Monday 19 November 2018

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Official Secrets Act a hurdle in Right to Info

 

Can Right to Information legislation, if enacted by any state, bring in total transparency in the state administration ? Or the existing legislations like the Official Secrets Act etc can defeat the very purpose of openness and transparency?

The question is being hotly debated with the passing of the Right to Information bill in Goa, the second state in the country after Tamil Nadu, to take initiative in this regard. It has thrown up a disputation among legislators, lawyers and bureaucrats, on the issues of competency of the Assembly in overruling the central legislations which permits the officials from withholding information.

"As series of court judgements have declared that right to know is a facet of the fundamental right of speech, Right to Information is indispensable for increasing and enforcing accountability", says information minister Domnick Fernandes.

But most of the bureaucrats feel that legal hurdles cannot make justice to the constitutional right of a citizen. "We can implement it within limitations as no state can overrule the central acts like the Official Secrets Act and the Government Servants' Conduct Rules", claims Dr Kashinath Jalmi, the state opposition leader.

In fact, the Goa Right to Information bill clearly states : " the competent authority may withhold ...any other information protected by law."

Though this clause is clubbed together with 'trade and commercial secrets' probably to confuse the interpreter, legal experts believe that it would be interpreted as the existing laws like Official Secrets Act etc, to deny information.

The clause that this act will have overriding effect on other acts is also meaningless, they feel, as every legislation contains such a provision.

Section 5 of the Officials Secrets Act, 1923 acts as a stumbling block on the flow of information as it bars all the government servants from passing on the information to any other person.

Similarly, rule 11 of the Government Servants' Conduct Rules prohibits them from sharing information with another government servant, a non-official or the press, while also considering it an offence under section 5 of the Official Secrets Act.

Even Justice P B Sawant, chairman of Press Council of India, has recommended necessary amendments to the Official Secrets Act as well as the Conduct Rules. "We will be immediately hauled up if we leak any information to the public", fears Dr G C Srivastava, the state chief secretary.

His predecessor in fact went a step ahead three years ago and issued a circular restraining all the government servants from talking to the press, except the ministers and the CS.

While throwing enough light over these legal hurdles, Desmond D'Costa, the Judicial Magistrate First Class, claims that the state legislature has a right to repeal provisions of the Official Secrets Act as well as sections 123 and 124 of the Indian Evidence Act, 1872, which protects from disclosure of documents and communications which are considered to be privileged.

"As per Article 372 of the Constitution of India, all the laws which were in force before the commencement of the Constitution shall continue in force until altered by a competent legislature. When a state act on Right to Information is prepared, it can provide for repeal of section 5 of the Official Secrets Act, thereby provisions of the state act having full force of law", clarifies D'Costa.

He also quotes the Supreme Court judgement in the judges' transfers case, S P Gupta v/s Union of India, which states that "accountability, with a right to know, leads to more efficient government. Secrecy, on the other hand, promotes oppression and alienated citizenry. Therefore, Article 19 (1) (a) , which implies upon government, is premised on the right to know."

"Time has come when these fundamental rules must obey the fundamental rights and duties inscribed in part III and IV A of the Indian Constitution", states D'Costa in a seminar paper he presented, "where civil servants are confused between the constitution and the fundamental rules and must realise that the Constitution binds them".

But the Congress government, which has now passed Right to Information bill to provide transparency, has not withdrawn the infamous circular till date, restraining even top bureaucrats from talking to the press. When journalists raised hue and cry over it, Chief Minister Pratapsing Rane assured to withdraw it.

"The circular is bad. We have reviewed it and suggested some amendments to it", now claims Rakesh Mehta, the development commissioner. Sources in the government disclose that the head of the departments would also be now authorised to talk to the press, but not the subordinate officers. Its amended version is still awaited.

The Pratapsing Rane government has on one hand passed the Right to Information bill, claiming transparency. But the circular cannot be withdrawn, claim the bureaucrats, as it is in tune with rule 11 of the Government Servants' Conduct Rules, which prohibits them from sharing information with the press.

In such a situation, what will be the fate of the Right to Information legislation is unknown. Even if the legislators delete the draconian clause the journalists are opposing, whether government would be able to provide total transparency as assured in the bill is still a question mark.






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