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Media and Executive: Official Secrets Act And Right to Information Act 2005

The Executive in Indian Democracy is shielded by a special power to keep the information secret under the Official Secrets Act. Though the Constitution speaks about freedom of speech and expression, it provides a form of the oath of secrecy imposing an obligation on the constitutional office holders not to reveal information which they come to know during the course of official functioning. The public servants and officers are under a constitutional and contractual obligation to keep administrative affairs as secret, even without taking the aid of Official Secrets Act.

The Official Secrets Act

The Official Secrets Act of 1923, a colonial relic readily adopted by the new political and bureaucratic class of independent India, clearly comes out as the main culprit in setting the tone for the culture of secrecy in the country.

Experience has verified the fears of one of India's foremost statesmen and Jurists when he said in the Central Legislative Assembly:

Your provisions are so wide that you will have no difficulty whatever in running in anybody who peeps into an office for some, it may be entirely innocent enquiry as to when there is going to be the next meeting of the Assembly or whether a certain report on the census of India has come out and what is the population of India recorded in that period.

The Official Secrets Act, 1923 is a replica of the original British Official Secrets Act. While the latter has been watered down to a great extent, the latter has been retained almost in its original form, with minor amendments in 1967. The catch all Section 5 of the OSA is seen to be responsible for most of the state responses in clamping down on all sorts of information, even to the extent of curtailing people's fundamental rights.

A case in point often quoted is the use of the Act in the Narmada Valley to prevent activists and journalists from going there. The cumulative effect of the wide Sections 3 and 5 of the OSA is to choke the flow of information, howsoever innocuous.

The relevant sections of the Official Secrets Act, 1923 read as under:

Penalties for spying
Section 3 (1) If any person for any purpose prejudicial to the safety or interest of the state:
  1. Approaches, inspects, passes over or is in the vicinity of, or enters any prohibited place; or
  2. Makes any sketch, plan, model, or note which is calculated to be or or might be or is intended to be, directly or indirectly, useful to an enemy; or
  3. Obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or 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 relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the state or friendly relations with foreign states;

He shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defense, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the navel, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years.

Wrongful communication, etc., of information

5(1) If any person having in his possession or control any secret official code or password or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or related to anything in such a place, or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the state or friendly relations with foreign states or which has been entrusted in confidence to him by any person holding office under government, or which he has obtained or to which he has had access owing to his position as a person who holds or has held office under Government, or as a person
who holds or who has held a contract made on behalf of Government, or as a person who is or has been employed under a person who holds or has held such an office or contract,
  1. willfully communicates the code or password or any sketch, plan, model, article, note, document or information to any person other than the to whom he is authorized to communicate it, or a court of justice or a person to whom it is, in the interest of the State, his duty to communicate it; or
  2. uses the information in his possession for the benefit of any foreign power or in any manner prejudicial to the safety of the state; or
  3. retains the sketch, plan, model, article, note, document or information in his possession or control when he has no right to retain it, or when it is contrary to his duty to retain it, or willfully fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; or
  4. fails to take reasonable care of, or so conducts himself as to endanger the safety of the sketch, plan, model, article, note, document, secret official code or pass word or information;
He shall be guilty of an offence under this section.

(2) If any person voluntarily receives any secret official code or password or any sketch, plan, model, article, note, document or information knowing or having reasonable ground to believe, at the time when he receives it, that the code, password, sketch, plan, model, article, note document, or information is communicated in contravention of this Act, he shall be guilty of an offence under this Section.

(3) If any person having in his possession or control, any sketch, plan, model, article, note, document or information, which relates to munitions of war, communicates it, directly or indirectly, to any foreign power or in any manner prejudicial to the safety or interest of the state, he shall be guilty of an offence under this section.

(4) A person found guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both.

The Right To Information Act, 2005 section 8 exemption of OSA

8. Exemption from disclosure of information:
there shall be no obligation to give any citizen:
  1. Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
  2. information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
  3. information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
  4. information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
  5. information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
  6. information received in confidence from foreign government;
  7. information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
  8. information which would impede the process of investigation or apprehension or prosecution of offenders;
  9. cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
  10. information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
Secrecy of Executive and Problems of Media

Some Judicial Decisions:
It is very difficult for the media to work for disseminating the information amidst so many laws creating iron veils of secrecy.

Media and Secrecy of Jails:
Hussainara Khatoon I-VII54
These series of Hussainara Khatoon cases related to the illegal and prolonged custody of poor under trials in the state of Bihar. In dealing with various aspects of bail, the Supreme Courts stressed the need for free legal aid to the poor and needy who are not either not aware of the procedures or not in a position to afford lawyers, and therefore unable to avail of the constitutional guarantees of legal help and bail. The Court said, that it is the legal obligation of the judge or the magistrate before whom the accused is produced to inform him that if he is unable to engage a lawyer on account of poverty or indigence, he is entitled to free legal aid.

Access to places of custody and prisons
Prabha Dutt Vs. Union of India 55
Media's access to the prisons is within the hands of executive. Administrators of Jails generally resist the media's requests to interview the prisoners on extraneous excuses. The Court held in this case that excepting there being clear evidence that the prisoners had refused to be interviewed; there could be no reason for refusing permission to the media to interview prisoners in death row. The right to acquire information includes the right to access sources of information.

Informing the accused
Accused must have the right to information about his charges. The framing of charges against a person cannot be a secret as to that person. Repeated violations of civil rights by the police and other law enforcement agencies have compelled the courts to give, time and again, directions to the concerned agencies for ensuring transparency in their functioning in order to avoid violations like illegal arrests and detention, torture in custody and the like.

Sheela Barse Vs. State of Maharashtra 56
The Petitioner, a journalist, approached the courts to bring out the condition of women prisoners in jails in the state of Maharashtra. These cases had come to her notice in the course of interviewing women inmates in Bombay Central Jail. The court gave certain directions to the State Government, including that pamphlets on the legal rights of arrested persons, in English, Hindi and Marathi (the regional language of Maharashtra) should be printed in large numbers and circulated as well as affixed in each cell in a police lock up.

Further, the Legal Aid Committee is to be immediately informed of the arrest. There should be surprise visits to the police lock ups by a City Session Judge. The relative or friend of the arrested person should immediately be informed upon the arrest. The magistrate before whom an arrested person is produced should enquire from the arrested person whether he has any complaint of ill treatment or torture in police custody and inform him of his right under the Criminal Procedure Code, to have a medical examination.

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