Recently, the Delhi police made headlines with their arrest of a strategic affairs analyst under the Official Secrets Act (OSA), 1923. The analyst was accused of conveying information such as Indian troops’ location on the border to Chinese intelligence officers.
Understanding the Official Secrets Act
In essence, the Official Secrets Act (OSA) primarily deals with two areas – espionage or spying and the revelation of the government’s classified information. Nevertheless, the OSA does not expressly define what constitutes ‘secret information’. In determining whether a document is secret, the government refers to the Manual of Departmental Security Instructions’ guidelines outlined in 1994. Generally, this category encompasses any official code, password, plan, model, article, note, document, or piece of information. Violating this law carries severe penalties: up to 14 years in prison, a hefty fine, or both. This applies to both the individual disclosing the information and the one receiving it.
Historical Background of the OSA
The roots of the OSA can be traced back to India’s colonial era under British rule. Introduced in 1889 as the Indian Official Secrets Act (Act XIV), it aimed to silence a growing number of newspapers confronting British policies in multiple languages. This act underwent revisions with stricter regulations as The Indian Official Secrets Act, 1904, during Lord Curzon’s tenure as Viceroy of India. A newer version, the Indian Official Secrets Act (Act No XIX of 1923), extended to all matters related to secrecy and confidentiality in Indian governance.
Conflict Between OSA and the Right to Information Act (RTI)
Critics often argue that the OSA is in direct conflict with the Right to Information (RTI) Act, 2005. The RTI Act’s Section 22 allows for its precedence concerning provisions of other laws, including the OSA. Therefore, if the OSA presents inconsistencies pertaining to disseminating information, the RTI Act supersedes it. Nevertheless, the government can refuse information under the RTI Act’s Sections 8 and 9. Meaning, if the government categorizes a document as secret under the OSA, it can bypass the RTI Act and use Section 8 or 9 to shield the document.
Breach of National Security: Misinterpretation Issues
Section 5 of the OSA, which addresses potential national security breaches, is often misconstrued. This section criminalizes the sharing of information that could aid enemy states, which is commonly used to charge journalists who expose information embarrassing to the government or armed forces.
Proposed Changes and Suggestions
Back in 1971, the Law Commission in their report on ‘Offences Against National Security,’ suggested that simply marking a circular as secret or confidential should not automatically engage the OSA’s provisions. They argued that if the publication is in the public interest and doesn’t bring up matters of national emergency or state interest, it shouldn’t be included. Despite this, the Law Commission refrained from recommending changes to the OSA.
In 2006, the 2nd Administrative Reforms Commission (ARC) proposed that the OSA be replaced with a segment in the National Security Act, 1980, which outlined official secrets’ provisions. The ARC noted that the OSA didn’t fit into the transparency required in democratic society. A few years later, in 2015, the government commissioned a committee to examine the OSA in light of the RTI Act. In June 2017, the committee suggested that the OSA be altered to align more closely with RTI Act provisions and offer greater transparency.
The Road Ahead
The nebulous term ‘secret’ ought to be precisely defined in the OSA to prevent confusion or misinterpretation. Furthermore, it’s vital that the OSA aligns more closely with the RTI Act’s provisions to promote transparency, a cornerstone of any thriving democracy.