Context

• In response to the earlier order of Supreme Court which rejected any independent inquiry in Rafale deal, a fresh petition has been filed to review the courts order.
• The fresh petition is based on the evidences collected from the Defence Ministry of India and those evidences/records come under the Official Secrets Act as per governments stand in the SC.

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• According to the government, these documents (evidences) were stolen or purloined by former or current officers in the ministry of defence.
• These are privileged documents under the Official Secrets Act (OSA) and even can not be accessed through Right to Information Act.

What is Official Secrets Act?

• An ‘Official Secrets Act’ is a generic term that is used to refer to a law 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.
• Across multiple countries, the Official Secrets Acts follow a similar pattern: classifying certain categories of information as “official secrets,” and then providing stiff penalties for any sharing, dissemination or publication of such information.

Background

• The First Official Secrets Act was enacted in 1904 under the Viceroy Lord Curzon.
• This was replaced by Official Secrets Act 1923.
• After independence the Act was amended and renamed by Parliament the as Indian Official Secrets (Amendment) Act, 1967, it made the Act much more stringent than it was under British rule.

What are the main features of Indian Official Secrets Act?

• The 1923 Act includes penalties for spying under section 3 of the Act. This section provides for penalties for spying, where if any one approached, inspected, etc. any vicinity or place for making any sketch, plan, model, etc.
• It is liable to be punished under this provision with imprisonment which is maximum 15 years as provided under these provisions.
• The Section 4 of the Act makes the act of communicating or even attempting to communicate with foreign agents, is to be treated as relevant evidence for proving that such person communicating or attempting communication is against the safety or interests of State.
• Section 5 says that, if the person having possession of any secret official code, etc. used such secret stuff in prohibited place or otherwise in the manner which is likely to assist an enemy or otherwise is hazard to sovereignty and integrity of India then such person to be held guilty under this Act.
• Similarly, for all other acts relating to such secret official information which are provided under this provision of Section 5 of the Act are prohibited and if done, then persons doing this are liable to punishment which should include imprisonment and fine.

What is the 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.
• While it is nobody’s case that all information ought to be made public – for example, troop movements in wartime or confidential trade negotiation positions, to take two examples, obviously need to be secret – there should be a heavy presumption against secrecy.
• 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.

What about the Right to Information Act?

• Right to Information Act has diluted the scope of the OSA.
• Section 22 of the RTI Act explicitly says it overrides the OSA, i.e., 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.
• The government will have to justify its decision to withhold information under the arguably narrower exception clauses of the RTI Act itself.