Official Secrets Act

Context:

The Delhi police has arrested a under the Official Secrets Act (OSA).

Concept: 

OSA has its roots in the British colonial era. The original version was The Indian Official Secrets Act (Act XIV), 1889.

This was brought in with the main objective of muzzling the voice of a large number of newspapers that had come up in several languages, and were opposing the Raj’s policies, building political consciousness and facing police crackdowns and prison terms. It was amended and made more stringent in the form of The Indian Official Secrets Act, 1904, during Lord Curzon’s tenure as Viceroy of India. In 1923, a newer version was notified. The Indian Official Secrets Act (Act No XIX of 1923) was extended to all matters of secrecy and confidentiality in governance in the country.

It broadly deals with two aspects

• Section 3 cover spying or espionage, covered
• Section 5 covers disclosure of other secret information of the government. Secret information can be any official code, password, sketch, plan, model, article, note, document, or information. Under Section 5, both the person communicating the information and the person receiving the information can be punished

RTI Act vs OSA

• Section 22 of the RTI Act provides for its primacy vis-a-vis provisions of other laws, including OSA. Therefore, if there is any inconsistency in OSA with regard to furnishing of information, it will be superseded by the RTI Act.
• However, under Sections 8 and 9 of the RTI Act, the government can refuse information. Effectively, if the government classifies a document as “secret” under OSA Clause 6, that document can be kept outside the ambit of the RTI Act, and the government can invoke Sections 8 or 9.

Do we need to reform OSA?

• Law Commission report ‘Offences Against National Security’, 1971 observed that “it agrees with the contention” that “merely because a circular is marked secret or confidential, it should not attract the provisions of the Act if the publication thereof is in the interest of the public and no question of national emergency and interest of the State as such arises”. The Law Commission, however, did not recommend any changes to the Act.
• Second Administrative Reforms Commission (ARC) recommended that OSA be repealed, and replaced with a chapter in the National Security Act containing provisions relating to official secrets.
• In 2015, the government had set up a committee to look into provisions of the OSA in light of the RTI Act. It submitted its report to the Cabinet Secretariat on June 16, 2017, recommending that OSA be made more transparent and in line with the RTI Act.