Right to information vs OSA

Last week, upon being requested by a section of the family of the leader of the Indian movement for independence, Netaji Subhash Chandra Bose, to make the government’s secret files on him public, the Prime Minister, who was visiting West Bengal, is reported to have said, “It was the nation’s duty to so do”.[i]

Strangely, neither the website of the PM’s office, nor that of any other government department has put out any official report of this conversation, unlike last month’s much publicised meeting of the PM with other members of Netaji’s family in Germany.

Except for two pictures of the Kolkata meeting with the PM tweeted by the Press Information Bureau, all media reports were based on statements made by some members of the Bose family about the “assurance” given by the PM. If the media reports are accurate, the duty of transparency is unfortunately being transferred to a people who have neither the access to the secret files, nor the power to place them in the public domain.

In fact even before any secret information about Netaji is made public, the Government owes a detailed explanation to citizens about how it classifies and declassifies secret files. These very procedures are locked away in the Manual of Departmental Security Instructions (MODSI) issued by the Union Home Ministry under the label - believe it or not - ‘Confidential’, therefore accessible only to a few authorized officers in government. So how will people perform this new duty that the Prime Minister has placed on them, pray tell?  

Official secrets vis-à-vis the RTI regime

Another interesting development that escaped media attention last week was a statement made by the Minister of State for Home Affairs in the Lok Sabha on this very issue. While replying to a question, the Minister admitted that the Official Secrets Act, 1923 (OSA) was not the basis for classifying sensitive official documents and records ‘top secret’, ‘secret’ and ‘confidential’.

Instead, the Minister said, the MODSI issued in 1994 and revised from time to time was the basis for all classification and declassification of sensitive information held by various government departments.[ii]

This Ministerial reply, if not withdrawn or corrected at a later date[iii], turns nine decades of received wisdom about information classification procedures on its head.

Several government-appointed committees including the H. D. Shourie Committee (which recommended enactment of a national level information access law during the 1990s) and the now defunct Planning Commission, have held that the OSA throws a veil of secrecy on decision-making processes, often resulting in the denial of the rightful entitlements of citizens or by preventing them from contributing to the processes of decision-making in public affairs.

Therefore, Parliament enacted the Right to Information Act in 2005 to replace this regime of secrecy with a regime of transparency. People can seek all information as a matter of right from public authorities, except when disclosure would harm a public interest that was recognized in that very law.[iv]

Parliament took care to specify in at least two places in this law that it would override the OSA to the extent of any inconsistency. In other words, if public interest is served better, even exempt or secret information held by public authorities must be disclosed and the OSA would not be a stumbling block in the unfurling of the transparency regime.

The Second Administrative Reforms Commission (S-ARC) headed by veteran Congressman Veerappa Moily went a further step ahead and recommended the repeal of the OSA as it had become redundant with the implementation of the RTI Act. However, S-ARC made two recommendations in 2006:

a) Categorise the information covered by the exemptions in the RTI Act afresh with labels such as ‘top secret’, ‘secret’ and ‘confidential’; and

b) Move the espionage-related provisions and punishments in the OSA to the National Security Act, 1980 (NSA).[v]

A few months later the Government rejected both recommendations[vi]. The first suggestion was rejected on the ground that it would not be practically possible to classify all sensitive information in the manner suggested by S-ARC. The OSA, being a substantive law, its offences could not be inserted in the NSA whose primary purpose was to allow for the detention of people to prevent them from committing crimes against the State.[vii]

The second suggestion was rejected on the grounds that it was not possible to classify sensitive information in the manner recommended by S-ARC. Experience over the last 10 years has shown that public information officers have often rejected requests for information simply on the ground that the records were classified ‘top secret’, ‘secret’ or ‘confidential’.

How is official information classified?

The MODSI which reportedly lays down the procedures for classifying and declassifying sensitive information is not available in the public domain and S-ARC did not find this to be an anomaly. While sensitive information may not be disclosed, the criteria and procedures for classifying information should not be kept under lock and key.

After all, under the modern criminal justice system, “ignorance of the law is not a legitimate defence for escaping punishment for any transgression.” So all laws, rules, regulations and procedures that invite penalty for violation, must be in the public domain. No sane democracy keeps its rules and regulations secret. They are at least published in the official gazette.

Unfortunately, this author was unable to convince the Central Information Commission of India of this important principle of transparency vis-à-vis MODSI when a request for disclosure of the manual was rejected by the Ministry of Home Affairs in 2009.[viii] The plea, that in a large number of developed and developing countries the rules for classification are made public, went unappreciated. 

However, within a couple of months of losing this case, this author chanced upon the criteria for classification of documents in an Office Manual published by the Andaman and Nicobar Administration, regulated by none other than the Union Home Ministry. According to this Manual, the following criteria are usually followed for classifying documents with the following labels[ix]:

“172. Definition of Classified Documents

(I) Top Secret: This grading is reserved for papers containing information of such a vital nature that, for reasons of national security, it must not be disclosed to anyone for whom it is not essential to have knowledge of it for the proper performance of his duty. Such papers include references to current or future military operations, intending movements or disposition of armed forces, shaping of secret methods, of war, matters of high international and internal political policy, ciphers and reports derived from secret sources of intelligence. The distribution of papers having “Top Secret” classification must be limited to the minimum of persons concerned and in such cases it will be safer to err on the side of security.

(II) Secret: This marking is reserved for papers which are of a nature that their disclosure to persons other than those whose duty is to have knowledge of them would cause administrative embarrassment or difficulty or internal breach of peace and amity or injury to the interest and prestige of the Government or would be of advantage to a foreign nation or enemy. 

NOTE: This is the highest classification ordinarily used for very important matters. 

(III) Confidential: This marking is reserved for papers containing information, the unauthorized disclosure of which, while not endangering national security, would be prejudicial to the interests of the nation, any government activity or individuals, or would cause administrative embarrassment or difficulty or be of an advantage to a foreign nation.

NOTE: Most matters will, on proper analysis, be classified higher than “Confidential”.

(IV) Personal - Not For Publication: This is reserved for communications to members of the public when it is desired to make it clear that these communications or the information contained therein should not be published. The words `Not for publication’ are generally added.

Nothing in this Office Manual tells us about the grade/rank of the officer who can classify documents in this manner. The only guideline given is that the officer must be authorized to handle documents of such sensitivity in order to be able to grade them. However downgrading must be done by an officer of at least the same rank or higher.

The Public Records Act, 1993 and the Public Records Rule 1997, while providing a mechanism for downgrading the security grading of sensitive documents and eventually sending them to the National Archives in a time bound manner, do not throw any light on the grade/rank of the officers qualified to classify or declassify documents in each department of the Government. 

That being said, a look at the criteria for grading documents with the labels ‘secret’ and ‘confidential’ contain an element, namely “embarrassment to the Government”, which was weighed and rejected by the Supreme Court as far back as in 1981. In the matter of S. P. Gupta vs President of India[x], Bhagwati, J (as he then was) held as follows:

“Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document.” [emphasis supplied]

Instances of misuse of classificatory labels

Yet, the power to classify documents has been abused and misused wantonly across Government. For example, the handbook published by the Cabinet Secretariat to guide bureaucrats for preparing Notes for the consideration of the Union Cabinet requires all Cabinet Notes to be labeled ‘Top Secret’, right form the drafting stage, even if it contains routine matters such as approval of draft legislation or amendments to existing laws for tabling in Parliament[xi].

Another example is the practice of labelling files relating to the appointments of Governors in the States, ‘Top Secret”.[xii] Neither instance cited above fits in the criteria for the category ‘Top secret’. So the announcement made by the  Government that it would review the OSA in the light of the RTI Act in the wake of media reports of long term snooping of the family members of Netaji from the mid-1940s was a welcome development.

(Continued on page two...)