Topic: To serve the governed: on Official Secrets Act
Topic in Syllabus: General Studies Paper 2 : Indian Governance
Remarks made by the Attorney-General in the Supreme Court on March 6, of looking into “criminal action” against those responsible for making “stolen documents” on the Rafale deal public, have brought the Official Secrets Act into focus
Meaning of Official Secrets Act:
- An ‘Official Secrets Act’ is a generic term that is used to refer to a law — originally invented by the British, and then exported across the Commonwealth — that is designed to keep certain kinds of information confidential, including, but not always limited to, information involving the affairs of state, diplomacy, national security, espionage and other state secrets.
- Across multiple countries, the Official Secrets Acts follow a similar pattern: classifying certain categories of information as “official secrets,” and then providing stiff penalties for any sharing, dissemination or publication of such information.
More about on Official Secrets Act:
- India’s Official Secrets Act (OSA) dates back to 1923, unsurprisingly a creation of the colonial regime.
- The 1923 Act includes penalties for spying (which, in turn, includes even “approaching” or being “in the vicinity of” a prohibited place, publishing any “sketch” or “plan” that might be useful to the enemy, with a prejudicial purpose.)
- It punishes the communication of any information obtained in contravention of the Act, which could prejudice the security of the state, or friendly relations with foreign states.
- It punished people who knowingly receive such information — a provision clearly designed to capture investigative journalism.
- It was an amended and more stringent version of The Indian Official Secrets Act (Act XIV) of 1889, brought in at a time when a large number of powerful newspapers had emerged in several languages across India.
- Fearless editors opposed the Raj’s policies on a daily basis, building political consciousness among the people, and facing police crackdowns and prison terms to uphold their mission and convictions.
- One of the main purposes of the Act was to muzzle the voice of nationalist publications.
What comes under its purview?
- It broadly deals with two aspects spying or espionage, covered under Section 3, and disclosure of other secret information of the government.
- Secret information can be any official code, password, sketch, plan, model, article, note, document or information.
- Under Section 5, both the person communicating the information, and the person receiving the information, can be punished.
- For classifying a document, a government Ministry or Department follows the Manual of Departmental Security Instructions, 1994, not under OSA.
- OSA itself does not say what a “secret” document is.
- It is the government’s discretion to decide what falls under the ambit of a “secret” document to be charged under OSA.
- It has often been argued that the law is in direct conflict with the Right to Information Act, 2005.
Arguments in favour of the Official Secrets Act:
- No opposition: official Secrets Act has not been opposed by any commission as there are a need and necessity of the laws that can keep the specific documents of the state secret. Only a few unclear provisions of the act require change.
- National credibility: There is a requirement of strong laws to deal with the crimes against the state that undermines the credibility of the state.
- National Security: There are many documents which need to stay secret like locations of a military installation, which if leaked would go against the security of the nation and benefit the enemy
- Other countries have similar legislation: Many nations including the United Kingdom, Malaysia, Singapore, and New Zealand continue to use the legislation for protecting state secrets. In 2001, Canada replaced its OSA with a Security of Information Act. The Official Secrets comes under the Espionage Act of the United States.
RTI Act and OSA:
- Section 22 of the RTI Act provides for its primacy vis-a-vis provisions of other laws, including OSA.
- This gives the RTI Act an overriding effect, notwithstanding anything inconsistent with the provisions of OSA.
- So if there is any inconsistency in OSA with regard to furnishing of information, it will be superseded by the RTI Act.
- However, under Sections 8 and 9 of the RTI Act, the government can refuse information.
- Effectively, if government classifies a document as “secret” under OSA Clause 6, that document can be kept outside the ambit of the RTI Act, and the government can invoke Sections 8 or 9. Legal experts see this as a loophole.
Effort to change provisions of OSA:
- In 1971, the Law Commission became the first official body to make an observation regarding OSA.
- In its report on ‘Offences against National Security’, it observed that “it agrees with the contention” that “merely because a circular is marked secret or confidential, it should not attract the provisions of the Act, if the publication thereof is in the interest of the public and no question of national emergency and interest of the State as such arises”.
- The Law Commission, however, did not recommend any changes to the Act.
- In 2006, the Second Administrative Reforms Commission (ARC) recommended that OSA be repealed, and replaced with a chapter in the National Security Act containing provisions relating to official secrets. Observing that OSA was “incongruous with the regime of transparency in a democratic society”.
- The ARC referred to the 1971 Law Commission report that had called for an “umbrella Act” to be passed to bring together all laws relating to national security.
- In 2015, the present government set up a committee to look into provisions of the OSA in light of the RTI Act.
- It submitted its report to the Cabinet Secretariat on June 16, 2017, recommending that OSA be made more transparent and in line with the RTI Act.
Recent case regarding OSA:
- One of the oldest and longest criminal trials involving OSA is the 1985 Coomar Narain spy case.
- Twelve former staff members in the Prime Minister’s Office and Rashtrapati Bhavan Secretariat were sentenced to 10 years’ imprisonment in 2002.
- They were found guilty of entering into a criminal conspiracy with officials of the French, Polish and German embassies, communicating secret official codes, classified documents and information pertaining to defence, shipping, transport, finance, planning, and R&AW and Intelligent Bureau reports.
- The other high-profile case was the ISRO spy case targeting scientist S Nambi Narayan. Before his recent acquittal, he had faced a criminal trial under OSA, and was accused of passing on rocket and cryogenic technology to Pakistan for illegal gratification.
- The most recent conviction under OSA came in 2018, when a Delhi court sentenced former diplomat Madhuri Gupta, who had served at the Indian High Commission in Islamabad, to three years in jail for passing on sensitive information to the ISI.
- In another high-profile case, then Kashmir Times journalist Iftikhar Gilani was arrested in 2002 and charged under OSA.
Supreme Court’s observation:
- Corruption complaints should not be protected under the guise of national security.
- The Act did not provide the liberty to commit corruption.
- The court dismissed the act of targeting the messenger and criminalization of the whistleblowers in the name of national security or stability of government official secrecy.
- The court called such actions as an attack on the freedom of expression and the people’s right to information.
- The right to freedom of speech & expression and information should be prioritized over the archaic Official Secrets Act.
- The Court expanded the protections to the whistleblowers to make sure that those who expose corruption and wrongdoing should not be made vulnerable to any threats.
Do other nations have similar laws?
- Several countries, including the United Kingdom, Malaysia, Singapore, and New Zealand, continue to use the legislation to protect state secrets.
- In 2001, Canada replaced its OSA with a Security of Information Act.
- The “official secrets” come under the Espionage Act in the U.S.
- On September 3, 2018, a Myanmar court awarded seven years’ jail to two Reuter’s journalists for illegally possessing official documents on the military’s alleged human rights abuses against Rohingya Muslims.
- Malaysia has also been accused of using the OSA to silence dissidence.
- As recently as 2006, the Home Ministry recommended substantial changes to the OSA, in line with the privacy regime established by the RTI.
- From time to time, there are calls to repeal the OSA and replace it with a National Security Act that is more consistent with the aspirations of an open, democratic republic.
- the OSA has proved resilient, and it would be reasonable to assume that we are stuck with it for at least the medium-term future.
Discuss the significance of India’s Official Secrets Act and critically examine how this act has been misusing against journalists and whistleblowers.