LL.M.

SEMESTER II

COURSE CODE : 204E (GR-B)

COURSE TITLE : COMPARATIVE ADMINISTRATIVE L AW

UNIT V : STATE PRIVILEGE TO REFUSE PRODUCTION OF

DOCUMENTS IN COURTS, RIGHT TO INFORMATION AND
OFFICIAL SECRETS ACT

5.3 THE OFFICIAL SECRETS ACT, 1923

(INDIA)
Presented by –
Dr. Sangeeta Chatterjee
Assistant Professor
Department of Law,
Bankura University
 INTRODUCTION
• The Official Secrets Act, 1923 covers the Privacy and secrecy of official records of the Central
and State Governments.
• In fact, its a Privacy protection legislation and it protects the Information Privacy of the
Government records.
• It has created provisions for imposing penalty for spying in order to communicate or publish
secret official codes and acting for any purpose prejudicial to the safety or interests of the
State.
• It has also created penalties for the communications with foreign agents for commission of
offences, wrongful communication of information relating to official secrets, which is likely to
affect the sovereignty and integrity of India and the security of the State as well as
unauthorized use of uniforms, falsification of reports, forgery, personation and false
documents.
• Along with these provisions and others, it has also created penalty for harbouring spies and
made provisions for execution of public from proceedings relating to official secrets.
• As such, it has also created provisions for in camera or private or closed door proceedings in
 BACKGROUND
• The Official Secrets Act, OSA in short, has its roots in the British colonial era.
• Its predecessor law, The Indian Official Secrets Act, 1904 was enacted during the
time of Lord Curzon, Viceroy of India from 1899 to 1905.
• It was an amended and more stringent version of The Indian Official Secrets Act
(Act XIV) of 1889, brought in at a time when a large number of powerful
newspapers had emerged in several languages across India.
• Fearless editors opposed the British Government’s policies on a daily basis,
building political consciousness among the people, and facing police crackdowns
and prison terms to uphold their mission and convictions.
• One of the main purposes of the Act was to beak the voice of nationalist
publications.
• In April 1923, a newer version of the Official Secrets Act was notified.
• The Indian Official Secrets Act (Act No XIX of 1923) replaced the earlier Act, and
was extended to all matters of secrecy and confidentiality in governance in the
country.
 OBJECTIVES OF THE ACT
• The Act has created provisions for protection of official secrets in full-
fledged manner.
• The intention of the Act is to protect the official secrets, the
communication or publication of which would seriously endanger the
defence, external or internal security of the State, the sovereignty and
integrity of India as well as the friendly relations with foreign States.
• It has also tried to protect the official secrets, the communication or
publication of which may amount to gross violation of public interest.
• Due to these reasons, the whole Act is meant for the protection of Privacy
or Secrecy of the Official Secrets.
• Moreover, the Government as an entity is also entitled to the Right to
Privacy of its records, information and other matters.
• The Act is also meant for the preservation of such Right to Privacy.
 NATURE OF THE ACT
• The Official Secrets Act 1923 is India's anti-espionage Act held
over from the British colonial period.
• It states clearly that actions which involve helping an enemy
state against India are strongly condemned.
• It also states that one cannot approach, inspect, or even pass
over a prohibited government site or area like an electrical
substation.
• According to this Act, helping the enemy state can be in the
form of communicating a sketch, plan, model of an official
secret, or of official codes or passwords, to the enemy.
 PROHIBITED PLACE
• The Act has defined “Prohibited Place” for maintaining official secrets of the
government under Section 2 (8) of the Act.
• Following places are included within its periphery :
 any work of defence, arsenal, naval, military or air force establishment or
station,
 mine, minefield, camp, ship or aircraft belonging to, or occupied by or on
behalf of Government,
 any military telegraph or telephone so belonging or occupied,
 any wireless or signal station or office so belonging or occupied and
 any factory, dockyard or other place so belonging or occupied and
 used for the purpose of building, repairing, making or storing any munitions
of war, or any sketches, plans, models or documents relating thereto, or
 for the purpose of getting any metals, oil or minerals of use in time of war.
 PENALTIES FOR SPYING
• Section 3 of the Act deals with Penalties for Spying.
• If any person for any purpose prejudicial to the safety or interests of the State—
• (a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or
• (b) makes any sketch, plan, model, or -note which is calculated to be or might be or is
intended to be, directly or indirectly, useful to an enemy; or
• (c) obtains, collects, records or publishes or communicates to any other person any secret
official code or pass word, or any sketch, plan, model, article or note or other document or
information which is calculated to be or might be or is intended to be, directly or indirectly,
useful to an enemy or which relates to a matter the disclosure of which is likely to affect the
sovereignty and integrity of India, the security of the State or friendly relations with foreign
States;
• he shall be punishable with imprisonment for a term which may extend, where the offence is
committed in relation to any work of defence, arsenal, naval, military or air force
establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or
otherwise in relation to the naval, military or air force affairs of Government or in relation to
any secret official code, to fourteen years and
• in other cases to three years.
 OFFICIAL SECRETS ACT, 1923 VS. RIGHT TO
INFORMATION ACT, 2005
• But, one thing is to be remembered that, after coming into force of the Right to Information Act, 2005, the
Official Secrets Act, 1923 is seriously challenged.
• The Right to Information Act, 2005 is made for providing general public, various information, to protect
their Right to Information, which they are entitled to get in the public interest.
• Here lies the dichotomy between the two Acts.
• The Official Secrets Act, 1923 is made for preserving the official secrets, which the general public is not
entitled to know.
• On the contrary, the Right to Information Act, 2005 claims that, general public is entitled to know some of
those information in their public interest.
• In a democratic country like India, government cannot run every activity secretly and general public has the
Right to Information in this respect, in order to maintain transparency in the governmental activities.
• The Government is also accountable to the general public for its actions, as it is formed by the
representatives of the people through general election.
• Here lies the controversy between the two Acts regarding which information should be communicated to
the public under the Right to Information Act, 2005 and which information should be kept as official secret
under the Official Secrets Act, 1923.
• Balancing between these two Acts is the need of the hour for the peaceful existence of a democratic set up
as well as for the protection of Information Privacy of Official Secrets.
 RECENT CONTROVERSY
RAFALE FIGHTER JETS CASE DETAILS PUBLISHED BY
THE HINDU NEWSPAPER 2019
• Attorney General KK Venugopal also told the three-judge bench that the government could invoke
the Official Secrets Act 1923, against The Hindu newspaper, which had published the papers.
• He claims that the documents pertaining to the purchase of Rafale jets published by the media are
genuine.
• Justice Joseph one of the three judges on bench asked government about Right to information Act
2005.
• Section 22 of RTI Act has an overriding effect for Official Secret Act and Section 24 of RTI Act which
mandates even security and intelligence organizations to disclose information on corruption and
human right violations.
• Finally Section 8(2) which compels government to disclose information "if public interest in disclosure
outweighs the harm to protected interest".
• Therefore, this case has brought into question the effectiveness of the Official Secrets Act, 1923 in the
present social scenario.
 CRITICISM
• The Act, broadly speaking, falls into two parts.
• One concerns espionage and the other which affects the press, deals with unauthorized
disclosure of official information.
• Section 5 of the Act lays down that, if any person having in his possession any document
or information, which has been entrusted to him in confidence by any government
official, or which he has obtained as an official, communicates it to any person other than
a person to whom he is authorized to communicate it, he shall be guilty of an offence.
• So also a person who receives such document or information “knowing or having
reasonable ground to believe” that it is being communicated in breach of the Act.
• Later, the Act was amended to penalize disclosure of documents or even information
which is “likely to affect friendly relations with foreign States.”
• Considering the gross arbitrary abuse to which this vaguely and widely-worded
expression may be subjected, the Act may be regarded as violating the provisions of
Article 19(1)(a) of the Constitution and hence unconstitutional.
• Therefore, this British legislation is more or less becoming inappropriate in the context of
a modern democracy.
 CONCLUSION
Today in India, secrecy prevails not only in every segment
of governmental administration but also in public bodies,
statutory or non-statutory. There is a feeling everywhere
that it pays to play safe. Even routine reports on social
issues continue to be treated as confidential long after
they are submitted. The result is that there is no debate
on important matters and no feedback to the government
on the reaction of the people. The stronger the efforts at
secrecy, the greater the chance of abuse of authority by
functionaries.
 REFERENCE :

1. Dr. I. P. Massey, Administrative

Law, Eastern Book Company,
Lucknow, 8th Edition, 2012.