Updated: Sep 18, 2021
In 2002, journalist Iftikhar Gilani was arrested under the ‘Official Secrets Act’ for downloading a document from the internet. He was accused of holding a ‘secret’ despite it being publicly available. He was later honourably discharged from Tihar Jail by the courts after 7 months.
Santanu Saikia, a journalist, wrote an article in the ‘Financial Express’ on the basis of a leaked Cabinet note. In 2009, the Delhi High Court said that publishing a document only labelled as a ‘secret’ will not render a journalist liable under the ‘Official Secrets Act’.
The Official Secrets Act (1923) is an anti-espionage act which states that any action which helps an enemy state against India is condemned strongly. One is prohibited from approaching, inspecting, or even passing over a prohibited government site like an electrical substation. Aiding an enemy state can be in the form of communicating plans, sketches, models of official secrets or passwords to the same.
This act was passed by the British in 1923 and it was retained post-independence.
The penalty for violating this act with the intent to declare war against India is life imprisonment. The act empowers people who are in positions of authority to handle official secrets. If there is enough evidence to prove that there is a danger to the nation, search warrants may be issued at any time by the magistrate.
The most controversial part of this act is that it contradicts the RTI act. There is a fear of authorities misusing the ‘Official Secrets Act’. However, quoting Krishnadas Rajagopal from ‘The Hindu’ (2019) “Referring to Section 8(2) of the RTI Act, Justice Joseph said the government cannot refuse information if disclosure in public interest overshadows certain ‘protected interests.”
The Act is also said to violate the citizens’ Fundamental Right of Freedom of Speech and Expression as it prohibits the publishing of information deemed as secrets by the government. Moreover, the ‘OSA’ has often been proved arbitrary and has been used against journalists and media houses which speak up against the government or its policies.
Lastly, the biggest issue associated with the ‘Official Secrets Act’ is that the term ‘secret’ has not been defined in the act. Therefore, there is a fear of the act being subject to misuse by the government to hide information from the public. Many media houses, such as ‘The Print’ have even declared this act to be undemocratic in nature.
If the act is removed, there will be serious consequences as important confidential information can be leaked for personal and financial gain.
In 2005, 7000 pages worth of defence information from the naval war room and the air defence HQ was leaked by serving officers to unauthorized personnel for financial gain. The IAF recovered a pen drive that contained information about The Indian Navy’s maritime operation plans for the next twenty years. The leak was traced to the Maritime Operations Centre of the Directorate of Naval Operations in Delhi.
One of the people who are said to be involved in the leak is retired Captain Salam Singh Rathore who has been sentenced to seven years’ rigorous imprisonment under the Official Secrets Act 1923 for ‘spying’.
Like the Navy War Room Leak, there may be many more such cases, especially if there is no act in place which helps safeguard important confidential information.
Some information has to kept secret, as it reaches the wrong hands, it may prove to be dangerous for the country as a whole. For instance, if certain military information is shared with the public, it is bound to be accessible internationally as well, thus proving to be hazardous to the security of the nation.
Thus, the question here is - What reforms can be made to the OSA in order to ensure that it does not hinder the democratic nature of India whilst not posing a threat to the security of the nation?
Due to the nature of the Official Secrets Act 1923, over the years many attempts have been made to reform the act. In 2006, the Second Administrative Reforms Commission suggested that the Official Secrets Act be replaced with a chapter in the ‘National Security Act’ which will contain provisions related to the official secrets of the country.
A committee that was formed in 2015, recommended that the Official Secrets Act should be made more transparent in line with the Right to Information Act.
Should the Official Secrets Act be scrapped? Or is it necessary for some information to remain a secret from the public?
Is it possible for the OSA to be less problematic if the term ‘secrets’ is defined properly?