Secrecy has traditionally shrouded public functioning. However, in a democracy in which people govern themselves, it is necessary to have more openness.
Adapted from the First Report of the Second Administrative Reforms Commission (SARC), Government of India, June 2006.
The Official Secrets Act, 1923 declares itself to have the power to amend the law pertaining to official secrets. This residue of British colonialism has been hogging the limelight ever since the capture of freelance journalist Mr. Rajeev Sharma. The Special Cell of Delhi Police arrested the journalist on 14th September, 2020, under the Official Secrets Act. The gentleman was allegedly in possession of “some defence-related classified documents“.
Additionally, a Chinese woman and her “Nepalese accomplice” were also arrested for supposedly “supplying him (Sharma) huge amounts of money routed through ‘hawala’ channels for conveying sensitive information to Chinese intelligence”. The relations between India and China are in hot water now, and chances of a speedy recovery appear slim. The Press Club of India has condemned the ‘high-handedness’ of police action allegedly motivated by “obscure or questionable considerations”.
In light of scarce evidences, we need not concern ourselves with the ballooning debate around the arrests. Rather, let us observe this relic of an Act and extract more knowledge about it.
Understanding the Relic
What is it?
The Official Secrets Act, 1923 was enacted during the incidence of the British Raj, to stifle free speech and throttle the voices of various media houses (basically newspapers) clamouring for change. Needless to say, this is a witness and reminder of a draconian legislation.
India’s anti-espionage law extends to the whole of India. This law governs servants of the Government as well as citizens of India residing outside the country. The most commonly invoked Sections of this Act are Sections 3 and 5. Section 3 dictates the ‘penalties for spying’, whereas Section 5 deals with ‘wrongful communication, etc., of information’.
Interestingly, the definition clause (Section 2) of the Act does not define what ‘official secrets’ are. Therefore the Government can decide, according to its whims and fancies, as to what falls under ‘official secrets’, and such unbridled power could be easily misused.
Under Section 5, both the communicator as well as the receiver of secret information would be punishable under this law. The secret information could, ‘wholly or partly’, relate to a “secret official code or password” or a “sketch, plan, model, article, note, document, or information” in itself that could, either directly or indirectly, assist an adversary or perhaps effectively disclose any matter that could endanger the ‘sovereignty’, ‘integrity’, or ‘security’ of India or jeopardise her “friendly relations with foreign States”.
An individual found to be guilty could face imprisonment of up to 14 years, with or without an accompanying fine.
What issues are plaguing it?
The OSA is a vintage law that traces its roots to colonial domination and promotes a culture of secrecy. Impure wisdom and an iron fist conceptualised and nurtured this Act. It reeks of obscurity and antiquity and has not been amended ever since its genesis.
The advent of the Right to Information Act, 2005, (RTI), brought the thoughtful public to a crossroad. The people’s right to know was up against the Government’s right to keep secrets. The repeal of the OSA, as suggested by the Second Administrative Reforms Commission (SARC) Report, 2006, was mooted. Alternatively, the Report recommended the addition of a chapter in the National Security Act, containing provisions relating to official secrets. So far, none of those suggestions has seen the light of day.
Since the OSA does not shed light on what constitutes a ‘secret’ or ‘official secrets’, a sense of ambiguity lingers still. Any information requested under the RTI could be denied by a public servant by terming it to be a ‘secret’. Thus, (to borrow from the aforementioned Report), confidentiality would become the norm and disclosure the exception.
Most importantly, the impugned Act is a fine example of indolent draftsmanship. It is baffling indeed as to how a piece of legislation could be so wordy and yet tortuously cryptic.
E.g., Section 3 uses terms like “calculated to be”, “might be”, “intended to be”, and “likely to”, when discussing spying. Furthermore, Section 3 (2) passes the burden upon the accused to absolve himself and prove his good intent. It states that an accused need not be proven guilty of a certain act and “may be convicted” based on circumstantial evidence alone.
Evidentially, therefore, the Legislature seems to use the blanket term “safety or interests of the State” to fuel whimsical prosecutions.
What is its effect?
The OSA provides sweeping powers to the Government to restrict the information available publicly and to prosecute anyone for making them public. Furthermore, it is difficult to get bail if charged under the OSA since it becomes a question of national security. It could take many years to prove innocence, and by that time the accused may suffer economic and psychological losses.
The Coomar Narain spy case of 1985 is witness to a lengthy prosecution under the Official Secrets Act, 1923. It was not until 2002, that 12 members of the Prime Minister’s Office and Rashtrapati Bhavan Secretariat were sentenced to 10 years’ imprisonment. Ironically Narain escaped imprisonment, having expired in 2000. The convicted were guilty of sharing secret official codes, documents and information with the French, German and Polish embassy officials.
In 1994, ISRO scientist Nambi Narayanan, received accusations for leaking highly confidential “flight test data” to Maldivian intelligence officers. The CBI took over the matter, declaring the allegations to be false, resulting in his discharge in 1996. In 2018, the Supreme Court awarded Rs. 50 lakh to Mr. Narayanan for his “tremendous harassment and immeasurable anguish”.
Journalist Iftikhar Gilani received an honourable discharge after spending 7 months in jail for downloading a document off the internet. He had allegedly sold secrets to the terrorists, or so was the incorrect assumption.
In March 2019, the Government declared the theft of documents pertaining to the Rafale aircraft deal from the Defence Ministry. They also threatened the Chairman of The Hindu with dire consequences for publishing articles derived from those stolen documents.
A Tale of Two Cats
The Press Club of India has vehemently indicated that there have been “preposterous” arrests of JNU and Jamia scholars. Journalists suffer from the chilling effect when a revolting piece of law such as the OSA hound them. The people are more reserved and cautious while pursuing serious leads and stories.
The outrageous arguments of Attorney General KK Venugopal during the Rafale hearing had attracted derision. Sometimes only documents and information revealed from the dark can test the authenticity of the Government. The Attorney General had attempted to wield the Official Secrets Act to quell allegations of wrongdoing in the historic deal.
Undoubtedly, a nation’s integrity deserves the highest protection. Yet, it must be remembered that a Nation is only as good as its people, and the needs of the many (the collective people) must always outweigh the needs of the one (a solitary or handful of bureaucrats).
We have thus arrived at the tale of the two proverbial cats. One stays mum and keeps to itself; while the other divulges information and necessary secrets. You get to choose whether ‘the cat gets your tongue’, or whether you ‘let the cat out of the bag’.
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