The Executive in Indian Democracy is shielded by a special power to keep the

information secret under the Official Secrets Act. Though the Constitution speaks
about freedom of speech and expression, it provides a form of the oath of secrecy
imposing an obligation on the constitutional office holders not to reveal
information which they come to know during the course of official functioning.
The public servants and officers are under a constitutional and contractual
obligation to keep administrative affairs as secret, even without taking the aid of
Official Secrets Act.

The Official Secrets Act

The Official Secrets Act of 1923, a colonial relic readily adopted by the new
political and bureaucratic class of independent India, clearly comes out as the main
culprit in setting the tone for the culture of secrecy in the country.

Experience has verified the fears of one of India's foremost statesmen and Jurists
when he said in the Central Legislative Assembly:
Your provisions are so wide that you will have no difficulty whatever in running in
anybody who peeps into an office for some, it may be entirely innocent enquiry as
to when there is going to be the next meeting of the Assembly or whether a certain
report on the census of India has come out and what is the population of India
recorded in that period.

The Official Secrets Act, 1923 is a replica of the original British Official Secrets
Act. While the latter has been watered down to a great extent, the latter has been
retained almost in its original form, with minor amendments in 1967. The catch all
Section 5 of the OSA is seen to be responsible for most of the state responses in
clamping down on all sorts of information, even to the extent of curtailing people's
fundamental rights.

A case in point often quoted is the use of the Act in the Narmada Valley to prevent
activists and journalists from going there. The cumulative effect of the wide
Sections 3 and 5 of the OSA is to choke the flow of information, howsoever
innocuous.
The relevant sections of the Official Secrets Act, 1923 read as under:
Penalties for spying
Section 3 (1) If any person for any purpose prejudicial to the safety or interest of
the state:

a. Approaches, inspects, passes over or is in the vicinity of, or enters any

prohibited place; or
b. Makes any sketch, plan, model, or note which is calculated to be or or might
be or is intended to be, directly or indirectly, useful to an enemy; or
c. Obtains, collects, records or publishes or communicates to any other person
any secret official code or password, or any sketch, plan, model, article or
note or other document or information which is calculated to be or might be
or is intended to be, directly or indirectly, useful to an enemy or which
relates to a matter the disclosure of which is likely to affect the sovereignty
and integrity of India, the security of the state or friendly relations with
foreign states;

He shall be punishable with imprisonment for a term which may extend, where the
offence is committed in relation to any work of defense, arsenal, naval, military or
air force establishment or station, mine, minefield, factory, dockyard, camp, ship or
aircraft or otherwise in relation to the navel, military or air force affairs of
Government or in relation to any secret official code, to fourteen years and in other
cases to three years.

Wrongful communication, etc., of information

5(1) If any person having in his possession or control any secret official code or
password or any sketch, plan, model, article, note, document or information which
relates to or is used in a prohibited place or related to anything in such a place, or
which is likely to assist, directly or indirectly, an enemy or which relates to a
matter the disclosure of which is likely to affect the sovereignty and integrity of
India, the security of the state or friendly relations with foreign states or which has
been entrusted in confidence to him by any person holding office under
government, or which he has obtained or to which he has had access owing to his
position as a person who holds or has held office under Government, or as a person
who holds or who has held a contract made on behalf of Government, or as a
person who is or has been employed under a person who holds or has held such an
office or contract,

a. willfully communicates the code or password or any sketch, plan, model,

article, note, document or information to any person other than the to whom
he is authorized to communicate it, or a court of justice or a person to whom
it is, in the interest of the State, his duty to communicate it; or
b. uses the information in his possession for the benefit of any foreign power or
in any manner prejudicial to the safety of the state; or
c. retains the sketch, plan, model, article, note, document or information in his
possession or control when he has no right to retain it, or when it is contrary
to his duty to retain it, or willfully fails to comply with all directions issued
by lawful authority with regard to the return or disposal thereof; or
d. fails to take reasonable care of, or so conducts himself as to endanger the
safety of the sketch, plan, model, article, note, document, secret official code
or pass word or information;
He shall be guilty of an offence under this section.

(2) If any person voluntarily receives any secret official code or password or any
sketch, plan, model, article, note, document or information knowing or having
reasonable ground to believe, at the time when he receives it, that the code,
password, sketch, plan, model, article, note document, or information is
communicated in contravention of this Act, he shall be guilty of an offence under
this Section.

(3) If any person having in his possession or control, any sketch, plan, model,
article, note, document or information, which relates to munitions of war,
communicates it, directly or indirectly, to any foreign power or in any manner
prejudicial to the safety or interest of the state, he shall be guilty of an offence
under this section.
(4) A person found guilty of an offence under this section shall be punishable with
imprisonment for a term which may extend to three years, or with fine or with
both.

The Right To Information Act, 2005 section 8 exemption of OSA

8. Exemption from disclosure of information:
there shall be no obligation to give any citizen:

a. Information, disclosure of which would prejudicially affect the sovereignty

and integrity of India, the security, strategic, scientific or economic interests
of the State, relation with foreign State or lead to incitement of an offence;
b. information which has been expressly forbidden to be published by any
court of law or tribunal or the disclosure of which may constitute contempt
of court;
c. information, the disclosure of which would cause a breach of privilege of
Parliament or the State Legislature;
d. information including commercial confidence, trade secrets or intellectual
property, the disclosure of which would harm the competitive position of a
third party, unless the competent authority is satisfied that larger public
interest warrants the disclosure of such information;
e. information available to a person in his fiduciary relationship, unless the
competent authority is satisfied that the larger public interest warrants the
disclosure of such information;
f. information received in confidence from foreign government;
g. information, the disclosure of which would endanger the life or physical
safety of any person or identify the source of information or assistance given
in confidence for law enforcement or security purposes;
h. information which would impede the process of investigation or
apprehension or prosecution of offenders;
i. cabinet papers including records of deliberations of the Council of Ministers,
Secretaries and other officers: Provided that the decisions of Council of
 Ministers, the reasons thereof, and the material on the basis of which the
decisions were taken shall be made public after the decision has been taken,
and the matter is complete, or over: Provided further that those matters
which come under the exemptions specified in this section shall not be
disclosed;
j. information which relates to personal information the disclosure of which
has not relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information Officer or the
appellate authority, as the case may be, is satisfied that the larger public
interest justifies the disclosure of such information: Provided that the
information, which cannot be denied to the Parliament or a State Legislature
shall not be denied to any person.
Secrecy of Executive and Problems of Media

Some Judicial Decisions:

It is very difficult for the media to work for disseminating the information amidst
so many laws creating iron veils of secrecy.

Media and Secrecy of Jails:

Hussainara Khatoon I-VII54
These series of Hussainara Khatoon cases related to the illegal and prolonged
custody of poor under trials in the state of Bihar. In dealing with various aspects of
bail, the Supreme Courts stressed the need for free legal aid to the poor and needy
who are not either not aware of the procedures or not in a position to afford
lawyers, and therefore unable to avail of the constitutional guarantees of legal help
and bail. The Court said, that it is the legal obligation of the judge or the magistrate
before whom the accused is produced to inform him that if he is unable to engage a
lawyer on account of poverty or indigence, he is entitled to free legal aid.

Access to places of custody and prisons

Prabha Dutt Vs. Union of India 55
Media's access to the prisons is within the hands of executive. Administrators of
Jails generally resist the media's requests to interview the prisoners on extraneous
excuses. The Court held in this case that excepting there being clear evidence that
the prisoners had refused to be interviewed; there could be no reason for refusing
permission to the media to interview prisoners in death row. The right to acquire
information includes the right to access sources of information.

Informing the accused

Accused must have the right to information about his charges. The framing of
charges against a person cannot be a secret as to that person. Repeated violations of
civil rights by the police and other law enforcement agencies have compelled the
courts to give, time and again, directions to the concerned agencies for ensuring
transparency in their functioning in order to avoid violations like illegal arrests and
detention, torture in custody and the like.

Sheela Barse Vs. State of Maharashtra 56

The Petitioner, a journalist, approached the courts to bring out the condition of
women prisoners in jails in the state of Maharashtra. These cases had come to her
notice in the course of interviewing women inmates in Bombay Central Jail. The
court gave certain directions to the State Government, including that pamphlets on
the legal rights of arrested persons, in English, Hindi and Marathi (the regional
language of Maharashtra) should be printed in large numbers and circulated as well
as affixed in each cell in a police lock up.

Further, the Legal Aid Committee is to be immediately informed of the arrest.

There should be surprise visits to the police lock ups by a City Session Judge. The
relative or friend of the arrested person should immediately be informed upon the
arrest. The magistrate before whom an arrested person is produced should enquire
from the arrested person whether he has any complaint of ill treatment or torture in
police custody and inform him of his right under the Criminal Procedure Code, to
have a medical examination.