OFFICIAL SECRETS ACT

NEWS

During the Rafale hearing case, the Attorney General sought criminal action under Official Secrets Act against The Hindu Newspaper.

About

• Attorney-General’s request for “criminal action” against those responsible for making “stolen documents” on the Rafale aircraft deal public, has brought the Official Secrets Act into focus.

• It is to be noted that recently Union Government stated in Supreme Court that some of the crucial documents related to Rafale aircraft deal were stolen from Defence Ministry.

What is OSA?

• The Official Secrets Act, 1923 is India’s anti espionage Act.

• It provides the framework for dealing with espionage, sedition, and other potential threats to the integrity of the nation.

• It punishes the communication of any information obtained in contravention of the Act, which could prejudice the security of the state, or friendly relations with foreign states.

• The OSA does not define the terms “secret” or “official secrets”.

Major Instances of OSA

• Coomar Narain spy case: Many senior civil servants and businessperson were sentenced to imprisonment in 2002 for spying and entering into a criminal conspiracy with officials of foreign countries.

• ISRO spy case: Scientist S Nambi Narayan, before his recent acquittal, faced a criminal trial under OSA. He was accused of passing on rocket and cryogenic technology to Pakistan for illegal gratification.

• Indian Diplomat in Pakistan: In 2018, 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.

Right to Information Act Vs Official Secrets Act

• 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. So if there is any inconsistency in OSA with regard to furnishing of information, it will be superseded by the RTI Act.

• Loophole: Under Sections 8 and 9 of the RTI Act, the government can refuse information. If the 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 of the Act.

Issues with OSA

• Based on mistrust: The Second Administrative Reforms Commission (2nd ARC) report 2006 stated that OSA is a colonial legacy.

• Makes confidentiality the norm: The OSA creates a culture of secrecy. Confidentiality became the norm and disclosure the exception.

• Misinterpretation: The Section 5 which deals with potential breaches of national security is often misinterpreted as anything prejudicial to the government is considered as a breach of national security.

• Against freedom of Press and Expression: The Section comes in handy to book journalists when they publicize information that may cause embarrassment to the government or the armed forces.

Concluding Remarks

• There can be two kinds of disclosures – disclosures of genuine secrets and disclosures of wrong-doings inside government agencies such as corruption, nepotism, financial irregularities etc.
– The Indian legal framework should ensure that disclosures of wrong-doings should not be veiled in the guise of national interest.

• Protection to Journalist: The Delhi High Court in 2009 has ruled that publishing a document merely labelled as “secret” shall not render the journalist liable under the OSA.

• Making OSA Transparent: In February 2015, the Union Home Ministry constituted LC Goyal committee to suggest changes in Official Secrets Act.
– The Committee in its report to the Cabinet Secretariat, recommended that OSA be made more transparent and in line with the RTI Act.

• Repealing OSA: The 2nd ARC report suggested that the Act should be substituted by a chapter in the National Security Act that incorporates the necessary provisions.

• Defining the term Public Interest under RTI Act to prevent any illegal usage of OSA Act. Further, confidentiality should be strictly time-bound as done in United Kingdom which declassifies its documents after a certain lock-in period. Germany is also gradually opening up its archives to scholars.