GOVERNMENT

PRIVILEGES IN
LEGAL PROCEEDINGS
AND RTI
Introduction

• In a modern democratic countries the accent is on open government.

• There are a few things which must be kept confidential in the interest of public security or national
interest. But then the secrecy ought not to be more than what is necessary.

• Therefore it is necessary to draw a balance between ‘secrecy’ and ‘openness’ with an accent on the
latter.

• A modern democratic state is answerable to the people- People have to pass verdict every five years
on the performance of the government and decide whether it should stay in office or not.
The Official secrets Act, 1923
• The Official Secrets Act, 1923 deals with two aspects-

(i) espionage or spying activity and

(ii) disclosure of other secret official information.

• The former is dealt with by S. 3 and the latter by S. 5.

• People’s right to know has two aspects:

1. How far government should use criminal sanction to deter free flow of information?

2. How far government is under a positive obligation to make information not in the prohibited
category available to people , on demand.
Secrecy in Government of India: Government
Practice
• Government papers and documents are divided into two categories, namely, "non-classified" and "classified"

• The classified documents are divided into four categories, namely, "top secret", "secret", "confidential," and "personal—
not for publication."

• The "top secret" grading is given to information of a vital nature affecting national security such as military secrets,
matters of high international policy, intelligence reports, etc .

• The "secret" marking is given to papers of information which is likely to endanger national security or cause injury to the
interests or prestige of the nation or would cause serious embarrassment to the government either within the country or
in its relations with foreign nations.

• The word "confidential" pertains to information whose disclosure would be prejudicial to the interest of the nation or
given advantage to a foreign nation or even cause administrative embarrassment.

• "Personal—not for publication" is meant for cases where the information is fit for communication to the individual
members of the public, but it is desired that the information given to an individual is not meant for publication.

• "Non-classified" papers, the rule is that no official is to communicate any information to anyone which has come into his
possession in the course of his official duties, unless so authorized by general or special orders.
Section 5- persons having possession of official information includes the
following:

• (a)Any person in possession or control of secret official information.

• (b)Any person obtaining information in contravention of this Act.

• (c)Any person to whom official information has been entrusted in confidence by any person holding
office under the government.

• (d)Any person obtaining or having access to information owing to his holding any office (present or
past), or holding any government contract, or any person holding office under any of these persons.
Section 5- The Secret Information
• This includes any official code, pass word, sketch, plan, model, article, note, document or information. The
only qualification is that it should be "secret".

• Nowhere the word "secret" or words "official secrets" are defined in the Act. The word "secret" in the Clause
C of Section 3 (1) of the Act qualifies official code or password and sketch, plan, model article or mode or
other document or information.

• Bombay High Court ruled in R.K Karanjia v. Emperor AIR 1946 Bom 322 .

• The invitation to the public to send official secrets would fall under S. 5. (1) as "it is really an invitation
encouraging or inciting any person to commit an offence." The court said that it was not concerned with the
intention or the motive underlying the article in question "but only with the direct or indirect tendency of
the words used in the article itself," and in the court’s opinion that tendency was "to encourage or incite any
person to commit an offence."
Sec 5- Persons receiving the information

• Not only is the person communicating the information guilty of an offence under S. 5, but also the
person receiving it. It applies not only to government servants but also to all persons who have
obtained the secret information in contravention of the Act. Under S. 5 (2), any person to whom secret
official information has been communicated in contravention of the Act, in other words, a person who
is not a person being in lawful possession of the secret information commits an offence by the mere
fact of receipt of the same. An offence is also committed if the person receiving secret information
from a public officer further communicates it to another person.
Section 5 of Official Secrets Act
• S. 5 (1)(a) uses blanket language by making punishable "willful communication" of any official secret to any
person, other than a person to whom he is authorized to communicate it, or a Court of Justice or a person to
whom it is, in the interests of the State, his duty to communicate it.

• S. 5 (2), any person voluntarily receiving such information knowing or having reasonable ground to believe
that such information is being given to him in contravention of the Act.

• an offence under Sec 5 shall be punishable with imprisonment which may extend to three years, or with
fine, or with both.

• According to S. 13 (3) of the Official Secrets Act, no court can take cognizance of any offence under the Act
unless upon complaint made by order of, or under authority from, the appropriate government or some
officer empowered by the appropriate government in this behalf. This executive control over prosecutions
under the Act makes such a drastic law tolerable in practice.
Right to Information in India
• The need to enact a law on right to information in India was recognized unanimously by the Chief
Ministers Conference on ‘effective and responsive government’ held on 24th May 1997.

• The Parliamentary Standing Committee on Home Affairs in its 38th report recommended that
Government should take measures for enactment of such legislation.

• In order to make the government more transparent and accountable to public the Government of
India appointed a working group on Right to Information and promotion of open of transparent
government.

• The Government of India considered the draft Bill and subsequently the Freedom to Information Act,
2002 was enacted which received assent of the President on 6-1-2003- not brought in force to enact
another law for providing an effective framework for effectuating the right of information.
Prior to Right to Information Act

• Right to know- Article 19(1) (a)- Aware citizenry

• Association of Democratic Reforms vs UoI AIR 2001 Delhi 126, 2000 (57) DRJ 82
Right to Information in India- overview

• The Right to Information Act, 2005 was enacted to establish a new era of transparency and
accountability in governance.

• The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality
of sensitive information with the right of citizens to know the functioning of the governmental process
in such a way as to preserve the paramountcy of the democratic ideal.

• As declared in the long title it is "an Act to provide for setting out the practical regime of right to
Information for citizens to secure access to information under the control of Public authorities in order
to promote transparency and accountability in the working of every public authority,
the constitution of a Central Information Commission and State Information Commission and for
matter connected therein".
Right to Information is necessary due to the following
reasons:

1 2 3 4 5 6 7
1. makes 2. makes people 3. It facilitates 4. Right to 5. It promotes public 6. Right to 7. It upholds the
administration more aware of intelligent and information interest by information reduces democratic ideology
accountable to administrative constructive increases people’s discouraging the scope for by promoting
people. decision-making. criticism of participation in arbitrariness in corruption in public openness and
administration. administration. administrative administration. transparency in
decision-making. administration.
RTI ACT
https://rti.gov.in/rti-act.pdf