One of the most neglected rights in democracies throughout the world is the Right to Information, which though, being one of the most cherished human rights has largely been disregarded by most countries throughout the world, including India. The Right to Freedom of Information is now considered to be a customary international law, which is exemplified from the enshrinement of the right in numerous state constitutions, as well as various international covenants and treaties most notably the Universal Declaration of Human Rights [hereinafter UDHR] , the International Covenant on Civil and Political Rights [hereinafter ICCPR] and the European Commission on Human Rights [hereinafter ECHR] among others.
The right to information has both intrinsic and instrumental value. Its intrinsic value comes from the fact that citizens have a right to know. It is a crucial step towards a deeper, more meaningful democracy. More tangibly, in a country like India it can promote action for development and therefore has considerable instrumental value. Information enables people to make enlightened choices, and keep tabs on elected representatives and officials who claim to act on their collective behalf. Thus, accountability and transparency are both enhanced radically.
In the last few decades, freedom of information has been recognised as an internationally protected human right, and societies across the world have been moving away from opaque and secretive administrative systems to open and transparent systems. In fact, Sweden is supposed to have put in place the first set of laws for transparency in public affairs 200 years ago.
In liberal democracies as in dictatorships, people are routinely denied access to basic information that ought to be in the public domain. The fundamental problem is that there is no accountability in the present system of governance. All human rights depend on the basic right to know, to demand accountability. In India, the feudal social fabric has exploited the formal democratic system to its advantage because the literate are too busy building careers and empires to bother about social inadequacies. Hence, the Right to Information [hereinafter RTI] movement has a widespread appeal for everyone. In India, the fight to guarantee the right to information was taken up by illiterate villagers in the state of Rajasthan. When the
govt cheated them of wages they were owed for work done during a famine in the mid-1990s, their anger and their determination to hold the government accountable sparked the RTI movement that spread across the country, finally reaching such proportions that the Indian Parliament was forced to enact a Freedom of Information Act in late 2002.
Concept of Open Government and the Right to Information
The Right to Information and Open Government are considered to be two of the most important topics in the field of Administrative Law in today's era. At the present moment, democratic countries have started laying immense importance to have an open and a transparent government.
The author submits that indeed there are quite a few things, which need to be kept confidential in the interest of public security or national interest, and sometimes, the law may impose secrecy in the interest of the individual, but secrecy should never be more than what is absolutely necessary. What is indeed necessary in a modern democracy is to draw a balance between what is 'secrecy' and 'open government' with an accent on the latter. There are a number of reasons to suggest an open government.
Primarily, participation in government by the people is regarded, as an important aspect of democracy and people cannot participate unless they have information as to what is going on in the country. A modern democratic state being answerable to the people, the people are entitled to know what policies and programmes, how and why, are being followed by the government. Another important factor justifying the openness in government activities is that, being an activist entity, the government gathers a vast arsenal of powers in a welfare state. These powers are used to affect economic interests and the personal liberty of the individual. Therefore, it is extremely essential that these powers are exercised for public good, not improperly and for the purposes of which the powers are conferred. Hence, this objective can be best ensured by giving access to the individual to governmental information and not shroud in secrecy as to how the government exercises its power in individual cases. Since power tends to corrupt, and absolute power tends to corrupt absolutely , there is an inherent danger that the vast powers available to the executive may be used not for public good, but for private gain, or for corrupt motive. It is therefore essential for the people to have as much information about governmental operations as possible. This is because openness or transparency in government is bound to act as a powerful check on the abuse or misuse of power by the government. In India so far the progress towards an open government has been rather tardy. However, it may be pertinent to note that Bhagwati, J. had advised in the landmark case of
SP Gupta v. Union of India, "Open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception."
This approach was originally advocated in the landmark English case of
Attorney General v. Jonathan Cape Ltd., where an action was brought for injunction to restrain the publication of the publication of the political diaries of a certain Cabinet Minister in the Labour Government of the late 1960s on the plea the publication of the diaries would reveal cabinet secrets and infringe the principle of collective responsibility of the government. In the case, it was accepted that a Cabinet Minister is indeed privy to various State secrets, and the Court should stop any improper publication of the same. However, the injunction was refused in the above-mentioned case, since the materials were about ten years old and no longer required protection under public interest. The Court had further gone on to emphasise that it should intervene, "only in the clearest of cases where the continuing confidentiality of the material can be demonstrated."
Another important case dealing with official secrecy and open government was the Australian case of
Commonwealth of Australia v. John Fairfax & Sons
Ltd. In this case, two journalists had obtained a number of foreign office cables and memoranda regarding several important matters. The government applied for applied for an injunction to prohibit publication of the government applied for an injunction to prohibit publication of the materials on the ground of breach of confidentiality. Mason, J. had laid down unequivocally,
"But it can be scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism, it is unacceptable in our democratic society that there should be restrain on the publication of information relating to the government where the only vice of that information is that it enables the public to discuss and criticize government action."
Leading authors have declared that there are several aspects of open government, which have been enumerated as the following:
1) Presentation of documents by the government in the court in the course of litigation;
2) Official Secrecy, and;
3) Access to Information.
Further, it should also be noted that the people's right to know has two aspects:
1) How far the Government should use criminal sanction to deter free flow of information?
2) How far the Government is under a positive obligation to make available, on demand, information to the people not in the prohibited category?
The Executive and Official Secrecy
The laws designed to protect the executive in India can be traced to the colonial period. The initial British strategy was to deal with matters internally through a series of administrative circulars placing an absolute ban on the dissemination of official information and allowing only senior officials to explain government policy. However, as soon as official secrecy legislation was enacted in Britain in 1889, it was duplicated in India. In 1923, over the protest in Indian legislature, India was given its current Official Secrets Act. Presented as
"a purely consolidating measure", the Act was really a
"catch all" enactment to prevent the disclosure of any information rather than deal with either spying or state security. Further, amendments in 1967 - in the aftermath of the Indo-Pakistan War - failed to liberate the law; but in turn increased penalties and facilitated prosecution.
In India, official secrets legislation is wide ranging.
Section 3 of the Act prohibits approaching, inspecting, passing over or entering in the vicinity of a prohibited place. Further, under the Act, it is also an offence to obtain, collect, record, publish or communicate to any other person these items or any
"other document or information which is calculated to be or might be or is intended to be, directly, or indirectly, useful to an enemy or which is likely to affect the sovereignty and integrity of Indian, the security of the State or friendly relations with Foreign States." The basic premise of the Section is that even if the case against the accused is not proven,
"his conduct or his known character as proved"
could create a presumption that his action was prejudicial to the safety or interests of the state. As in British courts, "enemy" has been interpreted to include
However, Section 5 is the catch-all provision. It relates to the
wilful communication, uses, retention or failure to take reasonable care of all information which has been entrusted in confidence to him by any person which has been entrusted in confidence to him by any person holding office, or which he has obtained or which he has had access to owing to his position. Further, the voluntary reception, possession or control of any such information is also an offence, if there is knowledge or reasonable cause to believe that such information is communicated in contravention of the Act under Section 5(2) of the Act. Hence, this Section has been interpreted widely to cover, for example, budget leaks as was held in the landmark case of
Nand Lal More v. The State.
The most intriguing aspect of the Official Secrets Act is that there is very little case law reported on this statue. The efficacy of the statute rests on its presence as a symbolic statement and a warning. The case of
RK Karanjia v. Emperor was concerned with the legality of a forfeiture deposit on a newspaper, which asked informants to leak official information to it. The legitimacy of the forfeiture deposit system was reinforced by references to the broad sweep of the Official Secrets Act. This approach was again affirmed in the Budget Proposals case, which held that a pre-publication leak of budget details to fall within the general
"catch all" provisions of the Act.
'Official Secret' - What It Should Mean
4.1 The Secret Information
The official information covered by the Section is also extremely broad. Any kind of information is covered provided it is a "secret". This includes any official code, password, sketch, plan, model, article, note, document or information. The only qualification is that it should be
"secret". Nowhere the word "secret" or
"official secrets" are defined in the Act. The only thing, which is clear is that, the Act applies only to official secrets and not to secrets of a private nature. Hence, the Act extends to the secrets of a ministry or department of the government, but not to an incorporated body like a university, government company or public corporation.
As there is no definition of
"secret" in the Act, it is for the government to decide what it should treat as a secret or not, which essentially gives the Government a carte blanche to decide upon what should be classified as a
"secret". Therefore, in theory, the Government has the discretion to classify anything and everything as a "secret" as per the Official Secrets Act. Hence, the question, which begs to be asked, is, whether the government has an unquestioned right to decide what should be classified as secret and kept away from public. It appears from most cases that have been decided upon dealing with the Act that the Government does not seem to be the sole judge of the matter and that the Courts do reserve the right to review the decision of the Government. The usual practice of the government is to treat an information secret, even though they may no longer be of any danger to national interest or public safety or any other public interest, merely because it may embarrass the government, in other words, the political party in power.
In Sama Alana Abdulla v State of Gujrat , the Supreme Court held that the word 'secret' in clause (c.) of sub-section (1) of Section 3 qualifies official code or password and not any sketch, plan, model, article, note, document or other information. Therefore, a sketch, plan, model, article, note or document need not even be secret in order to avail of the protection under the Act. Any sketch, plan, model, document etc. as the Government determines to be an 'Official Secret' will therefore avail of the protection under the Act.
4.2. Meaning which should be attributed to the
term "Official Sercet"
In the landmark case of Buddhikota Subbarao v State of Maharashtra
, a Divisional Bench of the Bombay High Court had utilized the Statement of Objects and Reasons of the Amending Act 24 of 1967 to impart meaning to the Official Secrets Act, 1923 and stated,
"It is by now well settled that such words take colour from the context. While interpreting the words or statutory provisions, it becomes necessary to have regard to the subject matter of the statute and the object, which it is intended to achieve. That is why in deciding the true scope and effect of the relevant words in any statutory provision, the context in which the word occurs, the object of the statute in which the provision is included and the policy underlying the statute, assume relevance and become material."
The Official Secrets Act, 1923 has indisputably been enacted with a noble object in mind. There is no doubt that despite its several shortcomings the prevalence of a statute of the nature of the Official Secrets Act, 1923 is justified by the need to provide protection to the Sovereignty and Integrity of the State. The problem therefore of reconciling through law the nation's need in Government Secrecy and its need in disclosure is quite a complex and difficult one. Two basic issues, which need to be effectively tackled, are:
1. The Problem of classification of information;
2. Procedural Safeguards to the individual against administrative abuse including the safeguard of Judicial Review.
With regard to the Problem of Proper Classification of Information the Following Categories of Information may avail of the protection entitled to
'Official Secrets ':
§ Information pertaining to National Security and Defence -
National Security and Defence Affairs have always been universally regarded as justifying secrecy. The problem here is not of the legitimacy of these two matters favouring secrecy, but that should not become an excuse for wholesale cover-up. Therefore, even this is a broad category and everything under it cannot be considered to be secret. Information may have to be disclosed under this accepted category in Public Interest without violating national security or national interests.
§ Information affecting Friendly Relations with Foreign States -
Foreign Policy has often been an accepted ground of Official Secrecy however it is also subject to the condition of Public Interest as unauthorized disclosure could severely jeopardize foreign relations.
§ Information relating to the maintenance of Law and Order -
With a view to facilitating the effective work Law and Order Departments conditions of assured secrecy and confidentiality are necessary.
§ Information relating to the Economic Policy -
Secrecy may be necessary in controlling and regulating the Economy - Budget Proposals for example have to be kept in utmost secrecy so that persons through premature disclosure do not gain undue economic advantages. Premature disclosure of economic plans and policies may frustrate their very purpose, and precipitate activities, which they intended to avoid. However, secrecy on economic grounds is to be confined only to cases where disclosure would enable persons to make unjust gains or harm national interests.
4.3 Conditions To Be Necessarily Fulfilled To Qualify As An
'Official Secret' Under The Above Mentioned Categories
The above-mentioned categories are broad and everything falling within the categories may not be assured of protection under the Act. Thus, the following considerations have to be taken into account:
§ Public Interest has to be the overriding consideration in determining commission of an offence under the Act
§ Information, which is already within the Public Domain or within Public Knowledge, cannot be made a basis of prosecution
§ In accordance with the object of the Act, disclosure must necessarily be prejudicial to National Security, Sovereignty and Integrity of the State or Friendly Relations with Foreign Nations.
Constitutional Validity of The Official Secrets Act, 1923
5.1 Judicial Review
Judicial Review provides some safeguard to the individual against governmental arbitrariness in the matter of official secrecy. It seems clear that the word 'secret' raises a jurisdictional issue and the courts have the power to determine the jurisdictional question but it is not clear whether the courts have the additional power to determine the question of 'public interest' and to say if public interest justified disclosure. Judicial decisions that have dealt with the issue have been provided for in the subsequent paragraphs.
5.2 The Official Secrets Act, 1923 And Article 14 Of The Constitution
The provisions of the Official Secrets Act have been claimed to be too wide, vague and ambiguous giving rise to arbitrariness and excessive discretionary powers to the Governmental authorities. An excessive delegation of discretionary powers creates a danger of discrimination, which is subversive to the Equality Doctrine enshrined in Article 14 of the Constitution. This in turn has often caused it to be claimed as being inconsistent with the Doctrine of Rule of Law in this regard which propounds the Equality before the Law and Supremacy or predominance of the legal spirit as opposed to the influence of arbitrary powers.
However, the constitutional validity of the Official Secrets Act, 1923 with regard to Article 14 of the Constitution has been challenged before a Divisional Bench of the Bombay High Court in
Buddhikota Subbarao v State of Maharashtra , which while upholding the validity of the Statute observed
"The definition of a word in a definition section may be restrictive or extensive of its ordinary meaning. But only because it is not defined it will not necessarily mean that the word or expression is vague or uncertain. That is why in deciding the true scope and effect of the relevant words in any statutory provision, the context in which the word occurs, the object of the statute, assume relevance and become material . However, in our view in the very nature of things it is difficult to define the expression 'secret' which will govern
5.3 Critique Of The Buddhikota Judgment
Several Supreme Court Constitutional Bench Judgments have struck down statutes or statutory provisions, which conferred
'uncontrolled discretionary powers' on the administrative authority, as is the case with the Official Secrets Act, 1923. An example of this would be
State of Punjab v Khan Chand where a Constitutional Bench of the Supreme Court struck down the East Punjab Movable Property Requisitioning Act, 1947 stating 'Arbitrariness and the power to discriminate are writ large on the face of the Act, and in our opinion that provision falls within the mischief which Article 14 of the Constitution is designed to prevent.' In the case of the Official Secrets Act, it is also indisputable that there is excessive arbitrariness and power to discriminate. Moreover, the Buddhikota Judgment provides for interpretation through the Statement of Objects and Reasons, a theory which may be rebuffed on two accounts - Firstly, the OSA, 1923 is a Penal Statute and therefore must be construed strictly that is in favour of the accused if there is any ambiguity; Secondly, a series of Supreme Court judgments have held that Objects and Reasons do not often reflect the opinion of the legislature enacting it and that objects and reasons do not form a part of the statute and thus may not be used to interpret it.
5.4 The Official Secrets Act, 1923 And Article 19(1)(A) Of The Constitution
"The people of the country have a Right to Know every Public Act, everything that is done in a public way by public functionaries. The Right to get information in democracy is recognized all throughout and it is a natural right flowing from the concept of democracy."
UOI v Association for Democratic Reforms
Article 19(1)(a.) of the Constitution guarantees the Right to Freedom of Speech and Expression to every citizen. The Right to Freedom of Speech and Expression means Right to express one's convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode which is of great importance in a democracy because without the Freedom of Speech the appeal to reason which is the basis of democracy cannot be made. The Freedom of Speech and Expression further includes the right to acquire and disseminate information . The OSA, 1923 it is claimed by critics and the Media violates all these rights incorporated within the Freedom of Speech and Expression by virtue of the restrictions it puts on the Freedom of Information.
5.4.1 Position of the Government
The Position of the Government in this regard however, is that the Official Secrets Act is merely a
'reasonable restriction' acceptable and in accordance with
Article 19(2) of the Constitution in the interests of the Sovereignty and Integrity of the State.
Despite the fact that the Seven Judge Constitutional Bench of the SC in SP Gupta v Union of India had ultimately taken a pro- right to information stance it was conceded that there are certain classes of documents which necessarily require to be protected.
5.4.2 Position of the Media and other Critics of the Act
The Position adopted by the critics of the Act is that Legislation that arbitrarily or excessively invades any of the six freedoms cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the Freedoms guaranteed under Article 19(1) and the social control permitted by clauses (2) to (6) of Article 19, it must be held to be wanting in reasonableness . Moreover, the onus of proving that the restriction is reasonable is on the State . The wide and vague provisions of the OSA, 1923 also facilitate attempts on the part of the Government to threaten Media Personnel with prosecution upon the publication of information that may damage the image of the Government. Reliance is also being placed upon
SP Gupta v Union of India, where it was held that 'disclosure of information must be the ordinary rule while secrecy must be an exception, justifiable only when it is demanded by the requirement of Public Interest. '
Another Judicial Decision, which emphatically lays down the importance of Freedom of Speech and Expression in relation to Governmental Activities is the
State of UP v Raj Narain , in which Matthew J., observed,
" In a government of responsibility like ours, where all the agents of the Public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor, which should make one wary, when secrecy is claimed for transactions, which can, at any rate have no repercussions on public security. To cover with a veil, the common routine business is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest of bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption."
5.5 The Official Secrets Act, 1923 And Article 21 Of The Constitution
Provisions of the Official Secrets Act have also been claimed to be inconsistent with the provisions of
Art 21 of the Constitution ever since the Right to Freedom of Information has been incorporated with the broad ambit of Article 21 in
Reliance Petrochemicals Ltd v Indian Express Newspaper . However, the case of
Buddhikota v State of Maharashtra which is a
B'bay HC judgment it has been categorically stated that the provisions of the OSA, 1923 are not in contravention of Article 21.
5.6 Commission And Committee Reports On The Constitutionality Of The Osa, 1923
The question of amending the Act has been reviewed by several Commissions and Committees. Thus it was examined by the Press Laws Inquiry Committee (1948), the Press Commission (1954), the Law Commission (1971) and also by a Study Group appointed by the Central Government in 1977 and comprising officials from the Cabinet Secretariat and the Ministries of Home Affairs, Finance and Defence. Except for the Law Commission which suggested some changes with regard to the punishment under the Act, no other body has suggested any changes . In fact the Press Commission endorsing the Pro- Secrecy stance of the Press Laws Inquiry Committee stated "that the necessity of guarding State secrets was not confined to an Emergency, nor was it practicable to define which confidential information should be published in the interests of the State. They thought that the Government must be the sole judge in this matter and they were confident that the popular democratic government in India would utilize these provisions only in cases of genuine necessity and in the larger interests of the State and the Public."
However, the Press Commission did also make one other important observation, which is:
"We agree 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 Official Secrets Act 1923 therefore stands unaltered even till this day, its exercise and interpretation at the mercy of the appropriate Governmental Authority unless there be proper Judicial Intervention. However, the recent enactment of the new Freedom of Information Act, 2003 it seems to be likely to have a sobering effect on the OSA if at all it does not render it redundant.
The Right to Information Movement
6.1 The Beginning
Thanks to a sustained grassroots campaign in Rajasthan led by Mazdoor Kisan Shakti Sangathan [hereinafter, MKSS], an organisation of peasants and rural workers, and articulate macro level networking and advocacy inspired by this initiative, the people's right to information has been an insistent demand and dangled promise in the public arena in India. The Right to Information Campaign in rural central Rajasthan that started in 1994-95 has focused on public audits of development expenditure in Panchayati Raj (local Self Government) institutions. When poor villagers in central Rajasthan began accessing bills, vouchers and muster rolls of expenditure incurred in their Panchayat and verified them against the work actually carried out on the ground, the workers employed, and the wages actually paid to them, they came across large-scale and rampant embezzlement of development funds through stratagems like ghost entries and over billing by elected and permanent public officials and, in collusion with them, by private parties too. The result of this corruption was non-employment of, or under-payment to, the local workforce and non-existent or bad quality assets on the ground, which were meant for education, housing or health facilities for the rural poor. The MKSS movement thus established the connection between the manipulation of official records and denial of life opportunities to the rural poor. The right to access official records thus became a part of the assertion of one's right to life and livelihood, the most basic of all human rights. The MKSS movement also located the people's right to information in the ambit of their fundamental right to life and liberty granted by the Indian Constitution and not only in the fundamental right to freedom of speech and expression, as interpreted by the Supreme Court in the SP Gupta case.
This perception that the Right to Information is the nodal link between the Right to Freedom of Speech and Expression and the Right to Life and Liberty, both guaranteed under the Constitution, marks an important shift in the public discourse. It is this significant shift that now informs public expectations with regard to any legislation on the Right to Information.
6.2 Evolution Of The Freedom On Information Act 2003
In December, 2002 Parliament witnessed a quite Revolution when the Freedom of Information Bill was passed. With the passing of the Freedom of Information Act, 2003 [hereinafter FOI Act], India joined a miniscule group of 20 Nations that have a right to information so far. Sweden had made the beginning in 1776 and we procrastinated even as smaller Nations like Nepal, and newer nations like South Africa took the plunge of varying qualities, while Pakistan made an effort by promulgating its 1997 Ordinance (which has not been revived after its lapse) .
The Right to Information emerges out of the umbrella of Right to Freedom of Speech and Expression and Right to Life, into which it had so far been read by the Supreme Court in the absence of a Statute. Right to Information is also the centrifugal point for access to myriad other basic human rights such as environment, health, food, livelihood etc. The most direct transformation that the right to information effects is in the governance system. From the perspective of citizenship, right to information is the primary tool in the hands of the citizen.
For all the above reasons the passing of the Bill has been hailed as the biggest victory since independence in the arena of civil and political rights. Notwithstanding its contents which have been widely criticized for their half-hearted approach, no one can dispute that the Act marks a paradigm shift from the dark ages of secrecy and opaqueness, to the sunshine of openness and transparency.
6.3 Effect Of The Freedom Of Information Act, 2003 On The Official Secrets Act, 1923
Section 5 of the Official Secrets Act, 1923 made it a crime to communicate, possess or even receive Official Secrets Information of any kind. The big question now is, whether with the coming in of the Central Right to Information Law, the Official Secrets Act, 1923 has been overridden?
Section 14 of Chapter III of the Freedom of Information Act may be referred to in this regard which States "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act".
A plain reading of this provision leads one to believe that the Official Secrets Act has been totally overridden by the Freedom of Information Act, 2003 however, a cautious reading of the Act reveals several provisions for "exemptions" and "exceptions" and powers of sweeping nature, given to the Government to add to them or interpret them. Such provisions carry forward some of the tenets of the OSA, 1923 by incorporating them here, notwithstanding that the OSA has been expressly overridden.
The real difference however is in the shift of cultures of the two regimes. While the OSA had legally perpetuated a culture of secrecy and corruption and denial of any rights against them, the FOI Act brings in an era of transparency and accountability.
6.4 Critique Of The Freedom Of Information Act, 2003
There are four criteria upon which the strength of the Freedom of Information Act can be judged :
(1.) The width of Application of the Act that is the nature of the organizations or institutions to which it applies or does not apply;
(2.) The range and kind of information that it can be used to access;
(3.) The independence of the institutions, which would adjudicate disputes between citizens and the State regarding the disclosure of particular pieces of information; and
(4.) The sanctions in the law against willful or mala fide refusal to disclose information.
As interpreted by the Supreme Court, right to information flows from
Article 19(1) (a) of the Constitution. Therefore, any restriction on this right has to be justifiable only on the ground of exceptions allowed by the Constitution in Article 19 (2) itself. This Article allows only
"reasonable restrictions" and only on the expressly laid down grounds of "sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement of an offence." The burden to prove that the restrictions are within the constitutional limits lies on the Government. The FOI Act and all the state laws mentioned above, envisage numerous exemptions, which are restrictions on the right to information. The Tamil Nadu Act takes the cake wherein the exemptions total 23 in number. Many are not justifiable on the grounds of
Article 19(2) and hence are unconstitutional. Therefore, the list of exemptions in the Bill must be cut short. No Act can take away or restrict what is already provided under the Constitution. An Act is only there to operationalise a constitutional right, not to restrict it beyond the Constitution.
The most blatant of these exemptions in the FOI Act, is the list of defence and security organisations tagged in the end that keeps them out of the purview of the proposed law. Even the states have been given the option of adding their own security and police organisations to this list. It is an irony that while on one hand, the Bill provides for giving information in 48 hours where the life and liberty of a person is concerned, on the other hand, it exempts those organisations from the purview of the proposed law that are most often accused of illegally violating civil liberties and human rights, including the right to life. Moreover, it is ridiculous to exclude such organisations as vigilance and Anti corruption bureaus and revenue enforcement agencies from the purview of the proposed Act, since that would obviously only keep the course of various corruption cases under a shroud of secrecy. This is a negation of the essential lesson learnt from the grassroots public audit campaign in Rajasthan.
Another exemption clause which can prove quite restrictive, in a blanket way so to say, is the one allowing the 'competent authority' to withhold any information on the ground that it interferes with the work of a government office or involves a disproportionate expenditure in collecting it.
A critical omission in the
Freedom of Information Bill, 2002 that needs to be pointed out is the exclusion of private bodies like Companies, NGOs etc. from the obligation to provide information pertaining to the public sphere. It would be pertinent to note that the language of Article 19 (1) of the Constitution -
'All citizens shall have the right...' - makes it clear that this is a right of general import and universal applicability. In contrast are Articles like Article 14, which carries a negative right available only against State action and is worded like: 'The State shall not deny...'. So, rights that do not restrict explicitly their application against the State only, are available universally against the entire world, including the private sector. This was clarified in
Peoples Union for Democratic Rights v. Union of
India. Other Constitutional provisions of like wording are, inter-alia, Article 17, 23 and 24. Since the Right to Information flows from Article 19 (1) that has such a wide sweep, as to include the private sector also, so a statute incorporating it cannot legally exclude private parties from its purview. This would also in a way amount to imposing an unreasonable, and hence unconstitutional restriction, on a constitutional right.
Thus, for the Freedom of Information Act to conform to the Constitution and empower the citizen in letter and spirit of the Constitution, there is a strong case that it should have minimal exemptions, not more than those contained in Article 19 (2), and should include within its purview all private organisations operating in the public sphere.
Another argument for inclusion of companies, trusts, societies, associations etc. is that the state is withdrawing more and more from the public arenas which affect the lives of the citizens and are handing these arenas over to private organisations. Therefore, it would be only logical and in the fitness of things that private organisations too are made transparent and accountable to the public they serve. The Bhopal gas tragedy is more than a gentle reminder that leaving the private sector out of the transparency and public accountability net could lead to unmitigated disaster.
It is in this context that the great length to which the FOI Act, 2002 goes to protect the interests of private bodies: 'third party', arouses valid suspicion that the government is extra keen to keep the private sector out of the purview of democratic accountability. If all the provisions of notice to the 'third party', its reply and subsequent appeal by the third party are diligently followed, it would be a few months before even an ordinary piece of information involving a private company or non-government organization and available with the government, can find its way to the applicant. That also will be only when the objection of the third party is not upheld.
The Official Secrets Act, 1923 is a statute, which was enacted with the noble purpose of protecting the Sovereignty and Integrity of the State. It is but unfortunate that the wide discretionary powers conferred upon the Administrative Authorities in confidence with a view to facilitating the task of Protection of National Security were being exercised to shroud the undesirable activities of the Government or Ruling Party in power and to restrain the Media from performing its duty.
It is indisputable that a statute of the nature of the Official Secrets Act, 1923 is an indispensable requirement of a Nation in order to facilitate protection of matters of National Security. It is however equally indisputable that the Fundamental Rights of Citizens of a Democratic Republic cannot be comprised and that a statute doing so must necessarily constitute a mere 'reasonable restriction' keeping in mind the judicial dictum that nothing which is arbitrary can be reasonable. It may therefore be stated that the Official Secrets Act, 1923 is a Statute, which if amended to introduce clear guidelines, policy and limitations on excessive discretionary powers conferred, would be a much more effective and enforceable statute.
With the advent of the Freedom of Information Act, 2003 it may be presumed that the Official Secrets Act, 1923 will be limited in its scope and application to greater extent unless the loopholes in the Freedom of Information Act, 2003 are used to facilitate the wide and ambiguous scope of the OSA, 1923. Yet, it may be stated that the significance of the FOI Act, 2003 lies in the fact that it is sign of recognition of the Importance of this Right and will go a long way in facilitating the task which the Media of a Democratic country have undertaken upon themselves, which is to provide information to a country's citizens responsibly.
1. Amulya Gopalakrishnan, Information by Right, THE FRONTLINE, available at
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