RTI Act and OCA
Tuesday, 12 Mar 2019 18:00 pm
- Between the RTI Act and OSA, RTI Act has its primacy.
- Section 22 of the RTI Act provides for its primacy vis-a-vis provisions of other laws, including OSA.
- This gives the RTI Act an overriding effect, notwithstanding anything inconsistent with the provisions of OSA.
- So if there is any inconsistency in OSA with regard to furnishing of information, it will be superseded by the RTI Act
- However, under Sections 8 and 9 of the RTI Act, the government can refuse information. Effectively, if government classifies a document as “secret” under OSA Clause 6, that document can be kept outside the ambit of the RTI Act, and the government can invoke Sections 8 or 9. (Legal experts see this as a loophole)
Major instances when OSA has been invoked
- One of the oldest and longest criminal trials involving OSA is the 1985 Coomar Narain spy case.
- Twelve former staff members in the Prime Minister’s Office and Rashtrapati Bhavan Secretariat were sentenced to 10 years’ imprisonment in 2002.
- They were found guilty of entering into a criminal conspiracy with officials of the French, Polish and German embassies, communicating secret official codes, classified documents and information pertaining to defence, shipping, transport, finance, planning, and R&AW and Intelligent Bureau reports.
- The other high-profile case was the ISRO spy case targeting scientist S Nambi Narayan.
- Before his recent acquittal, he had faced a criminal trial under OSA, and was accused of passing on rocket and cryogenic technology to Pakistan for illegal gratification.
- In another high-profile case, then Kashmir Times journalist Iftikhar Gilani was arrested in 2002 and charged under OSA.
Madhuri Gupta case
- The most recent conviction under OSA came in 2018, when a Delhi court sentenced former diplomat Madhuri Gupta, who had served at the Indian High Commission in Islamabad, to three years in jail for passing on sensitive information to the ISI.
- Past effort toPast effort to change provisions of OSA ]
- In 1971, the Law Commission observed that “it agrees 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 Law Commission, however, did not recommend any changes to the Act. change provisions of OSA
- In 2006, the Second Administrative Reforms Commission (ARC) recommended that OSA be repealed, and replaced with a chapter in the National Security Act containing provisions relating to official secrets. Observing that OSA was “incongruous with the regime of transparency in a democratic society”, the ARC referred to the 1971 Law Commission report that had called for an “umbrella Act” to be passed to bring together all laws relating to national security.
- In 2015, the present government set up a committee to look into provisions of the OSA in light of the RTI Act. It submitted its report to the Cabinet Secretariat on June 16, 2017, recommending that OSA be made more transparent and in line with the RTI Act.
- It is against the Constitutional Freedom to Use and Publicise information (Article 19)
- Arbitrary discretionary powers: It is the government’s discretion to decide what falls under the ambit of a “secret” document to be charged under OSA.
- Press, which is considered as the 4th pillar of the governance, had played effective role in cases such as irregularities in Bofors defence deal (during 1980s); 2016 Panama Papers leaks etc. OSA might curb its effective role.
- Conflict with RTI Act, 2005: As RTI is for transparency whereas OSA is for confidentiality, it gives rise to opacity
- Chances of Misuse in Name of National Security: Governments is being accused for misusing the law against journalists and whistleblowers. For instance, ISRO spy case which targeted scientist S Nambi Narayanan. There is high chance of misuse the act by corrupt officials in name of national security.
As suggested by 2nd ARC, OSA must be repealed and should replaced by a National Security Act where “Security” must be defined objectively so that it cannot be misused.
If government is indeed for the people, it has a solemn obligation to keep the people well informed.