What is the OFFICIAL SECRETS ACT? Official Secrets Act, 1923 is an anti-espionage law made by the British in India.
This law was made by the British to implicate our freedom fighters on charges of espionage.
In this act, those actions and activities which come under the category of offense, have been clearly explained.
Repugnancy: The term is inferred from the Doctrine of Repugnancy as mentioned in, Article 254 under Part XI of the Indian Constitution.
OFFICIAL SECRETS ACT (OSA)
Key highlights of the Act,
- OSA broadly deals with two aspects – espionage and disclosure of government secrets.
- Although OSA does not define secret information, the government follows the Departmental Security Directives, 1994 Manual to classify a document as a secret document.
- Secret information usually includes any official code, password, sketch, plan, model, article, note, document, or information.
- If a person is found guilty, he shall be punished with imprisonment of either description for a term which may extend to 14 years, or with fine, or with both. The person communicating the information and the person receiving the information may be punished under OSA.
- The Act has its roots in the British colonial era. It was introduced in the year 1889, with the aim of suppressing the voice of the large number of newspapers published in several languages which were opposing the British policies.
- During Lord Curzon’s tenure as Viceroy of India, Act XIV was amended and made more stringent as The Indian Official Secret Act, 1904.
- In the year 1923, a new version of the Official Secrets Act (Act XIX of 1923) was notified.
- Its influence extended to all matters of official secrecy in the country.
Conflict with Right to Information Act: It is often argued that OSA is in direct conflict with the Right to Information (RTI) Act, 2005.
- Section 22 of the RTI Act gives primacy to other laws including OSA under similar provisions. So if there is any inconsistency in the OSA with respect to furnishing the information, it will be given by the RTI Act.
- However, under Sections 8 and 9 of the RTI Act, the government can refuse to provide information. Effectively, if the government classifies a document as secret under OSA, that document can be kept out of the purview of the RTI Act and the government can invoke section 8 or 9.
Misinterpretation of a breach of national security
Section 5 of the OSA, which deals with potential breaches of national security, is often misinterpreted.
This section makes sharing of information to help an enemy state a punishable offence.
When such information is disseminated by journalists which can cause embarrassment to the government or the armed forces, then action can be taken against them by this Act.
- The Law Commission was the first official institution to observe this law in the year 1971.
- The commission said, “Merely because a circular is secret or confidential, it should not be brought under the provisions of this law.”
- In 2006, the Second Administrative Reforms Commission (ARC) recommended that the Official Secrets Act be repealed and a chapter in the National Security Act containing provisions relating to official secrecy be changed.
- The commission described this law as an obstacle in the way of transparent governance in a democratic society.
- In 2015, a high-powered committee was constituted by the Central Government to review the Official Secrets Act, 1923 in the context of the Right to Information Act, 2005.
- The committee included secretaries of the Ministry of Home Affairs, the Department of Personnel and Training and the Ministry of Law. It submitted its report to the Cabinet Secretariat on June 16, 2017, recommending that the Official Secrets Act be made more transparent and in line with the RTI Act.
- The government had in 2015 constituted a committee to look into the provisions of OSA in the light of the RTI Act which submitted its report in June 2017, recommending that OSA be made more transparent and RTI Act compliant.
So let us know which actions and activities under the Official Secrets Act can get you a sentence of up to 14 years?
The Official Secrets Act is applicable throughout India as well as to employees of the Government of India and citizens of India outside India.
Under this the following activities are included
1. If a person makes a map or sketch of an important building, note the secret information of any file which is sufficient to give important information directly or indirectly to the enemy of the country.
2. If any person collects, records, publishes or transmits any secret information such as any secret code or password, sketch, plan, model, article or note or other documents to any person in order to protect the sovereignty and integrity of the State, the sovereignty and integrity of the State.
Security, likely to affect friendly relations with foreign states, legal action shall be taken against such person under the Official Secrets Act.
Like in the recent case – it has come to the fore that a scientist of DRDO used to send information about the BrahMos missile to Pakistan and America.
3. A person shall be deemed to be guilty of sharing information with a foreign agent if;
i. any person visits the address of a foreign agent or has any relationship with that agent, within or outside India.
ii. If any person obtains the name, address or other information of a foreign agent or such secret information has been collected by him from someone else.
4. If an employee of the Government of India or a State Government or to whom a contract has been given by the Government, shares information relating to his office or office with any person with whom he is not permitted to do so, he shall be deemed to have committed the offence and will be considered as an offender.
5. If a person fails to keep secret information (such as a plan, model, article, note, document, secret code, password) which he was responsible to keep secret.
A famous case, in this case, is that of former Indian diplomat Madhuri Gupta.
She was arrested in 2010 for leaking sensitive information through emails to Pakistan’s agency ISI while in the Embassy of India during his deployment in Pakistan.
She was sentenced to 3 years imprisonment.
6. If any person sends any maps, photographs, sketches, plans, models, articles, notes, documents and information related to any secret operation or war or military action of the country to the enemies of the country or foreign agent, then against him Action will be taken under the Act.
7. If the person does the following for the purpose of entering a restricted place;
i. Wears a fake official uniform to enter any naval, military, air force, police, etc. places or any uniform for the purpose of deceiving or tries to enter any important place by posing as a false officer by wearing any such uniform.
ii. gives his false position orally or in writing or permits any other person to be sent orally or in writing to a place where secret information is kept or by giving the name of any false post any concession in the rule demands.
8. If any person tampers with any passport or Navy, Military, Air Force, Police or official pass, permit, certificate, license or other similar documents, or possesses such forged documents, He will be considered guilty under this Act.
9. This Act provides that if the perpetrator of the offense is “a company”, then all the persons running the company and responsible to the company (including the company) shall be liable for the offense if the offense is committed in their possession.
Provision of punishment in the Official Secrets Act
If a person is convicted of the above charges, he shall be punished with imprisonment of either description for a term which may extend to three years but if the offense relates to defense purposes, an army arsenal, a naval, military or air force establishment or station, tunnels, factory, dockyard, camp, ship If it is related to the secret official code, then there is a provision to award a sentence of 14 years.
Reforms in the Official Secrets Act
Since this law was made in the time of the British in 1923, it has become necessary to change it in the changing context.
Keeping this in mind, the Union Home Ministry submitted a report to the Cabinet Secretariat in July 2017 to review the provisions of this law.
In fact, the government aims to make it more transparent and compliant with the Right to Information Act, 2005.