Official Secrets Act (India)

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The Official Secrets Act,1923
Star of the Order of the Star of India (gold).svg
Imperial Legislative Council
  • An Act to consolidate and amend the law relating to official secrets.
Citation Act No. 19 of 1923
Territorial extent British India
Amended by
Repealing Act,1927
Status: In force

The Official Secrets Act of 1923 is India's anti-espionage act held over from the British colonial period. It states clearly that actions which involve helping an enemy state against India are strongly condemned. It also states that one cannot approach, inspect, or even pass over a prohibited government site or area like an electrical substation. According to this Act, helping the enemy state can be in the form of communicating a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy.[ citation needed ]

Contents

Prosecution and penalties

Punishments under the Act range from three years to life imprisonment (if the intent is to declare war against India - section 5). A person prosecuted under this Act can be charged with the crime even if the action was unintentional and not intended to endanger the security of the state. The Act only empowers persons in positions of authority to handle official secrets, and others who handle it in prohibited areas or outside them are liable for punishment. [1]

Journalists have to help members of the police forces above the rank of the sub-Inspector and members of the military with investigations regarding an offense, up to and including revealing his sources of information.

Under the Act, search warrants may be issued at any time if the magistrate determines that based on the evidence there is enough danger to the security of the state.

Uninterested members of the public may be excluded from court proceedings if the prosecution feels that any information which is going to be passed on during the proceedings is sensitive. This also includes media. [2]

When a company is seen as the offender under this Act, everyone involved with the management of the company, including the board of directors, can be liable for punishment. In the case of a newspaper, everyone – including the editor, publisher and the proprietor — can be imprisoned for an offense. OSA is controversial to the modern RTI Act of 2005. [1]

Criticism

Conflict with right to information

In the OSA clause 6, information from any governmental office is considered official information, hence it can be used to override Right to Information Act 2005 requests. This has drawn harsh criticism. The Supreme Court of India has also held that the RTI overrides OSA. [3]

Iftikhar Gilani case

In June 2002, journalist Iftikhar Gilani was, arrested for violating the OSA 1923. [4] He was charged under the OSA, with a case under the Obscenity Act added to it. The first military report suggested that the information he was accused of holding was "secret" despite being publicly available. The second military intelligence report contradicted this, stating that there was no "official secret". Even after this, the government denied the opinion of the military and was on the verge of challenging it when the contradictions were exposed in the press.

The military reported that "the information contained in the document is easily available" and "the documents carry no security classified information and the information seems to have been gathered from open sources".

On 13 January 2004, the government withdrew its case against him to prevent two of its ministries from having to give contradictory opinions. Gilani was released the same month.

Reforms

After reviewing the provisions of the act, the Union Home Ministry in July 2017 submitted a report to the Cabinet secretariat. The goal was to amend the act to make it more transparent and in line with the Right to Information Act, 2005. [5]

Recent News

Delhi court judgement in the case involving journalist Santanu Saikia

A Delhi court in a 2009 judgement, in a case involving the publication of excerpts of a cabinet note in the Financial Express ten years earlier by Santanu Saikia, greatly reduced the powers of the act by ruling publication of a document merely labelled "secret" shall not render the journalist liable under the law.

Saikia was arrested in February 2015 in another case that the police said involved the writing of stories and analyses from documents allegedly stolen from the government. He was released on bail in May after spending 80 days in jail. [6]

50 cases of Official Secrets Act violation since 2014

50 cases of violation of the Official Secrets Act were registered in the country since 2014. Of these 50 cases, 30 were registered in 2016, nine in 2015 and 11 in 2014 according to Union Minister of state for Home Hansraj Ahir. Of the 30 cases registered in 2016, eight were lodged in Tamil Nadu, followed by five each in Punjab and Uttar Pradesh. [7]

Rafale fighter jets case details published by The Hindu newspaper 2019

Attorney General KK Venugopal told the three-judge bench that the government could invoke the Official Secrets Act 1923, against The Hindu newspaper, which had published the papers. He claimed that the documents pertaining to the purchase of Rafale jets published by the media are genuine [8] Justice Joseph one, of the three judges on the bench, asked the government about Right to Information Act 2005, Section 22 having an overriding effect on official secrets act and section 24 of RTI which mandates even security and intelligence organisations to disclose information on corruption and human rights violations. Finally, section 8(2) compels the government to disclose information "if public interest in disclosure outweighs the harm to protected interest".

Related Research Articles

Espionage, spying, or intelligence gathering is the act of obtaining secret or confidential information (intelligence). A person who commits espionage is called an espionage agent or spy. Any individual or spy ring, in the service of a government, company, criminal organization, or independent operation, can commit espionage. The practice is clandestine, as it is by definition unwelcome. In some circumstances, it may be a legal tool of law enforcement and in others, it may be illegal and punishable by law.

<span class="mw-page-title-main">Treason</span> Crime of betraying ones country

Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplomats, or its secret services for a hostile and foreign power, or attempting to kill its head of state. A person who commits treason is known in law as a traitor.

Freedom of information laws allow access by the general public to data held by national governments and, where applicable, by state and local governments. The emergence of freedom of information legislation was a response to increasing dissatisfaction with the secrecy surrounding government policy development and decision making. In recent years Access to Information Act has also been used. They establish a "right-to-know" legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions. Also variously referred to as open records, or sunshine laws, governments are typically bound by a duty to publish and promote openness. In many countries there are constitutional guarantees for the right of access to information, but these are usually unused if specific support legislation does not exist. Additionally, the United Nations Sustainable Development Goal 16 has a target to ensure public access to information and the protection of fundamental freedoms as a means to ensure accountable, inclusive and just institutions.

<span class="mw-page-title-main">Espionage Act of 1917</span> United States federal law

The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18. Specifically, it is 18 U.S.C. ch. 37.

<span class="mw-page-title-main">Classified information</span> Material that government claims requires confidentiality

Classified information is material that a government body deems to be sensitive information that must be protected. Access is restricted by law or regulation to particular groups of people with the necessary security clearance and need to know. Mishandling of the material can incur criminal penalties.

<span class="mw-page-title-main">Official Secrets Act</span> Legislation

An Official Secrets Act (OSA) is legislation that provides for the protection of state secrets and official information, mainly related to national security but in unrevised form can include all information held by government bodies.

United States v. Reynolds, 345 U.S. 1 (1953), is a landmark legal case decided in 1953, which saw the formal recognition of the state secrets privilege, a judicially recognized extension of presidential power. The US Supreme Court confirmed that "the privilege against revealing military secrets ... is well established in the law of evidence".

<span class="mw-page-title-main">Right to Information Act, 2005</span> Act of the Government of India

The Right to Information (RTI) is an act of the Parliament of India which sets out the rules and procedures regarding citizens' right to information. It replaced the former Freedom of Information Act, 2002. Under the provisions of RTI Act, any citizen of India may request information from a "public authority" which is required to reply expeditiously or within thirty days. In case of matter involving a petitioner's life and liberty, the information has to be provided within 48 hours. The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.

<span class="mw-page-title-main">Official Secrets Act 1989</span> United Kingdom intelligence law

The Official Secrets Act 1989 is an Act of the Parliament of the United Kingdom that repeals and replaces section 2 of the Official Secrets Act 1911, thereby removing the public interest defence created by that section.

<span class="mw-page-title-main">Official Secrets Act 1920</span> United Kingdom legislation

The Official Secrets Act 1920 was an Act of the Parliament of the United Kingdom.

<span class="mw-page-title-main">Jammu and Kashmir Public Safety Act, 1978</span> Preventive detention law in the Indian state of Jammu and Kashmir

The Jammu and Kashmir Public Safety Act, 1978 (PSA) is a preventive detention law under which a person is taken into custody to prevent them from acting harmfully against "the security of the state or the maintenance of the public order" in the Indian state of Jammu and Kashmir. Whereas PSA applies only to Jammu and Kashmir, it is very similar to the National Security Act that is used by the central and other state governments of India for preventive detention.

The Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund was created on 27 March 2020, following the COVID-19 pandemic in India. Although it is named for the Prime Minister of India, and uses the State Emblem of India, it is a private fund, used at the discretion of the Prime Minister and the Fund's trustees, and does not form a part of the Government of India's accounts. The Fund was established for the purpose of redressing the COVID-19 pandemic in India, in 2020. While complete documentation for the Fund's establishment has not been made public, the Government of India has stated that the Prime Minister of India, Narendra Modi, is the chairman of the fund, and that trustees include the Minister of Defence, Rajnath Singh; the Minister of Home Affairs, Amit Shah, the Minister of Finance, Nirmala Sitharaman, and several corporate leaders and industrialists, including Ratan Tata, and Sudha Murty.

State Information Commission (India) is an autonomous and statutory bodies to be constituted as per The Right to Information Act, 2005 by the State Governments in India through a notification in official Gazette. The commission will have one State Chief Information Commissioner (CIC) and not more than 10 State Information Commissioners (IC) to be appointed by the Governor on the recommendation of the committee consisting of the Chief Minister as Chairperson, the Leader of the Opposition in the Legislative Assembly and a state Cabinet Minister nominated by the Chief Minister.

Andhra Pradesh Information Commission is an autonomous and statutory body constituted as per The Right to Information Act, 2005 by the state government of Andhra Pradesh through a notification in official Gazette. The commission will have one State Chief Information Commissioner (CIC) and not more than 10 State Information Commissioners (IC) to be appointed by the Governor on the recommendation of the committee consisting of the Chief Minister as chairperson, the Leader of the Opposition in the Legislative Assembly and a state Cabinet Minister nominated by the Chief Minister.

Gujarat State Information Commission is an autonomous and statutory body constituted as per The Right to Information Act, 2005 by the state government of Gujarat through a notification in official Gazette. The commission will have one State Chief Information Commissioner (CIC) and not more than 10 State Information Commissioners (IC) to be appointed by the Governor on the recommendation of the committee consisting of the Chief Minister as Chairperson, the Leader of the Opposition in the Legislative Assembly and a state Cabinet Minister nominated by the Chief Minister.

Karnataka State Information Commission is an autonomous and statutory body constituted as per The Right to Information Act, 2005 by the state government of Karnataka through a notification in official Gazette. The commission will have one State Chief Information Commissioner (CIC) and not more than 10 State Information Commissioners (IC) to be appointed by the Governor on the recommendation of the committee consisting of the Chief Minister as Chairperson, the Leader of the Opposition in the Legislative Assembly and a state Cabinet Minister nominated by the Chief Minister.

Punjab State Information Commission is an autonomous and statutory body constituted as per The Right to Information Act, 2005 by the state government of Punjab through a notification in official Gazette. The commission will have one State Chief Information Commissioner (CIC) and not more than 10 State Information Commissioners (IC) to be appointed by the Governor on the recommendation of the committee consisting of the Chief Minister as chairperson, the Leader of the Opposition in the Legislative Assembly and a state Cabinet Minister nominated by the Chief Minister.

Uttarakhand State Information Commission is an autonomous and statutory body constituted as per The Right to Information Act, 2005 by the state government of Uttarakhand through a notification in official Gazette. The commission will have one State Chief Information Commissioner (CIC) and not more than 10 State Information Commissioners (IC) to be appointed by the Governor on the recommendation of the committee consisting of the Chief Minister as chairperson, the Leader of the Opposition in the Legislative Assembly and a state Cabinet Minister nominated by the Chief Minister.

Uttar Pradesh Information Commission is an autonomous and statutory body constituted as per The Right to Information Act, 2005 by the state government of Uttar Pradesh through a notification in official Gazette. The commission will have one State Chief Information Commissioner (CIC) and not more than 10 State Information Commissioners (IC) to be appointed by the Governor on the recommendation of the committee consisting of the Chief Minister as Chairperson, the Leader of the Opposition in the Legislative Assembly and a state Cabinet Minister nominated by the Chief Minister.

<span class="mw-page-title-main">Official Secrets Act (Pakistan)</span> Law in Pakistan

The Official Secrets Act, of 1923 is a law in Pakistan that traces its origins back to the British colonial era in India. Enacted during that time to protect state secrets and maintain the security of the British Empire, the Act continues to be in force in present-day Pakistan.

References

  1. 1 2 "Act No. 19 of 1923 dated 2nd. April, 1923"
  2. ↑ "THE OFFICIAL SECRETS ACT, 1923" (PDF). www.indiacode.nic.in. Retrieved 21 February 2024.
  3. ↑ Rajagopal, Krishnadas (14 March 2019). "RTI trumps Official Secrets Act, says SC". The Hindu. ISSN   0971-751X . Retrieved 19 September 2020.
  4. ↑ "India Together: Presumed guilty, secretly - 14 July 2005". indiatogether.org. 14 July 2005. Retrieved 22 February 2024.
  5. ↑ "Home Ministry submits report on proposal to amend Official Secrets Act". The Indian Express. 28 July 2017. Retrieved 5 April 2018.
  6. ↑ Garg, Abhinav (26 February 2009). "Court redefines 'official secret', relief to scribe". Times of India . Archived from the original on 24 October 2012. Retrieved 17 January 2022.
  7. ↑ "MHA reviews draconian Official Secrets Act". Times of India . 28 July 2017. Archived from the original on 31 July 2017.
  8. ↑ "'Gayab ho gaya is govt's new line': Rahul Gandhi ups Rafale attack on PM". 7 March 2019.
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