THE RIGHT TO NOT KNOW

On March 6, 2019, Attorney General K K Venugopal disclosed that secret documents were missing from the Ministry of Defence (MOD), and that information on the deal could not be disclosed for national security reasons, cautioning judicial restraint. It was followed by the government’s threat that prosecutions could take place against individuals, and publications even though some revelations were already in the public domain.
This has again highlighted the need of deliberations over the need and relevance of Official Secrets Act, 1923. There has been no well-informed public debate in India on the theme of Secrecy vs Transparency and Accountability. Like all other Commonwealth countries, India too inherited its Official Secrets Act from the colonial British power. While the UK and many other Commonwealth Countries have revised and updated their Official Secrets Act keeping in view the requirements of transparency and accountability, India and Pakistan are among the few members of the Commonwealth not to have done so.
The Official Secrets Act of 1923 (OSA), even though its powers have been curtailed by past court judgments, must be one of the most egregious instances of a law that infantilises common citizens through the notion that they should not question the idea of the “secret” itself. It has converted the right to know into the right to not know.
Official Secrets Act, 1923 criminalizes disclosure of information which is likely to affect sovereignty and integrity of India, the security of state or friendly relation with foreign states’ (Section 5). The Act also criminalizes disclosure of information which might be directly or indirectly useful to an enemy (Section 3). Going further, the Supreme Court held in Sama Alana Abdulla v State of Gujarat that the information need not be even ‘secret’, and if it is likely to be useful to an enemy, the offence is said to have been ommitted.
Thus the offence defined in Official Secrets Act, 1923 are dangerously wide and give ample room for arbitrariness. It is impossible to know with certainty which information is ‘secret’ or ‘useful to the enemy’. Although there is a manual by the Ministry of Home Affairs which deals with classification of documents but that manual has itself been treated as ‘secret’. The Act does not create an exception even in the cases of public interest.
The Official Secrets Act, 1923 is an anachronism in this age which has recognized the citizen’s right to information as sacrosanct. It is interesting to note that the RTI Act has an overriding power over The Official Secrets Act, 1923, as expressly stated in Section 22. The Administrative Reforms Committee recommended in 2006 that the Official Secrets Act, 1923 should be repealed as it was incongruous with the transparency regime. But no further action was taken in that regard.
Thus, there is a dire need to discuss the relevance and scope of the Official Secrets Act, 1923. There is a need of at least restricting its application, if not repeal it altogether. There should be exceptions created, for instance, in favour of public interest and the right to publish of the journalists should be held to be paramount.

By-
Deeksha Gupta
Student Reporter
INBA