What Is Official Secrets Act, 1923?

Amit Pandey India

March 8th, 2019 / 6:42 PM

Image Credit: The Indian Express

Opposing the review petition filed in the Rafale deal, Attorney General K.K. Venugopal told the Supreme court on Wednesday that files related to Rafale deal were “stolen from the Ministry of Defence (MoD)”. He also told that media reports revealing the pricing and the decision- making the process “Violate the Official Secret Act 1923”.

Parliamentarian Arun Shourie, Advocate Prashant Bhushan and former union minister Yashwant Sinha filled the joint petition seeking the court permission to represent the media reports pointing the violation of Defence Procurement Procedure.

On February 8, The Hindu and ANI published a report, showing the extracts from the Ministry of Defence. The report claimed that negotiating team, MoD and Law ministry opposed the purchase of 36 Rafale fighter jets. Reports also claimed that the government did not follow the procurement process.

What is the Official Secrets Act?

Official Secret act is a colonial law, enacted in 1923. In 1904, The Official secrets act was notified during the time of Lord Curzon, viceroy of India. This was the more stringent version of the present act which the British Raj used to suppress the voice of nationalist newspapers

In April 1923, this act was replaced and the new Official Secret act was notified, extended to all matters of secrecy, confidentiality in the governance of the country. Section 3 of the Act deals with the spying and espionage, while disclosure of the other secret information dealt in Section 5 of the act. As this is the British-era law, the definition of secret information is unequivocal, hence it is in the direct conflict of RTI. The secret information can be any official code, password, sketch, plan, model, article, note, document or information.

Those found guilty of a violation of the OSA can face imprisonment from 3 years to 14 years. This law has been used to jail the journalist and its opposers have called it the attack on the freedom of speech.

Was this act used in past?

Yes, In 2018, the Delhi High court convicted the former diplomat Madhuri Gupta, who served as the Indian high commissioner in Islamabad. She was sentenced to jail for three years for sharing the sensitive information to Pakistan’s intelligence service.

In another case, Journalist Tarakant Dwivedi was sentenced guilty under the OSA. He was convicted for writing the article about how valuable weapons bought after 26/11 was stored in the room of Chhatrapati Shivaji Terminus in Mumbai. Later on, Bombay high court dismissed the case after an RTI query revealed that the armoury was not the prohibited area.

In a similar case, Kashmiri-based journalist, Iftikhar Gilani, was convicted under the OSA in 2002. He was convicted of downloading a document from the internet. He was later on discharged from the jail.

What Next?

After the government decided to file the criminal case against the N. Ram, the question is what next?

Petitioner Prashant Bhushan countered the attorney general, cited how he obtained the evidence from the whistleblower Ranjit Sinha in 2G case, which is the vital evidence in the probe. Furthermore, Arun Shourie also told the court that in Coalgate and 2G scam cases, he had taken information from the whistleblower.

Petitioners reinforced their point by citing the August 2013, Manjeet Singh Khera Vs State of Maharashtra case. In this case, it was ruled that the identity of a whistleblower can never be revealed to the accused facing prosecution under Prevention of Corruption Act, 1988. Probably, this will make the N. Ram written article as “Public Interest”.

Prashant Bhushan also told the court that “Right to Information act overrides the official secret act” hence there is no violation of the law.

The RTI act 2005, clearly said that in case of a clash with OSA, “Public Interest” will prevail.

Also Read: “Attempt To Silence”: Over 100 Activists Condemn Contempt Notice Against Prashant Bhushan


Written by : Amit Pandey (Guest Author)

Edited by : Shraddha Goled

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