How To Use The Official Secrets Act The Wrong Way

In Mumbai, Mukesh Singh, a second year LLB student was booked under the Official Secrets Act (OSA) as he was video graphing the Wadala police station, where he was taken to register a case against him for the charges of violating the lockdown norms.

What is an Official Secret?

Official secret is a piece of information that is known by the government and its employees. The terms “official secret” or “secret” are not defined in Act.

What is the Official Secrets Act, 1923?

The Official Secrets Act has its roots from the British era. Earlier it was called the Indian Official Secrets Act, 1889. It was amended and made more stringent as Indian Official Secrets Act, 1904 during the tenure of Lord Curzon as Viceroy of India. The Act was made to suppress the voices of the local newspapers that were emerging in India. These newspapers opposed the British policies and also created political consciousness among the people. In 1923, a newer version of the Indian Official Secrets Act was extended to all the matters of secrecy and confidentiality in governance in the country, which is termed as the Official Secrets Act, 1923 (OSA).

The Act mainly dealt with spying or espionage under section 3 and wrongful possession and communication of sensitive information detrimental to the security of the State under section 5.According to the Act, helping an enemy state against India is strongly condemned. It is at the discretion of the Government to decide what falls under the ambit of “secret” under the OSA. It is often said that the Official Secrets Act is in direct conflict with the Right to Information Act, 2005.

Instances where OSA was invoked earlier

In 1994, ISRO scientist S Nambi Narayanan had faced a criminal trial before his acquittal. He was accused for passing rocket and cryogenic technology to Pakistan for illegal gratification.

On May 17, 2011 a journalist, Tarakant Dwivedi was booked under OSA for criminal trespass, 11 months after he wrote an article in Mid Day, about how sophisticated weapons brought after 26/11 attack were being stored in a room with a leaking roof in the monsoons at Chatrapati Shivaji Terminus in Mumbai, which could possibly render them ineffective incase of another terror attack. The Bombay HC later dismissed the case when it was revealed through an RTI query that the place were he visited was not a prohibited area.

In 2018, Delhi court sentenced former diplomat Madhuri Gupta to 3 years in jail under the OSA for passing sensitive information to ISI. She served in the Indian High Commission in Pakistan.

In October 2018, an engineer, Nishant Agarwal working in BrahMos Aerospace Private Limited, Nagpur was arrested on charges for illegally possessing highly sensitive and secret documents, as alleged by the UP Police.

Is there a need for Amendments in the OSA Act?

“With the RTI, laws like Official Secrets Act have become unconstitutional” said Prashant Bhushan, Senior Advocate, Supreme Court Of India.

The OSA needs to be brought in line with the RTI and what kind of information will compromise the security of the state has to be defined specifically. It should be kept under the umbrella of National Security Act. The term secret or official secret has to be defined, so that public officials cannot deny other information under RTI terming it as a secret.

Now where the information flow is real-time, the OSA should be reviewed and strengthened. Erring officials should be taught a lesson as they need to be aware of the fact that the state’s secrets are not to be disclosed.

As we are now in a free India, citizens are conferred with fundamental rights such as right to speech and expression, it is time to revisit the age old law and modify it as per the current scenario. The objective of the then enacted act was to restrain the disclosure of the sensitive information that was against the British policies and protect their colonial rule. It was applied to everyone whose actions knowingly or unknowingly, caused detriment to the security of the country. With the growth in the technology and social media the archaic law needs amendment and proper definition of what constitutes an official secret.

Light on the present case of Mukesh Singh, a second year LLB student

According to the Hindustan Times, Ex-IPS officer and advocate YP Singh has said that making a video in a police station is not a crime as police station is a public place.

If the police has registered a case under the Official Secrets Act against someone for videographing the police station or police procedures then its a misuse of law. That person can file a case against the police. Concerned policemen can be prosecuted for filing a false case. The person can file a case against the police under section 211 of Indian Penal Code and can even demand civil compensation.”

Sensitive information was not being videographed, neither did he do an act that interfered with the functions of the officials. Nothing in this case seemed to be prejudicial to the interests of the state. The present OSA, 1923 is not very clear on what constitutes a official secret, does slapping him with penalties for spying amount to any kind of abuse of powers by the officials? A serious point to think about!

About the Author

Alankritha Bommakanti
I am a final year law student, who believes in herself and aspires to become a successful advocate. "Be the change that you wish to see in the world" this quote inspires me. My focus is now of expanding my thinking horizon and gaining knowledge that will be helpful to serve the society in a better way and build a career for myself. Law is a very deep subject with vast concepts. Law and news go hand in hand and I want to bring to you law and news in a simplified manner through my writings.

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