[Solved] There is a view that the official secrets act is an obstacle to the implementation of the Rights to Information act. Do you agree with the view? Discuss.. ( UPSC GS-4 Mains 2019)
Recently, the government has sought action against The Hindu newspaper and news agency ANI under Official Secrets Act, 1923 for publishing documents related to India’s deal to buy 36 Rafael jets from France. Judiciary however made it crystal clear and dispelled the doubts many of us have regarding Officials Secrets Act being an obstacle in effective implementation of Right to Information Act.
Following are the provisions that clarify what happens when OSA and RTI act come into interaction and have conflict:
• Whenever there is a conflict between the two laws, the provisions of the RTI Act override those of the OSA.
• Section 22 of the RTI Act states that its provisions will have effect notwithstanding anything that is inconsistent with them in the OSA.
• Similarly, under Section 8(2) of the RTI Act, a public authority may allow access to information covered under the OSA, “if the public interest in disclosure outweighs the harm to the protected interests”.
• Section 24, which mandates even security and intelligence organisations to disclose information on corruption and human rights violations.
Inference about OSA being an obstacle in implementation of RTI Act: One needs to understand that when RTI movement was gathering momentum, the debate between need for secrecy and need for transparency already existed. Beyond a point, it was not acceptable to those leading the movement to accept only dilution of OSA but they demanded a full-fledged RTI Act.
Hence, the way RTI Act has been crafted and provisions put very much takes care of the fact that OSA must not become a roadblock in releasing the information. If we closely read above provisions, it becomes quite clear that OSA, for one, is not an obstacle. In case of conflict, law is clear to give way to RTI.
But yes, there are many other issues that don’t allow for effective implementation of RTI Act. We will discuss them as follows:
Issues in effective implementation of RTI Act:
• While the Act has been clear in defining the responsibility of the appropriate Government, with respect to creating awareness on the Act, there has been lack of initiative from the Government’s side. The efforts made by appropriate Governments and Public Authorities have been restricted to publishing of rules and FAQs on websites. These efforts have not been helpful in generating mass awareness of the RTI Act. As compared to RTI Act the common citizens (and disadvantaged communities) are significantly more aware of other Government schemes focused on socio-economic development.
• As per the Act, the information has to be provided within the stipulated time. However as per our survey it was highlighted by the PIOs that they are challenged to provide the information within the stipulated time due to inadequate record management procedures with the Public Authorities. It is a known fact that the record keeping process within the Government is a big challenge. This situation is further aggravated due to non-availability of trained PIOs and the enabling infrastructure (computers, scanners, internet connectivity, photocopiers etc.). Public Authorities need to meet the requirements of the RTI Act to review their current record keeping procedures and other constraints and plan out the resources.
• The training of PIOs is a big challenge primarily due to a) huge number of PIOs to be trained b) frequent transfers of PIOs to other posts. The training institutions also possess a huge constraint with respect to the availability of training resources. Also, it was observed that in the current manner of providing training, there is a low involvement of the Public Authority and an inadequate sense of urgency in getting their PIOs trained.
• The situation can be summarized as follows:
– The current record management guidelines at Centre and in most states are not geared to meet the requirements specified under the RTI Act.
– There is lack of any electronic document management system in any of the Departments (basis the Information Provider Survey).
– Majority of the PIOs surveyed do not even maintain the list of RTI applications electronically.
As has been mentioned earlier, the issue of implementation of the RTI Act at an operational level rest with the Public Authority. The appropriate Government and Information Commission can play only a facilitative and adjudicative role. Unless the Public Authorities assess the issues of implementation and identify resources required, there would not be any focus on implementation.
• During the information seeker survey it was noted that there is no centralized data base of RTI (at the State/Centre level) applicants (which was one of the reasons resulting in delay in conducting the survey). Given the current situation, neither the State Government nor the State Information Commission is in a position to confirm the number of Public Authorities within a Department and therefore the details on the number of applications filed.
• One of the most important roles of the Information Commission is to monitor and review the Public Authority and initiate actions to make them comply with the spirit of the Act. However this has been one of the weakest links in the implementation of the Act. It is acknowledged and appreciated that the Information Commissions have been primarily been spending most of their time in “hearings” and disposing of appeals. However monitoring the Public Authority for compliance of the Act is also an important aspect of the role of the Information Commission, which could result in reducing the number of appeals.
• The pendency at the Information Commission is a huge challenge. Unless and until the pendency is kept at manageable level, the objective of the Act would not be met. High pendency of appeals is due to non-optimal processes for disposing of appeals and complaints.
• The benefits of setting up regional offices far outweigh the initial capital costs involved in setting them up.
Official Secrets Act- Impediment in RTI
Protects corrupt officials
The bureaucrats, who are responsible for giving information under RTI avoid the files from reaching public domain by citing Official Secrets Act. This keeps their corrupt activities hidden.
In democracy there is a need to provide details about utilisation of public funds and RTI is helpful in this regard. But it is prevented by using excuses.
Used as measure of threat
The government can use Official Secrets Act to threaten activists who have collected a vital information under RTI. This can discourage RTI activists from carrying out their duties.
Official Secrets Act- A necessity
Protect sensitive information
Certain information needs to be kept away from public domain especially those that are necessary for protecting the nation. In this regard Official Secrets Act comes in handy.
Ex: Expenditure for spying agency, deployment of nuclear weapons etc.
Discourage unethical practices
Unethical practices like stealing sensitive information and selling it in open market can take place in the name of Right to Information. The Official Secrets Acts can reduce such actions.
Ex: Stolen files of Rafale aircraft.
How Official Secrets Act is an obstacle to Right to Information Act?
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.
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.
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.
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.
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.
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.
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.
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.
Rather than getting carried away by draconian provisions of OSA, the need is to look at the entire process of RTI act and mend the loopholes as highlighted above. Improvements at levels of people, institutions and government functionaries is needed
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