The Right to Information Act, 2005 (RTI) is one of the milestones we have in a
democratic Country. It is a remarkable tool to ensure transparency and Good
Governance. People of the country are exercising this right on a large scale but
the Government is aggressively retaining information under the broad undefined
ambit of 'secrecy' or 'confidentiality' according to the Official Secrets Act.
This is the place of democracy, where the public interest of the citizens
clashes with the government's protected interests. When national security is
jeopardized and public safety is a worry as a result of such revelation, the
public's interest is futile.
The RTI Act is a ground-breaking tool for the Indian people in promoting,
safeguarding, and defending their right to information. A government's efforts
to provide the greatest possible benefit to the greatest possible number of
people can be referred to as Good Governance.
The author attempts to analyze the areas of conflict between the RTI Act and the
Official Secret Act and further delves into the classification of the
information that can be disclosed and exempted from the Right to Information Act
"Secrecy, being an instrument of conspiracy, ought never to be the system of
regular government." -- Jeremy Bentham, 1839
"Where a society has chosen to accept democracy as its creedal faith, it is
elementary that the citizens ought to know what their government is doing."- Justice P N Bhagwati
India is one of the strongest democracies in the world with a written
constitution where the Right to Equality and the Right to Information is granted
to all citizens as Fundamental rights. Since the information was considered to
be one of the most valuable commodities throughout the post-Second World War
era, access to it was a universal need.
The principles of open government and public authority are essential to the
existence of Participatory Democracies. This can be achieved only through access
to information that is under the control of the Government or Public Officials
who have the power to deny information under the Official Secrets Act of 1923.
In India before 2005, the citizens had no access to information on any matter of
public interest which was dealt by the Public Authority. Thus, getting relevant
information was very difficult for a citizen in any social, political, and
economical matters. There was no transparency in the country regarding the
working of the government.
To cope with the problem of information transparency the Indian Govt. enacted
the Right to Information Act, of 2005. It guaranteed everyone the freedom to
access information and ideas through any media regardless of geographical
In the case of Raj Narain vs State of Uttar Pradesh
, the Supreme Court said,
the Right to Information will be treated as a Fundamental Right under Article 19
of the Indian Constitution.
The Right to Information is considered a Fundamental Right but it is not an
absolute right, it is curtailed to some extent by the Govt. under the ambit of
the Official Secret Act, of 1923, in the Public Interest.
Public interest refers to any information that references the state's functions,
i.e., Domestic and foreign functions, as well as matters relating to the State's
security & Integrity, Public Order, Peace, vigilance, and law and order.
However, this Act is ambiguous and does not provide clear boundaries, thus it is
very difficult to determine what information can be obtained by a common man.
The Right To Information Act, 2005; An Overview
This Act provides that, people have a fundamental right to request information
kept by government entities. It derives from the Freedom of expression the right
to "seek and receive information". Under the umbrella of this right, any
person can request a public entity to provide him with the required information,
and that body is legally required to respond and provide the information which
is asked unless there is a legal reason to refuse the request for the
The following elements are typically found in national RTI laws:
- A right of an individual, organization, or legal entity to demand
information from public bodies, without having to show a legal interest in
- A duty of the relevant body to respond and provide the information. This
includes mechanisms for handling requests and time limits for responding to
- Exemptions to allow the withholding of certain categories of
information. These exemptions include the protection of national security
and international relations, personal privacy, commercial confidentiality,
law enforcement and public order, information received in confidence, and
internal discussions. Exemptions typically require that some harm to the
interest must be shown before the material can be withheld.
- Internal appeals mechanisms for requestors to challenge the withholding
- Mechanisms for external review of the withholding of information. This
includes setting up an external body or referring cases to an existing
ombudsman or the court system.
- Requirement for government bodies to affirmatively publish some
types of information about their structures, rules, and activities. This is
often done using information and communications technologies.
RTI is an index to measure the growth and development of a country. In India
till 2005, the citizen of the country has no access to the information which was
dealt by a Public Authority. And it was difficult to get the information for the
The first ever RTI law was enacted by the Swedish Govt. in 1766, it was largely
motivated by the parliament's interest in access to information held by the
King. Further, this enactment was adopted by the US in 1966 and then Norway in
1970. Similarly, many western nations enacted their laws. By 1990, the number of
countries which enacted this Freedom of Information law reached thirteen.
The enactment of this kind of law was not easy in a country like India. The
first political commitment to the citizen's right to information in the history
of the Indian Republic came up on the eve of the Lok Sabha election in 1977 as a
corollary to public resentment against information censorship, press censorship,
and authority abuse during the internal emergency of 1975�1977. In an election
campaign, the Morarji Desai-led Janata Party administration of 1977 promised an
open government and stated that it would not abuse the intelligence services or
the power of the state for personal or partisan gain.
In 1986, the Supreme Court in the case of L.K. Koolwal vs the State of Rajasthan
and Ors. gave a clear direction that the Freedom of Speech and Expression
provided under Article 19 of the Constitution implies the Right to Information
as without information the Freedom of Speech and Expression cannot be fully
exercised by the citizens.
In 1989, the National Front Government renewed its commitment to the Right to
Information. Earlier Govt. was reluctant regarding the Right to Information.
Prime Minister V.P. Singh, in his first broadcast to the nation in 1989 said,
"We will have to increase access to information. If the government functions in
full public view, wrongdoings will be minimized. To this end, Official Secrets
Act will be amended and we will make the functioning more transparent. Right to
information will be enshrined in our Constitution." Unfortunately, despite such
commitment, there were no amendments made to provide transparency.
In 1994, a campaign was started by Mazdoor Kisan Shakti Sangathan for the Right
to Information. This campaign resulted in the enactment of a law in Rajasthan in
In 1996, National Campaign for People's Right to Information had the objective
to pass legislation on RTI. In 1997, Tamil Nadu became the first state to pass
legislation on the RTI. In persuasion of this, The National Democratic Alliance
introduced the Freedom of Information Bill, of 2000 in the parliament. After two
years of pendency, the bill was successfully passed by the Parliament on 4th
December 2002, and on 6th January 2003, it received the consent of the
Before the enactment of Central law on RTI, many states enacted their own RTI
Acts, these states were Goa (1977), Tamil Nadu (1977), Rajasthan (2000),
Maharashtra (2000), Delhi (2001), and Karnataka (2000).
United Progressive Alliance Govt. in 2004 appointed a National Advisory Council
to monitor government schemes' implementation and advise the government on
policy and law. This NAC recommended some changes to the RTI Act of 2002. And
accordingly, it was put on the table of the Parliament and then the RTI Act, of
2005 was passed with 150th Amendment.
The Official Secrets Act, 1923; An Overview
The Official Secrets Act of 1923, is adopted from England's Official Secrets Act
of 1911, which grants the government absolute privilege over the disclosure of
information and official records. The enactment was passed to stifle Indian
nationalist sentiment by limiting the influence of the influential newspapers
that had just appeared and were raising political awareness among the populace.
The Indian Official Secrets Act 1923 was extended to all matters of "secrecy"
and "confidentiality" in governance in the country.
This Act broadly deals with two aspects:
- Spying or espionage, covered under Section 3 i.e., Secret information
can be any official code, password, sketch, plan, model, article, note,
document, or information.
Spying is a clandestine action that includes things like approaching or watching
over any forbidden place and creating any model, sketch, or note pertaining to
the things discovered with the intention of passing them on to the enemy.
- disclosure of other secret information of the government, under Section
5 i.e., both the person communicating the information and the person
receiving the information can be punished.
There is no clear definition for determining the content of the term 'official
information.' But the word is strictly limited to those aspects of governance,
which for time being need to be kept confidential. Recently, there has been a
trend toward over-classifying papers or information as confidential, which
results in unneeded secrecy in administration and hinders openness in the
Criticism Of The Official Secrets Act, 1923
RTI vs OSA
- The Right to Information (RTI) Act of 2005 and the Official Secrets Act have
frequently been seen as being in direct conflict with one another.
- Section 22 of the RTI Act has overriding effects over other laws, including
the Official Secrets Act. Therefore, the RTI Act shall take precedence over any
contradictions with regard to the Official Secrets Act regarding the disclosure
- However, Sections 8 and 9 of the RTI Act permit the government to withhold
information. In practice, a document can be kept out of the reach of the RTI Act
if the government designates it as secret under the Official Secrets Act.
- The Official Secrets Act, of 1923, was created with the intention of
limiting access to papers and information to the government in order to
maintain secrets and confidentiality. This is in direct opposition to
democracy in the nation, where everyone has a right to full disclosure of
all facts pertaining to governmental operations. The law also contravenes
Article 19(1) of the Indian Constitution, which guarantees everyone the
right to freedom of speech and expression.
The Right to Information Act 2005 provides information to the general public,
but there are many situations where public authority holds extremely sensitive
information which cannot be shared because it can hamper the sovereignty and
dignity of the country. Sovereignty is the supreme power; there may be a
situation where the information is related to the supreme authority of India
which should be kept confidential and if not kept confidential it can harm the
sovereignty of the country.
Section 3 of the Official Secrets Act, just tells the form of secrets it doesn't
tell what is considered a secret. This Act does not say what a secret document
is. It is at the discretion of the government or government official concerned
to decide what is considered to be Secret and what falls under the ambit of a
secret document to be charged under OSA.
The Official Secrets Act 1923, does not
provide the government any authority to categorize the materials. Only a
Ministry of Home Affairs executive order known as the Manual of Departmental
Security Instruction (MODSI) lays out processes for the categorization of
specific documents, which cannot be released.
Whatever the head of the official in a particular position of hierarchy thinks
so, that becomes a secret. Several officials' have indisputable control over the
arbitrary classification of papers, and they are determined to keep it no matter
what under any circumstances.
In one of the instances, the paradoxical extent of this secrecy can be
explained. Under Article 77 of the Constitution, the President has the power
to make rules for the convenient transaction of the business of the Government
and allocation ministers of the said business.
While exercising this power, the
President framed the Transaction of Business Rules and the Government of India
(Allocation of Business) rules, 1961. Till 1973 it was available to the public
but suddenly, the Government started considering it confidential. It is clear
that the officials intended to cover its defects from the public at large.
However, during the emergency period the Centre through 44th Amendment, 1976,
denied access to the rules of the business to people. But, fortunately, this
44th Amendment was abolished by the Constitution.
Moreover, Section 22 of the Right to Information Act states that its provisions
will be enforced despite any discrepancies with the Official Secrets Act, other
laws, or any instruments that are in force because of other laws.
Here is the problem between both the Act and by using judicial discretion, the
dispute is being resolved. But while seeking the help of the judiciary, there is
more uncertainty about whether or not these documents are subject to judicial
review. In other words, is there a right to withhold records that are in the
favor of the government?
To determine whether a document related to the operations of the State, courts
were not allowed to examine it under common law and were instead limited to
looking at collateral evidence. In the case of Conway vs Rimmer, the
court held that it would inspect the document sought to be withheld if its
disclosure was important for the disposal of a suit and its non-disclosure would
defeat the cause of justice.
Section 123 of the Indian Evidence Act - "No one shall be permitted to give
any evidence derived from unpublished official records relating to any affairs
of State, except with the permission of the officer at the head of the
department concerned, who shall give or withhold such permission as he thinks
Providing the information is totally in the hands of the Head of the department
concerned, therefore it may happen that the head would try to hide his
department's corruption and wrongdoings. In such a case if the RTI is filed then
the government official would deny giving it for the reason that it comes under
the ambit of the Official Secrets Act, of 1923, and it is secret which is
prohibited to provide.
RTI wins the battle; Section 22 of RTI provides for its primacy vis-a-vis the
provision of other laws, including OSA. This gives the RTI Act an overriding
effect, notwithstanding anything inconsistent with the provision of OSA.
OSA wins the war; However, under Sections 8 and 9 of the RTI Act, the government
can refuse information. Effectively, if the government classifies a document as
secret under OSA that document can be kept outside the ambit of the RTI Act.
Comparative Study With Some Other Nations;
Most countries like Hong Kong, Myanmar, The United Kingdom, Malaysia, and
Singapore have a similar Official Secrets Act. And some countries have repealed
this Official Secrets Act i.e., Canada, and New Zealand.
- Hong Kong:
In Hong Kong, sections 12 � 26 of Part III of the Official Secrets Ordinance
deal with unlawful disclosures. This follows the same format as the UK's
Official Secrets Act from 1989. According to the 1995 Code on Access to
Information, the public is free to request information from public agencies,
although the disclosure is prohibited for reasons of security, defense, and
However, this code is fraught with inadequacies such as:
- limited coverage of public organizations;
- inconsistencies among Bureaux /Departments in the application of the
exemptions and lack of a mechanism for reviewing the exemption provisions;
- inadequate proactive disclosure and public promotion.
- United Kingdom:
The Official Secrets Acts 1911-1989, provides the primary
legal defense in the UK against espionage and the unauthorized release of
government information. The first Official Secrets Act was amended in 1889,
which led to the creation of this series of Acts. The Official Secrets Act of
1989 makes a distinction between two categories of government workers; Crown
servants who are currently serving in or have previously served in the security
and intelligence agencies, and government contractors. An unauthorized
revelation pertaining to one of the six areas, such as security, must be deemed
"damaging" for it to be considered a crime for Crown Servants and Government
The Freedom of Information Act of 2000 in the United Kingdom enables the general
public to request information that is available to public entities. However, the
Act includes two different categories of exemptions: Absolute and Qualified.
National security, defense, and other qualified exemptions are all subject to
the Public Interest Test outlined in Section 2 of the Act, which states that in
all the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information.
Section 5 of the Singapore Official Secrets Act, 1935 is
similar to Section 5 of the Indian Official Secrets Act, it enables the person
who is accused of committing the offense described in that section to establish
that the communication of the code word, countersign, password, picture, design,
plan, model, item, note, document, or information to him was against his will.
In the absence of a freedom of information act, all information disclosure is
governed by this law.
In 2001, the Officials Secret Act underwent revision and became the
Security of Information Act. Among other things, the amended Act updates the
espionage restrictions and adds new terminology like "special operational
knowledge" and "persons permanently bound to secrecy."
Conclusion And Suggestions;
The Right to Information Act, of 2005 was enacted with the purpose to provide
information to the citizens of India. Every citizen of India has a right to get
information that is needed but every right has its exemption with it. If there
is no exemption it can lead to problems in the country. Though RTI is a
milestone yet it has issues and challenges in its execution and implementation,
especially in a Democracy like India.
There is only a hairline difference of stake between information and secret, the
former has no stake in national security. It is true that the Official Secrets
Act restricts freedom and infringes on citizens' fundamental rights.
The RTI Act of 2005 aims to achieve a balance between the public interest and
the official secret, however, there is still a problem because the word
"secrecy" is not defined, and "information" is defined broadly in the OSA of
1923. The OSA of 1923 is thus superseded by the RTI Act of 2005, but the issue
still exists because the Government of India has insisted on maintaining it
despite its numerous flaws and dubious justifications, despite the
recommendations of the various commission report to repeal it. The OSA, 1923 has
been misused for a long time by the government on numerous instances.
As a result, going forward, it is necessary to make changes in the OSA, 1923, or
incorporate its provisions into a new National Security Act, as suggested by the
Law Commission of India in its 43rd Report (1971), creating a National Security
Act as a significant piece of legislation.
The Secret word in the Official Secrets Act of 1923, shall be defined so it will
allow people to know and understand their boundaries and there will transparency
in the democracy. And providing information about a particular department should
not be at the discretion of the head of the official concerned because he/she
may try to hide his or his department's wrongdoings by keeping it under the
ambit of the Official Secrets Act,1923, or this Official Secrets Act, 1923 shall
be replaced with the appropriate legislation with regards to Official Secrets of
the Government which will provide a clear cut idea about the information; what
kind of information a common man can seek and what he cannot.
- S P Sathe, Right To Information,1st edition, LexisNexis Butterworths,
New Delhi, 2006 at p 3
- The Right to Information Act 2005- Historical Background and Key
- 1975 AIR 865 1975 SCR (3) 333 1975 SCC (4) 428
- N K Acharya, Commentary on The Right to Information Act, 2005, 12th ed,
Asia Law House, Hyderabad 2014 at p 115.
- Universal Declaration of Human Rights, Art 19.
- The Right To Information Act, 2005 available - at https://rti.gov.in/webactrti.htm
- AIR 1988 Raj 2, 1987 (1) WLN 134
- Section 3 of the Official Secrets Act 1923
- Supra Note 5
- Section 5 of the Official Secrets Act 1923
- Navdeep Gupta vs National Archives of India CIC order available at
- Article 77 of the Constitution available at https://indiankanoon.org/doc/990669/
- 44th Amendment Act, 1976, https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-fourth-amendment-act-1978
- Ducan vs Cammell Laird & Co. Ltd. (1942) AC 624
- (1968) AC 910, (1968) 1 All ER 874.
- Section 123 of the Indian Evidence Act, 1872
- Information Note: Freedom of information law in Research Office selected
- Gail Bartlett and Michael Everett, The Official Secrets Acts and
Official Secrecy House of Commons, https://researchbriefings.files.parliament.uk/documents/CBP-7422/CBP-7422.pdf
- Freedom of Information Act, 2000
- Official Secrets Act, 1935, available at https://sso.agc.gov.sg/Act/OSA1935?ProvIds=pr5-
- Government of Canada, Operational Standard for the Security of
Information Act, https://www.tbs-sct.canada.ca/pol/doc-eng.aspx?id=12323
Written By: Prabhat Tomar
- BBA-LLB 3rd Year at Bharti Vidyapeeth New
Law College, Pune
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