The Nation: Official Secrets; Information on Demand

India Today, December 7, 1998
Dec 7, 1998

OFFICIAL SECRETS
Information on Demand

A new bill is on the anvil, redefining official secrets and bringing most government data into the public domain.

By Sumit Mitra

Advani and A.B. Vajpayee It is not every day that the home minister and the prime minister jointly decry a piece of legislation. It is even curiouser that the high functionaries jointly denounce a law under which a sensitive investigation is in progress.

The Official Secrets Act (OSA), 1923, should have been banished long ago, when it proved to be a water pistol in the Coomer Narain case in 1985. Last week, as the CBI inquiry into the alleged violation of the Act by V. Balasubramaniam or Balu of Reliance Industry Limited (RIL) appeared stymied by lack of evidence, there was a distinct effort by the Government to play down the OSA. Union Home Minister L.K. Advani announced that the OSA would be scrapped as the country was heading for an era of "transparency and freedom of information". A day later, Prime Minister Atal Bihari Vajpayee echoed Advani's views and wished to see the Act repealed. Their statements came only days after the offices and homes of some top RIL executives, including Balu, were raided by the CBI. The raids were in connection with an accidental discovery from Balu's office by the Delhi Police of some 30 pages of "top secret" documents containing minutes and correspondences of the economic ministries.

However, CBI, to which the case under the OSA got transferred, discovered to its dismay that pressing charges under the Act was easier said than done. Sections 3 and 5 of the Act, under which the case against Balu has been registered, relate to "penalties for spying" and "wrongful communication ... of information" respectively. But the chances of successful prosecution under these sections rest on proving that either the alleged "spying", or the passing on of information thus obtained, was for any purpose "prejudicial to the safety or interests of the State". Section 5 goes on to define culpability only in those areas where the official secret in question is likely to "assist an enemy," or to affect either the "sovereignty or integrity of India" or "friendly relations with foreign states".

In other words, the law is designed to protect internal security in a hostile external environment. That was precisely the milieu in which the mother of the Indian Act, the Official Secrets Act, 1911, of Great Britain, came into force. With the shadow of World War I (1914-18) looming on the horizon, the object of the British law was to check German espionage and counter-espionage on British soil. In the West, after two world wars and a cold war, the laws concerning official secrets have been largely watered down. Most official information is now left in the public domain, only the defence-related matters being kept under wraps.

However, much before the Balu case, the BJP-led Government got the Department of Personnel, which is directly under the charge of the prime minister, to draft a Freedom of Information Bill. It proposes to replace the OSA chiefly by amending Sections 3 and 5, replacing these by a clause that has a dozen listed subjects on which the public servant concerned is obliged to provide information to the citizen who seeks it. On the other hand, anything not included in the clause will be deemed official secret and will attract the penalties as under the existing OSA.

The bill is claimed by the Government to be an improvement on a similar draft Freedom of Information Bill prepared last year by a committee led by consumer activist H.D. Shourie. The Shourie Committee was formed during the United Front rule under the prime ministership of H.D. Deve Gowda. "The need for a new law based on freedom of information has been felt for a long time," says Shourie. However, while the Shourie draft left the classification of files (Top Secret, Secret, or Confidential) under the charge of designated senior officials -- even clerks are eligible to punch the Top Secret stamp at present -- the new bill is entirely non-discretionary. Under it, "secrecy" is determined by the subject, not the individual judgement of officials.

There is still a difference of opinion on whether there should be a token charge on public information as a disincentive for vexatious demands. Nevertheless, there is unanimity over throwing open vast areas of government-controlled information to the people. For that matter, Balu would, in the future dispensation, not feel the necessity to use his "contacts" to obtain information on psu disinvestment, or some similar matters, as long as it does not encroach on the excluded territory. In the draft bill, the Government's financial secrets, such as budget plans or price-sensitive information, have been firmly delineated. Also excluded are military secrets, matters related to the state's own scientific and technological research and development efforts, subjects dealt by the intelligence wings and sensitive diplomatic strategies.

Unlike the anachronistic OSA, the proposed law will have arms that are long enough to curb the theft of genuine official secrets. The stringent penal provisions of the OSA, with imprisonment terms ranging from three to 14 years, will continue in the new legislation for violation of the redefined official secrets. On the other hand, it will make life easier for the ordinary citizen who has to move from pillar to post for such basic information as the identities of the allottees of, say, a government plot. In the award of government contracts, it will pierce the veil of secrecy that shrouds the tendering process and the post-tender negotiations. The bill could herald a new era of transparency in a closed society where information is guarded by the bureaucracy as zealously as gold in Fort Knox.

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