516723, 1053 AM Official Secrets Act: Maintaining Confidemialty Inthe govemance of the county - Gelegal India
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, ete,
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.
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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.
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* 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 1923has 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.
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Tt 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.
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That’s why it does not come under the ambit of Right to Information (RTD), and
an RTT appli s decided by the
ition against these confidential documents(i.e.
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 RTD, the act of 2005 will prevail.
Ifa 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
RIT 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.
ites igetagalinaia.comiotfer-secrols-act¥Apolcabily_ Of Offical Secrets_Acl_OSA sirsy823, 10 53M Offical Secrets Act Maintaining Confidentiality inthe governance ofthe county - Getega India
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.
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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
condition:
* Ifa person approaches, passes over or inspects or trespasses in any prohibited
place, which is against the state’s security, safety, and interests.
+ Ifa 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.
Ifa 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.
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