In a democracy, the interplay between transparency and secrecy is essential for maintaining a robust and functional governance system. These two principles, while seemingly at odds, are complementary in creating a framework that fosters trust, accountability, and national security. Transparency ensures that citizens have access to information about the functioning of their government. It enables individuals to monitor the performance of public officials, understand decision-making processes, and evaluate how public resources are allocated. Transparency strengthens democracy by reducing corruption, promoting efficiency, and building public trust and to implement it at ground level, India has Right to Information Act, 2005. While transparency is crucial, secrecy plays an equally vital role in safeguarding national interests. In matters of national security, defense, diplomacy, and strategic planning, maintaining confidentiality is essential as described under Official Secret Act, 1923. Disclosing sensitive information could jeopardize the safety of citizens, compromise the integrity of operations, and weaken the country’s position on global platforms. 

The Right to Information (RTI) Act was enacted in June 2005 and came into force in October 2005, granting citizens the right to secure access to information under the control of Public Authorities. The Department of Personnel and Training, under the Ministry of Personnel, Public Grievances, and Pensions (MoPPG&P), serves as the coordinating agency for its implementation. The RTI Act finds its roots in various international human rights frameworks, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. In India, the need for transparency and accountability in administration initially led to the enactment of the Freedom of Information Act, 2002, which was later replaced by the RTI Act, 2005. A significant judicial precedent in this regard was set in the case of Raj Narayan v. Uttar Pradesh Government, where the Supreme Court recognized the Right to Information as a fundamental right under Article 19 of the Indian Constitution. Just like the fundamental rights enshrined in Part III of the Indian Constitution are subject to reasonable restrictions, the Right to Information (RTI) is also not absolute and comes with certain limitations. 

Whereas, the Official Secrets Act of 1923 serves as India’s key anti-espionage law. It restricts the dissemination of certain types of information to the public in the interest of national security. The Act prohibits actions that may assist enemy states, such as approaching, inspecting, or passing over restricted government sites or areas of strategic importance. It criminalizes sharing sketches, plans, models of classified information, official codes, or passwords and any form of assistance to enemy states, safeguarding India’s security interests.

The Right to Information (RTI) Act, 2005, and the Official Secrets Act (OSA), 1923, are often seen as conflicting due to their opposing objectives. While the RTI Act promotes transparency and access to information, the OSA focuses on secrecy and protecting classified information. Furthermore, Section 22 of the RTI Act grants it an overriding effect over other laws, raising questions about the continued relevance of the Official Secrets Act, 1923, in the context of transparency and public access to information. Moreover, Section 8 of the RTI Act specifies the types of information that cannot be disclosed, ensuring the protection of India’s security and integrity. This provision effectively renders the Official Secrets Act (OSA) redundant, as it establishes clear restrictions on sensitive information, making the OSA obsolete.

The Official Secrets Act (OSA), 1923, is a colonial-era law. Its vague and broad provisions allow for arbitrary interpretation, such as Section 2(8)(d), which enables the government to declare any transport route a ‘prohibited place’, and Section 3, which penalizes individuals merely found near such locations. The Act also criminalizes the disclosure of sensitive information, even if it serves public interest, posing a challenge to whistle-blowing and investigative journalism. A notable example is the case of former Army Chief General V.K. Singh, who faced charges under the OSA for exposing corruption within the Research and Analysis Wing (RAW). Moreover, the OSA contradicts the democratic principle of transparency, which is fundamental to a republican form of government. Also the government has recently invoked the Official Secrets Act (OSA), 1923, against The Hindu newspaper and news agency ANI for publishing documents related to India’s procurement of 36 Rafale jets from France.

Although the RTI Act and the OSA can technically coexist due to certain provisions, this does not change the obsolete and outdated nature of the Official Secrets Act. The Second Administrative Reforms Commission, in its report “Right to Information: Master Key to Good Governance”, recommended repealing the Official Secrets Act (OSA), 1923. However, the government rejected this proposal, arguing that the OSA remains essential for addressing espionage, wrongful possession, and communication of sensitive information that could threaten national security. Whereas, the same has been protected under RTI Act. In 2006, the Home Ministry proposed significant amendments to align the OSA with the privacy framework of the RTI Act. There have also been growing demands to replace the OSA with a National Security Act that better reflects the principles of transparency and democratic governance.