Official Secrets Act: Maintaining Confidentiality in the governance of the country

The official secrets act (OSA) came into force in 1923 as anti-espionage legislation. It got enacted during the tenure of the viceroy of India ‘Lord Curzon’.

It came as legislation to protect a country from spying and espionage activities.

It also protects the government’s confidential documents and maintains its secrecy.

Under this law, both the revealer(i.e. Sender of the confidential information) and receiver(i.e. Person who is receiving the confidential information for its use) is liable to be punished for sending confidential information to the enemy receiver who is using it for his benefit.

Applicability Of Official Secrets Act (OSA)

This law applies to government servants, government officials, citizens of the country, etc., charged with spying, unlawful use of public servants’ uniforms, intervening in armed forces, wrongful communication of information, harbouring spying, etc.

These confidential official documents covered under this act can be in any form under section 5 of the act.

These can have the form of an official code or password, sketch, model, plan, note, article, document, or information related to or used in a prohibited place.

It deals with spying, espionage, and other threatening activities against its integrity.

This law states activities like spying, wrongful communication of secret information, unauthorised use of uniforms, falsifying reports, harbouring spies, withholding information, interference or obstruction with the police or armed forces in prohibited areas as punishable offences under section 3 of the OSA.

If guilty, a person may get up to 14 years’ imprisonment, a fine, or both.

What is the official secrets act?

It is an act of 1923 which is an anti-espionage law. Under this act, aiding an enemy state or its agent is strongly condemned. It also prescribes provisions to restrict an individual from entering, approaching or inspecting a prohibited site or area.

The aiding of the enemy state can get done by communicating a sketch, plan, model, official secret, official code or password to the enemy state to use the information for the enemy’s benefit.

This act of 1923 covers the provisions related to the following:

• Section 3 prescribes the acts that constitute an offence under the act and the penalties. This act gets termed ‘spying‘.
• Section 4 of the act considers communicating information with foreign agents as evidence of the commission of certain offences.
• Section 5 of the act defines the wrongful communication of information or the conditions to consider the communication of information as wrongful communication.
• Unauthorised use of uniforms, falsification of reports, forgery, personation, and false documents is covered under section 6 of the act and considered an offence with the punishment of imprisonment extending up to three years or a fine or even both.
• The punishment for interfering with officers of the police or members of the Armed Forces of Union concerning a prohibited place is also the same in this regard under Section 7. The interference can be causing delay, misleading such officers, or causing obstruction in the course of their duty.
• Citizens must provide information to the appropriate police officer of armed forces personnel regarding the commission of offences under section 3 of the Official Secrets Act or under section 3, read with section 9 of the act.
• Section 9 of the act describes an attempt to commit an offence, inciting someone to commit a crime under this act, which is the actual commission of that offence.
• Section 10 of the act prescribes the penalty for knowingly harbouring spies or any such person who committed an offence under section 3 or section 3, read with section 9 of the act.
• Any court of law does not have the power to take cognisance for the trial of offences committed under this Act except on the complaint made by an appropriate authority under the government as per section 13(3) of the act.
• Under section 14 of the act, The court has the power to exclude the public from proceedings for the offences committed under the act,

  The court can also exclude the public upon the presentation of an application by the prosecution for the presentation of evidence that will be prejudicial to the safety of the state but,

  The sentence should get passed in the presence of public

• According to section 15, If a company commits an offence under this act, the persons responsible for its management and its business, like a manager, director, secretary, etc., will be guilty of the offence.

  This provision mentioned above is valid only when the person fails to depict that the offence was committed without his knowledge and exercises all due diligence to prevent the commission of the offence.

Changes the Law Undergone

The official secrets act 1923 has its roots in the colonial period in India, and it was initially the Indian official secrets act (Act XIV) 1889. The objective of the original act was to suppress the opinion of the number of newspapers that were opposing the Britisher’s policies.

It got amended and again introduced more stringent as The Indian official secrets act 1904.

In 1923, it got introduced in a new form as the India official secrets act (Act XIX of 1923). It got extended to all the matters of secrecy and confidentiality in the country’s governance.

It was brought to amendment in the years 1951 and 1967.

The OSA doesn’t define ‘secret’ or ‘official secrets’. It is the discretion of the government to categorise any information as a secret, and the government decides to bring information or instrument under the ambit of the OSA.

Difference between RTI Act and OSA

The right to information (RTI) act, 2005 came with a duty on states to disclose the relevant information in the public domain for the objective of good governance of the democracy.

The right to information is the right guaranteed to the citizens in India under Article 19(1)(a) and Article 21 of the constitution of India.

In simple terms, The right to information is just a “right to know” the operations and functioning of the country.

The OSA was brought in India to maintain the secrecy and confidentiality of the information used for the country’s governance, which cannot be in the public domain. The government’s discretion is not to furnish the information to the common public.

That’s why it does not come under the ambit of Right to Information (RTI), and an RTI application against these confidential documents(i.e. as decided by the government) is not maintainable.

There is a persisting conflict between the two acts, as OSA brings confidentiality in government authorities functioning, and RTI is brought to maintain transparency and establish accountability in the functioning of authorities under the government of India.

Thus all the information and documents don’t come under the purview of RTI, as the information should be ‘public authority to come under RTI’s ambit.

Some provisions under the RTI Act, 2005, prescribes that in case of a conflict between the two acts (i.e. OSA and RTI), the act of 2005 will prevail.

If a dispute arises between the two legislations, the public interest will prevail. Section 8(2) of the RTI act states that:

“Notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, nor any exemption is allowed in the provisions of section 8(1) of the RTI Act a public authority has a right and is allowed to access the information and documents, if done for the public interest in large or if the disclosure outweighs the harm to the protected interests“.

Further, section 22 of the RTI Act enumerates that the provisions of the RTI Act will have an overriding effect on OSA or any other law for the time being or in any instrument having effect by any other law.

Although, The government gets exempt from furnishing certain information to the country’s citizens under section 8(1) of the RTI Act. These are:-

• Information whose disclosure will affect the sovereignty and integrity of India or security, scientific and strategic interests of the state of relations with the foreign state
• Information expressly prohibited to be disclosed by the appropriate court of law or tribunal.
• Disclosure of information that breaches the privileges of parliament
• The information includes trade secrets, Intellectual property, commercial confidence.
• The information is available in a fiduciary relationship.
• Information receives in confidence with a foreign government.
• Information whose disclosure will endanger the life or safety of a person
• Information, if disclosed, would impede the process of investigation or prosecution of offenders.
• Cabinet papers, incorporating records of deliberations of the council of ministers and secretaries
• If disclosed, the information will cause an infringement of a person’s privacy and has no larger public interest in its disclosure.

The Central public information officer (CPIO) or state public information officer (SPIO) can reject an application to furnish information when such furnishing results in a case of infringement of copyright of an individual except for a state.

The RTI Act got established to establish transparency in the functioning of public authorities and provide a right to information for the country’s citizens of the country.

Penalties for spying

The penalties for spying get prescribed under section 3 of the act of 1923.

These penalties get laid on the citizens of the country on the following conditions:-

• If a person approaches, passes over or inspects or trespasses in any prohibited place, which is against the state’s security, safety, and interests.
• If a person makes any plan, sketch, model or note to make it worthwhile to an enemy who is against the safety or interests of the state
• Suppose a person obtains any record or publishes or communicates it to any other person. In that case, any secret official code or password is helpful to an enemy intending to affect India’s sovereignty, security, and integrity or friendly relations with foreign states.

If a person commits any act under the conditions mentioned above related to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise concerning the naval, military or air force affairs of Government or concerning any official secret code then,

He will be liable for imprisonment up to fourteen years and,

In cases other than the mentioned punishment, imprisonment will be three years.

Conclusion

The Official secrets act 1923 got introduced to maintain confidentiality in the functioning of the government of our country. It maintains the confidentiality of the functioning of government agencies like the intelligence bureau, research & analysis wing, central bureau of investigation, etc.

It is essential to prevent the functioning and operations of the intelligence agencies and similar authorities like that to keep up the sovereignty and integrity of the nation.

The RTI comes in conflict with the functioning of these agencies as requests are made to bring the operations undertaken by these agencies into the public domain. Still, if the same is done, the safety and sovereignty of the nation will be at stake.

Though RTI also guarantees citizens’ right to information if the particular information is a public interest concern. RTI Act will have an overriding effect over OSA (Official Secrets Act) in case of conflict between the two legislations but,

RTI Act does not supersede the OSA every time; it laid some grounds for exceptions for non-disclosure of information to keep up with the nation’s safety.