Explained: India’s Official Secrets Act, its history and use

Note4students

Mains Paper 2: Governance | Important aspects of governance, transparency and accountability

From UPSC perspective, the following things are important:

Prelims level: Official Secrets Act, RTI

Mains level: Utility and misuse of the aforesaid Act


Context

  • The Attorney-General has asked for “criminal action” against those responsible for making “stolen documents” on the Rafale deal public, has brought the Official Secrets Act into focus.
  • The colonial-era law meant for ensuring secrecy and confidentiality in governance, mostly on national security and espionage issues.
  • Governments have also faced criticism for misusing the law against journalists and whistleblowers.

The Official Secrets Act

  • The Indian Official Secrets Act, 1904 was enacted during the time of Lord Curzon, Viceroy of India from 1899 to 1905.
  • It was an amended and more stringent version of The Indian Official Secrets Act (Act XIV) of 1889, brought in at a time when a large number of powerful newspapers had emerged in several languages across India.
  • Fearless editors opposed the Raj’s policies on a daily basis, building political consciousness among the people, and facing police crackdowns and prison terms to uphold their mission and convictions.
  • One of the main purposes of the Act was to muzzle the voice of nationalist publications.
  • In April 1923, a newer version of the Official Secrets Act was notified.
  • The Indian Official Secrets Act (Act No XIX of 1923) replaced the earlier Act, and was extended to all matters of secrecy and confidentiality in governance in the country.

Ambit of the Act

  • The secrecy law broadly deals with two aspects — spying or espionage, which is dealt with in Section 3 of the Act, and disclosure of other secret information of the government, which is dealt with in Section 5.
  • The secret information can be any official code, password, sketch, plan, model, article, note, document or information.
  • Since the classification of secret information is so broad, it is argued that the colonial law is in direct conflict with the Right to Information Act.
  • Under Section 5, both the person communicating the information, and the person receiving the information, can be punished by the prosecuting agency.

Did the law undergo any changes over the years?

  • No. However, the Second Administrative Reforms Commission (SARC) Report, 2006, suggested the Act should be substituted by a chapter in the National Security Act that incorporates the necessary provisions.
  • The reason: it had become a contentious issue after the implementation of the Right to Information Act.
  • The OSA does not define “secret” or “official secrets”. Public servants could deny any information terming it a “secret” when asked under the RTI Act.

Why it is problematic?

  • The SARC report stated that as the OSA’s background is the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, it created a culture of secrecy.
  • However, confidentiality became the norm and disclosure the exception. This tendency was challenged when the Right to Information Act came into existence.

Is withholding information the only issue with the Act?

  • Another contentious issue with the law is that its Section 5, which deals with potential breaches of national security, is often misinterpreted.
  • The Section makes it a punishable offence to share information that may help an enemy state.
  • The Section comes in handy to book journalists when they publicise information that may cause embarrassment to the government or the armed forces.
  • The Delhi High Court in 2009 has ruled that publishing a document merely labelled as “secret” shall not render the journalist liable under the OSA.

Do other nations have similar laws?

  • 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.

With inputs from:

The Hindu

Civil Services Reforms
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