OFFICIAL SECRETS ACT,

1923
Need to Protect “State Secrets”
• “All human beings have three lives: public, private, and secret.” -Nobel Laureate
Gabriel Garcia Marquez
• Irrespective of political ideologies and forms of government, modern states ruthlessly protect
their secrets — often at the cost of basic human freedoms. In the process, they create legal
tools that give unfettered powers in the hands of security establishment to protect “state
secrets”.
• India is no exception to this bitter truth. The Official Secrets Act (OSA), 1923, enacted by the
British to fortify its vice like grip over India, was retained by the very leaders who fought
against the Raj as they realised the importance of protecting “state secrets”.
• In early 2019, Attorney General KK Venugopal had told the Supreme Court that a probe was
on regarding certain documents (not originals, only photocopies) relating to Rafale jet deal
stolen either by serving or former officials and used for filing of public interest litigations (PILs)
only underlines the fact that the Indian state is serious about what it considers “secret”.
OSA: A Draconian Piece of Legislation
• Most statutes used to apply to whole of India, except Jammu and
Kashmir. But the Official Secrets Act has even extra-territorial
application as it not only applies to the entire India, but also to
government servants and Indian citizens abroad.
• OSA is considered a draconian piece of legislation. Why?
• Section 3(1) of OSA prescribes a maximum 14-year imprisonment for
acts prejudicial to the safety or interests of the State.
• It goes to the extent of criminalising an act of even being in the
vicinity of a prohibited place.
Against Basic Tenets of Criminal
Jurisprudence
• Section 4(1) of OSA penalises obtaining records or publishing or communicating
to any other person any secret official code or document that even might be
indirectly useful to an enemy.
• This law goes against the basic tenets of criminal jurisprudence that presumes
an accused to be innocent until proven guilty. It’s for the prosecution to prove
the guilt of the accused beyond reasonable doubt. Benefit of doubt, if any, goes
to the accused and he/she can be set free for lapses on part of the prosecution.
• But Section 3(2) of OSA says, “On a prosecution for an offence punishable under
this Section, it shall not be necessary to show that the accused person was
guilty of any particular act tending to show a purpose prejudicial to the safety
or interests of the State...”
 Violates Requirements of Substantive & Procedural
Justice
• Section 3(2) of OSA further says, “…and, notwithstanding that no such act is
proved against him (accused), he may be convicted if, from the circumstances of
the case or his conduct or his known character as proved, it appears that his
purpose was a purpose prejudicial to the safety or interests of the State…”
• For a criminal law provision to say that it’s not necessary to show, let alone prove,
the guilt of the accused; and that he can be convicted without his guilt being
proved beyond reasonable doubt is an affront to a civilized society.
• Second, it goes against the mandatory requirement of both substantive and
procedural justice under Article 21 of the Constitution, which guarantees right to
life and liberty to every person. It amounts to substituting the presumption of
innocence with the presumption of guilt and shifting the burden of proof on the
accused.
OSA Violates Right Against Self-
Incrimination
• Third, every statue defines key expressions used in it. But surprisingly, the term
“official secrets” has not been defined under Official Secrets Act, leaving it open
to abuse by the security establishment that need not show that the accused is
guilty of any particular act prejudicial to the safety or interests of the State. They
can prove such acts indirectly, by relying on “circumstances of the case” or
“conduct of the accused” or “his known character”.
• Fourth, even giving a missed call i.e. an attempted communication with a
“foreign agent” can attract draconian provisions of OSA.
• Fifth, OSA also violates fundamental right against self-incrimination guaranteed
under Article 20(3) of the Constitution as Section 8(2) of the Act makes refusal to
share information with police punishable with three-year imprisonment. It runs
counter to universally followed media ethics of protecting a source.
The Procedural Requirements Under OSA
• Section 13(1) of OSA says only a Magistrate of first class shall try cases
under this Act.
• Section 13(3) makes it clear that unless the complaint under OSA is
made by order of, or under the authority from Appropriate
Government, or some officer empowered by the Appropriate
Government in this behalf the magistrate shall not take cognigance of
the offence.
• Section 14 excludes public from OSA proceedings.
Relationship Between OSA & RTI Act
• Section 22 of RTI Act, 2005 gives overriding effect to the transparency
law over OSA.
• But it’s an example of smart legislative drafting as Section 8(1) of RTI
exempts certain categories of information crucial for the State from the
purview of the transparency law.
• Further, Section 24 read with the Second Schedule of RTI Act exempts
certain categories of organisations such as intelligence and security
agencies from the purview of the transparency law.
• This way, the State manages to secure its “State secrets”.
• Possible conflict with Section 11 of Whistleblower Protection Act 2014.
Important Cases
• Iftikhar Gilani case (2002)
• Santanu Saikia case (2009)
• Santau Saikia case (2015)
• Sama Alana Abdulla vs. State of Gujarat (1996)
The Way Forward
• The Second Administrative Reforms Commission had in 2006 recommended
repeal of the Official Secrets Act after incorporating its relevant provisions in
the National Security Act. In 2017, the Ministry of Home Affairs reviewed the
Act to make it compatible with the requirements of a democratic India. The
MHA has already submitted its report to the Cabinet secretariat on how to go
about it, but a decision remains pending.
• The constitutional validity of OSA is already under challenge before the
Supreme Court that issued notice to the Centre in 2017 on a petition filed by a
journalist alleging misuse of the law. Given the draconian nature of its
provisions, the OSA may not pass judicial scrutiny as it violates “due process”
read into Article 21 by the Supreme Court. If not quashed altogether, the law
certainly needs to be read down.