Watching the oath-taking ceremonies of Central and state council of ministers every time, one wonders why our public representatives should take an oath of secrecy when, ideally, they should affirm their commitment to be transparent to those who elect them to these high offices. The question is whether the clause regarding secrecy is not an anachronism in a democracy which has a Right to Information Act also in its statute? Is not the secrecy clause a relic of colonial days? A few years back, a group of newly elected village sarpanchs in Rajasthan had refused to take the usual oath of secrecy, and insisted on taking an oath of “transparency”. Their contention was that they could not hide their official work from the electorate who have elected them to office. They had pledged to publicise their assets as well as their daily official functions.

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The ministers are mandated to take oath on three counts — integrity, impartiality and secrecy — before they can take over their offices. After affirming allegiance to the Constitution, a minister affirms or swears that he or she will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under his/her consideration or shall become known to him/her as a minister. This clause is rooted in the archaic colonial Official Secrets Act (OSA) of 1923, and also negates the letter and spirit of the RTI Act. More importantly, it impairs the transparency agenda. Far from an affirmation to transparency, the system enjoins upon ministers to become secretive. 

Last year from the ramparts of the Red Fort, Prime Minister Narendra Modi declared himself the “pradhan sewak” (prime servant) of the people and not their “pradhan mantri”. So, his ministers can very well be called sewaks or servants. The question now arises, if the people of India are the ultimate masters, does a servant have the right to tell a master that he cannot share any information with him as he is sworn to secrecy? 

The National Commission to Review the Working of the Constitution (NCRWC) headed by Justice MN Venkatachaliah, former Chief Justice of India, in 2002 had suggested discarding the traditional insistence on secrecy. In fact, he recommended having an oath of transparency in place of an oath of secrecy.

Second Administrative Reforms Commission in its report on the Right to Information in 2006, under the chairmanship of Veerappa Moily, also concluded that a public servant has no right to sit on any information. The report said that a minister was a bridge between the people and the government and, therefore, owes his primary allegiance to the people who elected him. “The existence of this provision of oath of secrecy and its administration along with the oath of office appears to be a legacy of the colonial era, where the public was subjugated to the government,” the report said.  It did mention that information related to national security and larger public interest considerations of the country’s integrity and sovereignty may be kept away from the public domain. But a very public oath of secrecy at the time of assumption of office is both unnecessary and repugnant to the principles of democratic accountability, representative government and popular sovereignty. The Commission recorded that the obligation not to disclose official secrets may be built in through an appropriate insertion of a clause in the national security law dealing with official secrets. 

Alternatively, such an undertaking can be taken in writing, thus avoiding public display of propensity to secrecy. The Commission strongly recommended that the oath of secrecy may be dispensed with and substituted by a statutory arrangement and a written undertaking.

It also explained: As an affirmation of the importance of transparency in public affairs, ministers on assumption of office may take an oath of transparency along with the oath of office and the requirement of administering the oath of secrecy should be dispensed with. Articles 75(4) and 164 (3), and the Third Schedule should be suitably amended. (b) Safeguard against disclosure of information against the national interest may be provided through written undertaking by incorporation of a clause in the national security law dealing with official secrets. Instead of leaving it to the individual discretion, the law should mandate the transparency, including the information about facilitating the ‘meeting’ with people. In fact, the performance of ministers and civil servants should be judged in terms of how much information they have made public, and also their availability to address issues confronting general public. 

The Central Information Commissioner, Professor Madabhushi Sridhar, has put it succinctly  that even if the minister takes an oath of transparency, it will not oblige him to disclose various kinds of information, such as those that prejudicially affect the sovereignty and integrity of India etc, as delineated in 8(1)(a); information, the disclosure of which would cause a breach of privilege of Parliament or State Legislature; information received in confidence from foreign government, and cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officer with a proviso. Hence there is no excuse not to amend the statute and ask the minister to take an ‘oath of transparency’.  

The author is Editor, strategic affairs, DNA