The Official Secrets Act, 1923: A look at what it contains, when was it reformed and who's been implicated under it
The Official Secrets Act, 1923 is India's anti-espionage act held over from the British colonial period which states that actions which involve helping an enemy state against India are strongly condemned. It mentions that one cannot approach, inspect, or even pass over a prohibited government site or area.
Punishments under the Act range from three to fourteen years of imprisonment
The Union Home Ministry, in July 2017, submitted a report to the Cabinet Secretariat to amend the act to make it more transparent
Section 22 of the RTI Act states that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Act
On Wednesday, as the Supreme Court was hearing arguments on the Rafale deal case, Attorney-General KK Venugopal told the three-judge bench that the government could invoke the Official Secrets Act against The Hindu, for publishing papers related to official communication about the deal.
Amidst the controversy, the report's author and chairman of The Hindu Publishing Group N Ram asserted that all the reports on Rafale that have been published in the newspaper are "absolutely legitimate and justified", adding that nobody is going to make them reveal their sources. Ram told Bloomberg Quint, "There’s been a longstanding discussion on the obnoxious legislation statute called the Official Secrets Act, 1923. Many demands have been made to do away with this obnoxious legacy of the British Raj in India... Whatever criminal action they are willing to take (against us), we are perfectly willing to face it. This kind of talk is an attempt to put pressure on the press to create a climate of fear."
The Editors Guild of India also condemned the remarks made by the attorney-general and said that any attempt to use the Official Secrets Act against journalists would be reprehensible.
What is The Official Secrets Act?
The Official Secrets Act, 1923 is India's anti-espionage act held over from the British colonial period which states that actions which involve helping an enemy State against India are strongly condemned. It mentions that one cannot approach, inspect, or even pass over a prohibited government site or area. According to the Act, helping the enemy State can be in the form of communicating a sketch, plan, a model of an official secret, or passing of/transfer of official codes or passwords, to the enemy.
Punishments under the Act range from three to fourteen years of imprisonment, and 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 only persons in positions of authority to handle official secrets, and others who handle it in prohibited areas or outside them are liable for punishment.
When a company is seen as the offender under this Act, everyone involved with the management of the company, including the board of directors, are liable for punishment. In the case of a newspaper, everyone – including the editor, publisher and the proprietor — can be imprisoned for the offence.
Conflict with RTI Act
In Clause 6 of the OSA, information from any governmental office is to be considered official information, hence it can be used to override the Right to Information Act, 2005 requests. This has been widely debated and contested, specially by the media.
However, Section 22 of the RTI Act states that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
The Iftikhar Gilani case
In June 2002, Jammu and Kashmir journalist Iftikhar Gilani was, arrested for violating the OSA. He was charged with a case relating to releasing information which was a "secret". However, later investigations revealed that the information he was accused of holding was no "official secret".
In Gilani's defence, the military reported that "the information contained in the document is easily available" and "the documents carry no security classified information and the information seems to have been gathered from open sources".
Thereafter, on 13 January 2004, the government withdrew its case against Gilani and he was released the same month.
Reforms sought by MHA
The Union Ministry of Home Affairs, in July 2017, submitted a report to the Cabinet Secretariat to amend the Act to make it more transparent and in line with the Right to Information Act, 2005.
Aiming to amend the 94-year-old Act, the home ministry reviewed the provisions of the colonial-era law so that it can be made compatible with the present democratic set-up. After a detailed review, the ministry submitted a report to the Cabinet secretariat with various suggestions on how to go about with the Act at a time when the country has embraced a transparency law.
The exercise was aimed at amending the OSA to make a seamless transition from the secrecy period of the 20th century to a modern and democratic transparency regime, PTI reported.
A review of the OSA has been on the cards since 2006, when the first report of the Second Administrative Reforms Commission (ARC) on the Right to Information sought repeal of the Act.
At that time, a core group on administrative reforms studied the ARC recommendations, which were then forwarded to a GoM for a decision. The GoM in 2008 accepted 62 recommendations but rejected the suggestion for repeal of OSA. It instead sought amendments to OSA to do away with ambiguity in punishments.
Previous cases where OSA was invoked
A Delhi court in a 2009 judgement, in a case involving the publication of excerpts of a cabinet note in The Financial Express ten years by journalist Santanu Saikia, greatly reduced the powers of the act by ruling that the publication of a document merely labelled "secret" shall not render the journalist liable under the law.
Saikia was arrested in February 2015 in another case that the police said involved the writing of stories and analyses from documents allegedly stolen from the government. He was released on bail in May after spending 80 days in jail.
Additional sessions judge Inder Jeet Singh who had discharged Saikia relied on a 1996 Supreme Court verdict in the case of Sama Alana Abdulla versus the State of Gujarat, Singh said that the test of whether a certain disclosure compromised a secret depended on whether an "official code'' or "password'' had been divulged in terms of Section 5 of the Act, The Times of India had reported.
The report stated that the court's liberal interpretation lessened the scope for misuse of the OSA by official machinery as it made a sharp distinction between a secret document or report dealing with day-to-day routine affairs and one containing information on the sensitive issue of national security.
"The qualifying word secret has to be read in respect of an official code or password'' ASJ Singh clarified, for OSA to be applicable and not just because it says "secret''.
On his part, Saikia, who argued the case himself in court, pointed out how an archaic Act was being used to harass a journalist, the report said.
The Union Minister of State for Home Hansraj Ahir had said that fifty cases of violation of the Act were registered in the country since 2014. Of these 50 cases, 30 were registered in 2016, nine in 2015 and 11 in 2014. And of the 30 cases registered in 2016, eight were lodged in Tamil Nadu, followed by five each in Punjab and Uttar Pradesh.
Interestingly, there were also reports of a case under OSA being filed against former army chief and now BJP MLA General VK Singh after he published a book titled - India’s External Intelligence: Secrets of RAW, in 2007, two years after he retired from service. Following which, his home was raided and a case was registered against him for violating the OSA, though nothing much was heard of the case since then, The Hindu reported.
Later, VK Singh wrote an article detailing the "troubled legacy" of the Act. In the article published on the website of 'The United Service Institution of India', Singh writes: "The Official Secrets Act, 1923 is one of the most draconian laws still in force in India. A legacy of the British Raj, it had often resulted in grave miscarriages that have blotted the record books of the judiciary and sullied our reputation among democratic nations. Eminent jurists and civil rights activists have unequivocally voiced the opinion that the infamous statute should be scrapped. After the enactment of the Right to Information Act in 2005, it has no right to exist, a fact that has been pointed out by Veerappa Moily, heading the Second Administrative Reforms Commission that has
already recommended its repeal.
Unfortunately, the proposal was shot down by the bureaucrats in the home ministry, based on objections from the intelligence agencies. The arguments advanced for its survival are based on the hypothesis that this will hamper the prosecution of spies. In fact, nothing could be further from the truth. It is necessary to go back into the history of the law to understand why it was enacted and whether it is still relevant today."
Another angle: The Whistleblower Protection Act
During the hearing of the 2G and the Coalgate scams, petitioner, Arun Shourie had told the court that he had taken documents from a whistleblower. The Whistleblower Protection Act protects whistleblowers making disclosures in public interest related to an act of corruption, misuse of power, criminal offence by a public servant. The petitioners also cited a 2013 judgment of the Supreme Court in which it was held that the identity of a whistleblower can never be revealed to the accused facing prosecution under the Prevention of Corruption Act.
N Ram for his part has stated that all his reports on Rafale were published in “public interest", thus leaving room for protection under the above law.