Rafale: Explained, can RTI override the Official Secrets Act?

New Delhi, Mar 07: The Union Government while advancing arguments in the Rafale review plea at the Supreme Court said that documents linked to the deal were stolen from the defence ministry.

Attorney General K K Venugopal while making submissions sad that the newspapers that published the files may have violated the Official Secrets Act. Opposing the petitioners argued that the Right to Information Act overrides the Official Secrets Act.

Does the Right to Information Act override the Official Secrets Act? Let us examine.

What is the Official Secrets Act of 1923:

It is a colonial law that has carried on since the British rule and states that actions which involve helping an enemy state against India is actionable. Further it states that a person cannot approach, inspect or even pass over a prohibited government site or area.

Section 2 of the AAct states that if any person for purpose prejudicial to the safety or interests of the state, obtains, collets, records, publishes or communicates to any person any secret official code, he or she shall be punishable with imprisonment up to fourteen years.

The AG said that the documents on the basis of which the report was published was based on stolen files from the MoD. Hence it qualified as an offence under the Act. While he said that the government probe is underway, he however added that no FIR had been registered so far.

The Whistleblower Protection Act:

Petitioner, Arun Shourie told the court that in the Coalgate and 2G scam cases, he had taken documents from a whistleblower. The Act protects whistleblowers making disclosures in public interest related to an act of corruption, misuse of power, criminal offence by a public servant.

The petitioners also cited a 2013 judgment of the Supreme Court in which it was held that the identity of a whistleblower can never be revealed to the accused facing prosecution under the Prevention of Corruption Act.

Does Right to Information Act override OSA?

The petitioners while arguing that the RTI Act overrides the OSA said that under Section 8(2) of the Act it is stated, ' notwithstanding anything in the OSA, not 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.

Further it also states that in case of a clash with the OSA, public interest would prevail.

However under Section 6 of the OSA, information from any government office is considered to be official information. Hence such information can be used to override requests made under the RTI Act.