Analysing Official Secrets Act (OSA)

By admin June 3, 2019 12:25

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In the most recent case, the government threatened to use the Official Secrets Act against a national newspaper for leaking some government documents, that were part of the Rafale deal. Notably, the Rafale deal has been under controversy recently.

In another case, on May 17, 2011, Journalist Tarakant Dwivedi alias Akela booked under the act, over his article in a newspaper that reported sophisticated weapons bought after 26/11 were being stored in a room with a leaking roof at the Chhatrapati Shivaji Terminus.

In 2002, a Kashmir based journalist was arrested and booked under OSA for downloading a document from the Internet. He was discharged by the Court after 7 months.

Know about OSA

Colonial Roots

  • Originally, OSA was enacted during the colonial regime through the Indian Official Secrets Act (Act XIV), 1889.
  • The main purpose to bring this act was to suppress the rising voices through newspapers, against British policies.
  • Through the Indian Official Secrets Act, 1904, this act was amended and made more stringent, during the tenure of Lord Curzon.

The present form of OSA

  • The present form of OSA was enacted during British rule in 1923.
  • It provides a framework for dealing with espionage, sedition and other assaults on the unity and integrity of the nation.
  • The law is applicable to government servants and citizens.
  • The punishment under the Act involves fine or imprisonment from three to 14 years or both.
  • Section 2 of the Official Secrets Act defines any part of the secret documents as a secret. That means every part of the secret document is protected under the act.
  • Section 3 of the OSA defines spying or espionage.
  • As per section 5, the information protected under OSA can be in the form of
    • any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place.
  • Not just sharing the above-mentioned information, also retaining such information is punishable under the act.
  • both the person communicating the information and the person receiving the information can be punished.
  • Some other actions that are punishable under law:
    • Unauthorised use of uniforms (Police, military etc.)
    • Falsification of reports
    • Forgery and personation of some documents covered under the act
  • In 1967, the act was amended and the scope of section 5 and section 8 was widened.
  • Supreme Court in Sama Alana Abdulla vs the State of Gujarat case held that even if the information is not a secret and likely to be useful for the enemy, it would qualify to be protected under OSA.

Supplements to OSA

To make it further more stringent, Officials Secrets Act was supplemented by other laws as well, such as

Prohibition on the communication of an official document to anyone without authorization has been put by Civil Service Conduct Rules, 1964.

Section 123 of the Indian Evidence Act,

As per this act, no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned.

RTI act and OSA

  1. RTI act under section 22 has overriding power over other laws including OSA. This section provides the RTI Act with an overriding effect, notwithstanding anything inconsistent with the provisions of OSA.
  2. It means that if there is any disagreement over furnishing of information due to the provisions under OSA, RTI act will supersede them.
  3. However, there are sections 8 and 9 under the RTI act under which the government can refuse information.
  4. Thus, if the government classifies a document as “secret” under OSA Clause 6, it will be kept outside the purview of RTI act, due to section 8 and 9.

Problems of OSA

  • The OSA does not define the word “secret” or the phrase “official secrets”. Therefore, public servants enjoy the discretion to classify anything as “secret”.
  • OSA limits the scope of Right to Information (RTI) Act that came into effect in 2005, as public servants could deny any information asked under RTI, terming it as Officials Secret.
  • OSA’s background is the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, which do not suit present democratic India.
  • Official Secrets Act promotes secrecy and confidentiality around ‘governance’. It is against the ethos of transparency and inclusion reiterated by government time and again.
  • OSA has its genesis in the distrust and suppression of the British time, continuing with it is not consistent with the government efforts to shed all the negative characteristics of the colonial legacy.
  • The Manual of Departmental Security Instruction (MODIS) of the Ministry of Defence that laid down procedures and criterion for classification of documents as ‘top secret’, ‘secret’ and ‘confidential’ is itself is an official secret.
  • Section 5, which deals with potential breaches of national security, is often misinterpreted and misused to frame journalists

Why OSA is needed?

  • In this age, where information flow in real-time, the information that can go against the interest of nations must be strictly protected and prohibited for the non-officials.
  • In the absence of OSA, the information about sensitive military installation, secured government areas and documents containing sensitive information about India’s weaponry would be unprotected and some anti-national elements may take advantage of this situation.
  • There is no question regarding the retention of OSA, it can just be modified to serve the need for national security. Even the commissions have not opposed the act in total, they have suggested certain modifications in it.
  • There is a need for strong laws to deal with the crimes against the state, that undermines the credibility of the state.

Recommendations of various commissions

  • Second Administrative Reforms Commission (ARC) recommended that a new chapter needed to be added to the National Security Act, 1980, incorporating relevant provisions of the OSA and other laws dealing with national security
  • SARC also recommended the repeal of the OSA and strengthening of the Right to Information Act.
  • Law Commission, in its 43rd report, expressed concerns over all-inclusive nature of section 5 of OSA and recommended to draft the definition of “official secret”.
  • A report to the Cabinet Secretariat in 2017, by the committee, set up to look into provisions of the OSA in light of the RTI Act, recommended that OSA be made more transparent and in line with the RTI Act.
  • The Shourie Committee recommended a comprehensive amendment of Section 5(1) to make the penal provisions of OSA applicable only to violations affecting national security.
  • the Commission is of the view that the disclosure of information has to be the norm and keeping it secret should be an exception.
  • In order to send a strong signal about the change and for the sake of effective implementation, the old law/s should be repealed or modified to the extent necessary.

OSA in other countries

  • India is not the sole example, retaining the Official Secrets Act, several countries, including the United Kingdom, Malaysia, Singapore, and New Zealand, continue to use the legislation to protect state secrets.
  • In 2001, Canada replaced its OSA with a Security of Information Act. The “official secrets” come under the Espionage Act in the U.S.
  • A Myanmar court in 2018 awarded seven years’ jail to two Reuters journalists for allegedly possessing the official documents containing the records of human rights violations by the military.

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By admin June 3, 2019 12:25