Right to Information is considered as one of the highest ideals of a democratic polity. Information is the tool in the hands of common man which helps him hold his political representatives and administration accountable. Though implied in the Fundamental Rights of the citizens as enumerated in our constitution, the Right to Information was finally given legal sanctity when the Parliament enacted one of the most important legislations of independent India- the Right to Information Act, 2005. The importance attached to this act can be gauged from the fact that the Prime Minister of India himself has emphasized the need for a statutory protection to the right of information. He has said in front of the Parliament that efficient and effective institutions are key to rapid social and economic development and for this happen the institutions must function in a transparent, responsible and accountable manner. This is the goal that RTI Act, 2005 aims to achieve.
RTI Act, 2005 replaces an earlier act passed during the NDA government regime in 2002. The earlier act had too many exemptions and was prone to manipulation by the persons in powerful positions. The RTI Act, 2005 plugs many of those loopholes. This law is very comprehensive and covers almost all matters of governance and has the widest possible reach, being applicable to government at all levels – Union, State and Local as well as recipients of government grants. Access to information under this Act is extensive with minimum exemptions. Even these exemptions are subject to strict safeguards. The act applies to all the branches of the government- Executive, Legislative and Judicial. But the Commission’s study has been primarily restricted to its application in the executive branch. With the law of this kind there are bound to be implementation issues. The biggest challenge lies in the entrenched mindset of the government departments which is very heavily biased towards secrecy. The archaic laws like Official Secrets Act etc have guided the functioning of government departments since before the independence.  These are the few areas that commission has centered its study. The terms of reference to the ARC were-

a.     To review the confidentiality classification of government documents specially with reference to the Official Secrets Act.
b.    To encourage transparency and access to non-classified data.
c.     Disclosure of information and transparency as a supplement to the Right to Information of the citizens.

The first and foremost task is to analyze the strength of RTI Act in the face of draconian provisions of Official Secrets Act, 1923 which governs almost every aspect of government decision making and record keeping. While decisions related to national security and the decisions taken inside the confines of the Cabinet meetings certainly need some protection from public gaze, lest harm should be done to the wider public interest, most of other information available with the government can be declassified and be made available to the public on the request. It must be remembered that the Official Secrets Act (henceforth called OSA) is a draconian law enacted during the colonial times to suppress the voice of the people, it certainly did not have any relevance in free and democratic India. Section 5 of the OSA has a catch all language and literally provides immunity to any government decision from public scrutiny. This has bred a culture of secrecy where secrecy is the norm and disclosure is an exception as far as the information available with the government is concerned. It is here that RTI Act tries to correct almost a century old anomaly. RTI Act says, “Sec. 8(2): Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information,if public interest in disclosure outweighs the harm to the protected interests”

It further provides under its Section 22 that ,” The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or any instrument having effect by virtue of any law other than this Act”. Thus it can be seen that in one stroke RTI Act overrides following draconian laws-
1.    chapters 6 and 7 of the Indian Penal Code ;
2.    The Foreign Recruiting Act, 1874;
3.    The Official Secrets Act, 1923;
4.    The Criminal Law Amendment Act, 1938;
5.    The Criminal Law Amendment Act, 1961; and
6.    The Unlawful Activities (Prevention) Act, 1967.

Recommendations-
ARC has recommended that the OSA, 1923 be repealed altogether and some of it provisions dealing with espionage may be included as a chapter in the National Security Act. Only the information considered extremely confidential, the disclosure of which may be prejudicial to the National Security and public safety and interest, should be held back and that too after due consideration by the highest authority. Regarding the Indian Evidence Act  ARC has recommended steps broadly along the ‘Shourie Committee’ and the ‘Law Commission’. The relevant sections of the act under consideration are Section 123 and Section 124. These section have been used and misused by various government officials to withhold a variety of information even from the courts. Though this provision was meant to protect officials from giving forcible evidence against their acts in official capacity, it has been mostly used to protect the unscrupulous dealings of the officials. ARC has recommended that Section 123 should be modified to make sure that only that information which is exempted under RTI Act 2005 be allowed to be withheld. In case of non presentation any non exempt or even exempt information the concerned will have to make a written affidavit in front of the court and mention the reasons for non presentation of the information in front of the court. Further, the court must be given the power to scrutinize such withheld information itself and decide itself that its disclosure will indeed harm national interest grievously. As far as section 124 is concerned it will become redundant if above changes are made and must be repealed.
Regarding the ‘Oath of Secrecy’ taken by the minister before their induction into the ministry, the National Commission for Review of the Working of the Constitution (NCRWC) has recommended that instead of secrecy the minister must take an ‘Oath of Transparency’. Same has been recommended by the ARC, which went on to recommend that Article 74 and 75 of the constitution should be amended to incorporate the provision for an oath of transparency. ARC has gone on to explain that a minister is a bridge between people and the government and legislature. This relationship must be governed by absolute trust and openness. The oath of transparency will not only be in line with the new RTI regime it will help develop confidence of people in their elected representatives.
In the next article we will deal with the ARC’s recommendation on other aspects of secrecy in administration.