Official Secrets Act: Use, misuse and abuse of a colonial law

Hindustan Times: New Delhi: Saturday, 21 February 2015.

The arrest of 12 people for allegedly procuring classified documents from ministries of petroleum, coal and power has once again brought the focus back on the Official Secrets Act (OSA), 1923 considered archaic by many.

Though police have not formally charged the accused under provisions of the OSA, they have the option of invoking the colonial law at a later stage. Given the reports that certain inputs for the upcoming budget were leaked, invoking OSA appears imminent.

Once used by the Raj to target freedom fighters, the OSA was retained after independence as the Indian state realised it needed to protect its secrets.

This law is unique in many ways. Most Indian laws do not apply to Jammu and Kashmir. But the OSA extends to the whole of India and applies also to government servants and Indian citizens outside India. It prescribes maximum 14-year imprisonment for acts prejudicial to the safety or interests of the state. Even being in the vicinity of a prohibited place can attract the OSA.

Obtaining records or publishing or communicating to any other person any secret official code or document which even might be indirectly useful to an enemy would come within its ambit.

But what makes this law draconian is the fact that the term “official secrets” has not been defined, leaving it open to misuse.

Second, it is not necessary to show that the accused is guilty of any particular act prejudicial to the safety or interests of the State.

Police can prove the prejudicial act indirectly, by relying on the circumstances of the case or the conduct of the accused or his known character.

Third, even an attempted communication with a ‘foreign agent’ can attract the OSA.

A simple refusal to share information with police can land any person in jail for three years. This runs counter to the constitutional right of every person not to be compelled to be a witness against himself. It is also in conflict with media ethics that requires journalists not to disclose their sources.

Perhaps, it was for these reasons that the Second Administrative Reforms Commission headed by M Veerappa Moily had recommended repeal of the OSA, and the RTI Act too was given an overriding effect over it. But what if state secrets are actually compromised? The relevant provisions of OSA can be retained by incorporating them in the National Security Act, as suggested by Moily to deal with such situations.