7 PM | Analysing Official Secrets Act (OSA) | 13 March, 2019

Read In-depth analysis of all the Editorials here

Know about OSA

• OSA was enacted during British rule in 1923. It deals with cases of espionage, sedition and any other threat to the unity and sovereignty of the country.
• 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.
• As per section 5 of OSA information 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 a punishable under act.
• In 1967, the act was amended and the scope of section 5 and section 8 were widened

Instances of use of OSA against

Earlier in 2002, Iftikhar Gilani, a journalist from Jammu and Kashmir was arrested for violating the OSA. He was accused of having in his possession secret documents relating to deployment of military in the Kashmir valley. However later it was found out that information was no secret.

In 2011, senior reporter Tarakant Dwivedi alias Akela, was arrested under the OSA for reporting in Mumbai Mirror that the leaking roof in the RPF armory was damaging expensive weapons that were bought after the 26/11 terror attack at Taj in Mumbai.

In a case pertaining to journalist Santanu Saikia, who wrote an article in Financial Express on the basis of a leaked Cabinet note, the Delhi High Court in 2009 ruled that publishing a document merely labelled as “secret” shall not render the journalist liable under the OSA.

Problems of OSA

• There is no clear definition of “secret” documents or information, government can declare any document as official secrets.
• The act is in contravention of the Right to Information (RTI) Act that came into effect in 2005.
• 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 to the present democratic India.
• It provides a mechanism to promote culture of secrecy in the governance and makes disclosure an exception, going against the transparency requirement of democratic governance.
• Section 5, which deals with potential breaches of national security, is often misinterpreted and misused to frame journalists

Laws that supplement OSA

Civil Service Conduct Rules, 1964 which prohibit communication of an official document to anyone without authorization.

Section 123 of the Indian Evidence Act, enacted in 1872, prohibits the giving of evidence from unpublished official records without the permission of the Head of the Department, who has abundant discretion in the matter.

Requirements of OSA

• It is to be noted that Official Secrets Act has not been opposed by any commission in total, there is need and necessity of the laws that can keep the specific documents of the state secret. Only few ambiguous provisions of the act need change.
• There is a need of strong laws to deal with the crimes against state, that undermines the credibility of the state.
• There are many documents which need to stay secret like locations of military installation, which if leaked would go against the security of the nation and benefit enemy
• 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.

Recommendations of various commissions

• Second Administrative Reforms Commission (ARC) Report recommended That OSA should be repealed and replaced with a new chapter in National Securities act.
• The Law Commission also recommended consolidation of all laws dealing with national security and suggested a “National Security Bill”.
• Commission also recommended that any person voluntarily receiving any official secret knowing or having reasonable ground to believe, at the time he receives it, that the official secret is communicated in contravention of this Act, shall be guilty of an offence under this section.
• 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.

Source: https://www.thehindu.com/opinion/op-ed/to-serve-the-governed/article26515102.ece