A Short Note on Right to Information vis-à-vis National Security in India

The Official Secrets Act, 1923

The origins of Official Secrets Act, 1923 can be traced back to the colonial rule of the British in India. The Indian Official Secrets Act (Act XIV) of 1889 was the first version of national security legislation. This was implemented with the primary goal of silencing the voices of a slew of new publications that had sprung up in a variety of languages, all of which were criticizing the British Raj’s policies, raising political awareness, and facing police harassment and prison sentences.

During Lord Curzon’s tenure as the Viceroy of India, it was revised and made stricter in the form of The Indian Official Secrets Act, 1904.[1] A revised version was announced in 1923. The Indian Official Secrets Act (Act No. XIX of 1923) was expanded to cover all aspects of government secrecy and confidentiality.

It broadly covers two aspects: Section 3 of the Act deals with spying or espionage[2], and Section 5 deals with the revealing of other government secrets. Any official code, password, sketch, plan, model, article, note, document, or information might be classified as secret information. Both the person who communicates the information and the person who receives it can be penalized under Section 5.[3]

Identification of Public Interest and National Security

Under the present Act, there are no specified criteria for classifying information. The Indian Ministry of Home Affairs has refused to provide any fixed pattern for the classification of official information indicating the reasons for a social and political threat to the nation, despite repeated requests from human rights activists and groups.

Furthermore, it also does not define the term “Official Secrets”. As a result, public authorities and the Indian government have complete discretion and power to declare any traditional information as “secret” and so exempt it from the scope of the Right to Information Act, 2005.[4]

Departmental Security Instructions were made in 1994 to classify government information with the Ministry of Home Affairs’ prior permission. The Central Secretariat Manual of Office Procedure[5] specifies how classified information and documents will be handled, however, there are no fixed classification criteria for official material.

The government has given grounds for not disclosing official information and not providing any categorization of official information, including a threat to the nation’s security and privacy, and not disclosing any information owing to records and documents addressing sensitive topics.

If there is a conflict between the two laws, the public interest will prevail, according to the requirements of the Right to Information Act of 2005. Section 8(2) states that “Notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, nor any exemption is allowed in the provisions of Section 8(1) of the RTI Act, a public authority has a right and is allowed to access the information and documents, if done for the public interest in large or if the disclosure outweighs the harm to the protected individual.”[6]

In the Rafaele Deal Case (Yashwant Sinha v. CBI[7]), the Supreme Court of India ruled that leaked documents related to the Rafale arms deal were admissible for the Court’s consideration. The Indian Central Bureau of Investigation (CBI) filed a preliminary objection to a review of the arms deal on the grounds that the documents used in the investigation were stolen and thus could not be used in a court of law.

In dismissing the objection, the three-judge bench reasoned that there was no violation of the Official Secrets Act of 1923 or any other statute that prohibited presenting secret documents to a Court of Law. The Court noted that, notwithstanding anything in the Official Secrets Act, 1923 and the exemptions permissible under sub­section (1) of Section 8, a public authority would be justified in allowing access to information if, after proper balancing, the public interest in disclosure outweighs the harm sought to be protected.

We don’t see how the protection provided by Section 8(1) (a) of the Act will serve the public interest when the materials in question are already in the public domain. There has been a conflict between Right to Information, 2005 and Official Secrets Act, 1923 but this case observed that RTI overrides the latter.

Chief Justice Gogoi stated, with approval, that there was no issue regarding the publication of the three documents in ‘The Hindu’ newspaper. Thus, what is already available in the public domain and then published by a newspaper will not fall prey to Section 123 of the Indian Evidence Act which bars the publication of unpublished official records.

The Court in this case went on to consider whether “assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court?”[8]

The Court determined that improper procurement did not preclude consideration, relying on Pooran Mal v. Director of Inspection (Investigation) of Income Tax, New Delhi[9]. In this case, the Supreme Court held that the “test of admissibility of evidence lies in its relevancy unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.”[10]

Finding an Equilibrium

The conditions of the endeavours to balance public interest and national security are very crucial in protecting the sovereignty of India. News reporters frequently rely on access to confidential material in order to succeed. This access grows as a result of the formation of relationships and the fostering of mutual trust.

Reporters usually have a valid reason for being where they are, and they are rarely imprisoned or executed because of the threat they offer to an unreceptive political leader. As a result, journalists are particularly appealing to intelligence personnel who want to tap into this freedom of mobility. As a result, journalists frequently seek inside information, leads, and analysis that can only be provided by intelligence officials.

A proper check or law can be passed in order to look over the work that the media performs because at times these acts of media lead to trouble for the nation in a whole. But this should not take up a form of surveillance on the media.[11]

Furthermore, the RTI Act poses a problem because it contains no definition of the term “public interest” and no court-ordered interpretation of it. The secrecy and confidentiality of government operations should be constrained by keeping them time-limited.

In a technology-driven society, espionage crimes have come up like cyber war, cyber-espionage, hacktivism, or cyberterrorism, they all have an impact on national security, necessitating some form of national cyber defense too. This disrupts national strategy and encourages a cyberwar arms race, resulting in increased insecurity and instability for everybody.

Even as we implement stronger cyber-law enforcement laws, we need to tone down our cyber-war rhetoric because territorially physical wars have been converted into cyberspace as well.[12]

It is recommended that with regard to India’s position that Section 5(1) of the Official Secrets Act, 1923 be amended to indicate that the punitive elements of the section should only apply to infractions damaging the national interest and not mere political agendas.

The information dissemination must be the rule rather than the exception and keeping it secret from the broader public must be the exception. The acts that constitute grave incidence of threat to national security should be condemned by municipal laws through appropriate penalties. There must be enlistment of issues and concerns that can be prima facie identified as national security matters keeping a dynamic subjectivity of each case under judicial parlance.

Endnotes 

[1] Official  Secrets Act  1923 available at:  https://prepp.in/news/e-492-official-secrets-act-1923-internal-security-notes (last visited on 20 September, 2022).

[2] The Official Secrets Act 1923 (Act 19 of 1923), s. 3.

[3] Id., s. 5.

[4] Harsh Dabas, “Keeping In Black & White: An Analysis Of The Official Secrets Act, 1923” available at:   https://www.livelaw.in/columns/official-secrets-act-espionage-rti-act-rafale-dispute-205403   (last visited on 20 September, 2022).

[5] https://darpg.gov.in/sites/default/files/CSMOP_0_0.pdf

[6] The Right to Information Act, 2005 (Act 22 of 2005), s. 8(2).

[7](2019) 6 SCC 1.

[8] Ibid.

[9] (1974) 1 S.C.C. 345.

[10] Ibid.

[11] https://www.ohchr.org/en/stories/2022/05/digital-surveillance-treats-journalists-criminals

[12] John Leydon, “Indian cyber-espionage activity rising amid growing rivalry with China, Pakistan” available at: https://portswigger.net/daily-swig/indian-cyber-espionage-activity-rising-amid-growing-rivalry-with-china-pakistan (last visited on 20 September, 2022).

This article has been submitted by Vanshika Sharma and Tejomay Mishra, advocates based out of Delhi.