This article has been written by Shoronya Banerjee, from Amity University, Kolkata. The essence and relevance of the Official Secrets Act, 1923 in the light of landmark judgments have been portrayed through this article. 

Introduction

Traced back to the British Colonial rule in India, the Indian Official Secrets Act (Act XIV) of 1889 which later became the Indian Official Secrets Act, 1904 with more stringent and unbending laws was enacted during a period when the Indian Press had fearlessly taken over to reveal the reality and dark side of the British rule in India to the Indian masses and whole world trying to awaken the political awareness and emotion of oneness amongst the Indians. The Indian Official Secrets Act, 1904 was enacted when Lord Curzon was the Viceroy of India. 

In 1923, this Act was further developed and the Indian Official Secrets Act (Act No XIX of 1923) replaced it. This Act was held on to even after independence. The Indian Official Secrets Act, 1923, applies to government officials, government servants, citizens framed with the charges of sedition, threatening the integrity of the nation, spying, unlawful use of government uniform, causing interventions in the armed forces, and so on. A guilty person could be charged with 14 years of imprisonment, a fine, or both. 

Official Secrets Act, 1923

The Official Secrets Act, 1923, deals broadly with the issue of spying and putting the country’s confidential details at risk of revelation. This act divides secret information into official codes, passwords, sketch, plan, model, article, document, etc, but it does not define what a “secret” document is. With time, debates have arisen on whether to review, amend, or repeal. The Law Commission in 1971, in its report on ‘Offences Against National Security’, observed that every secret document should not attract the provisions of this Act unless it is of national emergency. But they didn’t suggest any changes. Where the Second Administrative Reforms Commission (ARC) wanted to get the Act repealed and included in a part of the National Security Act. The Official Secrets Act was said to be against the ideals of a transparent government in a democratic society. 

Definitions

Extending to the whole nation, officials of government, and citizens of India, the Official Secrets Act, 1923, put forth several definitions under Section 2. Some of the definitions are:

• While Section 2(1) describes a place belonging to Government’ as the place inhabited or under the control of the government even without it being endowed with some rights, Section 2(6) puts forth that any employment opportunity under a specified division of the government is known as “office under Government.” Subsection (10) further mentions the office of a “Superintendent of Police” which has a police officer vested with certain powers by the Central Government.
• Any aspect referring to the disclosing the communication or receiving of any information of certain plan, model, document, sketch, etc, or obtaining and accommodating such information would also comprise of “transfer or transmission of the sketch, plan, model, article, note or document” under Section 2(2). 
• “Munitions of war” under the Act is meant to comprise any part or whole of a ship, tank, submarine, arms, torpedo, and such other material or devices which is used or recommended to be used for war.
• Thereafter, a “prohibited place” is defined by Section 2 (8). It could comprise of a place owned or used by the government, whose damage and revelation of any information would be advantageous for the enemy; any place which even if does not belong to the government has arms, sketches, models, plans, ammunitions, etc, being made, stored, structures, formed under a contract made on behalf of the government: any means of communication on land or water or any place which has a source of electricity and water for public purposes or a place where plans, models, war arms, etc, are stored on behalf of the government are declared to prohibited places as information about it or damage caused to it could be beneficial for any enemy. 

Main provisions

The Official Secrets Act, 1923, extended its provisions to protect the privacy and secrecy of the governance of the country especially for the national security of the country. The Act lays down several provisions out of which some are:

• Section 5 puts forth the provision of offense caused by “wrongful communication of information.” If someone reveals a secret official code or password or any sketch, plan, model, article, note, document or information, a prohibited place or a similar place, whose sufficient information could help a potential enemy, or a high official under a government who has been conferred with the responsibility of protecting such confidential information, or a person employed under such an official or bound by a contract or holds a contract on behalf of the government if fails to properly conduct himself and cause harm to the information held, uses such details and knowledge for helping a foreign power or in a way ‘prejudicial to the safety of the State,’ or purposefully communicates such details to someone who is not authorized is held to be guilty under this section.  
• Section 4 highlights that “foreign agent” means any person who has reasonable grounds for being suspected as he or she is employed by a foreign power by any means, for the purpose of carrying out an act with or without compliance to the safety of the state [India], prejudicial to the safety or interests of the State, or who can be suspected for committing or trying to commit the act for the interest of the foreign power. 
• Section 4(c) further highlights that any location or address with the perfect reason of being suspected for receiving communications for an agents purpose or where a foreign agent resides, gives or receives information, or could be where he carries out any business, maybe assumed as an address of a foreign agent, and communications addressed is to be known as connecting with a foreign agent.
• Under Section 6 if any person for getting entry or helping another to enter a prohibited area which goes against the safety of the state while doing so if wears an official uniform or a resembling uniform without legal authority for deceiving and representing himself to be someone with authority, or, gets an oral or written declaration or document or makes any false statements, or, deceiving someone represents himself to be an official employed by the government to receive secret and classified information, etc, is held guilty for committing an offense under this Section. Section 6(3) imposes imprisonment for a term of three years, or with a fine, or both for committing an offense under this section.

In the case of State v. Jaspal Singh Gill, Captain Jasjit Singh on 24th March 1983, had informed the then Air Vice Marshal, Shri S. Raghavendran that AVM (Retd.) K.H. Larkins was trying to convince him to deliver secret manuals of aircraft used by the Indian Air Force for Rs. 20,000 per document. Shri S. Raghavendran reported this and thereafter, the movements of Mr. K.H. Larkins were tracked and observed.  In 1983 raids were conducted at K.H Larkins’ house and as well as the residence of his brother F.D. Larkins. During interrogation, it was confessed by them that they were delivering classified information to a foreign agency. F.D. Larkins had also confessed that Lt. Col. (Retd.) Jasbir Singh was his sub-agent for acquiring these documents and information on armaments. On arrest and interrogation of Jasbir Singh, he had confessed that he had been passing on information and documents to Major General (Retd.) F.D. Larkins and Jaspal Singh Gill, for monetary gains. On conducting a search at Jaspal Gill’s house, confidential documents with the Defense telephone directory connected to the Army were recovered. It was also said that the respondents had passed on the information to a U.S. Intelligence Operator which was confirmed from the 13 invitation cards from the Intelligence Operator for parties seized from Jaspal Gill’s residence.

All 4 accused had committed offenses punishable under sections 3, 5, and 9 of the Official Secrets Act, 1923 along with section 120-B of the Indian Penal Code also F.D. Larkins and Jasbir Singh were also accused of committing offenses punishable under section 6 of the Official Secrets Act, 1923. The criminal revision petition filed by the accused was disposed of by the case. 

• If any person going against and not considering the safety and interest of the state if approaches and tends to enter a prohibited place, makes a sketch or plan useful for enemies, collects and communicates secret code, password, document, plan, notes, etc, useful for the enemy not considering the safety and sovereignty of the state shall be punishable with imprisonment for a term of 3 years which may extend in case of an offense related to “any work of defense, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code” 14 years. Whereas Section 10 puts forth the provision of penalties for cover and accommodating a spy. Any person harbors a spy who has committed an offense under Section 3 of the Act or fails to provide the authorities with information of such people and commits an offense under Section 10 which is punishable with imprisonment for a term of three years or with fine or both. 

Landmark judgments

• Asif Hussain v. State (2019)

In the case of Asif Hussain v. State, the appellant Asif Hussain was identified to be a Pakistani national living in Kolkata and delivering sensitive information on the Indian Army. Seized documents were verified and proved that they were for restricted and official purposes. The appellant was convicted and sentenced to a period of 9 years of imprisonment for being charged of an offense under Section 3 of the Official Secrets Act, 1923 and another term of four years with a fine of ₹10,000 for an offense under Section 474 of the IPC. The court had held that the sentences awarded to the appellant had to work “concurrently and not sequentially.”

• State v. Madhuri Gupta (2018)

In the case of State v. Madhuri Gupta, the Second Secretary (Press & Information) at the Indian  High Commission, Islamabad, Madhuri Gupta, was charged for keeping unethical contact with Pakistani intelligence officials, spying, and delivering sensitive information electronic means. Emails were found in her name for passing information of certain hydroelectric power projects in Jammu and Kashmir. She had also passed the information on officers of defense from the Ministry of External Affairs, High Commission of India and their families putting the country, country’s security, officers and their families in grave danger. The seized gadgets that were bought in her name had shown the exchange of email and the contact that she maintained with several ISI personnel. The court held her for offenses under Section 3, for spying, Section 3 (1)(c), for communicating and exchanging special and confidential information with an enemy, and Section 120-B of the Indian Penal code, 1860, for being a party to a criminal conspiracy.

Even after requesting for a forbearing punishment, the court had denied her kindness for it was expected out of her to act more responsibly and respect her high position of trust, but her wrongdoings had put the whole country in danger. The special judge had absolved her from being convicted under the first part of Section 3(1)(c) but she was held guilty and sentenced to 3 years in jail.

• Kulbhushan Parasher v. State Through Cbi (2007)

In the case of Kulbhushan Parasher v. State Through Cbi, the then Wing Commander of India Air Force, Sambhajee L. Surve, Commander Vijender Rana, Commander Vinod Kumar Jha, Captain Kashyap Kumar, along with the applicant Kulbhushan Parashar, Ravi Shankaran, Wing Commander (Retired) S.K. Kohli, Mukesh Bajaj, Ms. Rajrani Jaiswal carried an illegal trade of classified documents and information regarding the Ministry of Defense, Central Government, which was a serious threat to the safety of the country. The appellant was charged under  Section 120-B IPC for criminal conspiracy,  Section 3(1) for putting the safety of the state in danger, and Section 5 for communicating and passing on information and documents putting the state’s interests at stake. While investigating the CBI had also conducted searches under Section 11(2) of the Act because the case seemed to be of great emergency. 

It was said that to procure information on the safety and security of the nation, the petitioner, Kulbhushan Parashar, and Ravi Shankaran enticed defense officers, SL Surve and Vijender Rana by paying them in cash and kind for acquiring the sensitive information. 6 persons along with the applicant were arrested in April 2006. The pen drive with all information was also recovered from the accused. The court considering the severity of the offenses and allegation had refused the grant of bail to the accused. 

• Sama Alana Abdulla v. the State of Gujarat (1995)

In the case of Sama Alana Abdulla v. the State of Gujarat, while crossing the Indian border, the accused, Rayna was arrested in 1986. During their interrogation, it was affirmed that they had been traveling and visiting India for 4 years while meetings would be carried out with the primary accused, and two other Indian nationals for receiving useful information for the Pakistani Intelligence. Issuing warrants under Section 11(2) of the Act, the police set out to search the houses of the said Indian nationals. The only evidence obtained was from the house of the appellant. A map planned and framed by the BSF, displaying an underground pipe-line built for carrying water from Bhuj to Khavda Border for the Army and BSF members were found. Possession of a map as referred to in Section 3(1)(c) and passing it on to the potential enemies, involved in spying and also defending the second accused led to him being charged for offenses caused under the Official Secrets Act.

An important observation of the court in the case was that the word ‘secret’ in Section 3(1) clause (c) would be effective for the words which were “official code or password” and not a “sketch, plan, model, article or note or other document or information”. It was held that the comma following “any secret official code or password”, meant that whatever followed next could not qualify under the word ‘secret’. For the absence of such a substance, failure to prove that the map was a classified secret document, and the insufficient evidence of the police to prove that the map was found in the house of the appellant, resulted in the dismissal of the appeal. 

Conclusion

Applying to every Indian government official and every Indian citizen living inside or outside of the country, the Official Secrets Act, is a comprehensive statute maintaining the security and integrity of the country by protecting it from spies sent by enemies or the wrongful communication of sensitive information to anyone other than the authorized official. This British-era law was initially introduced to repress the voice and activities of national newspapers to try to go against the rule of the Raj. Often questions are raised on the validity of the Act in the 21st century. The classification of secret documents put forth by the Act has been in question. It sometimes is considered that this Act is just a way to stop the citizens from questing about the doings of the government. The Officials Secret Act is considered to be violating the Right to information. Even though precedents have shown the superiority of the RTI, there are still cases where unfair and wrongdoings are hidden under the covers of national interest. With the instances of spies getting caught and sensitive information being revealed, the quashing of this Act would leave the country on unsafe grounds. Therefore, what is needed is reviewing and amendments.

References

• https://indianexpress.com/article/explained/official-secrets-act-what-it-covers-when-it-has-been-used-questioned-rafale-deal-5616457/
• https://www.iasparliament.com/current-affairs/official-secrets-act-rafale-deal-case
• https://www.insightsonindia.com/2019/03/10/indias-official-secrets-act-its-history-and-use
• https://www.iasexpress.net/official-secrets-act-upsc-ias-gk/

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