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 2005.

"Secrecy, being an instrument of conspiracy, ought never to be the system of regular government." -- Jeremy Bentham, 1839

Introduction;
"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[2].

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 boundaries[3].

In the case of Raj Narain vs State of Uttar Pradesh[4], 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[5]. 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"[6]. 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 information.

The following elements are typically found in national RTI laws[7]:

• A right of an individual, organization, or legal entity to demand information from public bodies, without having to show a legal interest in that information
• A duty of the relevant body to respond and provide the information. This includes mechanisms for handling requests and time limits for responding to requests.
• 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 of information.
• 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 common man.

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[8].

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.[9] 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 2000.

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 President.

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:

1. 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[10].
   
   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[11].
    
2. 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[12].

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 governance system.

Criticism Of The Official Secrets Act, 1923

• 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 of information.
• 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.

RTI vs OSA
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)[13] lays out processes for the categorization of specific documents, which cannot be released[14].

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[15], 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[16].

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[17]. In the case of Conway vs Rimmer[18], 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[19] - "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 fit".

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 other considerations.
  
  However, this code is fraught with inadequacies such as:
  
  1. limited coverage of public organizations;
  2. inconsistencies among Bureaux /Departments in the application of the exemptions and lack of a mechanism for reviewing the exemption provisions; and
  3. inadequate proactive disclosure and public promotion[20].
      
• 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 contractors[21].
  
  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[22]. 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.
   
• Singapore:
  Section 5 of the Singapore Official Secrets Act, 1935[23] 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.
   
• Canada:
  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[24]."

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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.

End-Notes:

1. *
2. S P Sathe, Right To Information,1st edition, LexisNexis Butterworths, New Delhi, 2006 at p 3
3. The Right to Information Act 2005- Historical Background and Key Objectives
   https://www.adda247.com/upsc-exam/the-right-to-information-act-2005-historical-background-and-key-objectives/#The_Right_to_Information_Act_-_Historical_Background
4. 1975 AIR 865 1975 SCR (3) 333 1975 SCC (4) 428
5. N K Acharya, Commentary on The Right to Information Act, 2005, 12th ed, Asia Law House, Hyderabad 2014 at p 115.
6. Universal Declaration of Human Rights, Art 19.
7. The Right To Information Act, 2005 available - at https://rti.gov.in/webactrti.htm
8. https://en.wikipedia.org/wiki/Freedom_of_information_laws_by_country
9. AIR 1988 Raj 2, 1987 (1) WLN 134
10. Section 3 of the Official Secrets Act 1923
11. Supra Note 5
12. Section 5 of the Official Secrets Act 1923
13. Navdeep Gupta vs National Archives of India CIC order available at https://indiankanoon.org/doc/79503354/
14. https://www.moneylife.in/article/how-exactly-is-top-secret-secret-confidential-and-restricted-defined/39033.html
15. Article 77 of the Constitution available at https://indiankanoon.org/doc/990669/
16. 44th Amendment Act, 1976, https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-fourth-amendment-act-1978
17. Ducan vs Cammell Laird & Co. Ltd. (1942) AC 624
18. (1968) AC 910, (1968) 1 All ER 874.
19. Section 123 of the Indian Evidence Act, 1872
20. Information Note: Freedom of information law in Research Office selected places https://www.legco.gov.hk/research-publications/english/1718in10-freedom-of-information-law-in-selected-places-20180525-e.pdf
21. 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
22. Freedom of Information Act, 2000
23. Official Secrets Act, 1935, available at https://sso.agc.gov.sg/Act/OSA1935?ProvIds=pr5-
24. 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