The Official Secrets Act, which the Modi government wanted to use against the Rafale ‘stolen’ papers, is a colonial-era law that identifies and punishes espionage, sedition and other breaches of national security.
ThePrint asks: Is it time for India to re-examine the need for Official Secrets Act in 2019?
With RTI, laws like the Official Secrets Act have become unconstitutional
Senior advocate, Supreme Court of India
Much like the sedition law, the Official Secrets Act is a colonial-era law left behind by the British. The sedition law is often used to curb any criticism of the government, and the OSA is used to prevent anyone from revealing information that he/she gets access to by virtue of being a public official.
In the light of the Constitution and the Right To Information, all these laws have become completely outdated, and unconstitutional. This is precisely why the Supreme Court clarified the sedition law in the Kedar Nath Singh vs The State of Bihar case in 1962. The court said that unless there is an incitement to violence or public disorder, the criticism of the government – however virulent – will not amount to sedition.
The same intervention is required here. The whistleblower law clarifies that the job of a whistleblower is to provide information he/she may have of any wrongdoing that is taking place. Therefore, the test has to be only this: Will this information compromise the security of the state in any way? This too has to be very specifically defined.
In fact, Section 5 in the Official Secrets Act clarifies the kind of information that will fall under this category. And so, the information being revealed must be of that kind, and not any information one may have access to by being a public servant.
For instance, all the Rafale documents have nothing to do with national security and only reveal wrongdoings in the deal.
Security & defence issues must be dealt with seriously, erring officials should face the music
Former director general of artillery
The government deals with a lot of sensitive issues on a day-to-day basis during conferences and official talks or in files. During discussions, different and contrarian views are given, and the government after deliberation decides on the final stand.
It is mostly not necessary that everyone has to know about the issues discussed. In this context, officials who are dealing with such sensitive cases should work on a need-to-know basis. At times, the cases could be so sensitive that free flow of information is inimical to the nation’s interests. In such conditions, there is a need to continue with the Official Secrets Act.
In this age, where information flow is real-time, the Official Secrets Act should be reviewed and strengthened. Officials should be made more aware of the need to ensure that state’s secrets are not revealed.
The main point, however, is the enforcement of the Act. India has a poor record in enforcing rules and regulations. Keeping official secrets is more about ethics, which should be taught to officials right from the time they join the service. Issues of security and defence, like operations, procurement, training and so on, should be dealt with utmost seriousness. And, erring officials should face the music.
Also read: What’s Official Secrets Act, the law Modi govt wants to use against Rafale papers ‘leak’
Time to amend this archaic law & redefine ‘official secrets’
Former ISRO scientist
The Official Secrets Act was framed in 1923, and it must be amended now.
It was enacted during the British period to put our freedom fighters in jail and suppress the uprising in India. Raising a slogan or putting up a poster against the British, or writing Vande Mataram on the walls could land one in jail.
Now, we are in a free India and it’s time to revisit this archaic law and amend it as per the current scenario.
Our society has evolved and several things have changed. The government of the day must define what it considers an ‘official secret’.
Official Secrets Act needs to be better articulated in the social media & information age
Former Civil servant, Ministry of Defence
The Official Secrets Act needs to be viewed in the context in which it was framed. It was enacted under the British rule in 1923 because of an overwhelming colonial mindset of distrust and the need to restrain the revelation of ‘sensitive’ information.
This act has been inherited from a time when access to information was neither prolific nor disseminated with the click of a button. It applies to anyone whose actions, whether knowingly or unknowingly, are seen to be detrimental to the security of the country and includes sharing secret information with those not entitled to it. The 1989 act mentions that persons will be notified if they are bound by it. In the government, we are informed when we join that we are bound by it but in some cases, where the incumbents handle sensitive information, they sign up to it.
In the case of Rafale documents published by The Hindu, the Supreme Court dismissed the objection raised by the Attorney-General stating that there is no provision which enables the government to restrain such publication. Contrarily, Section 22 of the RTI Act states that it can override the OSA and seek information.
Clearly, a case exists for review of the act, and the RTI clause is being reviewed by the government. But more importantly, the review needs to clearly define what is ‘secret’ and what is not. Informing someone that they are bound by the OSA puts a sense of moral responsibility on the holder of the information. But unless there are clear definitions, an unsuspecting revelation of information can lead to punitive action. Moreover, it can be used for political expediency for settling scores. With social media and easy access to information being a reality, it cannot continue to be a British era law that we have merely inherited. It has to be better articulated for the current environment.
Navy War Room leak shows that need to protect against espionage by unfriendly countries is real
Senior Resident Fellow, Vidhi Centre for Legal Policy
The Supreme Court’s welcome decision in the Rafale case highlights one thing that the parties in the case probably did not intend to bring up – the obsolescence of the Official Secrets Act, 1923. On the one hand, the Right to Information Act, 2005 makes it very clear that in any case of conflict, the RTI will prevail over the OSA. On the other, the world of the early 20th century, when this law was passed, no longer exists.
Should the OSA exist at all? Recent instances of espionage, such as the Navy War Room leak, suggest that the need to protect against espionage by unfriendly nation states is real. The problem lies in the vague and unhelpful definitions used under the law – terms such as “useful to the enemy”, “affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States” are unhelpful in actually defining the contours of the offences. It leaves room for governments to harass the media and stifle criticism.
Although the phrases in question are borrowed from the Constitution of India, specifically Article 19(2), the borrowing is acontextual and therefore results in the creation of a vague criminal law, which only leads to more persecution and less prosecution.
Rather, the standard should be much stricter and far higher – only something that relates to specifications of weapons systems not already available in the public domain, secret troop movements, security arrangements and other such instances should fall within the scope of the law.
By Fatima Khan and Rohini Swamy.