Official secrets act explained

Official Secrets Act 1923

  • The Official Secrets Act 1923 is India’s anti espionage (Spy” and “Secret agent”) act held over from British colonisation.

  • According to this Act, helping the enemy state can be in the form of communicating a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy.
  • The disclosure of any information that is likely to affect the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States, is punishable by this act.

Prosecution and penalties

  • Punishments under the Act range from three to fourteen years imprisonment.
  • Violation
    • A person prosecuted under this Act can be charged with the crime even if the action was unintentional and not intended to endanger the security of the state.
    • The Act only empowers persons in positions of authority to handle official secrets, and others who handle it in prohibited areas or outside them are liable for punishment.
    • In any proceedings against a person for an offence under this Act, the fact that he has been in communication with, or attempted to communicate with a foreign agent, whether within or without India is relevant and enough to necessitate prosecution.
    • Journalists also have to help members of the police forces above the rank of the sub-Inspector and members of the Armed forces with investigation regarding an offence, up to and including revealing his sources of information (If required)
  • Procedure
    • Under the Act, search warrants may be issued at any time if the magistrate feels that based on the evidence in front of them there is enough danger to the security of the state.
    • Uninterested members of the public may be excluded from court proceedings if the prosecutions feels that any information which is going to be passed on during the proceedings is sensitive. This also includes media; so the journalists will not be allowed to cover that particular case.
    • When a company is seen as the offender under this Act, everyone involved with the management of the company including the board of directors can be liable for punishment. In the case of a newspaper everyone including the editor, publisher and the proprietor can be jailed for an offence.
  •  OSA is controversial to the modern RTI act 2005.

Conflict with right to information

  • In the OSA clause 6, information from any governmental office is considered official information, hence it can be used to override Right to Information Act 2005 requests. This has drawn harsh criticism.

Delhi court Judgement in the case involving journalist Santanu Saikia

  • A Delhi court in a 2009 judgement, in a case involving the publication of excerpts of a cabinet note in the Financial Express ten years earlier by Santanu Saikia, greatly reduced the powers of the act by ruling publication of a document merely labelled “secret“ shall not render the journalist liable under the law.

How are official documents classified?

  • Depending on the level of sensitivity of the information and the implications of its disclosure for national security — which could be to cause “exceptionally grave damage” to simply “damage” — they are
  1. Top Secret– is for information whose unauthorised disclosure could be expected to cause “exceptionally grave damage” to national security or national Interest. This category is reserved for the nation’s closest secrets.
  2. Secret – for information whose disclosure may cause “serious damage” to national security or national interest, or serious embarrassment to the government. It is used for “highly important matters”; is the highest classification normally used.
  3. Confidential – information that might cause “damage” to national security, be prejudicial to national interest, might embarrass the government.
  4. Restricted – information meant only for official use, which is not to be published or communicated to any person except for official purposes.

Documents that do not require security classification are regarded as “Unclassified”.

What are the criteria for classification?

  • They are decided in accordance with Departmental Security Instructions issued by the Ministry of Home Affairs. Despite requests for information under the Right to Information (RTI) Act from activists, the MHA has not disclosed the criteria for classification.

What is declassification?

  • It’s a continuous process.
  • According to the Public Records Act, 1993 and the Public Records Rules, 1997- The records creating agency shall by an office order authorise an officer not below the rank of Under Secretary to the Government of India to evaluate and downgrade the classified records being maintained by it.
  • A declassified file considered fit for permanent preservation will be transferred to the National Archives.
    • A review of documents is undertaken every five years and,
    • normally, files more than 25 years old are transferred to the National Archives.
    • Some files are not sent — for example, while hundreds of files related to the Prime Minister’s Office and Cabinet Secretariat have been transferred to National Archives, files related to issues like “Nuclear Test at Pokhran, 1974” were retained by the PMO.
  • The union government recently said it was going to review the Public Records Act.

How do the Official Secrets Act and the Right to Information Act square up?

  • The RTI Act, 2005 clearly says that in case of a clash with the OSA, the public interest will prevail.
  • Section 8(2) of the RTI Act says, “Notwithstanding anything in the Official Secrets Act, 1923, nor any of the exemptions permissible in accordance with subsection 8(1) of RTI Act, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”
  • Second administrative reforms commission submitted the report “Right to Information: Master Key to Good Governance”, which said that “The Official Secrets Act, 1923 should be repealed.” But the government rejected the recommendation, saying “The OSA is the only law to deal with cases of espionage, wrongful possession and communication of sensitive information detrimental to the security of the State.”
  • The ARC also recommended that Departmental Security Instructions should be amended, and “ordinarily, only such information should be given a security classification which would qualify for exemption from disclosure under the RTI Act.” But the government said that it was “not possible to classify documents on the basis of various Sections of the RTI Act”.

So, where do things stand now?

  • The implementation of the transparency law has been facing roadblocks.
  • Queries under the RTI Act often receive stereotypical responses such as, “The requisite document is sensitive in nature and no public interest is going to be served by the disclosure of this document.”
  • At times, government authorities have claimed exemption under Section 7(9) of the RTI Act, pleading that collecting information would require extraordinary manpower.
  • On other occasions, they have claimed that the information sought is too old.

Panel to look into OSA

  • A high-level committee was formed by the Union government to look into the provisions of the Official Secrets Act in the light of the Right to Information (RTI) Act in April 2015
  • The committee, comprising Home Secretary L.C. Goyal, Law Secretary P.K. Malhotra and Secretary, Department of Personnel and Training, Sanjay Kothari, was constituted in February, but notified only recently.
  • The meeting will start a long-awaited process to do away with excessive secrecy through amendments in the Official Secrets Act, a law enacted by the British in 1923, official sources said. The RTI Act has been in force for a decade now.
  • Officials said the exercise was aimed at making changes to the Official Secrets Act to complete the transition from the secrecy regime of the past century to a more modern and democratic transparency regime.
  • The idea is to do away with excessive secrecy without compromising on national security. On the one hand, we have an act that makes seeking information a right and on the other, there is an enactment that bars sharing information. The committee will look at removing the contradictions between the two

Also read Limits of ‘secrecy’