Rahul Gandhi says Narendra Modi violated Official Secrets Act in Rafale deal: What the Act says about 'spying'

Following another dramatic unveiling in the Rafale deal row, Congress chief Rahul Gandhi on Tuesday cited an The Indian Express report and asked how Anil Ambani knew that the deal would materialise 10 days in advance of the official announcement. Pointing at a possible role played by Prime Minister Narendra Modi in conveying information to Ambani, Rahul asserted that Modi was in violation of the Official Secrets Act and called for a criminal investigation into the prime minister's conduct.

What is the Official Secrets Act that Rahul is talking about?

The Official Secrets Act of 1923 is India's version of the anti-espionage act which is present in the constitution of nearly every country in the world. India's act has been in place since the British era. Through this, actions which involve or lead to assisting an "enemy state" against India, are punished, says Indian Kanoon.

Assisting an enemy state, according to this Act, can be in the form of communicating information of an official secret, or of official codes or passwords, to the enemy.

In the light of Rahul's accusations, the portion of the Act which Modi could probably be accused of flouting if has indeed communicated the details of the deal to Ambani, delineate that it is unlawful for person in a government position to disclose information for the benefit of a foreign power or for any purpose other than the concerns of the country.

If any person having in his possession or control any secret official code or pass word or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India...which he has obtained or to which he has had access owing to his position as a person who holds or has held office under Government...wilfully communicates the code or password, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorised to communicate it, or a court of Justice or a person to whom it is, in the interest of the State, his duty to communicate it; or uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety of the State...

How is Modi's alleged action flouting the Act?

In the press conference, Rahul drew light to the fact that when Ambani had visited French defence minister Jean-Yves Le Drian's office in Paris in 2015, about two weeks before Modi announced the procurement of 36 Rafale fighter aircraft from France, the businessman mentioned that a "memorandum of understanding is in preparation" and spoke of the Indian government's "intention to sign it" during Modi's visit.

Rahul Gandhi speaks at the press conference on the Rafale deal on Tuesday. Twitter/@INCIndia

Rahul Gandhi speaks at the press conference on the Rafale deal on Tuesday. Twitter/@INCIndia

However, speaking to the press just before Modi's visit, then foreign secretary S Jaishankar had said India does not mix up "leadership level visits with deep details of ongoing defence contract", ruling out a possibility of the announcement of exactly such a deal.

The Congress alleges that the secrecy shrouding Modi's surprise announcement of the deal and the fact that Ambani was one of the very few people who knew a state secret that apparently eluded the foreign secretary, points to the fact that Modi kept Ambani informed of the deal.

This could be considered as having gone against two parts of the Act:

  1. Willful communication of information to any person other than a person to whom one is authorised to communicate it, and
  2. Use of the information in one's possession for the benefit of any foreign power or in any other manner prejudicial to the safety of India.

The latter could be raked up in the light of the controversy regarding the pricing of the Rafale jets, with Congress alleging that the Modi government settled for a much higher price and did not follow the standard procedure of negotiating such deals. Successive reports on The Hindu have also claimed that the government also let go of anti-corruption clauses and that Modi's "interference" may have harmed the defence ministry's stand.

If the Act is invoked, then not only Modi but also Ambani's actions come within its purview, as he too was allegedly party to negotiations that took place on the basis of exchanged secrets, according to the Indian Express report.

What happens if you are found guilty under the Act?

A person found flouting the rules laid down in the Act is automatically accused of treason and becomes a "spy", which is the term that Rahul has used for Modi.

A person guilty of an offence under this section of the Act is liable to be punished with a fine and imprisonment for a term that may extend to three years.

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Updated Date: Feb 12, 2019 14:42:59 IST

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