OFFICIAL SECRETS ACT, 1923

INTRODUCTION

The Official Secrets Act (OSA) of India is a legislative framework designed to protect
sensitive information crucial to national security, diplomatic relations, and state
interests. Enacted in 1923 during the colonial era, the act reflects historical concerns
about espionage, unauthorized disclosure of classified information, and the need to
maintain confidentiality in matters of governance. Over the years, the act has evolved,
responding to changing global dynamics, technological advancements, and the complex
interplay between security imperatives and democratic values.

The OSA is embedded in India’s legal landscape as a means to regulate and govern the
handling of official secrets. It establishes the legal framework for classifying certain
information as confidential or secret and prescribes penalties for unauthorized access,
possession, or dissemination of such information. This legal instrument plays a pivotal
role in upholding national security while simultaneously raising questions about the
delicate balance between secrecy and the public’s right to information.

In the Indian context, the OSA’s historical roots trace back to the British colonial
administration’s efforts to prevent the leakage of sensitive information. The act’s
provisions have been retained and modified since India’s independence, reflecting the
nation’s recognition of the need to protect sensitive information in a rapidly changing
geopolitical landscape.

OFFICIAL SECRETS ACT 1923

• Spying or espionage, as well as the exposure of government secrets, are two major
topics covered by the Official Secrets Act of 1923.
• However, the Official Secrets Act does not clarify secret material, the government
uses the Manual of Departmental Security Instructions, 1994 to determine
whether or not a document is classified as secret.
• Any official code, password, sketch, plan, model, article, note, document, or
anything that is not publicly available is considered secret information.
• A person could face up to 14 years in prison, a fine, or both if found guilty. The
Official Secrets Act punishes both the sender and the receiver of information.
HISTORICAL DEVELOPMENT OF THE ACT

The roots of the OSA can be traced back to the 19th century, marked by concerns over
espionage and the protection of sensitive government information. Its evolution from
colonial origins to modern governance frameworks offers valuable insights into the
dynamics of secrecy, national security, and the delicate balance between state interests
and public accountability.

Colonial Origins (19th Century):

The origins of the Official Secrets Act can be found in the British colonial context. In
the mid-19th century, the United Kingdom faced with growing concerns about foreign
espionage and potential threats to its imperial interests enacted the Official Secrets Act
of 1889. This legislation aimed to safeguard classified government information and
prevent unauthorized disclosure that could compromise national security and diplomatic
relations. Its provisions criminalized the release of classified documents and established
penalties for those found guilty of breaching confidentiality.

Expansion and Global Adoption (20th Century):

As the British Empire expanded its influence, so did the concept of official secrets. Many
colonies, including India, adopted variations of the Official Secrets Act, which remained
centered on maintaining imperial control and protecting sensitive information. After
World War I, the importance of secrecy in matters of defense, diplomacy, and
intelligence became even more pronounced. The United Kingdom updated its Official
Secrets Act in 1920, broadening its scope and strengthening penalties for unauthorized
disclosures.

Post-Independence and Evolution (India):

With the end of colonial rule and the birth of independent nations, including India, the
Official Secrets Act underwent adjustments to reflect new geopolitical realities.
Independent India retained the OSA of 1923, which continued to emphasize the
protection of state secrets and national security. However, the act’s application often
prompted debates about its compatibility with democratic principles, transparency, and
accountability. Criticism arose regarding its potential misuse to suppress dissent and stifle
whistleblowing.

Contemporary Relevance and Challenges:

In the 21st century, the Official Secrets Act faces new challenges posed by technological
advancements, globalization, and changing notions of governance. The digital age has
complicated the management of classified information, blurring the lines between secrecy
and transparency. Instances of leaks, whistleblowing, and the intersection of national
security with human rights have led to calls for reform and a reconsideration of the act’s
provisions.

IMPORTANT SECTIONS OF OSA,1923

Section 3 - Penalties for Spying:

- Section 3 of the Official Secrets Act deals with the offense of spying against the
government.

- Engaging in activities such as accessing forbidden areas, creating sketches or plans for
the benefit of enemies, collecting and sharing secret codes, passwords, documents, or
notes that could aid enemies and likely to affect the sovereignty and integrity of India and
compromise the safety and security of the country, is punishable with imprisonment up to
14 years.

Section 5 - Wrongful Communication of Information:

- Section 5 of the Official Secrets Act addresses the wrongful communication of

information by government officials or individuals entrusted with official secrets.

- It prohibits unauthorized disclosure or communication of classified information that

may be prejudicial to the security or interests of the state.

- Individuals found guilty of wrongfully communicating official information can face

imprisonment for a term which may extend to three years, along with possible fines.

Section 6 Unauthorized use of uniforms; falsification of reports, forgery,

personation, and false documents.

- Under Section 6 . If any person for getting entry or helping another to enter a
prohibited area which goes against the safety of the state while doing so if wears an
official uniform or a resembling uniform without legal authority for deceiving and
representing himself to be someone with authority, or, gets an oral or written
declaration or document or makes any false statements, or, deceiving someone
represents himself to be an official employed by the government to receive secret and
classified information, etc, is held guilty for committing an offense under this Section.
- Section 6(3) imposes imprisonment for a term of three years, or with a fine, or both
for committing an offense under this section.

Section 9 - Attempts to, Incitements, etc.:

- Section 9 of the Official Secrets Act covers attempts to commit offenses under the Act,
incitements to commit such offenses, and abetments of such offenses.

-Attempts to commit an offence or even abetment has same liability as commission of

offence.

Section 10 - Penalty for Harbouring Spies:

- Section 10 of the Official Secrets Act addresses the offense of harboring spies or
individuals engaged in espionage activities against the government.

- It prohibits individuals from providing shelter, assistance, or support to spies or

those involved in unauthorized communication of official information.

- Knowingly harbouring any person who has committed an offence or about to commit an
offence under the Act, is an offence which is punishable with imprisonment up to three
years or with fine or with both.

CRITICISM AND CONCERN

Here are some of the key criticisms and concerns surrounding the OSA in India:

1. Lack of Clarity and Broad Language:

Critics argue that the OSA’s language is broad and ambiguous, making it susceptible to
misinterpretation and misuse. The act’s definitions of “official secrets” and
“unauthorized disclosure” are often seen as vague, potentially allowing authorities to
label a wide range of information as classified.

2. Chilling Effect on Freedom of Speech and Press:

The fear of legal repercussions under the OSA can lead to a chilling effect on freedom of
speech and press. Journalists, activists, and whistleblowers may hesitate to publish or
share information that is in the public interest due to concerns about violating the act and
facing criminal charges.

3. Suppression of Whistleblowing:

The OSA can discourage whistleblowers from coming forward with information about
government wrongdoing or misconduct. Whistleblowers that expose corruption or human
rights violations may fear prosecution under the act, even when their intentions are to
expose wrongdoing for the public good.

4. Lack of Public Accountability:

Critics argue that the OSA’s strict provisions can hinder transparency and accountability
in governance. By classifying a wide range of information as official secrets, the act may
shield government actions from public scrutiny and prevent meaningful oversight.

5. Conflict with Right to Information Act:

India’s Right to Information (RTI) Act aims to promote transparency and accountability
by granting citizens access to government records. The OSA’s secrecy provisions can
sometimes clash with the RTI Act, leading to legal battles and confusion about which law
takes precedence.

6. Encroachment on Civil Liberties:

The act’s strict provisions have been criticized for potentially encroaching on individuals’
civil liberties, including freedom of speech, right to know, and right to dissent. Critics
argue that striking a balance between national security and these fundamental rights is
essential.

8. Need for Reform and Modernization:

The digital age has brought about new challenges in information sharing and security.
Critics argue that the OSA needs to be updated and modernized to address the evolving
landscape of communication, digital platforms, and the potential for leaks through
various means.

The NDTV Case (2017):

In 2017, the Ministry of Home Affairs issued a show-cause notice to NDTV, a
prominent news channel, alleging that the channel had compromised national security by
broadcasting sensitive information during its coverage of the Pathankot terrorist
attack. The case sparked discussions about the OSA’s scope and its potential impact on
press freedom.

This case highlight the need for a careful balance between protecting national security
and upholding democratic principles, including freedom of speech and transparency.

Case : Asif Hussain v. State (2019)

In this Case , the appellant Asif Hussain was identified to be a Pakistani national living in
Kolkata and delivering sensitive information on the Indian Army. Seized documents were
verified and proved that they were for restricted and official purposes. The appellant was
convicted and sentenced to a period of 9 years of imprisonment for being charged of an
offense under Section 3 of the Official Secrets Act, 1923 and another term of four years
with a fine of ₹10,000 for an offense under Section 474 of the IPC. The court had held
that the sentences awarded to the appellant had to work “concurrently and not
sequentially.”

CONCLUSION

Applying to every Indian government official and every Indian citizen living inside or
outside of the country, the Official Secrets Act, is a comprehensive statute maintaining
the security and integrity of the country by protecting it from spies sent by enemies or the
wrongful communication of sensitive information to anyone other than the authorized
official. The Officials Secret Act is considered to be violating the Right to information.
Even though precedents have shown the superiority of the RTI, there are still cases where
unfair and wrongdoings are hidden under the covers of national interest. With the
instances of spies getting caught and sensitive information being revealed, the quashing
of this Act would leave the country on unsafe grounds. Therefore, what is needed is
reviewing and amendments.