Now scrap the official secrets act

[karira]

Editorial in Economic Times on 19 January 2008:
Now scrap the official secrets act- Editorials-Opinion-The Economic Times

Now scrap the official secrets act

The reported proposal by an inter-ministerial group to amend the Official Secrets Act (OSA), 1923, in order to harmonise it with the transparency regime set into motion by the RTI Act is welcome. It’s yet another step away from presumption of unaccountability and secrecy to a presumption of openness and transparency in governance.

But what diminishes the proposals of the inter-ministerial group is that they are no more than a frail response to the more radical suggestion of the Second Administrative Reforms Commission to repeal the law and add a chapter containing provisions relating to official secrets to the National Security Act. The point is clearly not that sensitive governmental functioning and decisions, particularly those pertaining to national security and defence matters, become accessible to all and sundry.

The point is to first clearly define what constitutes official secrets and then exempt them from the public domain. And for that the government does not need a special law. The OSA is not what it appears to be: a piece of legislation meant to prevent leakage of information that would endanger the security and sovereignty of India. It’s, instead, a legislative attempt to render governance opaque.

The sweeping generalisations, contained in Section 5 of the Act — an artefact of oppressive colonialism — on what comprises “official secrets� bears that out. Access to official information is a prerequisite of democratic governance as it enables social oversight of delivery of public goods. More important, it reveals the principles and reasons that inform policy-making and empowers people to participate in and determine governance.

The government needs to not only abolish the OSA now, but consolidate the post-RTI transparency regime, by bringing in a ‘duty to publish’ law. That would make it mandatory for all government departments to put all but the most sensitive information in the public domain. This would compel them to take better care of their official records and move towards rigorous archiving. It would also speed up the advent of e-governance in all areas of public life.

[karira]

As reported by Ritu Sarin on expressindia.com on 18 January 2008:
IndianExpress.com :: Secrets Act to be made a little less secretive

Secrets Act to be made a little less secretive

OSA: Prior sanction for prosecution, law to be in tune with RTI: proposed changes

New Delhi, January 17: An inter-ministerial group has proposed that the 1923 Official Secrets Act (OSA) be amended to not only bring it in conformity with the transparency regime ushered in by the Right to Information Act but also ensure that “prior sanction� is obtained from the Home Ministry before prosecution of an OSA accused.

These amendments are being finalised after consultations of an Inter Ministerial Group (IMG) set up by the Home Ministry which includes members from the Law Ministry, the Intelligence Bureau, Central Bureau of Investigation and Delhi Police.

The group is understood to have unanimously decided against repealing the OSA and instead making significant amendments, including to Section 5 of the Act which contains sweeping generalities on what may comprise an “official secret.�

The final amendments will soon be sent by the Home Ministry to the Law Ministry after which they will be routed for Cabinet approval. The thrust of the proposed amendments include:

• Sources said a majority of the recommendations of the H D Shourie Committee of 1997 on definitions to be included in Section 5 of the OSA will be included in the amendments. The Shourie Committee had criticized the section for its “catch-all� provisions and absence of a clear definition of official secrets.
• Recognising the sweeping changes brought about by the RTI Act, the amended OSA will categorize and classify information which is now available in the public arena as against confidential national secrets.
• From the earlier vague instruction of the Home Department giving an “authorization� for charge-sheeting an OSA accused (objected to by the Supreme Court), an amendment is proposed wherein “prior sanction� will be needed for which an “application of mind� and, thereby, a scrutiny of investigation will be required.
• The amendments will take into account the availability of confidential/secret documents and information now in electronic format thanks to the use of computers and internet.

Several procedural and technical amendments are also proposed, especially in view of the difficulties in investigations highlighted by officials of the CBI and Delhi Police. For instance, OSA provisions will be made compatible with amendments made over the years to the Criminal Procedure Code.

The Second Administrative Reforms Commission, headed by M Veerappa Moily, had made a strong case for a repeal of the OSA and it being “substituted by a chapter in the National Security Act, containing provisions relating to official secrets.�

[karira]

Editorial on expressindia.com posted on 19 January 2008:
IndianExpress.com :: No half-measures

No half-measures

Don’t shush the citizens, off with the Official Secrets Act

The Indian Express

: The past is a different country. In 1923, when the British state’s interests were patently not the same as those of the Indian people, the Official Secrets Act was the perfect piece of legislation. But today, this relic of an imperial regime can still be wielded against the people, existing incongruously with the progressive Right to Information movement and the Internet, which has dramatically flung open access to previously hidden data. The Second Administrative Reforms Commission had suggested scrapping the OSA altogether, but the government’s inter-ministerial group wants to settle for an amendment. Among other improvements, they propose tightening and clarifying what constitutes an official secret, a ‘prior sanction’ from the Home Ministry for OSA accusations and greater scrutiny of such investigations.

The misuse of the OSA came up as a glaring issue when Iftikar Gilani was arrested for possession of ‘classified’ documents about the deployment of troops, and let off after it was revealed this data was available to anyone on the Internet. Since then, the anti-OSA chorus has grown louder, and the indiscriminate use of the Act has somewhat lessened. Recently, Major General (retd) V.K. Singh was booked under the OSA for giving away too much information about the Research and Intelligence Wing. The conflicting tugs of state secrecy and public accountability plague every country, but we need a different way to deal with it. As the Administrative Reforms Commission suggested, safeguards for security should be built into a separate consolidated National Security Act.

Unfortunately, the Official Secrets Act has left a deep imprint on the equation between the state and the citizen, and government institutions are used to operating as a closed, intimidating system. Even the right to information (RTI) legislation remains a half-truth as long as the system retains its right to tell only what it wants to tell. While it makes sense to withhold sensitive information related to security, foreign policy, defence, law enforcement, etc, these should be case-specific exemptions instead of being categorically placed out of the public domain. And it must be patently clear that disclosure would harm public interest, rather than merely embarrass the authority concerned.

[karira]

As reported by Anirban Das Mahapatra on telegraphindia.com on 12 March 2008:
The Telegraph - Calcutta (Kolkata) | Opinion | Out of sync with the times

OUT OF SYNC WITH THE TIMES

Barely days after his book India’s External Intelligence: Secrets of the Research and Analysis Wing was published last year, V.K. Singh was in for the shock of his life. A retired army officer and former RAW staffer, Singh woke up on September 21 to a CBI raid, when sleuths barged into his Delhi home to confiscate his computer, passport, diaries and two files of research material. A few days later, Singh was produced in court and charged under the Official Secrets Act (OSA) for having supposedly revealed in his book critical secrets that could potentially harm national security.

“They didn’t even care to define what the secrets were,� says Singh, who sought anticipatory bail in the case, which drags on even today.

“Surprisingly, during the hearing, CBI said they hadn’t read the book, so they couldn’t tell the court exactly what information I had given away. Mere hypothesis was enough to land me in trouble,� he laughs.

While Singh didn’t have to go to jail courtesy the bail, others have not been as lucky. In 2002, Delhi-based journalist Iftikhar Gilani was arrested under the OSA for allegedly possessing confidential information about deployment of Indian troops in Kashmir. He was imprisoned for seven months, and was acquitted only after it was proved in court that the documents were obsolete and freely available on the Internet. In 1988, B.K. Subbarao, a scientist monitoring India’s nuclear submarine project, was arrested for possession of his thesis and was put away in jail for 20 months. The list of so-called offenders under the OSA just rolls on and on.

As these instances indicate, several arrests made under the OSA are indeed baseless, uncorroborated and whimsical. “It’s one of the draconian laws to exist within Indian legislation today, and the sad truth is that no one seems to be doing anything about it,� says Delhi-based advocate and Gilani’s counsel V.K. Ohri.

Drafted in 1923, the OSA was essentially implemented to render British governance opaque and unaccountable to commoners, apart from silencing any form of dissent by freedom fighters. It empowered the government to crack down on any person suspected of espionage or passing on information or “secrets� that could prove hazardous to the system of governance. Going by its words, when someone is arrested “it shall not be necessary to show that the accused person was guilty of any particular act�. The maximum punishment that can be handed out in such cases is a jail term of 14 years.

“The problem, however, is that while the Act seeks to safeguard sensitive information, it doesn’t lay down a concrete definition of ‘secrets’,� says Ohri. “Hence anything can be passed off by the government as a secret, as innocent people are rounded up for no apparent fault,� he says.

From possession of maps (in the age of Google Earth) to documents already available in the public domain — the reasons for which people are arrested are countless. Critics of the OSA in legal circles say that it gives those in the government a chance to abuse the law to harass others, if not to pass the buck for any serious lapse. “I believe someone settled scores by framing me,� says Singh. “After all, my book revealed nothing about the RAW that wasn’t known already.�

But if these are indeed the problems with the OSA, why are no steps being taken to rectify them? Well, experts point out that there have been attempts in recent times to set the law right. After the UPA government came to power, an Administrative Reforms Commission (ARC) was set up to review — among other laws — the OSA. In its report dated June 2006, the ARC had recommended that the OSA “should be repealed, and substituted by a chapter in the National Security Act, containing provisions related to official secrets�.

Not much, however, has happened since then. “We have submitted our report to the government, and it is up to them to take up the issue,� says an ARC official, declining to comment any further. Further to the ARC report, an inter-ministerial committee did suggest amending the Act, a recommendation far milder than the ARC’s. But no substantial progress has been made in that direction since and critics are not smiling. “The very fact that the government decided to amend the Act rather than repeal it proves that they aren’t interested in doing away with it altogether,� says Ohri.

What makes things worse after 2005, moreover, is the contradiction that the OSA poses in context to the Right to Information (RTI) Act, which is aimed at making governance more transparent. While the ARC report mentions that the RTI includes a clause which guarantees its efficiency “notwithstanding anything inconsistent contained in the Official Secrets Act�, it maintains that the OSA, along with other rules, “may impinge on the regime of freedom of information as they historically nurtured a culture of secrecy and non-disclosure"

Malay Dhar, former joint director of the Intelligence Bureau, an organisation that has more secrets to guard than most others in the country, agrees. “The state will always have secrets to keep, but one needs to realise that communication channels, technology and the times in general have changed and some things don’t make sense in today’s context anymore,� says Dhar. “What is needed today is a concrete definition of the word ‘secret’, followed by deciding exactly what qualifies as a secret and what doesn’t. That way, a perfect balance could be struck between the two laws,� he adds.

Whether or not the lawmakers go on to share Dhar’s view, however, is still a secret.

[sngupta]

Really Karira ji you are doing what God expect from human being. Secrecy act may only made by criminals. Secrecy is try of some people to be controller of society. On making system transparent and accountable we will feel the world as heaven. The Govt must present new enactment in support of transparency and accountability and if any public servant violate the provisions of transparency and accountability he may be retired from Govt services. The whole working of any Govt office must be disclosed.

[wagh7]

karira sir,

Hatsoff to you. You are doing an excellent job.

rakatkam.

[karira]

sngupta & rakatkam,

These are not my original writings.
I have just posted them here.
Credit to the original author.

[wagh7]

Karira sir,

Definately the credit should go to original author, but collecting the posts and bringing the posts on this site is also a major efforts and helpful to many viewers and RTI Activits who visit this site.

once again thank to you karira sir,

rakatkam.

[karira]

Editorial in The Indian Express in indianexpress.com on 11 April 2008:
IndianExpress.com :: Too much information?

Too much information?

The oppressive Official Secrets Act refuses to go away

A little sunlight is the best disinfectant.” That overused piece of wisdom, formulated by American Supreme Court Justice Louis Brandeis, is something most countries hold as self-evident by now. But India, for all its vaunted tradition of citizen freedom, is no better than a shadowy tinpot republic as long as it refuses to relinquish the obsolete Official Secrets Act (OSA).

Now the CBI plans to charge Major General (retd) V.K. Singh under the OSA for giving away “top-secret” information in a recent book about the Research and Analysis Wing (RAW), and endangering the country, waving away Singh’s claim that his revelations were intended to lay bare the corrupt dealings within the agency. Whatever the facts of the matter, the OSA itself is too powerful and all-encompassing a category — it can be used to prosecute Singh, just as it can be directed at someone for supposedly possessing classified information, even though this information is available to anyone who can access the internet. It can just as easily be used to harass ordinary citizens who, for whatever reason, are inconvenient to “the authorities”. Expanding state secrecy naturally directs suspicion at the government.

Having other legal avenues is precisely the point — there must be other ways to tackle breaches in sensitive matters affecting national security, foreign policy and law-enforcement, without resorting to the conceptually skewed OSA. Wherever possible, the rationale for placing anything out of the public domain must be made clear; and this should be case-by-case rather than summarily placing entire categories out of bounds. Even though the government’s inter-ministerial group recently suggested narrowing the ambit of the OSA and allowing greater scrutiny of such investigations, vetting by the home ministry, etc, the fact remains that an “official secrets” mentality is a colonial hand-me-down, patently at odds with a free, transparent and accountable democracy where the government and those it governs are on the same side. The Right to Information Act, possibly the crowning achievement of this government, will never be truly effective as long as the OSA exists and can be wielded against citizens who know too much.

[opsharma]

There is no doubt that OSA1923 has been misused blatantly, more often than not and ,many a times,allegedly to settle scores.Also ,it is generally perceived that OSA is sometimes used to cover up organisational failures.
I firmly believe that OSA 1923,in its present draconian form is obsolete,archaic,and obnoxious,and definitely open to unchecked large scale misuse.
Now,should India have an Official Secret Act at all?
Answer is Emphatic YES.
There are a number of very sensitive issues involved,when dealing with strategic interests of a nation,be it geographical,physical,social,political ,diplomatic or economical .
What needs to be done is enactment of an absolutely afresh Secret Act ,incorporating HD Shourie's recommendatins in toto ,addessing national sovereignty and security concerns in today's transparent,hightech environment.
In an internet and google earth age,what was secret in licence raj is trash today.