1

UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY, CHANDIGARH

A project report submitted as a part of curriculum of B.com LL.B(Hons.) inthe

subject of ADMINISTRATIVE LAW

GOVERNMENT PRIVILEGE UNDER OFFICIAL SECRETS

ACT, 1923 AND RIGHT TO INFORMATION ACT, 2005

SUBMITTED TO: SUBMITTED BY:

Mr. Agampreet Singh Ishita Mittal

University Institute of Legal Studies B.Com LL.B (Hons.)

Panjab University Roll No. 358/20

Chandigarh Section-F, 6th Semester

University Institute of Legal Studies

Chandigarh
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ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from many
people and I am extremely fortunate to have got this all along the completion of my project.
Whatever I have done is only due to such guidance and I would never forget to thank them.

I take this opportunity to record deep sense of gratitude to my teacher Mr.Agampreet Singh ,
University Institute of Legal Studies, Panjab University, Chandigarh for her incontestably perfect
unmatched guidance, encouragement, valuable suggestions and efforts made during preparation
of this project and during her lectures which enabled me to complete this project successfully on
the topic –

GOVERNMENT PRIVILEGE UNDER OFFICIAL SECRETS ACT,

1923 AND RIGHT TO INFORMATION ACT, 2005
I owe my regards to entire faculty of University Institute of Legal Studies, Panjab University,
Chandigarh, from where I learnt the basics of Administrative Law along with Socio-Legal
Reasoning and whose informal discussions, intellectual support helped me in the entire
duration of this work.

Ishita Mittal

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TABLE OF CONTENTS
1. Table of Cases…………………………………………….....................4
2. Introduction………………………………………………………………5
3. Government Privilege Under Official Secrets Act, 1923 ……....................6-13
 Background
 Brief Description
 Applicability
 Related Provisions
 Penalty for spying
 Constitutionality of Official secrets Act, 1923
 Landmark Judgements
4. Government Privilege Under Right to Information Act, 2005…………………….14-18
 Introduction
 Need
 Features
 Provisions
5. Official Secrets Act,1923 vs. Right to Information Act, 2005 ……………………19
6. Recent Controversy – Rafael Jets case ……………………………………………..20
7. Conclusion …………………………………………………………………………21
8. Bibliography………………………………………………………………………….22

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Table of Cases
1. Buddhikota Subbarao v State of Maharashtra ( 1989 AIR 2292)

2. UOI v Association for Democratic Reforms( 2002 AIR 2112)

3. Asif Hussain v. State (AIR 2019)

4. State v. Madhuri Gupta (AIR 2018)

5. Sama Alana Abdulla v. the State of Gujarat (1996 AIR 569)

6. SP Gupta vs. Union of India (AIR 1982 SC 149)

7. Rafael Fighters Case (AIR 2019)

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INTRODUCTION
The ‘privilege’ under Section 123 of the Indian Evidence Act is claimed frequently by the
Government to authorise them not to produce its unpublished records in courts. As per this
section, a witness cannot be permitted to give any evidence which is derived from unpublished
records relating to any affairs of state without permission of the officer at the head of department
concerned.

The Official Secrets Act, 1923 covers the Privacy and secrecy of official records of the Central
and State Governments.

• In fact, it is a Privacy protection legislation and it protects the Information Privacy of the
Government records.

• It has created provisions for imposing penalty for spying in order to communicate or
publish secret official codes and acting for any purpose prejudicial to the safety or
interests of the State.

• It has also created penalties for the communications with foreign agents for commission
of offences, wrongful communication of information relating to official secrets, which is
likely to affect the sovereignty and integrity of India and the security of the State as well
as unauthorized use of uniforms, falsification of reports, forgery, personation and false
documents.

• Along with these provisions and others, it has also created penalty for harbouring spies
and made provisions for execution of public from proceedings relating to official secrets.

• As such, it has also created provisions for in camera or private or closed door proceedings
in the cases relating to official secrets.

The Right to Information Act is the latest Act that has codified the ‘freedom of speech and
expression’ guaranteed under the Article 19(1)(a) in terms of right to receive information.
This Act has consolidated all the above listed provisions facilitating access to information in
different legislations. RTI Act has revolutionarily changed the so called law of privilege
where the Government used to hold information as secret as matter of principle and disclosed
exceptionally. Since RTI Act 2005, the rule is disclosure and exception is withholding it.
RTI has overridden the Official Secrets Act, 1923 and all other legislations which
contradict or conflict the RTI Act.

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GOVERNMENT PRIVILEGE UNDER

OFFICIAL SECRETS ACT, 1923
BACKGROUND:
• The Official Secrets Act, OSA in short, has its roots in the British colonial era.

• Its predecessor law, The Indian Official Secrets Act, 1904 was enacted during the time of
Lord Curzon, Viceroy of India from 1899 to 1905.

• It was an amended and more stringent version of The Indian Official Secrets Act (Act
XIV) of 1889, brought in at a time when a large number of powerful newspapers had
emerged in several languages across India.

• Fearless editors opposed the British Government’s policies on a daily basis, building
political consciousness among the people, and facing police crackdowns and prison terms
to uphold their mission and convictions.

• One of the main purposes of the Act was to beak the voice of nationalist publications.

• In April 1923, a newer version of the Official Secrets Act was notified.

• The Indian Official Secrets Act (Act No XIX of 1923) replaced the earlier Act, and was
extended to all matters of secrecy and confidentiality in governance in the country.

Brief Description:
The Official Secrets Act, 1923, deals broadly with the issue of spying and putting the country’s
confidential details at risk of revelation. This act divides secret information into official codes,
passwords, sketch, plan, model, article, document, etc, but it does not define what a “secret”
document is. With time, debates have arisen on whether to review, amend, or repeal. The Law
Commission in 1971, in its report on ‘Offences Against National Security’, observed that
every secret document should not attract the provisions of this Act unless it is of national
emergency. But they didn’t suggest any changes. Where the Second Administrative Reforms
Commission (ARC) wanted to get the Act repealed and included in a part of the National
Security Act. The Official Secrets Act was said to be against the ideals of a transparent
government in a democratic society.

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APPLICABILITY OF ACT:

This law applies to government servants, government officials, citizens of the country, etc.,
charged with spying, unlawful use of public servants’ uniforms, intervening in armed forces,
wrongful communication of information, harbouring spying, etc.
These confidential official documents covered under this act can be in any form under section
5 of the act.

These can have the form of an official code or password, sketch, model, plan, note, article,
document, or information related to or used in a prohibited place.

It deals with spying, espionage, and other threatening activities against its integrity.

This law states activities like spying, wrongful communication of secret information,
unauthorised use of uniforms, falsifying reports, harbouring spies, withholding information,
interference or obstruction with the police or armed forces in prohibited areas as punishable
offences under section 3 of the OSA.

If guilty, a person may get up to 14 years’ imprisonment, a fine, or both.

RELATED PROVISIONS:

It is an act of 1923 which is an anti-espionage law. Under this act, aiding an enemy state or its
agent is strongly condemned. It also prescribes provisions to restrict an individual from entering,
approaching or inspecting a prohibited site or area.

The aiding of the enemy state can get done by communicating a sketch, plan, model, official
secret, official code or password to the enemy state to use the information for the enemy’s
benefit.

This act of 1923 covers the provisions related to the following:

 Section 3 prescribes the acts that constitute an offence under the act and the penalties. This
act gets termed ‘spying‘.
 Section 4 of the act considers communicating information with foreign agents as evidence of
the commission of certain offences.

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 Section 5 of the act defines the wrongful communication of information or the conditions to
consider the communication of information as wrongful communication.
 Unauthorised use of uniforms, falsification of reports, forgery, personation, and false
documents is covered under section 6 of the act and considered an offence with the
punishment of imprisonment extending up to three years or a fine or even both.
 The punishment for interfering with officers of the police or members of the Armed Forces
of Union concerning a prohibited place is also the same in this regard under Section 7. The
interference can be causing delay, misleading such officers, or causing obstruction in the
course of their duty.
 Citizens must provide information to the appropriate police officer of armed forces personnel
regarding the commission of offences under section 3 of the Official Secrets Act or under
section 3, read with section 9 of the act.
 Section 9 of the act describes an attempt to commit an offence, inciting someone to commit a
crime under this act, which is the actual commission of that offence.
 Section 10 of the act prescribes the penalty for knowingly harbouring spies or any such
person who committed an offence under section 3 or section 3, read with section 9 of the act.
 Any court of law does not have the power to take cognizance for the trial of offences
committed under this Act except on the complaint made by an appropriate authority under
the government as per section 13(3) of the act.
 Under section 14 of the act, The court has the power to exclude the public from proceedings
for the offences committed under the act,
The court can also exclude the public upon the presentation of an application by the
prosecution for the presentation of evidence that will be prejudicial to the safety of the state
but,

The sentence should get passed in the presence of public

 According to section 15, If a company commits an offence under this act, the persons
responsible for its management and its business, like a manager, director, secretary, etc., will
be guilty of the offence.
This provision mentioned above is valid only when the person fails to depict that the offence
was committed without his knowledge and exercises all due diligence to prevent the
commission of the offence.

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PENALTY FOR SPYING:

• Section 3 of the Act deals with Penalties for Spying.

• If any person for any purpose prejudicial to the safety or interests of the State—

• (a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited
place; or

• (b) makes any sketch, plan, model, or -note which is calculated to be or might be or is
intended to be, directly or indirectly, useful to an enemy; or

• (c) obtains, collects, records or publishes or communicates to any other person any secret
official code or pass word, or any sketch, plan, model, article or note or other document
or information which is calculated to be or might be or is intended to be, directly or
indirectly, useful to an enemy or which relates to a matter the disclosure of which is
likely to affect the sovereignty and integrity of India, the security of the State or friendly
relations with foreign States;

• he shall be punishable with imprisonment for a term which may extend, where the
offence is committed in relation to any work of defence, arsenal, naval, military or air
force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft
or otherwise in relation to the naval, military or air force affairs of Government or in
relation to any secret official code, to fourteen years and

• in other cases to three years.

Conditions To Be Necessarily Fulfilled To Qualify As An 'Official Secret' Under The

Above Mentioned Categories
• The above-mentioned categories are broad and everything falling within the categories
may not be assured of protection under the Act. Thus, the following considerations have
to be taken into account:
# Public Interest has to be the overriding consideration in determining commission of an
offence under the Act
# Information, which is already within the Public Domain or within Public Knowledge,
cannot be made a basis of prosecution
# In accordance with the object of the Act, disclosure must necessarily be prejudicial to
National Security, Sovereignty and Integrity of the State or Friendly Relations with
Foreign Nations.

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CONSTITUTIONALITY OF OSA:

The Official Secrets Act, 1923 And Article 14 Of The Constitution

The provisions of the Official Secrets Act have been claimed to be too wide, vague and
ambiguous giving rise to arbitrariness and excessive discretionary powers to the Governmental
authorities. An excessive delegation of discretionary powers creates a danger of discrimination,
which is subversive to the Equality Doctrine enshrined in Article 14 of the Constitution. This in
turn has often caused it to be claimed as being inconsistent with the Doctrine of Rule of Law in
this regard which propounds the Equality before the Law and Supremacy or predominance of the
legal spirit as opposed to the influence of arbitrary powers.

However, the constitutional validity of the Official Secrets Act, 1923 with regard to Article 14 of
the Constitution has been challenged before a Divisional Bench of the Bombay High Court
in Buddhikota Subbarao v State of Maharashtra1, which while upholding the validity of the
Statute observed,
"The definition of a word in a definition section may be restrictive or extensive of its ordinary
meaning. But only because it is not defined it will not necessarily mean that the word or
expression is vague or uncertain. That is why in deciding the true scope and effect of the relevant
words in any statutory provision, the context in which the word occurs, the object of the statute,
assume relevance and become material . However, in our view in the very nature of things it is
difficult to define the expression 'secret' which will govern all cases."

The Official Secrets Act, 1923 And Article 19(1)(A) Of The Constitution
"The people of the country have a Right to Know every Public Act, everything that is done in a
public way by public functionaries. The Right to get information in democracy is recognized all
throughout and it is a natural right flowing from the concept of democracy." - UOI v
Association for Democratic Reforms2.
Article 19(1)(a.) of the Constitution guarantees the Right to Freedom of Speech and Expression
to every citizen. The Right to Freedom of Speech and Expression means Right to express one's
convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode
which is of great importance in a democracy because without the Freedom of Speech the appeal
to reason which is the basis of democracy cannot be made. The Freedom of Speech and
Expression further includes the right to acquire and disseminate information . The OSA, 1923 it
is claimed by critics and the Media violates all these rights incorporated within the Freedom of
Speech and Expression by virtue of the restrictions it puts on the Freedom of Information.

The Official Secrets Act, 1923 And Article 21 of The Constitution

1
1989 AIR 2292
2
2002 AIR 2112

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Provisions of the Official Secrets Act have also been claimed to be inconsistent with the
provisions of Art 21 of the Constitution ever since the Right to Freedom of Information has been
incorporated with the broad ambit of Article 21 in Reliance Petrochemicals Ltd v Indian
Express Newspaper3 . However, the case of Buddhikota v State of Maharashtra which is a
B'bay HC judgment it has been categorically stated that the provisions of the OSA, 1923 are not
in contravention of Article21.

Commission And Committee Reports On The Constitutionality Of The OSA,

1923
The question of amending the Act has been reviewed by several Commissions and Committees.
Thus it was examined by the Press Laws Inquiry Committee (1948), the Press Commission
(1954), the Law Commission (1971) and also by a Study Group appointed by the Central
Government in 1977 and comprising officials from the Cabinet Secretariat and the Ministries of
Home Affairs, Finance and Defence. Except for the Law Commission which suggested some
changes with regard to the punishment under the Act, no other body has suggested any changes .
In fact the Press Commission endorsing the Pro- Secrecy stance of the Press Laws Inquiry
Committee stated "that the necessity of guarding State secrets was not confined to an
Emergency, nor was it practicable to define which confidential information should be published
in the interests of the State. They thought that the Government must be the sole judge in this
matter and they were confident that the popular democratic government in India would utilize
these provisions only in cases of genuine necessity and in the larger interests of the State and the
Public."

The Official Secrets Act 1923 therefore stands unaltered even till this day, its exercise and
interpretation at the mercy of the appropriate Governmental Authority unless there be proper
Judicial Intervention. However, the recent enactment of the new Freedom of Information Act,
2003 it seems to be likely to have a sobering effect on the OSA if at all it does not render it
redundant.

3
1988 SCR Supp. (3) 212

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LANDMARK JUDGEMENTS
 Asif Hussain v. State4 (2019)
In the case of Asif Hussain v. State, the appellant Asif Hussain was identified to be a Pakistani
national living in Kolkata and delivering sensitive information on the Indian Army. Seized
documents were verified and proved that they were for restricted and official purposes. The
appellant was convicted and sentenced to a period of 9 years of imprisonment for being charged
of an offense under Section 3 of the Official Secrets Act, 1923 and another term of four years
with a fine of ₹10,000 for an offense under Section 474 of the IPC. The court had held that the
sentences awarded to the appellant had to work “concurrently and not sequentially.”

 State v. Madhuri Gupta5 (2018)

In the case of State v. Madhuri Gupta, the Second Secretary (Press & Information) at the Indian
High Commission, Islamabad, Madhuri Gupta, was charged for keeping unethical contact with
Pakistani intelligence officials, spying, and delivering sensitive information electronic means.
Emails were found in her name for passing information of certain hydroelectric power projects in
Jammu and Kashmir. She had also passed the information on officers of defense from the
Ministry of External Affairs, High Commission of India and their families putting the country,
country’s security, officers and their families in grave danger. The seized gadgets that were
bought in her name had shown the exchange of email and the contact that she maintained with
several ISI personnel. The court held her for offenses under Section 3, for spying, Section 3
(1)(c), for communicating and exchanging special and confidential information with an enemy,
and Section 120-B of the Indian Penal code, 1860, for being a party to a criminal conspiracy.

Even after requesting for a forbearing punishment, the court had denied her kindness for it was
expected out of her to act more responsibly and respect her high position of trust, but her
wrongdoings had put the whole country in danger. The special judge had absolved her from
being convicted under the first part of Section 3(1)(c) but she was held guilty and sentenced to 3
years in jail.

 Sama Alana Abdulla v. the State of Gujarat6 (1995)

In the case of Sama Alana Abdulla v. the State of Gujarat, while crossing the Indian border, the
accused, Rayna was arrested in 1986. During their interrogation, it was affirmed that they had
been traveling and visiting India for 4 years while meetings would be carried out with the
primary accused, and two other Indian nationals for receiving useful information for the
Pakistani Intelligence. Issuing warrants under Section 11(2) of the Act, the police set out to

4
AIR 2019
5
AIR 2018
6
1996 AIR 569

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search the houses of the said Indian nationals. The only evidence obtained was from the house of
the appellant. A map planned and framed by the BSF, displaying an underground pipe-line built
for carrying water from Bhuj to Khavda Border for the Army and BSF members were found.
Possession of a map as referred to in Section 3(1)(c) and passing it on to the potential enemies,
involved in spying and also defending the second accused led to him being charged for offenses
caused under the Official Secrets Act.

An important observation of the court in the case was that the word ‘secret’ in Section 3(1)
clause (c) would be effective for the words which were “official code or password” and not a
“sketch, plan, model, article or note or other document or information”. It was held that the
comma following “any secret official code or password”, meant that whatever followed next
could not qualify under the word ‘secret’. For the absence of such a substance, failure to prove
that the map was a classified secret document, and the insufficient evidence of the police to
prove that the map was found in the house of the appellant, resulted in the dismissal of the
appeal.

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GOVERNMENT PRIVILEGE UNDER RTI

Right to Information has emerged. Right to Information implies that the public can participate in
governance by accessing the information held by administrative or public authorities regarding
the function discharged by them for the public welfare.

It is not only a statutory right but also a fundamental right of a citizen to know the information
related to the public act performed by public authorities. It is fundamental for good governance
and makes governmental authorities more transparent and accountable towards the common
people of a country. There is a proximate relation between Right to information and
Administrative law as Administrative law can be defined as “branch of public law deals with the
operation performed by administrative authorities”, and Right to Information empowers the
public to access information held by public authorities.

The Right to Information Act is the latest Act that has codified the ‘freedom of speech and
expression’ guaranteed under the Article 19(1)(a) in terms of right to receive information. This
Act has consolidated all the above listed provisions facilitating access to information in different
legislations. RTI Act has revolutionarily changed the so called law of privilege where the
Government used to hold information as secret as matter of principle and disclosed
exceptionally. Since RTI Act 2005, the rule is disclosure and exception is withholding it. RTI has
overridden the Official Secrets Act, 1923 and all other legislations which contradict or conflict
the RTI Act

NEED
Right to Information Act in India took around 80 years to transform a grimy system of authority,
valid by the “colonial officials secrets act”, where people can demand the “right to
information”. India having a feeling of self-esteem in being the largest democracy, but with the
passing of the recent enactment of the “Right to Information Act, 2005”. India has also become a
strong democracy. The remarkable shift for Indian democracy, for the more access to the
information by the citizen. Its “main focus on transparency and accountability in relation to the
public authorities has been basically financed by the government”. Right to information has
constitutional status, also it is enforced from Article 19 (1)(a) which talks about “fundamental
rights of freedom of speech and expression”.

This Act is very necessary for each and everyone due to this our government officials and public
institutions gathered information and work upon them. It embedded the right of every citizen of
India to have access or control of the information related to finance to any authority by the state,
thereby responsibility arises on the authority to use the information effectively without including
into any corrupt activities. “In one of the cases, the Supreme Court of India ruled that every

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person has a right to know about expenses and assets against candidates for election, because
these candidates offer the public services with their own desire so that they cannot demand
exemption from any of the details related to assets or any charges against them.” According to
the above case, not only candidates but a political parties, worship places, education centres, but
even private schools and public companies fall under this Act.

Features of Right to Information Act, 2005

 Public authorities have a duty to provide any information which is claimed by a citizen.
 Public authorities are under the obligation that they need to circulate the information to
the person who demands the information. However, this Act comes with certain
obligations relating to the security of the nation, personal information & other person’s
information.
 There is a time limit on the authority to give information within 30 days.
 If the authority denies providing any kind of information then the person has the power to
go to the appellate authority. Later they can also go for the second appeal which falls
under the “central information commission/state information commission”.
 Local court commands cannot be entertained in these scenarios.

There are 25 organizations which are exempted from the right to information under the “second
schedule” of this Act. These include Central Economic Intelligence Bureau, Intelligence
Agencies, etc., certain bodies which basically perform the research work with regard to the
country’s security, special service bureau, narcotics control board, but RTI Act is not applicable
to “Dadra and Nagar Haveli & Lakshadweep”. This Act has done marvellous work because it
gives the path to access information which earlier remained secret. This Act impacted the system
and the people both tangible and intangible. People use this activity as a tool to get their
documents and avail services like “passport, death certificate, pension, birth, ration card and
income tax return”.

RTI helps the administration to take proper action and adopt a policy which helps the
government to reduce corruption and work effectively. It also involves the selection of
appropriate programmers to achieve government objectives. The largest indicator of “RTI Act”
has slowly lowered the level of corruption in India.

PROVISIONS:
Chapter 1 of this Act deals with the definition that is covered under this Act e.g. definition of
“information”, “competent authority”, “state public information officer”, “Right to Information”,
“public authority”, etc. Chapter 2 deals with the obligation of public bodies against the
maintenance of books and records in their interest areas of work and the different procedures
related to the application of information.

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Section 8 is defined as “exemption from disclosure of information”. Sub-Section (1) states

that Notwithstanding anything contained in this Act, there shall be no obligation to any citizen.

Disclosure of the information would prejudicially affect the sovereignty and integrity of
India, the security, strategic, scientific or economic interests of the State, relation with
foreign States or lead to incitement of an offence.
 The information which has been expressly forbidden to be published by any court of law
or tribunal or the disclosure of which may constitute contempt of court.
 Information, the disclosure of which would cause a breach of privilege of Parliament or
the State Legislature.
 Information including commercial confidence, trade secrets or intellectual property, the
disclosure of which would harm the competitive position of a third party, unless the
competent authority is satisfied that larger public interest warrants the disclosure of such
information.
 The information available to a person in his fiduciary relationship, unless the competent
authority is satisfied that the larger public interest warrants the disclosure of such
information.
 Information received in confidence from a foreign government.
 Information, the disclosure of which would endanger the life or physical safety of any
person or identify the source of information or assistance given in confidence for law
enforcement or security purposes.
 The information which would impede the process of investigation or apprehension or
prosecution of offenders.
 Cabinet papers including records of deliberations of the Council of Ministers, Secretaries
and other officers: Provided that the decisions of the Council of Ministers, the reasons
thereof, and the material on the basis of which the decisions were taken shall be made
public after the 14 decision has been taken, and the matter is complete, or over: Provided
further that those matters which come under the exemptions specified in this Section shall
not be disclosed.
 Information which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted invasion
of the privacy of the individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may be, is satisfied that
the larger public interest justifies the disclosure of such information: Provided that the
information, which cannot be denied to the Parliament or a State Legislature shall not be
denied.
The above Section talks about the exemption in which public organization cannot disclose their
information because that likely to threaten for the society and the parliament or not mandate to
disclose. Only with permission, it can be disclosed.

In the case of SP Gupta vs. Union of India7, the court observed that “It is a right of the public to
get information regarding public functions performed by the public authorities and authorize

7
AIR 1982 SC 149

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public to access the information related to public transactions performed within the scope of the
public act”.

There is a famous saying that ‘power corrupts and absolute power corrupts absolutely’. So, no
right can be absolute in nature. Every right is subject to certain reasonable restrictions. Hence
Right to information is also subject to reasonable restrictions given under Article 19(2) of the
Indian Constitution. Certain exemptions from disclosure also given Under Right To Information
Act, 2005 which are as follows:

 The information which tends to prejudice the international relations, integrity and
national security of the country;
 The information which is expressly forbidden from disclosure by tribunals and court.
 The information which related personal details and not in the interest of the public, and if
there is access to information it may violate the right to privacy.
 Information related to trade secrets, commercially confidential information and
intellectual property.
 Confidential information received from foreign government etc.

In India, the Democratic form of government has established which means that the government
has to work according to the “will of the people’. The main focus of the government is to
transform people’s will into their actions and take responsibility for it. This democratic system
only works properly when people become more aware, alert, and conscious and get information
about political agendas, policies, schemes, plans, Yojana, which is introduced by the
government. Right to Information Act, 2005 trying to facilitate the general; public to access the
information regarding government plans. Act provide modus operandi to acquire information and
data related by the public office to affected parties, NGO, co-operation and the general public
with the intention of social welfare.

There are many provisions in RTI Act, which impose obligations, duties responsibilities as well
as a penalty upon public officer but no provision for the appreciation for their hard works, which
create a situation of de-motivation in the mind of public employees. Act also not provides any
kind of protection to the whistleblower. Basically, Whistleblowers get information with the help
of right conferred under the RTI Act, from public information office and give the report to Civil
Vigilance Commission (CVC) about corruption, illegal works, malpractices etc. Whistleblower
Protection Act is introduced by the government in 2014 but that Act has many loopholes and no
proper protection provided to a whistleblower in RTI Act which makes the worst condition for a
man who raises their voice against injustice. Poipynhun Majaw murder case (2018), Nanjibhai
Sondarva murder case (2018), Bhupendra Vira murder case (2016), Nandi Singh murder case
(2012) etc. are the example of whistleblower murder cases.

Some of the legal provisions which incorporate right to information are as follows:

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a)Article 19(1): Right to information is intrinsic part of freedom of speech and expression.
b)Article 21: Right to know is part of Right to life

c)Article 22(1): State has to give grounds of arrest and under (5) the grounds of detention have
to be given.

d)Article 311(2): the state has to inform the grounds for dismissal of government servant.
e)Section 41B, Code of Criminal Procedure, arresting officer has to inform the arrested his
clear identification, inform person arrested, his relative or friend named by him.

f)Section 50, CrPC, person arrested should be informed of grounds of arrest and of right to
bail.

g)Section 327 Cr PC all judicial proceedings have to be conducted in open court.

h)Section 26, Representation of Peoples Act 1951, the candidates have to submit statement of
election expenses.

i)Section 29(a) Representation of Peoples Act, 1951 the Political Parties putting up election
candidates must give information about their objects, names etc.

j)Every candidate contesting election has to give background of his/her education, crimes and
financial status. (Supreme Court judgment in ADR v Union of India, 2002)

k)Every income tax payer is bound to disclose his true income as per sections 137 and 277 of
Income Tax Act 1961. The Right to Information Act is the latest Act that has codified the
‘freedom of speech and expression’ guaranteed under the Article 19(1)(a) in terms of right to
receive information. This Act has consolidated all the above listed provisions facilitating access
to information in different legislations.

RTI Act has revolutionarily changed the so called law of privilege where the Government used
to hold information as secret as matter of principle and disclosed exceptionally. Since RTI Act
2005, the rule is disclosure and exception is withholding it. RTI has overridden the Official
Secrets Act, 1923 and all other legislations which contradict or conflict the RTI Act. The
provisions of privilege in Indian Evidence Act have to give way to the disclosure now as per the
Section 22 of Right to Information Act, 2005. If the documents pertain to affairs of state, they
cannot be withheld by state as privileged documents under Evidence Act, but has to disclose
under RTI Act, subject only to Section 8 and 9. The privilege against disclosure under
Evidence Act is eclipsed in RIGHT TO INFORAMTION ACT .

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OFFICIAL SECRETS ACT, 1923 vs. RIGHT

TO INFORMATION ACT, 2005
• But, one thing is to be remembered that, after coming into force of the Right to
Information Act, 2005, the Official Secrets Act, 1923 is seriously challenged.

• The Right to Information Act, 2005 is made for providing general public, various
information, to protect their Right to Information, which they are entitled to get in the
public interest.

• Here lies the dichotomy between the two Acts.

• The Official Secrets Act, 1923 is made for preserving the official secrets, which the
general public is not entitled to know.

• On the contrary, the Right to Information Act, 2005 claims that, general public is entitled
to know some of those information in their public interest.

• In a democratic country like India, government cannot run every activity secretly and
general public has the Right to Information in this respect, in order to maintain
transparency in the governmental activities.

• The Government is also accountable to the general public for its actions, as it is formed
by the representatives of the people through general election.

• Here lies the controversy between the two Acts regarding which information should be
communicated to the public under the Right to Information Act, 2005 and which
information should be kept as official secret under the Official Secrets Act, 1923.

• Balancing between these two Acts is the need of the hour for the peaceful existence of a
democratic set up as well as for the protection of Information Privacy of Official Secrets.

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 20

RECENT CONTROVERSY :

RAFALE FIGHTER JETS CASE8 DETAILS PUBLISHED BY

THE HINDU NEWSPAPER 2019
• Attorney General KK Venugopal also told the three-judge bench that the government
could invoke the Official Secrets Act 1923, against The Hindu newspaper, which had
published the papers.

• He claims that the documents pertaining to the purchase of Rafale jets published by the
media are genuine.

• Justice Joseph one of the three judges on bench asked government about Right to
information Act 2005.

• Section 22 of RTI Act has an overriding effect for Official Secret Act and Section 24 of
RTI Act which mandates even security and intelligence organizations to disclose
information on corruption and human right violations.

• Finally Section 8(2) which compels government to disclose information "if public interest
in disclosure outweighs the harm to protected interest".

• Therefore, this case has brought into question the effectiveness of the Official Secrets
Act, 1923 in the present social scenario.

8
AIR 2019

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CONCLUSION
Applying to every Indian government official and every Indian citizen living inside or outside of
the country, the Official Secrets Act, is a comprehensive statute maintaining the security and
integrity of the country by protecting it from spies sent by enemies or the wrongful
communication of sensitive information to anyone other than the authorized official. This
British-era law was initially introduced to repress the voice and activities of national newspapers
to try to go against the rule of the Raj. Often questions are raised on the validity of the Act in the
21st century. The classification of secret documents put forth by the Act has been in question. It
sometimes is considered that this Act is just a way to stop the citizens from questing about the
doings of the government. The Officials Secret Act is considered to be violating the Right to
information. Even though precedents have shown the superiority of the RTI, there are still cases
where unfair and wrongdoings are hidden under the covers of national interest. With the
instances of spies getting caught and sensitive information being revealed, the quashing of this
Act would leave the country on unsafe grounds. Therefore, what is needed is reviewing and
amendments.

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BIBLIOGRAPGHY
BOOKS REFERRED:
 Upadhya, JJR, Administrative Law , Central Law Agency , 7th Edition (2006).

 Jain, M.P. and Jain, S.N. Principles of Administrative Law, 5th Edition, 2007 Wadhwa
and Co. Delhi.

WEBLIOGRAPGHY:
 Official Secrets Act, 1923 , India, available at : https://blog.i.pleaders.in/?amp=1 ( last
visited on April 9, 2023

 Official Secrets Act, 1923, India, available at: https://getlegalindia.com/ ( last visited on
April 9, 2023)

 Right to Information Act, 2005, India, available at:

https://www.legalservicesindia.com/articles/og.htm ( last visited on April 10, 2023)

 Right to Information Act, 2005, India, available at:

https://thehansindia.com/post/index/opinion/privilegeagainstdisclosureiseclipsedbyRTI/
(last visited on April 10,2023)

GOVERNMENT PRIVILEGE UNDER OFFICIAL SECRETS ACT, 1923 AND RIGHT TO INFORMATION ACT, 2005