An "Invalid" Act?
Passed in April 1923 by the Legislative Council, the Act was never notified in the Gazette of India. To become law, every Act must be notified in the Gazette of India. The National Archives of India, ministries of Home and Law say they are not in possession of any such notification. None exists in the 1923 Gazette of India either. Legal luminaries say that if an Act is not notified, it is an "invalid" law. The OSA was amended twice, in 1951 and 1967, and made more stringent. But only the amendments were notified in the 'Extraordinary Gazette of India'.
Forget its validity. Let’s talk about the Act:
* OSA was designed to protect the British executive in India from accountability. British strategy in India was to deal with matters internally allowing only senior officials to explain government policy. However once the OSA was enacted in Britain in 1889, it was duplicated in India. The Act was enacted to prevent the disclosure of any information rather than deal with either spying or state security. In 1967 amendments were brought post Indo-Pakistan War but in place of liberating the law it actually increased penalties and facilitated prosecution.
* OSA is a major impediment in the way of freedom of the press. This has been misused time and again by the state machinery to shut the mouth of the press. This law was enacted by the colonial regime to protect the executive from public scrutiny and transparency.
* OSA defines a number of offences which are a threat to the National Security. Its aim is to prevent any threat to (i) National Security (ii) Leakage of Secret Information; (iii) Sabotage of the System; etc.
OSA roughly has two parts:
1. Spying: The punishment for spying on the country’s defence system is a prison term of up to 14 years.
2. Unauthorized communication: of any Secret Official Code / Passwords / Sketch / Plan
(Blueprint) / Model / Article / Note / Document / Information.
Supporters of Freedom of the Press consider this act as the most deadly of all laws affecting the Press in India. According to this Act, a person passing Official Secrets clandestinely to the enemies of the State is punishable for 3 to 14 years.
During Mrs. Gandhi’s infamous emergency (1975-1977), this Act caused a grave threat to the Freedom of the Press like the black law of censorship.
The basic features however remained the same:
§ Prohibits approaching, inspecting, passing over or entering in the vicinity of a prohibited place. Under the Act, it is also an offence to obtain, collect, record, publish or communicate to any other person these items or any "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 is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with Foreign States."
§ The basic premise of the Section is that even if the case against the accused is not proven, "his conduct or his known character as proved" could create a presumption that his action was prejudicial to the safety or interests of the state. As in British courts, "enemy" has been interpreted to include "potential enemy".
Penalty for spying: 14 years of imprisonment.
§ This section happens to be the catch-all provision of the OSA. It relates to the willful communication, uses, retention or failure to take reasonable care of all information which has been entrusted in confidence to him by any person holding office, or which he has obtained or which he has had access to owing to his position. The voluntary reception, possession or control of any such information is also an offence.
§ If there is knowledge or reasonable cause to believe that such information is communicated in contravention of Section 5(2) of the Act shall be punishable for a term which may extend to 3 years, with or without fine.
What is 'Official Secret'?
It includes any kind of information; any official code, password, sketch, plan, model, article, note, document or information. The only qualification is that it should be "secret". The word "secret" or "official secrets" actually remain undefined in the Act.
The only clarity being that the Act applies only to official secrets and not to secrets of a private nature. Hence, the Act extends to ministry or department of the government, but not to an incorporated body like a university, government company or public corporation.
Since, there is no definition of "secret" in the Act the Government has the discretion to classify anything and everything as a "secret" as per the Official Secrets Act. The typical practice of the government is to treat any information as secret, merely because it may embarrass the government or the party in power.
The OSA 1923 was enacted with the purpose of protecting the safety and integrity of the State, but unfortunately the wide discretionary powers conferred upon the administrative authorities with a view to facilitating the task of protection of National Security were being exercised indiscriminately. There is no doubt that a statute of the nature of OSA is an indispensable requirement of a sovereign State but at the same time without necessary precaution, it is a grave threat to Freedom of the Press and transparency in governance.
The OSA and Article 19(1) (A):
Article 19(1) (a) of the Constitution guarantees the Right to Freedom of Speech and Expression to every citizen. The Freedom of Speech and Expression does include the right to acquire and disseminate information. The OSA 1923, it is claimed, violates all these rights by virtue of the restrictions it puts on the Freedom of Information. The vague provisions of the OSA 1923 also facilitate attempts on the part of the Government to threaten Media Personnel.
While discussing the conflict between these two Acts, it would be remarkable to quote the Judicial verdict in the famous State of UP v Raj Narain:
…" In a government of responsibility like ours, where all the agents of the Public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor, which should make one wary, when secrecy is claimed for transactions, which can, at any rate have no repercussions on public security.”…
Commission and Committee Reports On The Constitutionality Of The OSA:
Several Commissions and Committees have reviewed the OSA; the Press Laws Inquiry Committee (1948), the Press Commission (1954), the Law Commission (1971) and also by a Study Group appointed by the Central Government in 1977.
The First Press Commission though endorsed the Pro- Secrecy stance of the Press Laws Inquiry Committee did also make one other important observation:
"We agree 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 Second Press Commission and the Press Council of India had recommended that Section 5 be scrapped. The commission suggested its replacement by provisions modeled on those of the British Freedom of Information Bill, 1978. The Council asked for the repeal of the OSA and to enact a new legislation, which may be called Freedom of Information Act.
In the era of RTI this British Raj draconian Act is against the very spirit of transparency in governance in a modern democratic state like that of ours. Verappa Moily led 2nd Administrative Reforms Commission recommended this act to be repealed or scrapped. The Moily Commission has suggested that safeguards for State Security should be incorporated into the National Security Act (NSA) instead of the OSA.
Let us hope that with the RTI Act 2005, we have left the colonial legacy of OSA far behind to march in the era of freedom.