Official Secrets Act: Colonial Hangover or Protection for Nation?

What is the Official Secrets Act, 1923 that has come to the limelight? What does it cover and what is it used for?

On 14 September, the Delhi Police Special Cell arrested freelance journalist Rajeev Sharma under the Official Secrets Act (OSA), alleging he had possession of classified defence-related documents. Delhi police officials stated that the journalist was arrested for passing sensitive information to Chinese intelligence.

On Monday, 21 September, a Delhi court remanded Sharma to seven-day police custody in connection with the case.

Meanwhile, in an unrelated case, reports said that a second year-LLB student in Mumbai was booked for “spying” under the OSA for videographing a police station.

But what is this Official Secrets Act, 1923 that has returned to the limelight? What does it cover and what is it used for?

The Ambit of the Law

The Official Secrets Act 1923 is essentially India’s anti-espionage law and has under its purview all matters of secrecy and confidentiality with regard to the government. The law extends to the whole of India and also applies to servants of the Government and to Indian citizens not residing in the country.

The OSA concerns itself with matters of security and is a framework for dealing with espionage, sedition and any other threats to the unity and integrity of India.

The most commonly invoked sections of the law are Sections 3 and 5. Under Section 3, the law deals with spying and under Section 5, it deals with disclosure of secret information of the government.

The latter, according to the law, could be anything from a secret official code, a password, a sketch, plan, model, article, note, document or information that could either directly or indirectly assist an enemy or even bring about the disclosure of a matter that could affect the integrity or sovereignty or security India or affect friendly relations with foreign states.

Both the person disclosing or communicating the information as well as the person receiving the same can be punished under this law. The law also says that one cannot approach, inspect, or even pass over a prohibited government site or area.

Punishment under the Act involves a fine or imprisonment ranging from three to 14 years or both. The provisions of the OSA include a requirement that the person committed the action with the intent to endanger India’s security or national interests, though there have been some situations where even an unintentional act has been prosecuted under it.

A 19th Century Colonial Hangover

While the Official Secrets Act in its current form dates back to 1923, the origin of this law goes back far beyond and can be traced to 1843, in a Notification issued by the Foreign Department of the Government of India on 30 August 1843.

At a time when government officials sometimes doubled as correspondents for newspapers, this notification prohibited them from making official documents public, writes Major General VK Singh (Retd.), in an article for the United Service Institution of India.

The first iteration of it as a legislation, however, dates back to 17 October 1889, when The Indian Official Secrets Act (Act XIV), 1889 was passed by the Viceroy’s Executive Council.

The aim? To clamp down on and silence newspapers that were opposing the policies of British Raj.

After several requests over the years from Army authorities to make the law more stringent, the then-Viceroy of India Lord Curzon finally approved The Indian Official Secrets Act, 1904.

In April 1923, the colonial government decided to make further changes to the law, and a newer version was notified under Viceroy Lord Reading, which remains in force in India till date, apart from certain amendments made to it over time.

The law therefore has its genesis in the atmosphere of colonial mistrust and culture of secrecy practiced by the British in India.

“There’s been a longstanding discussion on the obnoxious legislation statute called the Official Secrets Act, 1923. Many demands have been made to do away with this obnoxious legacy of the British Raj in India...,” The Hindu’s ex-Editor in Chief told BloombergQuint in an interview during the row over OSA being slapped on the newspaper after its reports on the Rafale deal.

Problems With The Official Secrets Act

Secrecy & Lack of Transparecy

Any kind of information is covered under the OSA if it is classified as ‘secret’, states a report by the Second Administrative Reforms Commission. However, the OSA itself does not define what a “secret” document is or what “official secrets” means and it is left to the government to decide what could be a cause for being charged under OSA.

According to a report by ThePrint, despite repeated attempts by activists over the years to find out the same under the Right to Information Act (RTI), there has been no answer from the Ministry of Home Affairs.

Owing to this lack of clarity over the definition of what classifies as “secret” documents or information, there have been long-expressed concerns that the Act can be misused by the government choosing to brand information or documents as “official secrets” as per their convenience.

One criticism is that the secrecy allowed under the OSA is at loggerheads with the transparency expected in a democracy. It is argued that the OSA gives the government sweeping, draconian powers in limiting information to citizens and then prosecuting them in case such information is made public.

Obstacle to Bail

Further, as advocate Manu Sebastian discusses in an article in LiveLaw, judges are more likely to deny bail if a person is charged under the OSA, because it is a question of national security. It also makes it that much harder to contest the charges, he writes.

“By the time you prove that the material you have is not a secret, you may have been in jail for many years. That’s the kind of bias judges have when someone is charged with OSA,” Trideep Pais, a lawyer with experience in dealing with OSA cases said, according to a Human Rights Watch report.

Definition of Spying & Proof of Intent

As stated earlier, Section 3 of the OSA deals with spying, but the definition given is far too broad and cannot justified as “necessary” for protection of national security, Human Rights Watch argues. It includes making, receiving, or communicating any document that is “calculated to be,” “might be,” or is “intended to be… directly or indirectly useful to a foreign country”, leading to a lack of clarity about when one could fall within the clutches of the OSA, and a consequential self-censorship.

Further, Section 3(2) of the Act places the burden of proof on the accused, in so that they must prove their lack of guilt or their intent.

“It shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State… he may be convicted if, from the circumstances of the case, his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State.”

Section 3(2) of the Official Secrets Act, 1923

As the HRW report points out, this possibility of using circumstantial evidence, “conduct or known character” to make out a case proving the existence of a purpose prejudicial to the interests of the state, is a heavily problematic aspect of the Act.

OSA's Conflict With RTI

Another very considerable problem is that the OSA is in conflict with the RTI Act. In April 2019, the Supreme Court said during the Rafale row over OSA that the RTI Act supersedes the OSA, with Section 22 of the RTI Act expressly overriding the OSA, and Section 8(2) compelling the government to disclose information “if public interest in disclosure outweighs the harm to protected interests”.

It states that the provisions of this Act “shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923”.

Justice KM Joseph’s opinion in this matter delved into this issue further and concluded that, looking at the content of provisions like Section 8 along with Sections 22 and 24 of the RTI Act, it would trump the Official Secrets Act and that because of it “disclosure of information can be refused only on the foundation of public interest being jeopardised.” Apart from the dead letter of the RTI Act’s provisions, he sought to explain that the RTI Act had led to a cultural change as well, in which legal provisions had to be interpreted in favour of transparency.

However, according to The Indian Express, if the government classifies a document as “secret” under Clause 6 of the OSA, that document could still be kept outside the ambit of the RTI Act by invoking Sections 8 or 9, which allows the government to refuse information. Justice Joseph’s judgment is likely therefore to be tested on this point in the courts.

Efforts to Reform or Repeal the OSA

The Second Administrative Reforms Commission (SARC) in June 2006 recommended the repealing of the OSA, instead suggesting that it be replaced with a chapter in the National Security Act with provisions with regard to official secrets.

However, The Hindu reports that in 2008, the Group of Ministers that scrutinised the SARC report refused to repeal the Act, only suggesting amendments to remove the ambiguities.

According to The Indian Express, in 2015, the government set up a committee to look into the OSA in light of the RTI Act. While it submitted a report to the Cabinet Secretariat in 2017, recommending that OSA be made more transparent, no action has been taken on it thus far.

When Has the OSA Been Used?

A report by PTI says that between 2014-2016, 50 violations of the OSA were registered across India, according to a written reply in the Lok Sabha in July 2017. Of these, 30 came in 2016, nine in 2015 and 11 in 2014.

The Indian Express reports that one of the oldest and longest criminal trials involving OSA is the 1985 Coomar Narain spy case. 12 former senior civil servants, including four from the Prime Minister’s office and another four from the Ministry of Defence, were jailed for ten years, while Narain escaped imprisonment, having died of natural causes in March 2000.

In 1994, ISRO scientist Nambi Narayanan was charged with leaking vital defence secrets to Maldivian intelligence officers. Defence officials said the secrets pertained to highly confidential “flight test data” from experiments with rocket and satellite launches. The CBI took over the case in 1996 and found the allegations to be false and unproved, leading to his discharge. He was later also paid compensation for being falsely implicated in the espionage case.

A recent conviction under OSA came in 2018, when former diplomat Madhuri Gupta, who had served at the Indian High Commission in Islamabad, was sentenced to three years in jail for passing on sensitive information to Pakistan's Inter-Services Intelligence (ISI).

Misuse Against Journalists?

Several incidents over the past years show that there is potential for the government to misuse the OSA against journalists when it does not approve of their reporting. Moreover, it would seem that they are expressly looking to do so, with a report by Aaj Tak noting that NSA Ajit Doval had expressly asked ministries to crack down on media and journalists who he said were violating the OSA with impunity.

Prior to Rajeev Sharma case, the most recent invocation of the OSA in connection with journalists came in March 2019, when the government told the Supreme Court that documents related to the Rafale aircraft deal have been stolen from the Defence Ministry. They threatened The Hindu and its Chairman N Ram with action under the OSA for publishing articles based on those documents.

Those who put documents on the Rafale deal in the public domain are guilty under the Official Secrets Act and the contempt of court, Attorney General K K Venugopal told a a three-judge bench headed by Chief Justice Ranjan Gogoi.

Over the years, there have been many other examples which have raised eyebrows.

Kashmir Times journalist Iftikhar Gilani was arrested in 2002 for allegedly disclosing secret military information to terrorists. However, later investigations revealed that the information he possessed was not secret but available in the public domain. The case was dropped and he was released.

Similarly, Mid-Day journalist Tarakand Dwivedi was arrested in 2011 for reporting that expensive weapons bought after 26/11 were being stored in a facility with a leaking roof and were rotting. He was charged with criminal trespass but it later came to light that the armoury he had visited was not a prohibited area and the case was dropped.

Other instances of journalists being charged are of Santanu Saikia, who wrote a report in Financial Express on the basis of a leaked Cabinet note, and of course, The Quint’s own Poonam Agarwal.

Agarwal was booked in 2017 for her report on the abuse of the Army’s ‘sahayak’ system in the Army, for having shot footage inside an Army camp. However, the Bombay High Court in April 2019 quashed the FIR saying, “She (Agarwal) did not have any intention to go and commit an offence. We do not understand why you (Army) are so vindictive.”

With regard to Agarwal’s case, as any OSA case related to espionage, the information collected needed to be “directly or indirectly, useful to an enemy” and “or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the state or friendly relations with foreign states”.

As stated before, while the OSA accepts circumstantial evidence in this regard to prove existence of a purpose prejudicial to the interests of the state, it is necessary that such purpose be proved. However, Agarwal’s actions did not show any such purpose.

While disposing of the FIR in 2019, Justice Dangre observed that “Spying has a different meaning. We do not find anything in this case that says the accused persons did something that affected the national interest.”

What Does the OSA Mean for Journalists?

The report by Human Rights Watch talks about the chilling effect a legislation like this can have on journalists, quoting Saikat Datta, a former journalist who says that the OSA is a huge impediment for journalists covering matters of defense and intelligence.

These concerns were also echoed by Mid-Day’s Tarakand Dwivedi, who said to them:

“After I was charged under Official Secrets Act, journalists were quite afraid that this was something that could be used against them. It had a chilling effect. Journalists used more caution when doing sensitive stories.”

Further, the report says that the breadth of the language of the OSA, coupled with the severity of possible penalties are an obstacle to the freedom of expression. Moreover, NSA Doval’s demand for prosecutions under the Official Secrets Act was bad news for media, lawyer Prashant Reddy T noted, according to the Human Rights Watch report.