RTI Act will prevail if there’s any direct conflict, says CIC
OSA is a colonial law that protects Govt from public. In a democracy, public is Govt... Custody of information held by Govt now with RTI: Habibullah
NEW DELHI, OCTOBER 14: Chief Information Commissioner Wajahat Habibullah has said he is “presuming” the Government is undertaking a review of the 1923 Official Secrets Act (OSA) — Major General (retired) V K Singh is its latest victim, booked for writing on corruption in the RAW — in view of the transparency regime ushered in by the 2005 Right to Information Act.
Speaking to The Indian Express, Habibullah said: “I am very clear that when there is a direct conflict between the OSA and RTI Act, it is the RTI which prevails. The OSA cannot be used in a manner in which it is inconsistent with provisions of the RTI Act.”
“The OSA is a colonial law that protects the Government from the public. In a democracy, the public is the Government. Earlier, OSA was the guiding principle in terms of custody of information held by the Government. Now custody of information held by the Government has been given to the RTI Act,” he said.
According to Habibullah, even on the question of supplying information or documents marked “secret” (thereby, bringing it under OSA), the competent authority or information officer could use discretionary powers to disclose details. This, he said, was relevant, for instance, to Section 8 (j) of the RTI where a Central Public Information Officer can disclose personal information that has been sought provided “public interest in disclosure outweighs the harm to the protected interests.”
As per provisions of Section 8 (d) and (e) of the RTI, in case the RTI request pertains to commercial information or information to a person in his fiduciary relationship, the competent authority, if convinced that “larger public interest” is served, may part with it. The “competent authority”, Habibullah said, is the Department of Personnel and Training which holds administrative supervision of the RTI.
“Even documents marked secret or confidential, which would normally attract provisions of the OSA, can be disclosed since the discretionary provision is there in the RTI Act. And if these requests are turned down, the applicant can always appeal to the CIC and argue about the public interest served. With such RTI provisions, the relevance of OSA has become very limited,” he said. His comments are significant given the fact that the Second Administrative Reforms Commission has recommended scrapping of the OSA. The Ministry of Home Affairs is examining the recommendation.