Legal Desire: National: Saturday,
08 August 2020.
Media
has always been there to make information available to the common people as far
as concerned. All areas of news and details are provided by the media, whether
it be through news channels, through social platforms, or any electronic or
technological source. It should be kept in mind that all resources are not
meant for public access. There is information that needs to be censored or not
available easily to the public. The Details include any information which may
affect the law and order and peace of the country. The Official Secrets Act,
1923 is one among the Acts which secures and safeguards the confidential
official information and details.
WHAT
IS OFFICIAL SECRETS ACT?
The
Official Secrets Act, 1923 was formed and enacted during the colonial period of
the British rule. The Act is also known as the anti-espionage act or the
anti-spying Act. It was used by the Britishers against their enemies who used
to voice their views via nationalist newspapers. Section 5 of the Act mentions
secret information as any code, model, plan, article, document, password or
sketch. The very idea of the Act is to keep the public away from certain
confidential information which may threaten the security of the country. The
punishment under this Act may extend from 3 to 14 years of imprisonment. If a person
with or without any intention endangers the security, he will still be
prosecuted under this Act. The Act holds all the people liable who handle the
official secrets without the position of authority.
The Act
also provides provisions for journalists to help to investigate the police
forces above the rank of sub-inspector officer and the members of Armed Forces
to get to the offender and the source of information. The definition of the
word ‘secret’ document or information is not mentioned clearly in the Official
Secrets Act and therefore the government authorities use it as when they deem
it convenient.
CASES
OF REFERENCE:
In this
current era, the media acts as a powerful tool to communicate the gap between
the government and the common people. The freedom of press or freedom of media
is the immunity granted to the media to publish materials and exercise the
right freely. Let us go through some of the cases where the right was used
wrongly and the primary role was played by media:
In 2002,
Iftikhar Gilani, a journalist of Jammu and Kashmir was charged under the
Official Secrets Act for releasing secret documents. After the investigations
and procedures, it was found that the published documents were not of secret
nature and are easily available in open sources. In 2004, the case was
withdrawn by the government and Mr Gilani was released.
In 2007,
General V.K Singh, BJP MLA and former army chief were charged under the
Official Secrets Acts for publishing a book titled ‘India’s External
Intelligence: Secrets of RAW. His house was also raided in the process
In 2009,
Santanu Saika, a journalist of the Financial Express published an extract from
a cabinet note. It was held by the Delhi Court that a publication of a document
merely labelling the word ‘secret’ does not make journalists punishable under
the Official Secrets Act. The Sama Alana Abdulla vs State of Gujarat and State (NCT
of Delhi) vs Jaspal Singh has similar references, “A person cannot be put on
trial merely because a document has been marked as secret, as it is necessary
to see the nature of the information contained in it, to find out if any
offence under the Official Secrets Act is made out or not.” Again in 2015, Saika was arrested for writing
stories from a document which was regarded stolen from the government under
section 5 of the Act.
In 2016,
‘The Hindu’, a news and media platform was claimed to have stolen confidential
and secret documents of Rafale agreement from the Ministry of Defense. The
documents were published as investigative journalism. Soon the claim was
revoked under Section 8(1) (a) and 8 (2) of the Right to Information Act, 2005
which provides the provision to release documents in the public interest.
In 2018,
Nishant Agrawal, an engineer at BrahMos Aerospace Private Limited was
prosecuted under The Official Secrets Act to possess secret documents in his
personal computer. He also downloaded web-based spyware in his computer system
through which some Pakistani agent has stolen the important documents.
The
National Crime Records Bureau in its latest data maintained that the cases
registered under the Official Secrets Act were 11 in 2014, 9 in 2015 and 30 in
2016.
OFFICIAL
SECRETS ACT AND THE RIGHT TO INFORMATION ACT:
The
Right to Information Act came into effect in 2005. The Act itself gives the
right to information to the people which are considered to be of importance
which also includes official data. On the other hand, the Official Secrets Act
protects the official secret and confidential information which may or may not
be relevant to the public. Therefore it can be said that both the Act
contradict each other.
Section
8 (1) (a) of the Right to Information Act, 2005 states that public authority is
not under obligation to furnish the information disclosure of which would
prejudicially affect the sovereignty and integrity of India, the security,
strategic, scientific or economic interest of the State, relation with foreign State or lead to
incitement of an offence. Also, Section 8 (2) states “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 the public interest in disclosure outweighs the harm to the
protected interests.”
In 2006,
just after the enactment of Right to Information Act, a report by the Second
Administrative Reform Commission was rejected in regard to repeal the Official
Secrets Act,1923 as the Right to Information Act overrides it. The commission
also suggested to amend the Departmental Security Instructions to make it more
powerful but the government denied it saying that the classification of
documents with respect to the sections of the Right to Information Act is not
possible. In 2017, a report by the
Cabinet Secretariat was submitted to look into the transparency of the Official
Secrets Act.
MEDIA
AND ITS RIGHTS
The
Constitution of India under Article 19 (1) (a) guarantees every citizen the
right to freedom of speech and expression and similarly freedom of press
availed. The journals, newspapers, as well as any media platform, has the right
to voice and express their thoughts which are of public interest. Though
Fundamental Right is granted to the media it is limited. The published detail
should not pose a threat to the security and integrity of the nation. Morality
and law and order should be kept in mind while releasing any kind of official
document or information.
OFFICIAL
SECRETS ACT IN OTHER COUNTRIES
Many
countries like the United Kingdoms, Malaysia, Singapore and New Zealand have
Acts to protect the secrecy of the states. In the United States, the official
secrets are mentioned under the Espionage Act. Recently, in 2018, two
journalists in Myanmar were prosecuted for possessing official documents of the
Rohingya Muslims.
CONCLUSION
Day by
day technology and media is spreading in every corner of the globe. Everything
is at our ease in just one click. In such circumstances, it becomes really very
important to protect the official and sensitive secrets from getting vandalised
by the public of the nation as well as the unfriendly and enemy nations. The
Official Secrets Act has not been amended or reformed even after so many
recommendations and reports. The government should make a move to make the
colonial law strict and firm. The transparency of the act with respect to the
Right to Information Act,2005 is essential. Change is the law of nature and
change in the Official Secrets Act is needed at the moment.
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