Shift in attitude -Secrecy Privilege

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This article is written by S.Rajathi, 8^th semester student of sathyabama Institute of science and Technology

Abstract:

This article is based on the secrecy privilege of official secrets act and Indian evidence act. In accordance to article 6 of European convention on human right legal privilege and professional secrecy of attorney are related to both the right to a fair trial and the right to respect for one privacy and family life. The defence of the client fundamental right is the justification for the protection of lawyer through fundamental right. Legal privilege and professional confidentiality are applied in all legal orders but their specific details vary. Between common law and civil law there has historically been a significant distinction. An attorney right to maintain professional secrecy in civil law jurisdiction and his obligation to do so as a result of his legal profession.

Introduction:

A rule of evidence established by American judicial precedent is the state secrets privilege. based only on affidavit provided by government saying that the court proceeding by the government would divulge sensitive material that might threaten national security the privilege is used and evidence is excluded from a legal action. The court rarely review the material in private to determine whether there is sufficient justification to invoke the state secret privilege in response to a claim.

In India the secrecy and privilege was maintained under Indian evidence act and Indian official secrets act. the Indian official secrets act of 1889 which can be traced back to the British colonial era in India and later become the Indian official act 1904 with the strict and more rigid laws was passes at a time when the Indian press had taken it upon itself to fearlessly expose the truth and the dark side of the British rule in India to the Indian people and of the world in an effort to raise political awareness and a sense of national unity among Indian. in 1923 this act was further developed and the Indian official secrets act replaced it. the Indian official act 1923 applies to government officials government servant, citizen framed with the integrity of the nation, spying, unlawful use of government uniform, causing intervention in the armed forces.

Classification of official secrets:

Under the OSA 1923 the classification of information is not subject to any predetermined standard. The Indian ministry of home affairs has not disclosed any standard procedure for the classification of official information identifying the causes for a social and political threat to a nation despite repeated demand from human right activist and group. Furthermore the OSA doesn`t define the word official secrets. As a result the access to information act 2005 does not apply to any traditional information that public authorities or the Indian government deem as secrets.

Departmental security instruction with prior clearance from the ministry of home affairs classifies government information. There are specific on how classified information and document will be handled in the central secretariat manual of office process although there are no predetermined standard for the classification of official material. The government has provided justification for withholding official information including a threat to national security and privacy as well as with holding information because record and document include sensitive information. However there are certain criteria to classify the official information depending upon the level of sensitivity of the information are as follow

Top secrets:

It is the information that is to be kept secret for the security of the nation and its disclose could cause exceptional grave damage to the public interest in large.

Secrets:

The information is meant to advance the country social security and its revelation could result in severe damage to the security and privacy of the country. This category is often reserved for issues that are extremely vital for national security.

Confidential:

If the material has been disclosed without the required authorization it may pose a threat or damage to the country interest and cause serious harm to the government. Furthermore disclosing the information would be detrimental to the national interest.

Restricted:

It is information that is shared with others exclusively for official purposes and is not to be disclosed to anybody else without permission.

Main provision:

The official secrets act 1923 expanded its protection for the privacy and secrecy of national administration, particularly for the sake of the nation security. The act has a number of provisions including some of the following:

The infraction caused by wrongful transmission of information is described in section 5 of the law. If someone divulges a secrets code or password any sketch, plan, model, article note, document or information as well as prohibited location or one that is similar to one or a high official under a government who has been given the duty of protecting such confidential information as well as a person who is employed by that official is subject to a contract or hold a contract on their behalf of the government if fails to properly conduct himself and cause harm to the information held uses such details and knowledge for helping a foreign power or a in a way prejudicial communicate such details to someone who is not authorized is held to be guilty under this section .
Section 4 a foreign agent is anyone who has a good reason to believe that they are being employed by a foreign power to carry out an act that is against the safety of the state prejudicial to the security or interest of the state or who can be suspected of carrying out the act for the benefits of foreign country.
Section 4(c) emphasises that any location or address that has a good basis to be believed to be receiving communication for an agent purpose or a foreign agent residence, place of business or place of giving or receiving information may be presumed to be an address of the agent
According to section 6 if someone enters or assists someone else in entering a prohibited area that compromises the safety of the state while doing so wears an official uniform or one that looks official but is not legally authorized to do so obtains an oral or written declaration pr document makes any false statement or poses as an official employed by the government to receive money then they are in violation of the law.
Any person who violates the law without taking into account the security of the state and its citizen approaches and attempt to enter a prohibited area creates a plan or sketch that is useful to the enemy gather and communicate a secret code password document plan notes etc. that is useful to the enemy without taking into account the security of the state and its citizens is punished by a minimum sentence of 3 years in prison with the possibility of an extension in cases involving any work of defence arsenal or unlike section 10 which put forth the provision of penalties for cover and accommodation a spy. Any person harbors a spy who has committed an offence under sec 3 of the act or fails to provide the authority with information of such people and commits an offence under sec 10 which is punishable with imprisonment for a term of 3years or with fine or both

Impact of RTI on the official secrets act:

The official secrets act of 1923 was introduced in India in an effort to combat the country secrecy culture and specifically deny any allegation made against the government operation. In contrast the right of information act was established in India to promote transparency and accountability in the government operation. So the actual distinction between the two relates to how its culture has changed. Yet there are some clauses in the RTI act that prevent the official secrets act from superseding it in term if public use and preventing the abuse of authority. As a result RTI does not apply to all government information and document because the information must be a public authority to come within the purview of the RTI.

According to sec 8(2) of the RTI act 2005 a public authority has a right and is allowed to access the information and document if done for the public interest in general or if the disclose outweighs the harm to the protected interest notwithstanding anything contained in the provision of the official secrets act 1923 nor any exemption in the provision of section 8(1) of the RTI act. Section 22 of the RTI act states that any provision that are in conflict which it may be found in the OSA 1923 any other current laws or in any instrument that are in forces because of other law thus right to information act is very significant in the present scenario where a lot of corruption and unscrupulous act are happening in the activity of government department.

The contrast, the Maltese Criminal Code provides a detailed definition of “items subject to legal privilege” that includes the following:

1. any communications between a professional legal advisor and the client or any person who is representing him/her; an attorney-client communication;

2. Any document or record that is attached to or mentioned in such a communication and that is made in connection with the provision of legal advice, in connection with, or in anticipation of, legal proceedings, and for the purposes of those proceedings.

Article 2(3) of the Professional Secrecy Act defines the terms “professional secret” and “secret” as information that is conveyed orally, in writing, electronically, by signs, or by negation and falls into any of the following categories:

Information that is defined as secret by the person sending it to a person who, due to his calling, profession, or office, becomes the keeper of a secret confided in him; information that is classified as a secret under a specific provision of any law; and

Information that should fairly be regarded as secret given the context in which it was transmitted and received, the information’s nature, and, when appropriate, the vocation, profession, or office of both the person providing the information and the person receiving it. A lawyer is obligated to maintain the client’s affairs in confidence and must further guarantee that his or her staff does the same, in accordance with the Code of Ethics and Conduct for Advocates, which all warranted lawyers in Malta are supposed to follow. In a nutshell, the distinction between professional secrecy (also known as confidentiality) and legal privilege relates to the extent of protection provided to the client making a secret revelation to his attorney.

In accordance with the Prevention of Money Laundering Act and the Prevention of Money Laundering and Terrorist Financing Act, attorneys who are “a subject person carrying out relevant activity” (such as forming a company for a client, providing tax advice, serving as the client’s company secretary, or helping with the sale or purchase of real estate or business entities) are required to report any suspicious transactions involving the client to the Financial Intelligence Analysis Unit (FIAU). Additionally, the attorney acting as “a subject person carrying out relevant activity” is not permitted to inform the client that the FIAU has reported him, as tipping off in such circumstances is illegal and is punishable by a fine (multa) and/or up to two years in jail.

Argument in favour of OSA:

The official secrets act 1923 was created during the British colonial era with the intention of maintaining secret and confidentiality in government and expansion of the country. The OSA recently sparked controversy and dissent as the government used it to defend the disclose of sensitive material from document relating to the rafale deal. According to the administrative people who disclosed material that was in the public domain violated the official secrets act. As a result the following are some argument in favour of OSA:

National credibility:

It is stated in court that the nation need stringent regulation to deal with the crime committed against the state and the government of India. This is essential to stop further crimes from happening and damages the states reputation.

Governmental security:

To preserve the interest of the state a number of document and pieces of information must be kept confidential. Military operation and other sensitive information are example of issues that must be kept secret and confidential in order to ensure the safety and security of the country

No resistance:

Without any objection or resistance from any legislative or commission the official secrets act was created because it is essential to maintain the secrecy of specific state record and information for the safety of the country and general public. nonetheless it is necessary to make some changes to the act. The government attorney general stated that people who posted information and paper about the rafale agreement were in contempt of court and should face charges under the official secrets act. The government further claimed that the disclosure of document and information was part of a conspiracy to devalue the rafale contract and imperil confidentiality. According to sec 3 of the act if any individual for any reason communicates record or publish any information and document which is injurious to the interest of the nation shall be subject for imprisonment for a term not to exceed 14 years it was further asserted. The record that were taken from the ministry of defences and afterwards published in the newspaper by the Hindu according to the government constituted an OSA violation.

Argument against OSA:

The official secrets act 1923 was created with the intention of limiting access to paper and information to the government in order to maintain secret and confidentiality. This is in direct opposition to democracy in the nation where everyone has a right to full disclosure of all fact pertaining to governmental operation. The law also contravenes article 19(1) of the Indian constitution which guarantees everyone the right to freedom of speech and expression.

Privileged communication under the Indian evidence act 1872:

Communication during marriage:

Under sec 122 of the act evidence act husband and wife communication enjoy the status of privileged communication. According to this a married person :shall not forced to reveal any communication that their spouse or ex spouse made to them during the marriage. Even if they are willing to they are not allowed to share anything without the approval of spouse.

Professional privileges:

The exchange of communication between a lawyer and his client is confidential and neither party may be required to reveal anything about it. Every barrister attorney pleader or vakil must obtain the client permission before disclosing any communication made to them during the course of their work according to sec 126 of the act. Everyone who is registered as a legal practitioner in india and fits into one of the aforementioned categories basically an advocate is eligible for the privilege provided by this part.

State privilege:

Affairs of the state : according to sec 123 of the act no one is permitted to provide evidence that could be based on any unpublished record of state matters. Unless they have the officer in or charge the department head permission. This is officer has the authority to grant or deny authorization in this regard as he sees fit.

Official communication : the evidence act sec 124 discuss official correspondence. It says that a public official cannot be forced to reveal any information given to him in confidence if he consider doing so could harm the interest of the public. While sec 123 discuss unpublished record pertaining to state affairs sec 124 forbids the publication of any official communication whether in writing or not regardless of whether they have any connection to state affairs .

Secret informant: a magistrate or a police officer cannot be forced to disclose how they obtained any information on the commission of a crime according to sec 125 of evidence act. A revenue officer cannot be forced to disclose how he obtained any information about the commission of any offence against the public revenue according to the law.

Important case law :

Asif Hussain VS state:

The appellant in the case asif hussain vs state was revealed to be Pakistani national who lived in Kolkata and provided classified information on the Indian army. Document that were seized were certified as being for official and limited use. The defendant was found guilty and given two prison term of nine years for violation. Section 3 of the official secrets act of 1923 and four years with the fine of 10000 for violating section 474 of the IPC. The court had ruled that the appellant sentence were to be served concurrently and not consecutively.

Indian express newspaper vs union of India (1985) :the supreme court emphasised the values of press freedom in democratic societies and ruled that the media main function is to inform the people and serve as to the hub of social and political discourse. The court additionally stated that it is the responsible of Indian court to defend and uphold press freedom and to nullify any administrative measures that are in conflict with it.

Kedar Nath vs state of bihar : the supreme court ruled that criticism of the government no matter how vehement does not constitute sedition or incite hatred of the government policies unless there is an incitement to violence threat to public order or disorder. The court further noted that a necessary element of a sedition offences is the instigation of violence or an attempt to hatred against the action of the government. Sedition charges cannot be brought up based solely on criticism of government operation and policies. A democratic society must inform the board population of the truth and the situation of the world.

Conclusion:

The official secrets act is a comprehensive law that protects the security and integrity of the nation by preventing sensitive information from being improperly shared with anyone other than the designated official and applying to every member of the Indian government and every Indian citizen whether they reside inside or outside of india. Originally enacted during the british era this regulation was meant to suppress national publication opinion and action in an efforts to overthrow the raj the act continued applicability in the 21 st century is frequently questioned. The act proposed classification of sensitive material has come under scrutiny. Some people believe that this act is only intended to prevent citizens from conducting research.[1]

[1] Reference: