THE OFFICIAL SECRETS ACT

OSA dates back to the British colonial era. It was originally called the 1889 Indian Official Secrets Act. Its main purpose was to express its opposition to the policies of the British raj that led to police raids and imprisonments for many. While Sir Carzon was in office as the Governor-General of India, the law was amended and strengthened as the 1904 Indian Official Secrets Act. A new version was announced in 1923. The Act covers all issues of the various government secrets. It states that any action that includes helping an enemy nation or of hostile support for India is condemned and doing so would result in harsh punishments. It also states that it is not allowed to approach, inspect or cross restricted government areas or assets. Confidential information can be official information, passwords, sketches, etc. Article 5 of the Act imposes penalties on both the parties’ i.e.; those who send such information and those who receive it.

Penalties under the law are from 3 years to imprisonment for life if the intention is to declare a war on India (Section 5). The law allows only those in authoritative positions to handle the government’s sensitive matters, and all those who would do so outside these positions will be punished. Journalists are required to assist officers in law enforcement beyond the ranks of deputy inspectors and military personnel in criminal investigations, including disclosure of their sources. A search warrant can be issued at any point in time if the judge, based on the evidence produced in the court, determines that there is sufficient risk to national security.

In the year 1971, the Legal Commission of India was the first public body to state the OSA. It stated that “just because a circular or document is marked secret or classified, it should not be subject to the Act’s provisions.” However, the legal Commission did not recommend any omissions to the existing act. In Section 6 of the OSA, the information obtained from government agencies is considered official information and could be used to invalidate the requirements under the Right to Information Act of 2005. This has generated strong opposition from the public. The Second Administrative Reform Commission in 2006 recommended removing the OSA and replacing it with a chapter containing provisions on the secrets of The National Security Act. The government established a committee in 2015 to review OSA’s provisions on par with the right to information act. After reviewing these provisions, the Ministry of Home Affairs submitted a report to the Cabinet administrator in July 2017. The main aim of the report was to amend the existing law and to make it more visible and in line with the right to information act 2005.

Section 22 of the right to information Act provides that it takes precedence over the regulations of other laws which include the OSA. It means that the right to information Act takes precedence over anything that contradicts the OSA’s provisions. In the event of a conflict from the OSA in providing proper information, the right to information Act will prevail. Since 2014, 50 official secret law violations have been registered in India. Of these 50 violations, 30 were registered in 2016, 9 in 2015, and 11 in 2014, according to the Federal home Minister. 8 violations were filed in Tamil Nadu, followed by five in Punjab and Uttar Pradesh in 2016

IMPORTANT CASES

The Coomar Narain espionage case in 1985 is one of the oldest running criminal cases involving the Official Secrets Act. In 2002, 12 former employees from the PM’s Office and the Rashtrapati Bhavan were convicted to 10 years in prison. They were convicted of colluding with the embassy officials in France, Poland, and Germany for leaking information on the official secret codes, documents, and, sensitive information. The ISRO espionage case against scientist S. Nambinarayan was another notable case. Before his exoneration, he was undergoing a criminal procedure under the OSA and was charged with illegally transferring missiles, rockets, and cryogenic technology to Pakistan. The latest OSA conviction was against diplomat Madhuri Gupta in 2018 when the court sentenced her to imprisonment for 3 years for leaking sensitive information to the ISI.

Author’s Name: N. Venkat Abhinav (Symbiosis Law School, Nagpur)

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IMPORTANT CASES

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