The Official Secrets Act and how it affects the culture of accountability

The Official Secrets Act, 1923 (OSA) – a nearly 100-year-old colonial legislation – has recently garnered much attention following the arrest of journalist Rozina Islam. Reports say that a case has been filed against Rozina Islam under sections 3 and 5 of the OSA, 1923 and section 379 and 411 of the Penal Code of 1860. The aforementioned provisions of the OSA relate to spying and wrongful communication of information. Section 3 of the Act penalises obtaining or collecting of document or information which might be "useful to the enemy" for purposes prejudicial to the "safety or interests of the State". Section 5 penalises willful communication of any information obtained "in contravention with the Act" and the use of such information "in any other manner prejudicial to the safety of the State". It appears that these provisions had been put in place to address publication of secret information in manners prejudicial to the safety and interest of the State and a question remains as to how these provisions can be applied in consonance with the exercise of constitutional rights including freedom of press when the issue is one of investigative journalism. As such, there has been a lot of debate over whether the existence of a law such as the OSA is consistent with the principles of democracy, transparency, and accountability.

In 2015 the High Court Division in Badiul Alam Majumdar and Others v Information Commission and Others reaffirmed that "right to information is a basic right which the citizens of a democratic country aspire in the broader horizon of their right to live." The court went on to emphasise the necessity of the right to information by opining that it "has reached a new dimension and urgency" in the light of the need for the "maintenance of transparency and accountability to the public". Free dissemination and exchange of information is a necessary aspect of freedom of expression and the same is required to be upheld by the implementation of legislation such as the Right to Information Act 2009 (RTI Act). Section 3 of the RTI Act states that in case of any conflict with laws which impediments the exercise of right to information the RTI Act shall prevail. As such, it can be argued that right to information shall override the provisions of the OSA to the extent that it conflicts with the general people's right to information. Whether the spirit of the RTI Act is damaged by the application of the OSA is a question that must be evaluated. One issue is the status of the OSA in the light of the enactment of the RTI Act. Indian apex court in R.S. Raghunath v State of Karnataka opined that in case of conflict between the two statutes, the latter abrogates the former if two conditions are met: "i) the two laws are inconsistent with each other. ii) there is some express reference in the later to the earlier enactment." Applying this test would either lead to a conclusion that the two Acts are contradictory or arguably, that a high threshold is applied for offences under the OSA so as not to interfere with right to information. The international principle in this regard is that "disclosure takes precedence", i.e. all laws which are inconsistent with the exercise of the right to information yields to it.

In enforcing the right to information, the authority shall also uphold the international standard of maximum disclosure. This entails a presumption in favor of disclosure and such presumption may be by-passed only in limited cases. Refusal to provide information is also required to be justified by the authority responsible for such disclosure.  The international standard provides a three-part test in this regard, i.e. the refusal must be for a legitimate aim provided in law, the disclosure must pose a substantial harm to that aim and the harm must be greater than the public interest in favor of disclosure. Section 7 of the RTI Act provides that the authority may refuse to provide information sought if one of the grounds mentioned in the provision apply; however, in case of such refusal, the authority is required to obtain the approval of the Information Commission. In order to adhere to the internationally applicable standard of maximum disclosure, these grounds of refusal must be weighed against public interest.

The writer works at Law Desk,  The Daily Star.