This article analyses the importance of peoples’ right to know and instrumental role judiciary played in harmonising it with the Official Secrets Act 1923.

Context

• A High Level Committee (HLC) chaired by a retired judge of the Gauhati High Court was constituted by the Home Ministry through a gazette notification.
• Its mandate was, among others, to recommend measures to implement Clause 6 of the Assam Accord and define “Assamese People”.
• The HLC finalised its report by mid-February 2020 and submitted it to the Assam Chief Minister and through him to the Central government.
• With the Central government apparently “sitting idle” over the report, the All Assam Students’ Union (AASU), which was represented in the HLC, released the report.

The right to know

• The right to know was recognised nearly 50 years ago and is the foundational basis or the direct emanation for the right to information.
• In State of U.P. v. Raj Narain (1975), the Supreme Court carved out a class of documents that demand protection even though their contents may not be damaging to the national interest.
• Court held that “the people of this country are entitled to know the particulars of every public transaction in all its bearing”.
• This view was endorsed in S.P. Gupta v. President of India (1981) and a few other decisions.
• In Yashwant Sinha v. Central Bureau of Investigation (2019), the Supreme Court referred to the decision of the U.S. Supreme Court in New York Times v. United States (1971) wherein court declined to recognise the right of the government to restrain publication of the Pentagon Papers.
• Our Supreme Court held that a review petition based on three documents published by The Hindu was maintainable since the provisions of the Official Secrets Act, 1923 had not been violated.
• The SC held that there is no provision by which Parliament had vested power in the government either to restrain the publication of documents marked as secret or from placing such documents before a court.
• Section 8(2) of the Right to Information Act, 2005 provides that a citizen can get a certified copy of a document even if the matter pertains to security or relationship with a foreign nation if a case is made out.
• Therefore, it is clear that the right to know can be curtailed only in limited circumstances and if there is an overriding public interest.

Consider the question “Analyse the importance of citizens’ right to know and how the judiciary harmonised the peoples right to know with the Official Secrets Act 1923? “

Conclusion

We must keep in mind observation made by the Supreme Court in S.P. Gupta: “If secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability.”

B2BASICS

Official secrets act

• OSA has its roots in the British colonial era and was originally known as The Indian Official Secrets Act (Act XIV), 1889.
• The act was primarily mandated to gag the voice of a large number of newspapers that came up in several languages, and were opposing the Raj’s policies, building political consciousness and facing police crackdowns and prison terms.
• The act was amended and made more stringent in the form of The Indian Official Secrets Act, 1904, during Lord Curzon’s tenure as Viceroy of India.
• In 1923, a newer version was notified. The Indian Official Secrets Act (Act No XIX of 1923) was extended to all matters of secrecy and confidentiality in governance in the country.
• It was further amended after India got independence in 1951 and 1967. The act in its present form deals with two aspects — spying or espionage and disclosure of other secret information of the government.
• Secret information can be any official code, password, sketch, plan, model, article, note, document or information. Under the act both the person communicating the information, and the person receiving the information, can be punished.

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