The Official Secrets Act was enacted in 1923 and was retained after Independence. The law makes spying, sharing secret information, withholding sensitive information, a punishable offence. The law meant for ensuring secrecy and confidentiality in governance, mostly on national security and espionage issues, has often been cited by authorities for refusing to divulge information. Governments have faced criticism for misusing the law against journalists and whistleblowers.

How Official Secrets Act is an obstacle to Right to Information Act?

1. Culture of secrecy: The frequent use and misuse made confidentiality a norm, hindering the very essence of providing information under RTI. OSA along with other rules and instructions impinge on the freedom of information as they historically developed a culture of secrecy and non-disclosure, which is against the spirit of the Right to Information Act.
2. Ambiguity: The wording of the law is ambiguous and has made it a legal provision converting various issues of governance into a confidential matter. Any kind of information is covered by Section 5 of OSA and is classified as ‘secret’. The word ‘secret’ has not been defined in the Act. Therefore, public servants enjoy the discretion to classify anything as ‘secret’ allowing them to deny information under RTI.
3. No change in ambiguous clauses: The Official Secrets Act was enacted during the colonial era to govern all matters of secrecy and confidentiality in governance. With time law has not changed or amended to improve its provisions. Even under RTI, OSA is a cause of exemption and no improvement is done even to define what defines the ‘secret’ under the act.
4. A tool of corruption: It is said that OSA has become a tool of corruption. Either its recent case of irregularities in the Rafale aircraft deal or irregularities in Bofors defence deal, OSA lead to opaqueness that undermine the very essence of RTI.
5. Misuse: The OSA makes it a punishable offence to share information that may help an enemy state. The law is misused for booking journalists when they publicise information that causes embarrassment to the government. Journalist Tarakant Dwivedi was booked for criminal trespass under the Official Secrets Act in 2011. An RTI query later revealed that the armoury he visited was not a prohibited area.

Road ahead

1. Defining security: Section 5 of OSA should be amended to make the penal provisions of OSA applicable only to violations affecting national security. The ‘security’ clause under the section should be defined clearly with details.
2. National security act: Second ARC Report had suggested that the Act should be substituted by a chapter in the National Security Act. The NSA should incorporate the necessary provisions of defined secrecy, as it had become a contentious issue after the implementation of the Right to Information Act. The Law Commission also suggested consolidation of all legislation dealing with national security into a single law and pass the National Security Act.
3. Freedom of speech and expression: According to the Supreme Court, the right to freedom of speech & expression and information should be prioritised over the archaic Official Secrets Act. The Court ruled for the protections to the whistleblowers to make sure that those who expose corruption should not feel insecure.

After the enactment of the RTI, OSA needs to be reconsidered as it hinders the very essence of RTI. It is necessary to go back into the history of the law to understand why it was enacted and whether it is still relevant today. Both the acts have different objectives to achieve, and should complement each other and not be a hindrance in good governance.