What is Official Secrets Act?

 The Official Secrets Act 1923 is India’s anti-espionage act held over from the British
colonial period. It states clearly that actions which involve helping an enemy state
against India are strongly condemned.
 It also states that one cannot approach, inspect, or even pass over a prohibited
government site or area. According to this Act, helping the enemy state can be in the
form of communicating a sketch, plan, model of an official secret, or of official codes or
passwords, to the enemy.
Provisions of OSA
 It is applicable to all Indian citizens residing inside or outside the country(inclusive of
government servants)
 It is a comprehensive document relating to official secrets and define a number of
offences such as;
1. Spying
2. Wrongful communication of any secret official code, password or any such sketch,
plan, model, article, note, document or information.
 Objective of the act: maintaining the security of the state against the leakage of
information, sabotage, and like.
Provisions related to Prosecution and penalties
 Punishments under the Act range from three to fourteen years imprisonment. A
person prosecuted under this Act can be charged with the crime even if the action was
unintentional and not intended to endanger the security of the state.
 The Act empowers persons in positions of authority to handle official secrets, and
others who handle it in prohibited areas or outside them are liable for punishment.
 Journalists have to help members of the police forces above the rank of the sub-
Inspector and members of the military with investigation regarding an offense, up to
and including revealing his sources of information.
 Under the Act, search warrants may be issued at any time if the magistrate
determines that based on the evidence there is enough danger to the security of the
state.
 Uninterested members of the public may be excluded from court proceedings if the
prosecution feels that any information which is going to be passed on during the
proceedings is sensitive. This also includes media.
 When a company is seen as the offender under this Act, everyone involved with the
management of the company, including the board of directors, can be liable for
punishment. In the case of a newspaper, everyone – including the editor, publisher and
the proprietor — can be imprisoned for an offense. OSA is controversial to the modern
RTI act 2005.
Relation with RTI and Its use in Rafale issue
 In the OSA clause 6, information from any governmental office is considered official
information, hence it can be used to override Right to Information Act 2005 requests.
This has drawn harsh criticism.
 The Supreme Court is witnessing a battle of sorts between the teenaged Right to
Information Act (RTI Act) and the 96-year old Official Secrets Act (OSA) for relevance and
meaning.
 The RTI Act was passed in 2005 to give effect to the people’s fundamental right to
know what the government is doing in their name and how it is spending their tax
 funds. OSA came into existence in 1923, primarily to punish spies – both local and
foreign.
 The British Raj effectively turned it into a closet to lock up various kinds of
information from public scrutiny because it believed the natives could not be trusted.
Unfortunately, this trend continues even after independence and the brunt is often
borne by fearless journalists and whistle-blowers who expose corruption and
wrongdoing in government.
 The latest arena of battle is the highest court of the land. Certain reputable citizens
and advocates are seeking review of the clean chit the Supreme Court gave in
December to the government’s decision to buy 36 Rafale fighter aircraft from Dassault
Aviation SA.
 The bone of contention is a set of official papers relating to the decision-making
process which the court did not have an opportunity to examine earlier.
 The Attorney General of India initially labelled these papers “stolen” when he found
them annexed to the review petition filed in the apex court. Earlier, these documents
were splashed across cyberspace by multiple media houses.
 The petitioners are arguing that such information cannot be kept secret in the age of
RTI, while the government is claiming breach of privilege citing provisions from the 147-
year-old Indian Evidence Act.
Arguments in favour of RTI Act by the Supreme
 The Supreme Court reminded the government about the existence of the Right
to Information Act, which overrides the Official Secrets Act (OSA) 1923.
 The SC Bench said the information law has revolutionised governance and
overpowered notions of secrecy protected under the Official Secrets Act, 1923.
 It was also stated that the Section 24 of RTI, mandates even security and
intelligence organisations to disclose information on corruption and human rights
violations. Finally, Section 8(2), which compels the government to disclose
information “if public interest in disclosure outweighs the harm to protected
interests”.
 Section 22, 24 and Section 8(2) are crucial provisions of the Right to Information
which gives primacy to public interest and transparency over the ‘secrets’ even if the
organisations were totally exempted from the RTI. Especially when corruption or
violation of human rights are possible reasons to hide the information, the access law
mandates such information to be disclosed.
 Hence, with this case it is clear that RTI overrides the Official secrets act 1923.
What are the key features of OSA?

 The secrecy law broadly deals with two aspects:

1. spying or espionage, which is dealt with in Section 3 of the Act

2. disclosure of other secret information of the government, which is
dealt with in Section 5

 The 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 by the
prosecuting agency.
How did the Act evolve?

 The Official Secrets Act (OSA) has its roots in the British colonial era.
 Its predecessor law, The Indian Official Secrets Act, 1904 was enacted
during the time of Lord Curzon, Viceroy of India from 1899 to 1905.
 It was an amended and more stringent version of The Indian Official
Secrets Act (Act XIV) of 1889.
 The latter was brought in at a time when a large number of powerful
newspapers had emerged in several languages across India, and
editors -

i. opposed the British Raj’s policies on a daily basis

ii. built political consciousness among the people
iii. faced police crackdowns and prison terms to uphold their mission
and convictions

 So one of the main purposes of the Act was to suppress the voice of
nationalist publications.
 In 1923, the Indian Official Secrets Act (Act No XIX of 1923) replaced
the earlier Act.
 This was extended to all matters of secrecy and confidentiality in
governance in the country.

What are the notable convictions so far?

 The most recent conviction under the Official Secrets Act came in
2018.

 The Delhi court held former diplomat Madhuri Gupta, who had
served at the Indian High Commission in Islamabad, guilty under the
OSA.
 She was sentenced to 3 years in jail for passing on sensitive
information to Pakistan’s ISI.
 In 2002, the then Kashmir Times journalist Iftikhar Gilani was
arrested and charged under the OSA.
 The case was in relation with allegedly possessing secret documents
relating to the deployment of troops in the Valley. The state later
withdrew the case.
 In 2017, journalist Poonam Agrawal was charged under OSA for
conducting a sting operation on an Army official who criticised the
sahayak system in the Army.

What had the contention been?

 As the classification of secret information is so broad, it is largely in

direct conflict with the Right to Information Act.
  Moreover, examining the process of decision-making in a
government involves looking for information, and documents.
 Records which are meant to be confidential are sometimes significant
in bringing illegalities to public attention.
 This was true in the 1980s of irregularities in Bofors defence deal.
 More recently, in 2016, the Panama Papers involved the painstaking
unveiling of offshore transactions in tax havens.
 This, significantly, resulted in hundreds of crores of undeclared assets
being traced by the government.
 But in every other instance, the Official Secrets Act hampers the
process.

What is the recent case?

 The recent case is in relation to the alleged irregularities in the Rafale

aircraft deal between India and France, which was published in 'The
Hindu' Newspaper.
 The Attorney General raised an objection in court seeking dismissal
of the review petitions.
 This was on the ground that the reports cited documents “stolen”
from the defence ministry.
 In other words, the Official Secrets Act was used as a shield against
allegations of wrongdoing in the Rafale deal.

What is the Court's observation?

 The court questioned that if there was a corruption complaint, was it

to be protected under national security.
 Certainly, the Court held that the Act did not offer the liberty to
commit corruption.
 The Court dismissed targeting the messenger and criminalising the
whistleblower under the cover of “national security” or “stability” of
government or “official secrecy”.
 It called it an attack on the freedom of expression and the people’s
right to know.
 Undoubtedly, the OSA in a democracy needs constant contest, and
the need for official secrecy has to be weighed against the citizen’s
right to know.
 The right to freedom of speech and expression, and information
should be prioritised over the archaic Official Secrets Act.
 Notably, the apex Court has increasingly expanded the protections to
whistleblowers, to ensure that those who expose corruption and
wrongdoing are not vulnerable to any intimidation.