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Official Secrets Act vs Whistleblower Protection Act vs RTI Act: The Big Question Before SC on 'Stolen' Rafale Files

The government said those who put documents on Rafale deal in public domain were guilty under Official Secrets Act, but the petitioners argued that documents sourced from whistleblowers were also relied upon in 2G and Coal scam cases.

Debayan Roy | News18.com

Updated:March 7, 2019, 7:56 AM IST
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Official Secrets Act vs Whistleblower Protection Act vs RTI Act: The Big Question Before SC on 'Stolen' Rafale Files
Illustration by Mir Suhail/News18.com
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New Delhi: The Narendra Modi-led central government informed the Supreme Court on Wednesday that documents linked to the controversial Rafale fighter jet deal were stolen from the defence ministry and that newspapers that published these files may have violated the Official Secrets Act.

A three-judge bench of the Supreme Court comprising CJI Ranjan Gogoi, Justice SK Kaul and Justice KM Joseph was hearing arguments on whether the Rafale jet acquisition process should be scrutinised again.

The petitioners claimed that sourcing of government documents had formed the cornerstone of arguments and evidences during the 2G and Coalgate hearings where issues of large scale corruption were involved.

News18 looks at the Official Secrets Act of 1923 and how it would play in this case, along with the Whistleblower Protection Act and The Right to Information Act.

What is this Official Secrets Act?

The Official Secret Act, 1923, is India's anti-espionage act that has carried on from the British colonial period. It states clearly that actions which involve helping an enemy state against India are strongly condemned. It also states that one cannot approach, inspect, or even pass over a prohibited government site or area.

In any proceedings against the person for an offence under this act, the fact that he has been in communication with or attempted to communicate with a foreign agent whether within India or outside India is relevant and enough to necessary at prosecution.

What exactly did the Attorney General state?

The government stated that those who put documents on Rafale deal in public domain were guilty under Official Secrets Act and contempt of court. The Attorney General further stated that The Hindu’s reports on Rafale deal also amount to influencing hearing in the court and that is contempt of court.

He went further and said that the government plans to initiate a case against the ones who are found guilty of violating the act and that the probe was underway by the government. However, he said no FIR has been registered so far.

How exactly does The Hindu report fall into the category of violating Official Secrets Act according to the government?

Section 3 of the Act lists down the penalties for spying where it is stated that if “(1) If any person for any purpose prejudicial to the safety or interests of the State”….. “obtains collects, records or publishes or communicates to any other person any secret official code” …… “shall be punishable by imprisonment up to fourteen years and in other case to three years.”

The case of the government is that the documents which formed basis of The Hindu report were stolen from the Ministry of Defence and were later “published” in the newspaper thereby qualifying as an offence under the Act.

However, when the CJI questioned as to what was the government was doing since the first time newspaper broke the story in relation to government interference in Rafale pricing issues, the AG replied that he would now find out the current status.

But why did the petitioners state that they received documents under Whistleblower Protection Act? How does it add up?

Prashant Bhushan countered Attorney General’s arguments by explaining how the documents were obtained. He cited how whistleblowers gave him the entry register of ex-CBI director Ranjit Sinha and other documents in 2G case, which the SC had relied upon to order a probe.

Minutes before the adjournment, even petitioner Arun Shourie told the Court that in Coalgate and 2G scam cases, he had taken documents from a whistleblower.

The act seeks to protect whistleblowers making disclosures in public interest related to an act of corruption, misuse of power, or criminal offense by a public servant.

However, the petitioners draw strength from an August 2013 verdict of the Supreme Court by a bench of Justices K S Radhakrishnan and Arjan Kumar Sikri where it was ruled that the identity of a whistleblower can never be revealed to the accused facing prosecution under Prevention of Corruption Act, 1988.

This is why perhaps even N Ram for The Hindu stated that all his reports on Rafale were published in “Public interest.”

Why did Prashant Bhushan submit that Right to Information overrides Official Secrets Act?

Prashant Bhushan objected to the Attorney General and submitted that “Right to Information Act overrides Official Secrets Act”, and hence, there was no violation.

This argument was drawn from the S 8(2) of RTI Act where it is stated that notwithstanding anything in Official Secrets Act, 1923, nor any 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.

The RTI Act, 2005, clearly states that in case of a clash with Official Secrets Act, public interest will prevail. The Second Administrative Reforms Commission had submitted in its report - ‘Right to Information: Master Key to Good Governance’ - that Official Secrets Act should be repealed. But the government then had rejected the recommendation saying it was the only law that dealt with espionage, wrongful possession and communication of sensitive information detrimental to the security of the state.

Can the government reject the point of RTI overriding OSA?

In the Clause 6 of the Official Secrets Act, information from any government office is considered official information. Hence, it can be used to override RTI requests. This particular class has attracted a lot of criticism but still continues to be a part of the legislation and this point might be used by the government to argue against the petitioners.

Dr Ashok Dhamija, Supreme Court advocate and former IPS officer, states that the correct legal position “is that illegally obtained document can be relied upon if it is otherwise a correct document. But, action can also be taken against the person who violated any legal provisions (such as Official Secrets Act) for obtaining document illegally”.

Is there a past case where a journalist had to face the brunt of OSA?

In 2009, a Delhi court had ruled that publication of a document by merely labelling "secret" shall not render a journalist liable under the Official Secrets Act. This was in the case of Santanu Saikia where excerpts of a cabinet note was published in the Financial Express a decade ago.

Saikia was again arrested in February, 2015 in another case that the police said involved the writing of stories and analyses from documents allegedly stolen from the government. He was released on bail in May after spending 80 days in jail.
| Edited by: Aakarshuk Sarna
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