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He said the government was investigating how the documents were leaked, and
that those who’d published them as well as those who’d submitted them to the court
were guilty of offences under the Official Secrets Act 1923.
Attorney General also demanded to know the source behind the leak of the
documents.
The Editors Guild of India issued a statement, in which they condemned the A-G’s
comments as “threats” and urged the government “to refrain from initiating any action
that might undermine the media’s freedom and independence.”
The Official Secrets Act was first enacted in 1923 and was retained after
Independence.
The law, applicable to government servants and citizens, provides the framework for
dealing with espionage, sedition, and other potential threats to the integrity of
the nation.
The law makes spying, sharing ‘secret’ information, unauthorised use of uniforms,
withholding information, interference with the armed forces in prohibited/restricted
areas, among others, punishable offences.
In 1971, the Law Commission became the first official body to make
an observation regarding OSA.
In its report on ‘Offences Against National Security’, it observed that “it agrees
with the contention” that “merely because a circular is marked secret or
confidential, it should not attract the provisions of the Act.
If the publication thereof is in the interest of the public and no question of national
emergency and interest of the State as such arises”.
The Law Commission, however, did not recommend any changes to the Act.
The OSA does not define “secret” or “official secrets”. Public servants could deny
any information terming it a “secret” when asked under the RTI Act.
The SARC report stated that as the OSA’s background is the colonial climate of
mistrust of people and the primacy of public officials in dealing with the citizens,
it created a culture of secrecy.
It said that Confidentiality became the norm and disclosure the exception. This
tendency was challenged when the Right to Information Act came into existence.
Several countries, including the United Kingdom, Malaysia, Singapore, and New
Zealand, continue to use the legislation to protect state secrets.
In 2001, Canada replaced its OSA with a Security of Information Act. The “official
secrets” come under the Espionage Act in the U.S.
On September 2018, a Myanmar court awarded seven years’ jail to two Reuters
journalists for illegally possessing official documents on the military’s alleged human
rights abuses against Rohingya Muslims.
Malaysia has also been accused of using the OSA to silence dissidence.
Conclusion:
In 2015, the Central government formed a high-level panel to look into the provisions
of the OSA in the light of the RTI Act. No action has been taken on the panel’s
report, which was submitted in 2017.
Even in 2017, the Home Ministry submitted a report to the Cabinet secretariat, after
reviewing OSA to make it more compatible with India’s democratic setup.
It pointed out that the law came into being in the 20th century which was an era of
colonialism and secrecy.
Presently, section 22 of the RTI Act states that it can override the OSA.
There is undoubtedly a case for distinguishing between an act that helps the enemy
or affects national security, and one that advances legitimate public interest.
In times when information freedom is seen as salutary for democracy, laws such
as the OSA should yield to the moral imperative behind the Right to Information
Act.
This reasoning is embedded in Section 8(2) of the RTI Act, which says
that notwithstanding the provisions of the OSA, “a public authority may allow access
to information, if public interest in disclosure outweighs the harm to the protected
interests.”
The government should refrain from using its secrecy laws to contend
with embarrassing media revelations. It would do well instead to respond
responsibly to questions thrown up by the revelations.