After learning that the government is planning to amend the Official Secrets Act I filed a request under the Right to Information Act with the Ministry of Home Affairs seeking inspection of all papers relating to the amendments proposals. The Ministry has rejected the request under Section 8(1)(j) of the RTI Act which exempts disclosure of Cabinet papers (copy of the rejection letter is attached). It appears that the OSA is being amended in an atmosphere of great secrecy and citizens outside government do not require to be consulted.

That this is happening despite seven years of the implementation of the RTI Act is astounding. The Government does not believe it is necessary to consult with people on the amendment of what is essentially an anti-espionage law which also criminalises unauthorised disclosure and possession of official information. Readers may recollect, the Second Administrative Reforms Commission (SARC) had recommended in its very first report released in 2006 that the OSA be withdrawn and its anti-espionage provisions be incorporated in the National Security Act,1980. (See http://darpg.nic.in/darpgwebsite_cms/Document/file/rti_masterkey1.pdf)

The Government of India rejected this recommendation on the following grounds:

" (a) The recommendation has not been accepted. OSA is the only law to deal with the cases of espionage, wrongful possession and communication of sensitive information detrimental to the security of the State. This law has stood the test of time and has a very high conviction rate. The National Security Act (NSA) provides for preventive powers to deal with likely threats to maintenance of public order and security of the country, maintenance of essential services etc.  It provides for preventive detention but does not define any substantive offence. On the other hand, the OSA is a substantive law." (The full text of the decisions of GOI on the first SARC report is available at: http://darpg.nic.in/darpgwebsite_cms/Document/file/decision1.pdf)

The reply to my RTI application indicates that there must be some other motivation for amending the OSA which we have no clue about.

A 'secret' law for gagging employees of Intelligence Agencies:

Few lay citizens like me would have heard of a law that gags employees of the topmost intelligence agencies. The news story about the novel alerted me to the existence of this parliamentary statute: The Intelligence Organisations (Restriction of Rights) Act, 1985 which places the following restrictions on the fundamental rights of employees of R&AW and the Intelligence Bureau (IB):

"3. Restrictions respecting right to form associations, freedom of speech, etc.

(1) No member of an Intelligence Organisation shall,-

(a) Be a member of, or be associated in any way with, any trade union, labour union, political association or with any class of trade unions, labour unions or political associations; or

(b) Be a member of, or be associated in any way with, or raise funds for, or hold office in, or function in any other manner for, any other society, institution, association or organisation that is not recognised by the Central Government as part of the Intelligence Organisation of which he is a member or is not of a purely social, recreational or religious nature; or

(c) Communicate with the press or publish or cause to be published any book, letter, pamphlet, poster or other document except with the prior permission of the head of the Intelligence Organisation; or

(d) Except for purposes of official duty, contact, or communicate with any person on any matter relating to functioning, structure, personnel or organisational affairs of the Intelligence Organisations of which he is a member;

(e) Use the name of the Intelligence Organisation of which he is a member for purposes not authorised by the head of the Intelligence Organisation or in any other manner except for purposes relating to the official work and functioning of the Organisation itself.Explanation. If any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature under clause (b) of this sub-section, the decision of the Central Government thereon shall be final.

(2) No member of an Intelligence Organisation, shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be prescribed."

The text of this law is not available on any government website including the Law Portal of the Central Government: http://indiacode.nic.in

Rules are said to have been notified under this law in 2008. Those Rules are also not placed in the public domain. The above excerpt is sourced from www.vakilno1.com.

This should come as no surprise because the founding documents of both R&AW and the IB have never been placed in the public domain. Only recently the Karnataka High Court was told by a former employee of the IB that it was operating without a statutory mandate (See pending case: Intelligence Bureau Officers Housing v R N Kulkarni s/o N S Kulkarni ,WP #14616/2012).

Readers may also recall the introduction of a Private Member's Bill in Parliament to give statutory status to these intelligence agencies. The text of the Bill introduced by Shri Manish Tewari MP is accessible at: http://164.100.24.219/BillsTexts/LSBillTexts/asintroduced/7185LS.pdf,
It is absolutely crucial that all intelligence agencies howsoever elite and pampered they may be, must be subject to civilian oversight mechanisms established through a law made by parliament. This is a critical requirement of the rule of law which underpins a responsible and functional democracy. All attempts to amend the OSA must also be made public. This is a requirement under Section 4(1)(c) of the RTI Act.

[Nayak is a programme coordinator, Access to Information Programme of the Commonwealth Human Rights Initiative. [email protected]]