Context

Recently Official secret Act was in news regarding leak of documents with respect to Rafale deal.

Colonial Legacy

• The constitutional freedom to use and publicise information is directly affected by the provisions of the Official Secrets Act, 1923, which as with most of British India enactments followed the Official Secrets Act, 1920, passed by the British Parliament.

• It was strict enough then but after Independence in ‘free India’ it was amended  and made stricter in 1967, widening the scope of Section 5 (“Wrongful communication. etc., of information”) and enlarging the scope of Section 8 (“Duty of giving information as to commission of offences”).

Second Press Commission

•  Janata government which came to power at the end of the Internal Emergency, and set up what was then known (and is now forgotten) as the Second Press Commission, it was chaired by a great and good judge, Justice Goswami of the Supreme Court of India, whose common sense approach to all subjects greatly attracted me to him.

•  The Commission proceeded in great earnestness for months, and ultimately, when its report was ready in December 1979, a report that implored the government of the day to immediately repeal the Official Secrets Act, 1923, it never saw the light of day. 

•  It was replaced by the now officially known Second Press Commission presided over by Justice K.K. Mathew.

• The Official Second Press Commission (the Mathew Commission) did not recommend the repeal of the Official Secrets Act of 1923.

Freedon Of Press

• Press (and no longer the electronic media) is regarded as the champion of Article 19(1)(a) freedoms.

• In his famous Gettysburg Address, Abraham Lincoln described good governance as “of the people, by the people and for the people”. 

• Centuries later we do understand the “of”, and are willing to tolerate the “by” but unfortunately we keep forgetting the “for”. If government is indeed for the people, it has a solemn obligation to keep the people well informed.

Conclusion

• Fortunately, the modern trend in today’s world is towards less secrecy and more information. 

• The International Covenant on Civil and Political Rights (ICCPR), adopted by the General Assembly of the United Nations way back in 1966, specifically includes the right to freedom of expression, defined as “the freedom to seek, receive and impart the information and ideas of all kinds”.

• The Janata government signed and ratified this Covenant in 1979, but none of the later Governments has lived up to its ideals.

• We have enacted Article 19(1)(a) in our 1950 Constitution with extremely limited restrictions — in Article 19(2) — but again only paid lip service to freedom of speech and expression.