Remarks made by the Attorney-General K.K.Venugopal in the Supreme Court on March 6, 2019, of looking into “criminal action” against those responsible for making the documents on the Rafale deal public, brought the Official Secrets Act, 1923 into the limelight. This Act of the colonial era was enacted to ensure confidentiality and secrecy in certain important and sensitive matters of the government mostly based on espionage issues and national security of the country. The Act has been cited in various instances by the authorities for refusing to divulge information about the government procedures due to which it has faced numerous criticisms.
This Act states the provisions for any actions or aid or leaking any kind of secret information whether to the enemy nation or the public as a crime against the state. The law applies to all the government servants and citizens and provides the framework for dealing with sedition, espionage, and other potential threats to the integrity of the nation. This Act makes sharing ‘secret’ information, spying, withholding information, unauthorized use of uniforms, interference with the armed forces in prohibited/restricted areas as punishable offenses. If found guilty then a person may get up to 14 years of imprisonment, a fine, or both.
The secrecy law is broadly classified with two aspects — spying or espionage which is dealt in Section 3 of the Act, and disclosure of other secret and sensitive information of the government is dealt in Section 5. The secret information can be any kind of official code, password, plan, sketch, model, document, note, article, or information. Since the classification of secret information is so broadly distinguished so it is argued that this colonial law is in direct conflict with the Right to Information Act. Under Section 5 of the Act, both the person communicating the secret information and the person receiving it can be punished and prosecuted.
The Official Secrets Act, 1923: Boon
National Interest and Security
This Act was enacted with the only aim to maintain confidentiality on the important and sensitive matters so that it does not fall in the wrong hands which can risk the safety and security of the nation. There are certain information and documents which need to be kept secret to protect the interest of the state because they are crucial for the security of the country such as military operations, procedures, and other vital information.
In the recent case of Rafale jets, the Attorney-general urged the Court that the three Rafale documents which were unauthorizedly published come under the Official Secrets Act, 1923 and their leaking not only attracts punishment for the offenders but also poses a great threat to the security of this country. He even further stated that these documents cannot even be presented to the Court as evidence because it claims privilege under Section 123 of the Indian Evidence Act, 1872.
This gives a National Credibility to the country as the crime against one’s state or nation is the most grave amongst all which risks the lives of every other citizen and therefore any act such as this one which prevents this kind of offenses is needed.
The most recent conviction under this Act came in 2018 wherein the Delhi High Court held former diplomat Madhuri Gupta who served at the Indian High Commission in Islamabad as guilty. She was sentenced to three years imprisonment for passing on sensitive information to Pakistan’s ISI. In another case, a Kashmir Times journalist Iftikhar Gilani was arrested in June 2002 and was charged under this Act for allegedly possessing secret and confidential documents relating to the deployment of troops in the Kashmir valley.
Every Nation Must Have Such An Act
Several other countries including the United Kingdom, Singapore, Malaysia, and New Zealand have similar legislation and Act to protect their state secrets. Even Myanmar court in 2018 gave seven years imprisonment to two Reuters journalists for illegally having the official documents on the military’s alleged human rights abuses against Rohingya Muslims.
The Official Secrets Act : Bane
Contradiction to RTI Act, 2005
The Right to Information Act revolutionized the governance of the country when enacted in 2005 brought transparency in the procedures regarding how the government works and gave every citizen, the right to get informed but this Official Secrets Act is taking us back from there. On one hand, where RTI Act, 2005 laid down the guidelines for disclosing the information as the duty of the state to ensure transparency, on other hand, this OSA is making every such attempt futile. It is very much clear that the provisions of OSA are in clear transgression to the RTI Act and there are a lot of contradictions between the two laws.
No Clear Distinction Between “Secret” And “Official Secret”
This Act does not distinguish clearly between what is “secret” or “official secrets” so the public servants can deny any information terming it as a “secret” when asked under the RTI Act. When a journalist named Shantanu Saikia published the cabinet note in the Financial express in 2009, the Delhi High Court held that the publication of information or any document just labelled as ‘secret’ does not make it under the purview of OSA and a journalist shall not be liable for this.
Against the Freedom of the Press
Freedom of Press is one of the fundamental rights recognized under Article 19(1) which guarantees the press, journalists, and other news citing sources to present the news freely and independently without the pressure of government or other institutions. The OSA when misrepresented can be used against the journalists to suppress their voice against the arbitrary operations of the government and other authorities.
A journalist named Tarakant Dwivedi was booked under the Official Secrets Act on May 17, 2011, because he authored an article about how weapons bought after 26/11 were being stored in a room with a leaking roof at the CST in Mumbai. An RTI query later revealed that the armoury visited was not a prohibited area and the Bombay High Court subsequently dismissed the case. There had been numerous such cases where the government has misinterpreted the law and booked journalists for the same. The credentials of any democracy lie upon the extent of the freedom of press enjoyed by the journalist and press in the country and this should be upheld without the fear of vindictive measures of the government.
In the case of Indian Express Newspaper v. Union of India, the Supreme Court stated the importance of freedom of the press in a democratic society. Again in the case of Shreya Singhal v. Union of India, the Apex Court held that the freedom of press lies both in circulation and in content.
Against the Very Nature Of Democracy
The Act as stands for maintaining the secrecy and confidentiality itself is contradictory to democracy where every person has the right to know all the information related to the workings of the government. If the government cannot be made accountable for their wrong-doings and misconducts, then what is the point of democracy? Democracy without accountability is merely a futile turn of phrase and nothing else.
Attempts by Various Commissions To Solve The Issue
The law commission tried to deal with this rampant issue of OSA in 1971 by recommending that just because a document or information is treated as secret, it should not be taken into consideration under the purview of the OSA and its provisions. The law commission also further stated that all the legislation regarding the security of the nation should be merged into one Act known as “National Security Bill”. However, the commission didn’t suggest any amendments to the provisions of OSA.
Several appointed committees including the H. D. Shourie Committee during the 1990s and the now the Planning Commission have held on various occasions that the OSA throws a veil of secrecy on governing processes, often resulting in the denial of the rightful entitlement of citizens to information.
The Second Administrative Reforms Commission headed by Veerappa Moily in 2006 argued that the Official Secrets Act, 1923 should be repealed as it is “incongruous” with the requirements of transparency in a democratic set-up of the country. The Committee also recommended transferring the espionage-related provisions and punishments given in the OSA to the National Security Act, 1980 but the government rejected these recommendations and never took them under consideration.
It is inarguably true that this Act has often been used by the officialdom and the people in power to block access to crucial information for the citizens. It is also true that there have been long contradictions between the Right to Information Act, 2005, and the Official Secrets Act, 1923 but to bring transparency and accountability in a democracy, the prevalence of the former is very imperative. The most significant challenge about the OSA is the term” secret” which is not defined in the Act and thus grants freedom to the authorities to misuse their power in the name of confidentiality.
The Supreme Court in the ‘Rafale deal’ case gave the preference to the RTI Act and observed that whenever there will be a conflict of interest between these two acts, the RTI Act will always supersede the OSA. The Supreme Court also said that the Act does not provide liberty to commit any unscrupulous Activities and corruption. Therefore, the provisions of the RTI Act will prevail over the OSA as per Section 22 of the Right to Information Act. Thus, we can say that the Official Secrets Act, 1923 should be improvised and treated like any other law passed in British India which has no place in new contemporary Indian society where public interest always prevails.
1.Why The Official Secrets act, 1923 Is So Controversial?
Ans: The Official Secrets Act, 1923 is always under controversy because of its provisions which give the government uncontrollable power to hide any document and information under the name of “secret” and confidentiality.
2. Why OSA Is In Direct Conflict With RTI Act?
Ans: The OSA and RTI Act are in total contradictions to each other because the former has the provisions to hide any information from the public under the name of “secret” but the latter Act has the provisions based on which any citizen can ask for information from the government about its workings.
3. Why The Government Is Not Ready To Repeal This act Even After So Many Criticisms?
Ans: It is still not very clear that why the government wants to continue with this OSA even after so many drawbacks but one contention that may be brought up by this is that maybe the government wants to keep this veil under which it can do anything and will not be accountable for the same.
4. Do Other Countries Have Similar Laws?
Ans: Yes, many countries such as the United Kingdom, Singapore, Malaysia, USA, and New Zealand have such legislation to protect state confidential matters. Canada in 2001 replaced its OSA with the Security of Information Act. The “official secrets” come under the Espionage Act in the U.S.A.
 Manohar Lal Sharma v. Narendra Damodardas Modi, WP(Cr.) 225/2018
 State petitioner v. Madhuri Gupta, Crl.Rev.P. 255/2012
 M/S. Setia Buildwell Pvt. Ltd v. Sh. Shantanu Saikia, Suit No.122/2009
 Tarakant Devnarayan Dwivedi v. State of Maharashtra, Cr. App. No. 159 of 2015
 Indian Express Newspaper v. Union of India, 1986 AIR 515