transparency and the imperatives of national security without in any way compromising the latter. These can be incorporated in the proposed new chapter in the NSA relating to Official Secrets.

Recommendations

  • The Official Secrets Act, 1923 should be repealed, and substituted by a chapter in the National Security Act, containing provisions relating to official secrets.
  • The Shourie Committee recommended a comprehensive amendment of Section 5(1) to make the penal provisions of OSA applicable only to violations affecting national security.

Governmental Privilege in Evidence

  • The term “privilege” as used in Evidence law means freedom from compulsion to give evidence or to discover material, or a right to prevent or bar information from other sources during or in connection with litigation, but on grounds extrinsic to the goals of litigation
  • Section 123 of the Indian Evidence Act, 1872 prohibits the giving of evidence derived from unpublished official records relating to affairs of State except with the permission of the Head of the Department
  • Further, Section 124 of the Act stipulates: “No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure”.
  • The Law Commission in its 69th report (1977) and 88th report (1983) on the Indian Evidence Act suggested that Section 123 should be revised.
  • The Shourie Committee also examined these sections of the Indian Evidence Act and recommended amendments of Sections 123 & 124, Indian Evidence Act.

Recommendations

  • Section 123 of the Indian Evidence Act, 1872 should be amended.
  • Accordingly, the following will have to be inserted at the appropriate place in the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973:

“Any person aggrieved by the decision of any Court subordinate to the High Court rejecting a claim for privilege made under section 123 of the Indian Evidence Act, 1872 shall have a right to appeal to the High Court against such decision, and such appeal may be filed notwithstanding the fact that the proceeding in which the decision was pronounced by the Court is still pending.”

The Oath of Secrecy

  • A Union Minister, while assuming office, is administered an oath of secrecy as follows:
  • “I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister.”
  • A Minister in the State Government takes a similar oath.
  • The National Commission to Review the Working of the Constitution (NCRWC), while examining the Right to Information had the following to say. “In fact, we should have an oath of transparency in place of an oath of secrecy”.
  • A Minister is a bridge between the people and the Government and owes his primary allegiance to the people who elect him. The existence of this provision of oath of secrecy and its administration along with the oath of office appears to be a legacy of the colonial era where the public was subjugated to the government. However, national security and larger public interest considerations of the country’s integrity and sovereignty may require a Minister or a public servant with sufficient justification not to disclose information.
  • But a very public oath of secrecy at the time of assumption of office is both unnecessary and repugnant to the principles of democratic accountability, representative government and popular sovereignty.
  • Therefore, the obligation not to disclose official secrets may be built in through an appropriate insertion of a clause in the national security law dealing with official secrets. If required, such an undertaking may be taken in writing, thus avoiding public display of propensity to secrecy.
  • The Commission is therefore of the view that the Oath of Secrecy may be dispensed with and substituted by a statutory arrangement and a written undertaking. Further, keeping in view the spirit of the Act to promote transparency and as recommended by the NCRWC it would be appropriate if Ministers on assumption of office are administered an oath of transparency along with the oath of office.

Recommendation

  • As an affirmation of the importance of transparency in public affairs, Ministers on assumption of office may take an oath of transparency along with the oath of office and the requirement of administering the oath of secrecy should be dispensed with. Articles 75(4) and 164 (3) and the Third Schedule should be suitably amended.
  • Safeguard against disclosure of information against the national interest may be provided through written undertaking by incorporation of a clause in the national security law dealing with official secrets.

Exempted Organizations

  • Section 24 of the Act stipulates, “Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government.”
  • The list of organizations includes Border Security Force (BSF), Central Reserve Police force (CRPF), Assam Rifles etc., but the Armed Forces have been left outside the purview of the Act. When organizations such as BSF, CRPF, and Assam Rifles are exempted, there is no rationale for not exempting the Armed Forces as well. The Second schedule needs to be periodically revised to include or exclude organizations in keeping with changing need
  • The Commission feels that the Armed Forces should be included in the list of exempted organization (Second Schedule of the Act), because almost all Activities of the Armed Forces would be covered under the exemption 8(a) which states that there shall be no obligation to give to any citizen, information which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State
  • Since, public interest in disclosure outweighs the harm to the protected interests; by including Armed Forces in the Second Schedule, while national security is safeguarded, disclosure is still mandatory when public interest demands it.
  • The Commission feels that even in cases of organizations listed in Second Schedule, PIOs should be appointed so that requests for applications may be filed with them. A person aggrieved by an order of the PIO may approach the CIC/SIC.

Recommendation

  • The Armed Forces should be included in the Second Schedule of the Act.
  • The Second Schedule of the Act may be reviewed periodically.
  • All organizations listed in the Second Schedule have to appoint PIOs. Appeals against orders of PIOs should lie with CIC/SICs. (This provision can be made by way of removal of difficulties under section 30).

The Central Civil Services (conduct) Rules

  • The Shourie Committee examined this issue and stated as follows: “There is a widespread feeling that the Central Civil Services (Conduct) Rules, 1964, and corresponding rules applicable to Railways, Foreign Services and All India Services, inhibit government servants from sharing information with the public. The accent in these rules is on denial of information to the public. This situation has obviously to change if freedom of Information Act is to serve its purpose and if transparency is to be brought about in the system”.
  • The Commission agrees with the views of the Shourie Committee. The Central Civil Services (Conduct) Rules were formulated when the RTI Act did not exist. The spirit of these Rules is to hold back information. With the emergence of an era of freedom of information, these Rules would have to be recast so that dissemination of information is the rule and holding back information is an exception.

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