This article has been written by Adyasha Das, pursuing a Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSikho.

Introduction

On 14th September 2020, the Delhi Police Special Cell arrested journalist Rajeev Sharma under section 5 of the Official Secrets Act. He was allegedly charged with possessing classified documents pertaining to the defence that he was passing of to Chinese intelligence.

Meanwhile, a second-year law student was charged with spying under section 3 of the Act for video graphing a police station. Towards the end of January 2021, the Maharashtra government was contemplating to invoke the Official Secrets Act against journalist Arnab Goswami.

But what is the Official Secrets Act, 1923? Why is it so much talk lately? We shall find out in this article.

The Official Secrets Act, 1923 (hereinafter referred to as ‘OSA’ or ‘the Act’) is an anti-espionage act that had its genesis in an atmosphere of mistrust and secrecy, during the British colonial rule over India. The aim behind the enactment was to silence the newspapers and the freedom fighters that opposed the British policies in India. Within its ambit falls matters of confidentiality and secrets with respect to the government of India.

It is, therefore, concerned with matters of espionage, sedition and threats to national security and integrity. It extends to the whole of India and applies to citizens, government servants and non-residential Indians as well.

Amongst the various sections under the Act, Section 3 and 5 are of grave importance and are commonly invoked. Section 3 of the Act deals with spying, whereas Section 5 deals with disclosing governmental secrets. As per Section 5, such disclosure can be done through the means of secret code, password, sketch, model, note, plan, article, information or documents.

If via any of such medium, an enemy state would be disclosed of any matter of secrecy in a way that it would affect sovereignty, integrity, security or relations with other states, it would fall under the ambit of Section 5.

Persons at the communicating and the receiving ends shall be penalized under the law. OSA also restricts people from entering into prohibited government land. Even if a person acts without any intention to endanger national security, he shall be punished for his acts.

Problems with the OSA

OSA as opposed to RTI Act

One of the major problems with OSA is that it is in conflict with the Right to Information Act, 2005.

With respect to the power struggle between the two Acts, the Supreme Court, while observing the Rafale row, held that the RTI Act supersedes OSA. Section 22 and 8(2) of the RTI are useful to validate the same. Section 22 of the RTI Act expressly states that RTI Act has an overriding effect on the OSA. Section 8(2) of the RTI Act compels the government to disclose information that is necessary to be disclosed for the public interest. RTI Act has led to a cultural shift with legal provisions in favour of transparency.

However, if a document were classified as “secret” the OSA, such document would not fall under the purview of RTI Act. Neither the term “secret” is defined in OSA nor what documents might be classified as “official secrets”.

Therefore, it is left to the discretion of the government to decide what falls under the purview of “secret” or ‘official secret”. Section 8 and 9 of the RTI Act allows the government to refuse the disclosure of such information.

This has been criticized as secrecy allowed under OSA goes head to head with the principle of transparency that democracy must observe. It has therefore been the concern of several activists that the government might hide certain data worth of public interest and hide it as disguised as “secret” under the OSA.

OSA and Bail

Academicians and jurors have expressed their criticism towards OSA and how judges are more likely to deny bail if a person is booked under the OSA. The reason generally given for the same is national security. It, therefore, becomes much harder to be contested against such charges.

According to a Human Rights Watch report, by the time a person proves that there has been no secret and that he wasn’t responsible for any national security breach, the person would have spent a lot of his years in prison. Such are the biases against someone charged under OSA.

Case Laws

• In a recent judgment in December 2020, the Deli High Court observed that an accused is entitled to bail by default if charge sheet is not filed within 60 days of the offence where no minimum sentence is prescribed. In the said case, journalist Rajeev Sharma was arrested by the Delhi Police Special Cell on 14th September 2020, under section 5 of Official Secrets Act. He was allegedly accused of espionage and passing sensitive information to the Chinese Intelligence. He was arrested under section 3, 4, and 6 of the OSA. Where the lower court had denied bail to the accused, the Delhi High Court reversed the judgment of the trial court and granted bail to the journalist.
• In the case of Rakesh Kumar Paul v. State of Assam, the Court dismissed the petition since the 60 days limit had not expired. The same case was referred to in Rajeev Sharma case. Citing the Rakesh Kumar Paul case, the counsel for Rajeev Sharma stated that there are only consequences established for situation where there is a prescribed minimum punishment but in Rajeev Sharma’s case, no minimum punishment had been prescribed for his offence.
• Referring to Rajeev Choudhary v State of NCT of Delhi. The Court held in Rajeev Sharma’s case that section 167(2)(a)(i) would be applicable to the cases where offence must have been clearly prescribed for more than 10 years. In Rajeev Sharma’s case, the OSA speaks for the maximum punishment for 14 years but does not prescribe the minimum punishment, therefore, the petition was entitled to a default bail since the charge sheet was not filed within 60 days.

OSA and Spying

The Act has been vague while defining what falls under the purview of “spying”. The definition is far too broad for including making, receiving, or communicating any document that might be used by foreign country, directly or indirectly, against India.

There is a lack of clarity in the definition and thus it would lead to either judicial interpretation or government defining the term as per their whim. The burden of proof under Section 3(2) of the Act falls under the accused, which makes it even more difficult for the accused. Human Rights Watch calls it a problematic aspect of the Act.

Misuse against journalists

History is witness that OSA has been used against the journalists by the government when they do not approve of their reporting. Before the Rajeev Sharma case, the most recent incident that took place was in March of 2019, when the government went to the Supreme Court stating that documents of the Rafale aircraft deal were stolen from the Defence Ministry. They accused the Hindu and its Chairman with penalization under OSA for publishing articles based on the contents of the said documents.

In 2011, Mid-Day journalist, Tarakand Dwivedi, was arrested and accused of criminal trespass over a government’s property and leaking the news that following the 26/11 attack, weapons were stored in a facility with a leaking roof. Later it came to light that the said government property was not a prohibited land.

In 2002, Iftikhar Gilani was arrested for allegedly disclosing secret military information to terrorists but it later came to light that such information was available under public domain. The Quint’s Poonam Agarwal was also charged with espionage and spying in 2017 for shooting footage of an Army Camp. The FIR was disposed of in 2019 when the Court said that spying would result in compromising of national interest, which didn’t happen in the said case.

Such events can have a chilling effect on the journalists, which is why OSA is a hindrance for the journalists while covering stories pertaining to defence and intelligence.

Efforts to reform or repeal of OSA

As per reports between 2014 -2016 over 50 cases have been filed for violation of OSA in India, out of which 30 were reported in 2016, 9 in 2015 and 11 in 2014. In 2006, the Second Administrative Reforms Commission (SARC) had recommended to repeal OSA or to add provisions of OSA to the National Security Act.

The government refused to act upon the reports of the SARC and expressed that there was only need to amend certain provisions to get rid of ambiguity. In 2015, a committee formed by the government to look into the discrepancies in the OSA with respect to RTI Act. Though the action was initiated, no further measures were taken to complete the action.

To maintain the status of democracy, transparency is a vital principle. With the OSA in force, there is little that the people can do when the government is trying to hide information under the OSA. This British legacy of mistrust and secrecy culture should be done away with to reinforce the democracy that India stands for in the Constitution.

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