Bureaucrazy

How to deal with so-called 8216;official secrets8217; is perhaps the most contentious issue in the implementation of the RTI Act. In a democracy, people are sovereign and the elected government and its functionaries are public servants accountable to the citizens. Transparency should therefore pervade all aspects of governance. At the same time, it has to be recognised that public interest is best served if certain sensitive matters affecting national security are kept out of the public domain. The RTA Act treads this fine balance 8212; for example, by giving people the unhindered right to know the decisions of the cabinet and the reasons for these, but not access to the actual discussions that may occur in the cabinet. The act explicitly recognises these confidentiality requirements in matters of state and Section 8 of the act exempts all such matters from disclosure.

In an unequal and elitist society where public officials wield enormous powers, the OSA has engendered a climate of secrecy wherein confidentiality becomes the norm and disclosure the exception. Section 5 of the OSA was intended to deal with potential breaches of national security but the clumsy wording of the section has converted it into an omnibus provision reducing practically every official data and transaction into a confidential matter. This tendency was accentuated by the Civil Service Conduct Rules 1964, which prohibit communication of an official document to anyone without authorisation.

The RTI Act has a clause: 8220;Sec. 82: Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section 1, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.8221; This provision overrides the OSA and allows disclosure of information even where there is a clash with the exemption provisions of Sec. 81 of the RTI Act. In other words, the OSA would not come in the way of disclosure of information if it is otherwise permissible under the RTI Act. Nonetheless, the OSA along with other rules and instructions still creates a climate of secrecy and paranoia in respect of all official matters even where these may have nothing to do with national security, which is the rationale for the OSA.

Section 5 of the OSA lays down that any person having information about a prohibited place, or such information which may help an enemy state, or which has been entrusted to him in confidence, or which he has obtained owing to his official position, commits an offence if she communicates it to an unauthorised person, uses it in a manner prejudicial to the interests of the state, retains it when she has no right to do so, or fails to take reasonable care of such information. Any kind of information is covered by this section if it is classified as secret. The word 8216;secret8217; and the phrase 8216;official secrets8217; have not been defined in the act. Therefore, public servants have the discretion to classify anything as secret.

The Supreme Court in Sama Alana Abdulla vs State of Gujarat 1996 held: a that the word 8216;secret8217; in clause c of sub-section 1 of Section 3 qualified official code or password and not any sketch, plan, model, article or note or other document or information and b when the accused was found in conscious possession of the material map in that case and no plausible explanation has been given for its possession, it has to be presumed as required by Section 32 of the act that the same was obtained or collected by the appellant for a purpose prejudicial to the safety or interests of the state.

This implies that a sketch, plan, model, article, note or document need not necessarily be secret in order to be covered by the act, provided it is classified as an official secret. Consequently, even information which does not have a bearing on national security is not to be disclosed if the public servant obtained or has access to it by virtue of holding office. Such overly harsh and sweeping provisions help create a Kafkaesque atmosphere of secrecy about even trifling matters as shown by the travails of the former RAW officer whose criticism of the procurement practices in his former organisation have been taken to be a breach of the OSA. His revelations may be considered as whistle-blowing by some while his former colleagues may consider them to be more a case of washing dirty linen in public. But how such allegations can be considered a breach of national security is difficult to fathom.

The writer, a former chief minister of Karnataka, is chairman of the Second Administrative Reforms Commission