In the Supreme Court Tuesday, the government threatened to invoke the Official Secrets Act against two publications that had run reports on the Rafale deal, on the basis of documents which, the government claimed, had been stolen from the Defence Ministry.
What is the Official Secrets Act?
OSA in short, it has its roots in the British colonial era. The original version was The Indian Official Secrets Act (Act XIV), 1889. This was brought in with the main objective of muzzling the voice of a large number of newspapers that had come up in several languages, and were opposing the Raj’s policies, building political consciousness and facing police crackdowns and prison terms. It was amended and made more stringent in the form of The Indian Official Secrets Act, 1904, during Lord Curzon’s tenure as Viceroy of India. In 1923, a newer version was notified. The Indian Official Secrets Act (Act No XIX of 1923) was extended to all matters of secrecy and confidentiality in governance in the country.
What comes under its purview?
It broadly deals with two aspects — spying or espionage, covered under Section 3, and disclosure of other secret information of the government, under Section 5. 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.
For classifying a document, a government Ministry or Department follows the Manual of Departmental Security Instructions, 1994, not under OSA. Also, OSA itself does not say what a “secret” document is. It is the government’s discretion to decide what falls under the ambit of a “secret” document to be charged under OSA. It has often been argued that the law is in direct conflict with the Right to Information Act, 2005.
Between the RTI Act and OSA, which has primacy?
Section 22 of the RTI Act provides for its primacy vis-a-vis provisions of other laws, including OSA. This gives the RTI Act an overriding effect, notwithstanding anything inconsistent with the provisions of OSA. So if there is any inconsistency in OSA with regard to furnishing of information, it will be superseded by the RTI Act. However, under Sections 8 and 9 of the RTI Act, the government can refuse information. Effectively, if government classifies a document as “secret” under OSA Clause 6, that document can be kept outside the ambit of the RTI Act, and the government can invoke Sections 8 or 9. Legal experts see this as a loophole.
Has there been any effort to change provisions of OSA?
In 1971, the Law Commission became the first official body to make an observation regarding OSA. In its report on ‘Offences Against National Security’, it observed that “it agrees with the contention” that “merely because a circular is marked secret or confidential, it should not attract the provisions of the Act, if the publication thereof is in the interest of the public and no question of national emergency and interest of the State as such arises”. The Law Commission, however, did not recommend any changes to the Act.
In 2006, the Second Administrative Reforms Commission (ARC) recommended that OSA be repealed, and replaced with a chapter in the National Security Act containing provisions relating to official secrets. Observing that OSA was “incongruous with the regime of transparency in a democratic society”, the ARC referred to the 1971 Law Commission report that had called for an “umbrella Act” to be passed to bring together all laws relating to national security.
In 2015, the present government set up a committee to look into provisions of the OSA in light of the RTI Act. It submitted its report to the Cabinet Secretariat on June 16, 2017, recommending that OSA be made more transparent and in line with the RTI Act.
What are the major instances when OSA has been invoked?
One of the oldest and longest criminal trials involving OSA is the 1985 Coomar Narain spy case. Twelve former staff members in the Prime Minister’s Office and Rashtrapati Bhavan Secretariat were sentenced to 10 years’ imprisonment in 2002. They were found guilty of entering into a criminal conspiracy with officials of the French, Polish and German embassies, communicating secret official codes, classified documents and information pertaining to defence, shipping, transport, finance, planning, and R&AW and Intelligent Bureau reports.
The other high-profile case was the ISRO spy case targeting scientist S Nambi Narayan. Before his recent acquittal, he had faced a criminal trial under OSA, and was accused of passing on rocket and cryogenic technology to Pakistan for illegal gratification.
The most recent conviction under OSA came in 2018, when a Delhi court sentenced former diplomat Madhuri Gupta, who had served at the Indian High Commission in Islamabad, to three years in jail for passing on sensitive information to the ISI.
In another high-profile case, then Kashmir Times journalist Iftikhar Gilani was arrested in 2002 and charged under OSA.