Official Secrets Act

  • The Delhi police has arrested a strategic affairs analyst and two others – a 30- year-old Chinese woman and her “Nepalese accomplice” – under the Official Secrets Act (OSA).
  • The police claimed that Rajeev Sharma, the analyst, had passed on information such as the deployment of Indian troops on the border to Chinese intelligence officers.

       What is the Official Secrets Act?

  • OSA has its roots in the British colonial era.
  • The original version was The Indian Official Secrets Act (Act XIV), 1889.
  • This was brought in with the main objective of
    • muzzling the voice of a large number of newspapers
    • that had come up in several languages, and were opposing the Raj’s policies,
    • Building political consciousness and facing police crackdowns and prison terms.
  • It was amended and made more stringent in the form of The Indian Official Secrets Act, 1904, during Lord Curzon’s tenure as Viceroy of India.
  • In 1923, a newer version was notified.
  • The Indian Official Secrets Act (Act No XIX of 1923) was extended to all matters of secrecy and confidentiality in governance in the country.
  • It broadly deals with two aspects —
    • spying or espionage, covered under Section 3, and
    • Disclosure of other secret information of the government, under Section 5.
  • Secret information can be any official code, password, sketch, plan, model, article, note, document, or information.
  • Under Section 5, both the person communicating the information and the person receiving the information can be punished.
  • For classifying a document, a government Ministry or Department follows the Manual of Departmental Security Instructions, 1994, not under OSA.
  • Also, OSA itself does not say what a “secret” document is.
  • It is the government’s discretion to decide what falls under the ambit of a “secret” document to be charged under OSA.
  • It has often been argued that the law is in direct conflict with the Right to Information Act, 2005.

       Between the RTI Act and OSA, which has primacy?

  • Section 22 of the RTI Act provides for its primacy vis-a-vis provisions of other laws, including OSA.
  • This gives the RTI Act an overriding effect, notwithstanding anything inconsistent with the provisions of OSA.
  • So if there is any inconsistency in OSA with regard to furnishing of information, it will be superseded by the RTI Act.
  • However, under Sections 8 and 9 of the RTI Act, the government can refuse information.
  • Effectively, if the government classifies a document as “secret” under OSA Clause 6, that document can be kept outside the ambit of the RTI Act, and the government can invoke Sections 8 or 9.
  • Legal experts see this as a loophole.