Interplay between the Right to Information and Protection of Official Secrets

Aadesh R

‘The biggest achievement of RTI is that it tells the most powerful people that they are not beyond the reach of a common man’ – Simpreet Singh (RTI Activist).

The Official Secrets Act, 1923 (OSA) is an anti-espionage legislation that had been enacted during the British rule in India, to safeguard classified information regarding the working of the Nation. In 2005, the Right to Information Act,2005 was enacted to bring to light the working and administration of the Government. The dispute between the two became the talk of the town after the Rafale – Jet controversy.

Classification of Official Secrets

1. Top Secret – Leakage of such information to the public can cause ‘exceptionally grave damage’ and hence it is kept in the dark.

2. Secret – Information on the social security of the country which would facilitate ‘serious damage’ if divulged to the public.

3. Confidential – Revealing such information can result in ‘threat/ damage’ to public interest and the Government in general.

4. Restricted – Information that is communicated only for the purpose of official discourse or usage and is not to be disclosed without valid authorization.

RTI as a regulatory check on the OSA

The Government of India has absolute discretion in determining the purview of the term ‘official secrets’, as the Act prescribes no manner of ascertaining this term. The RTI Act, 2005 therefore serves as a check on this arbitrary power.

Which legislation has an overriding impact in case of conflict between the two?

Law states that information should be disclosed to the public if it favours public interest or when the benefits of disclosure ‘outweigh’ the rights that may be infringed, upon revealing such information. Since this provision is under the RTI Act, it is often presumed that it is the more powerful of the two. However, ‘public interest’ is the more powerful determining factor that decides disputes between these two Acts.

Whistleblowers Protection Act, 2014

This Act provides a framework for receiving complaints on corruption, misuse of power, etc. against a public servant and constitutes an inquiry into the impugned issue. Section 11 safeguards the anonymity of the whistleblower. Punishments prescribed (Section 16) are fines (extending to Rs. 50,000) and/or imprisonment (extending to 3 years).