India inches towards more transparency in government
Secrets that are no longer secrets — RTI prevails over OSA
Conscious and alert citizens of this country have long seethed under the overarching power of the government to stop them from accessing ‘sensitive’ information. In countless instances, the archaic Official Secrets Act, 1923 (OSA) has been misused to deter people trying to pry upon the working of the government. There are instances where perfectly well-meaning and honourable men and women have been harassed, and even put behind bars for trying to unearth murky details of the government’s functioning.
No doubt a legacy of the colonial era, this Act effectively stifled citizens’ intent to monitor their government. OSA’s provisions run counter to the spirit of a modern, responsible and transparent society.
The Right to Information Act, 2005 came, although in a diluted form, as an antidote to the OSA. It enabled citizens to seek and obtain information from government files which, hitherto, were kept under wraps. From village level activism pertaining to use of government welfare funds to the egregious loot of nation’s resources as observed in the 2Gand Coalgate scams, the RTA has done yeoman’s service to the cause of ensuring a corruption-free society.
It was only expected that the two acts would be at odds with one another. The address this anomaly, a committee was set up by the government. It had its first meeting recently. The committee has suggested measures to convert a furtive mindset of the bureaucracy to an open and transparent one.
Curiously, the divergence between the OSA and the RTI has come to the fore with regard to demands to de-classify Netaji Subhas Chandra Bose files. Keeping this case apart for the time being and going into the merits of the RTI vis-a-vis the OSA should lead to a healthy debate.
Fortunately, there is some clarity in the RTI. In the event of the OSA coming in the way of the RTI, the latter will PREVAIL over the former. Section 22 of the RTI Act clarifies this by stating that states its provisions will override the OSA whenever there is a conflict between the two acts. Additionally, the Section 8(2) of the RTI Act empowers a public authority to allow access to information kept under wraps by virtue of the OSA.
The predominant question will be to ascertain if the disclosure serves the public interest in a more visible way than it could harm specific interests of persons or functionaries with some vested interests. What is in ‘pubic interest’, and what is not can trigger healthy debates and warrant intervention by courts.
In the areas of national security interests, a lot of circumspection and caution is needed so that corrupt politicians and bureaucrats do not hide behind ‘secrecy’, and at the same time sensitive defense data are not released.
The draconian OSA was conceived and promulgated by the British who were constantly wary of mutinies, rebellions and other threats to their rule. This was in 1923. After 1947, this act should have been given a go-by. Regrettably, the new democratic government under Nehru, did not disband the law, but gave it a new lease of life by continuing it with some minor amendments here and there.
The statute runs afoul of the spirit of the Constitution as it can term a wide array of subjects as official secrets. The undertone of arbitrariness and secretiveness are clearly discernible in the statute.
Let us see how Section 2(8)(d) of the OSA authorizes a district level official to declare a public place such as a bus stand or a rail station ‘prohibited places’. To rub more salt into the wound, Section 3 provides for prosecuting a curious onlooker on spying charges. Nothing can be more irrational than this.
Unsurprisingly, the law has been utilized by vested interests in the government to punish activists. General V.K. Singh was hauled up before a court for exposing the rot in the Research and Analysis Wing RAW. He, however, managed to evade arrest by obtaining an anticipatory bail.
In another case, Dr. B.K. Subbarao, a former Navy Captain and a brilliant naval engineer, was put behind bars for months on charges of violating the OSA. The Bombay High Court threw out the case and set him free. Hopefully, the government’s resort to heavy hand tactics for stifling transparency in public matters will be rendered ineffective.
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