From official secrecy to the right to know

Detail

1. The colonial culture of secrecy

Before 2005, the default rule was that government information was secret. Four tools kept it that way.

• Official Secrets Act (OSA) 1923 is a colonial law that is still in force.
• s.3 punishes spying, for example entering a prohibited place or passing on information that helps an enemy.

• s.5 punishes wrongful communication of official information. This means passing on official information without permission. Its wording is so wide that almost any official document could be covered.

• Evidentiary privilege. This is the government's right to stop its own records from being used as evidence in court.

• Under s.123 of the Indian Evidence Act, 1872, no one could give evidence from unpublished official records about affairs of State without the permission of the head of the department.

• The Bharatiya Sakshya Adhiniyam, 2023 (s.129) has replaced this provision with the same wording [6].

• Conduct rules. These are the service rules for government employees. They bar employees from sharing official documents or information with anyone who is not authorised to receive them.

• Oath of secrecy. Under the Third Schedule of the Constitution, every Union and state minister swears not to reveal matters that come before them as a minister, except where their duties require it.
• Together with the OSA and the conduct rules, the oath made secrecy the normal habit of the government.

2. Reform attempts on the OSA

• The Second Administrative Reforms Commission (2nd ARC) was set up on 31 August 2005 under Veerappa Moily [3]. An administrative reforms commission is a body the government sets up to suggest how to improve public administration.
• Its 1st Report, Right to Information: Master Key to Good Governance, was submitted on 9 June 2006 [3].
• It recommended that the OSA be repealed.

• It also recommended that the OSA's security provisions be moved into a chapter of the National Security Act [4].

• The government did not repeal the OSA. Its reason was that other national-security laws had not been merged into the NSA either, such as the Unlawful Activities (Prevention) Act, 1967 and Chapters 6 and 7 of the IPC [4].

3. How the RTI Act gets around the OSA

The OSA still exists, but the RTI Act now takes priority over it.

Provision of RTI Act 2005 (Act No. 22 of 2005)	What it does
s.22 (overriding effect)	The RTI Act applies even where the OSA 1923, or any other law, says something different [2]
s.8(2) (public-interest override)	Even if the OSA or an s.8(1) exemption covers some information, a public authority may disclose it if the public interest in disclosure outweighs the harm to the protected interests [2]

• s.8(1) exemptions are the categories of information the Act allows the government to withhold, such as matters of security, cabinet papers and personal information.
• Note: s.8(2) gives the authority a power to disclose. It does not create a duty to disclose [2].

4. The Rafale review: privilege versus the public domain

The Rafale case tested whether the government could block leaked documents in court.

• Case: Yashwant Sinha v. CBI, judgment of 10 April 2019 [5].
• The government's objection. The petitioners attached three documents to a review petition. The government argued that the documents were privileged under s.123 of the Evidence Act, so the court should not look at them [5].
• The court's answer:
• The documents had already been published in newspapers, so they were in the public domain.
• It would be "meaningless and futile" for the court to ignore them [5].

• The court dismissed the objection and heard the review petitions on their merits [5].

• Principle: privilege is based on public policy and cannot be waived, but public interest is the only basis on which it can be claimed [5].

5. The courts recognise the right to know

Before any RTI law existed, the Supreme Court had already read a right to know into the Constitution.

• State of U.P. v. Raj Narain (1975):
• The dispute was over the "Blue Book", the government's security rules for the Prime Minister's travel.
• The court held that the people have a right to know every public act done by public officials.
• This right comes from Article 19(1)(a), the freedom of speech and expression.

• Logic: you cannot form or voice an informed opinion without information.

• S.P. Gupta v. Union of India (1981), also called the Judges' Transfer case:

• Open government is the new democratic culture.

• Disclosure is the rule, and secrecy is the exception. The government must justify any secrecy.

• Later extension: the voters' right to know about candidates' criminal records, assets and education was recognised in 2002-03 (see the electoral-reforms note).

6. The grassroots movement: MKSS

• Mazdoor Kisan Shakti Sangathan (MKSS) is a union of workers and farmers.

• It was founded on 1 May 1990 at Devdungri (Rajsamand district, Rajasthan) by Aruna Roy, Nikhil Dey and Shankar Singh.

• How a wage fight became an information fight:

• Workers on government relief works were not paid the minimum wage.
• Officials said the records showed otherwise.

• So the MKSS demanded to see the muster rolls (attendance and wage registers) and the bills and vouchers for the works.

• Jan sunwai (public hearing), from 1994:

• A jan sunwai is a village meeting held in central Rajasthan where official records of works and wages are read aloud. Residents check them against what really happened.
• These hearings exposed ghost workers (names on the rolls of people who never worked or did not exist) and inflated or fake bills.

• Slogan: "hamara paisa, hamara hisaab" (our money, our accounts).

• 1996:

• The Beawar dharna was a sit-in protest in Beawar demanding a right to information law.
• The National Campaign for People's Right to Information (NCPRI) was formed in the same year to take the demand to the national level.

7. From state laws to the central Act

• State RTI laws came first:
• Tamil Nadu and Goa (1997)
• Rajasthan and Karnataka (2000)
• Delhi (2001)

• Maharashtra (2002-03)

• Parivartan, a citizens' group in Delhi, used the Delhi law to expose leaks in the Public Distribution System (PDS), which supplies subsidised ration-shop grain.

• Freedom of Information Act 2002: Parliament passed it, but it was never notified, so it never came into force.
• The NAC draft:
• The National Advisory Council (NAC) was a body that advised the UPA government on social policy.

• It sent its RTI recommendations in 2004.

• RTI Act 2005:

• It received the President's assent on 15 June 2005.
• It came fully into force on 12 October 2005.

• Its Act number is 22 of 2005 [2].

• Role of legislators (NCERT Class 9):

• Elected representatives shaped the final law.
• They added safeguards for national security and administrative efficiency.
• This shows how a social movement's demand is turned into law through Parliament (see civil-society-pressure-groups).

8. Timeline at a glance

Year	Event
1923	Official Secrets Act
1975	Raj Narain: right to know comes from Art. 19(1)(a)
1981	S.P. Gupta: disclosure is the rule
1990	MKSS founded (1 May, Devdungri)
1994	First jan sunwais
1996	Beawar dharna; NCPRI formed
1997-2003	State RTI laws (TN, Goa, Rajasthan, Karnataka, Delhi, Maharashtra)
2002	Freedom of Information Act (never notified)
2004	NAC recommendations
2005	RTI Act: assent 15 June; fully in force 12 October
2006	2nd ARC 1st Report (9 June) recommends repealing the OSA
2019	Yashwant Sinha v. CBI: privilege objection over the leaked Rafale documents rejected

Prelims Hooks

• RTI Act s.22 gives the Act overriding effect over the OSA 1923 and any other inconsistent law. (The RTI Act is itself Act No. 22 of 2005.)
• RTI s.8(2): an authority may disclose OSA-covered or exempt information if the public interest outweighs the harm. This is a power, not a duty.
• OSA s.3 covers spying. OSA s.5 covers wrongful communication of official information. Trap: the OSA has not been repealed.
• 2nd ARC 1st Report (Right to Information: Master Key to Good Governance, 9 June 2006) recommended repealing the OSA and moving its security provisions into the National Security Act.
• Raj Narain (1975) dealt with the PM's security "Blue Book" and held that the right to know comes from Art. 19(1)(a). S.P. Gupta (1981) held that disclosure is the rule, secrecy the exception.
• MKSS: founded 1 May 1990 at Devdungri (Rajasthan) by Aruna Roy, Nikhil Dey and Shankar Singh. Jan sunwai from 1994. NCPRI formed 1996.
• First states with RTI laws: Tamil Nadu and Goa (1997). Trap: not Rajasthan, whose law came in 2000.
• Freedom of Information Act 2002 was never brought into force. RTI Act: assent 15 June 2005, fully in force 12 October 2005.
• Evidence Act s.123 (privilege over unpublished records on affairs of State) is now s.129 of the Bharatiya Sakshya Adhiniyam, 2023.
• Ministers' oath of secrecy is found in the Third Schedule.

Mains Points

• Secrecy by default vs transparency by default.
• The OSA's s.5 is so broad that almost any official file can be called secret.
• RTI s.22 and s.8(2) reduce its effect, but they do not end it.
• The 2nd ARC (2006) recommended repealing the OSA and keeping a narrow security law in the NSA. The government refused, saying other security laws had not been merged either.

• This tension can anchor a GS-II answer on good governance.

• A rights-based route to accountability.

• The courts (Raj Narain 1975, S.P. Gupta 1981) said there is a right to know.
• The grassroots movement (MKSS jan sunwais) showed how to use it.

• Lesson: a right on paper needs a people's movement and a working procedure before it becomes real.

• Social audit as a model.

• "Hamara paisa, hamara hisaab" turned information into a check on corruption in welfare schemes.
• The same method later shaped the social audits of rural job schemes.

• It shows citizens holding officials to account directly, in addition to answers given in Parliament.

• Balancing disclosure with security and efficiency.

• Legislators added exemptions for security and efficiency (NCERT Class 9).
• The Rafale privilege ruling (2019) shows courts weighing public interest against claims of State privilege.
• Material already in the public domain cannot easily be hidden.