THERE is little reason to be jubilant over the Indian government’s decision to set up a panel to look into the Official Secrets Act, 1923 (OSA) in the light of the Right to Information Act, 2005. Like other colonial laws successive governments have found the act a useful bludgeon to silence dissent.

Less than a decade ago the UPA government, headed by Manmohan Singh, set up the Second Administrative Reforms Commission chaired by a person of ministerial rank, M. Veerappa Moily. Its report entitled Right to Information: Master Key to Good Governance, said that “The Official Secrets Act, 1923 should be repealed.” But the government rejected the recommendations, saying “OSA is the only law to deal with cases of espionage, wrongful possession and communication of sensitive information detrimental to the security of the state.”

The response was disingenuous. The Official Secrets Act deals with disclosure of information as well as espionage. The debate has been solely about the former. It is another matter that provisions relating to espionage have been abused to punish activists and NGOs.

Colonial era laws haven’t kept up with democracy.

Section 8(2) of the Right to Information Act 2005 itself provides a useful clue to reform of the OSA. It says: “Notwithstanding anything in the Official Secrets Act, 1923, nor any of the exemptions permissible in accordance with sub-section 8(1) of RTI Act, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.” If the OSA itself is amended to provide the defence of “in the public interest” to the media or, for that matter, any individual, it will go a long way to satisfy advocates of reform.

The Official Secrets Act 1923 is a virtual replica of its British parent The Official Secrets Act, 1911. The crucial provision of the OSA, 1911 is Section 2 which was copied in Section 5 of Indian OSA of 1923. Thus, the censures in Britain on Section 2 apply also to the Indian Section 5.

Shorn of legalese, these provisions make it an offence for a government employee to communicate any government information without authorisation unless it was his duty to communicate it “in the interests of the State”. Likewise, it was an offence for any one to receive such information.

Two grave flaws stare one in the face. One is what a committee headed by Lord Franks called “its catch-all quality. It catches all official documents and information. It makes no distinction of kind, and no distinction of degree … a blanket is thrown over everything, nothing escapes”.

The second flaw is that it is self-serving. “Ministers are, in effect, self-authorising. They decide for themselves what to reveal.” So do civil servants. A British prime minister told a journalist that he did the “briefing”; it is the journalist who did the leaking. The ship of state is the only ship which leaks from the top. Lord Devlin’s censure was justified. Section 2 “instals as the judges of what ought to be revealed men whose interests it is to conceal”.

These two flaws alone suffice to render Section 5 of the Indian Act as a violation of the fundamental right to freedom of speech and expression. It is a sitting duck awaiting the whiff shot of the judicial gun especially since its parent has mended its ways. Britain enacted the Official Secrets Act in 1989. Its main reform was to introduce the defence of “damage”. A person does not commit the offence of unlawful disclosure “unless disclosure by him is damaging to the interest of the country” and he makes it knowing, or having reasonable cause to believe, that it would be damaging. This applies to, both, the giver as well as the recipient of the information or the document. Thus a correspondent or editor can go scot free if he establishes that the document or information published could not reasonably be said to damage the national interest. The catch-all quality is also limited by the qualification that the information must relate to security or intelligence, defence, international relations or to crime.

These reforms do mark a substantial improvement of the draconian law. However, they fall short in one important respect. They do not concede the defence of “the public interest” as demanded by the media.

In 1982, the Press Council of India accepted the recommendations made in a study entitled Official Secrecy and the Press and recommended a draft provision which restricted the kind of information to defence, security, foreign relations, monetary policy; crime prevention and trade secrets. It also accepted this defence that the disclosure “predominantly and substantially serves public interest”.

There is, however, one fundamental difference. In Britain only the attorney-general, acting in his discretion or the director of public prosecutions can institute a prosecution. In India it is the police; ie politicians in power.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, May 9th, 2015

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