OFFICIAL SECRETS ACT

OFFICIAL SECRETS ACT 

The Official Secrets Act of 1923 is India’s anti-espionage legislation. It is aimed at protecting the state against the leakage of national secrets.

About The Act/Static Information:

1. Objective of the Act: Protecting the state against the leakage of state secrets.
2. Applicability: It is applicable to all citizens of India residing within or outside the country [including government servants].
3. Ambit of the Act: It broadly deals with two aspects:
   • Section 3: Spying or espionage.
   • Section 5: Person communicating the information, and the person receiving the information, can be punished by the prosecuting agency.
4. Other than the above two, it deals with the following: Harbouring spies, unauthorized use of uniforms, falsification of reports, interference with the police or military near a prohibited place, etc.
5. Classification of document: For classifying a document, the Manual of Departmental Security Instructions, 1994 is used and not OSA.

Issues with the Act:

1. Conflict with Right to Information Act:

• Supremacy of RTI: Section 22 of RTI Act provides for primacy of RTI Act vis-a-vis provisions of other laws, including OSA.
• Supremacy of OSA: Sections 8 and 9 of the RTI Act, the government can refuse information classified as OSA.

2. Against Democratic values

• Violates freedom of speech and expression: The Section makes it a punishable offence to share information that may help an enemy state. It comes in handy for the government to book journalists when they publicize information that may embarrass the government or the armed forces.

• Affects flow of information to people: It gives the government sweeping, draconian powers in limiting information to citizens and then prosecuting them in case such information is made public.
• Promotes culture of secrecy: OSA promotes the culture of secrecy in governance and makes disclosure an exception. This is against the transparency requirement of democratic governance.

3. Contentious provisions of the Act

• Section 3: The definition of spying given is far too broad.
• Section 5 Misuse: It deals with potential breaches of national security and is often misinterpreted. It comes in handy for booking journalists when they publicize information that may cause embarrassment to the government or the armed forces.

4. Other Issues

• No clear Definition: The Act does not define the terms “secret” or “official secrets” or any parameters have been identified. Public servants could deny any information terming it a “secret”.
• Obstacle to bail: Judges are more likely to deny bail if a person is charged under the OSA, because it is a question of national security.

Instances when OSA was used

• Coomar Narain Spy Case (1985): Twelve former staff members of PMO found guilty of conspiring with the French, German, and Polish Embassy.
• ISRO Spy Case: It targeted scientist S. Nambi Narayan for supplying cryogenic technology to Pakistan.
• Iftikhar Gilani Case: The Kashmir Times journalist charged with spying for Pakistan was arrested in 2002.
• Journalist Tarakant Dwivedi: Was booked for criminal trespass under the Act in 2011, for writing an article in Midday about how sophisticated weapons bought after 26/11 were being stored in a room with a leaking roof at the CST in Mumbai. An RTI query later revealed that the armoury visited by him was not a prohibited area, and the plea was dismissed by the Bombay High Court.
• Madhuri Gupta Case (2018): The formal diplomat was sentenced to three years in jail for passing on sensitive information to the ISI.
• Delhi Journalist Case (2020): The Delhi police arrested a strategic affairs analyst, Rajeev Sharma, who was accused of passing information such as the deployment of Indian troops on the border to Chinese intelligence officers.
• The Hindu Case: Related to the alleged irregularities in the Rafale aircraft deal between India and France, which was published in ‘The Hindu’ Newspaper.

Way Forward/Recommendations

• Amendment to Section 5: A comprehensive amendment of Section 5(1) to make the penal provisions of OSA applicable only to violations affecting national security [Shourie Committee].
• Secrecy an exception: The Commission is of the view that the disclosure of information has to be the norm, and keeping it secret should be an exception [Shourie Committee].

• Ensure transparency: OSA be made more transparent and in line with the RTI Act [High Level Panel under Union Home Ministry, 2015].
• Substitution of the Act: Act should be substituted by a chapter in the National Security Act that incorporates the necessary provisions [II ARC].
• Primacy to RTI over OSA: The right to freedom of speech & expression and information should be prioritised over the archaic Official Secrets Act [Supreme Court].