Official Secrets Act: what it covers; when it has been used, questioned
Why in news?
- The Government’s recent remarks in Supreme Court on looking into criminal action against those responsible for making “stolen documents” on the Rafale deal public, has brought the Official Secrets Act into focus.
About Official Secrets Act:
- The Official Secrets Act (OSA) provides the framework for dealing with espionage, sedition, and other potential threats to the integrity of the nation.
- It broadly deals with two aspects:
- Disclosure of other secret information of the government, under Section 5. Both the person communicating the information, and the person receiving the information, can be punished.
- Spying covered under Section 3
- Secret information of the government can be any official code, password, sketch, plan, model, article, note, document or information.
- The law is applicable to government servants and citizens.
- If guilty, a person may get up to 14 years imprisonment, imposed a fine, or both.
- The OSA does not define “secret” or “official secrets”. It is the government’s discretion to decide what falls under the ambit of a “secret” document to be charged under OSA.
Historical Background of the Act:
- The original version of the act was The Indian Official Secrets Act (Act XIV), 1889, introduced in the British Colonial era.
- The objective of the act was to muzzle the voice of a large number of newspapers that were opposing the British Raj’s policies, building political consciousness.
- Later in 1904 (when Lord Curzon was Viceroy of India), the act was amended and made more stringent.
- In 1923, the Indian Official Secrets Act (Act No XIX of 1923) was extended to all matters of secrecy and confidentiality in governance in the country, which was retained after Independence.
Official Secrets Act V/s Right to Information Act
- The OSA had become a contentious issue after the implementation of the Right to Information Act.
- The RTI act has been given primacy over OSA under section 22. So if there is any inconsistency in OSA with regard to furnishing of information, it will be superseded by the RTI Act.
- However, under Sections 8 and 9 of the RTI Act, the government can refuse information.
- Therefore, if government classifies a document as “secret” under OSA, that document can be kept outside the ambit of the RTI Act, and the government can invoke Sections 8 or 9.
Efforts to change the provisions of OSA
- Law Commission report, 1971
- In 1971, the Law Commission became the first official body to make an observation regarding OSA.
- As per the Law commission’s report, merely because a circular is marked secret or confidential, it should not attract the provisions of the Act, if the publication thereof is in the interest of the public and no question of national emergency and interest of the State as such arises.
- However, the Law Commission did not recommend any changes to the Act.
- Second ARC recommendation
- In 2006, the Second Administrative Reforms Commission (ARC) recommended that OSA be repealed, and replaced with a chapter in the National Security Act containing provisions relating to official secrets.
- High- level Committee
- In 2015, the union government set up a committee to look into provisions of the OSA in light of the RTI Act.
- It submitted its report to the Cabinet Secretariat in 2017, recommending that OSA be made more transparent and in line with the RTI Act.
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