An ‘Official Secrets Act’ is a generic term that is used to refer to a law — originally invented by the British, and then exported across the Commonwealth — that is designed to keep certain kinds of information confidential, including, but not always limited to, information involving the affairs of state, diplomacy, national security, espionage and other state secrets. India’s Official Secrets Act (OSA) dates back to 1923 that includes penalties for spying (which, in turn, includes even “approaching” or being “in the vicinity of” a prohibited place, publishing any “sketch” or “plan” that might be useful to the enemy, with a prejudicial purpose.) It punishes the communication of any information obtained in contravention of the Act, which could prejudice the security of the state, or friendly relations with foreign states. Furthermore, it punished people who knowingly receive such information — a provision clearly designed to capture investigative journalism. The Second Administrative Reforms Commission (S-ARC) headed by veteran Congressman Veerappa Moily went a further step ahead and recommended the repeal of the OSA as it had become redundant with the implementation of the RTI Act. However, S-ARC made two recommendations in 2006: a. Categorise the information covered by the exemptions in the RTI Act afresh with labels such as ‘top secret’, ‘secret’ and ‘confidential’; b. Move the espionage-related provisions and punishments in the OSA to the National Security Act, 1980 (NSA) c. But both the recommendations were rejected by the government. UNDER CRITICISM: • The primary critique of the Act is that it flips the constitutive logic of a democratic republic, where the state is supposed to be transparent to its citizens. • Under the OSA, however, the state is given wide powers to place information off-limits to citizens, simply by stipulating that certain documents are secret — and then draconian powers to punish them in case it is made public, regardless of the public interest involved. This makes whistle-blowing and investigative journalism a perilous enterprise, no matter how critically important it might be to have the information public. Usage of OSA The OSA is not used very often, but it is used enough times to keep it in the news, and to exercise a chilling effect (especially on investigative journalism). Recent, high-profile cases involving the OSA include that of the journalist Iftikhar Gilani (the case was withdrawn), the diplomat Madhuri Gupta (who was convicted of espionage charges), and the scientist Nambi Narayanan (who was charged, tried, and acquitted of espionage charges — and later directed to be paid compensation by the Supreme Court). Matter of Rafale: RTI VS OSA Section 2 of the Act states that if any person for purpose prejudicial to the safety or interests of the state, obtains, collets, records, publishes or communicates to any person any secret official code, he or she shall be punishable with imprisonment up to fourteen years. The AG said that the documents on the basis of which the report on rafale was published was based on stolen files from the MoD. Hence it qualified as an offence under the Act. While he said that the government probe is underway, he however added that no FIR had been registered. The petitioners while arguing that the RTI Act overrides the OSA said that under Section 8(2) of the Act it is stated, ' notwithstanding anything in the OSA, not any exemptions permissible in accordance with sub section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Further it also states that in case of a clash with the OSA, public interest would prevail. However, under Section 6 of the OSA, information from any government office is considered to be official information. Hence such information can be used to override requests made under the RTI Act. Much more about RTI: Against this dismal track record, the enactment of the Right to Information (RTI) Act, 2005, stands out as a singular achievement of the government. It contains in it the seed for better governance and development of healthy institutions. This was the first time in the history of independent India that a law was enacted because of pressure exerted by activists. The scope of the OSA has been somewhat diluted, thanks to the Right to Information Act. Section 22 of the RTI Act expressly says it overrides the OSA. In other words, it is not open to the government to deny access to a document demanded through an RTI question, on the basis that it has been marked secret under the OSA. Rather, the government will have to justify its decision to withhold information under the arguably narrower exception clauses of the RTI Act itself. Indians are using information to fight poverty The secrecy that petty government officials seek to invoke to appropriate state resources and deny the poor their rightful share of these resources is insidious. For years, many of the poor who are meant to benefit from food subsidies have been turned back by cheating and lying shopkeepers who squirrel away subsidized food grains and sell them at market rates. One of the few weapons they have on their side is the right to information, constitutionally guaranteed in the form of a law since 2005 as a result of years of struggle by activists. Indian RTI Act is said to be the most extensively used transparency legislation—one that has empowered citizens to access not only food, but old age pension, water, sanitation, healthcare and education, say campaigners. CONCLUSION: The RTI Act has the potential to increase transparency in governance, check corruption and empower the citizen to make our democracy more meaningful. What it needs is effective implementation by bringing about a basic mind shift among government servants for greater openness in government operations. From time to time, there are calls to repeal the OSA and replace it with a National Security Act that is more consistent with the aspirations of an open, democratic republic. However, the OSA has proved resilient, and it would be reasonable to assume that we are stuck with it for at least the medium-term future.