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.
- The Indian Official Secrets Act, 1904 was enacted during the time of Lord Curzon, Viceroy of India from 1899 to 1905.
- One of the main purposes of the Act was to muzzle the voice of nationalist publications.
- The Indian Official Secrets Act (Act No XIX of 1923) replaced the earlier Act, and was extended to all matters of secrecy and confidentiality in governance in the country.
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The Official Secrets Act was first enacted in 1923and was retained after Independence. The law, applicable to government servants and citizens, provides the framework for dealing with espionage, sedition, and other potential threats to the integrity of the nation. The law makes spying, sharing ‘secret’ information, unauthorised use of uniforms, withholding information, interference with the armed forces in prohibited/restricted areas, among others, punishable offences. If guilty, a person may get up to 14 years’ imprisonment, a fine, or both.
The information could be any reference to a place belonging to or occupied by the government, documents, photographs, sketches, maps, plans, models, official codes or passwords.
Has the law undergone any changes over the years?
No. However, the Second Administrative Reforms Commission (SARC) Report, 2006, suggested that the Act should be substituted by a chapter in the National Security Act that incorporates the necessary provisions. The reason: it had become a contentious issue after the implementation of the Right to Information Act.
The OSA does not define “secret” or “official secrets”. Public servants could deny any information terming it a “secret” when asked under the RTI Act.
The SARC report stated that as the OSA’s background is the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, it created a culture of secrecy. “Confidentiality became the norm and disclosure the exception,” it said. This tendency was challenged when the Right to Information Act came into existence.
In 2008, during the first term of the UPA, the Group of Ministers that scrutinised the SARC report refused to repeal the Act but suggested amendments to do away with ambiguities. Even on Thursday, Congress president Rahul Gandhi was wary of scrapping the law. He was of the view that the legislation should not be used to harass journalists.
In 2015, the NDA government formed a high-level panel to look into the provisions of the OSA in the light of the RTI Act. No action has been taken on the panel’s report, which was submitted in 2017.
Is withholding information the only issue with the Act?
Another contentious issue with the law is that its Section 5, which deals with potential breaches of national security, is often misinterpreted. The Section makes it a punishable offence to share information that may help an enemy state. The Section comes in handy for booking journalists when they publicise information that may cause embarrassment to the government or the armed forces.
Journalist Tarakant Dwivedi alias Akela was booked for criminal trespass under the Official Secrets Act on May 17, 2011, 11 months after he wrote an article in Mid-Day about how sophisticated weapons bought after 26/11 were being stored in a room with a leaking roof at the Chhatrapati Shivaji Terminus in Mumbai. An RTI query later revealed that the armoury Akela visited was not a prohibited area and the Bombay High Court subsequently dismissed the case.
Kashmir-based journalist Iftikhar Gilani was arrested in 2002 under the OSA for downloading a document from the Internet. After spending seven months in jail, he was honourably discharged by the courts.
In a case pertaining to journalist Santanu Saikia, who wrote an article in Financial Express on the basis of a leaked Cabinet note, the Delhi High Court in 2009 ruled that publishing a document merely labelled as “secret” shall not render the journalist liable under the OSA.
Relevance:
1. Safeguards National Security
2. Securing data from the cyber crime cases
3. Soverignity of the country.
Why it should go?
1. It is not suited to the present times in it’s current form.It hasn’t undergone any changes over the years even after Independence.
2. It does not define a ‘secret’ which is often misused terming any information secret when asked under the RTI Act.
The RTI Act, 2005, clearly states that in case of a clash with Official Secrets Act, public interest will prevail. The Second Administrative Reforms Commission had submitted in its report – ‘Right to Information: Master Key to Good Governance’ – that Official Secrets Act should be repealed. But the government then had rejected the recommendation saying it was the only law that dealt with espionage, wrongful possession and communication of sensitive information detrimental to the security of the stat