Limits of ‘secrecy’

The debate on the use of the Official Secrets Act, 1923, to curb the flow of information continues to rage in the corridors of power.

Former journalist Santanu Saikia (right) in police custody. The CBI booked a case against him in 1998 under the OSA for publishing the contents of a Cabinet note on divestment policy. The court acquitted him on the grounds that the publication of the document, though marked “secret”, was unlikely to affect the sovereignty and integrity of India or the security of the state or friendly relations with foreign states.

THE OFFICIAL SECRETS ACT (OSA), 1923, IS A piece of legislation of colonial vintage and is considered by many as an anachronism in today’s India with its celebration of Right to Information, guaranteed by another piece of legislation of that name enacted in 2005. Section 8(2) of the Right to Information Act (RTIA) says that notwithstanding anything in the OSA, and any of the exemptions permissible in accordance with Sub-section (1) (of Section 8 of the RTIA), a public authority may allow access to information if the public interest in its disclosure outweighs the harm to the protected interests.

Section 22 of the RTIA says the Act’s provisions shall have effect notwithstanding anything inconsistent contained in the OSA or any other law or in any instrument having effect by virtue of any other law.

The Second Administrative Reforms Commission (SARC) Report, 2006, recommended amendments to the OSA. It recognised that the public interest is best served if certain sensitive matters affecting national security are kept out of the public gaze.

Colonial culture and secrecy

The OSA governs all matters of secrecy and confidentiality in governance. It largely deals with matters of security and provides a framework for dealing with espionage, sedition and other assaults on the unity and integrity of the nation. The report says that given the colonial climate of mistrust of the people and the primacy of public officials in dealing with the citizens, the OSA created a culture of secrecy. Confidentiality became the norm and disclosure the exception.

While Section 5 of the OSA was intended to deal with potential breaches of national security, the wording of the law and the colonial times in which it was implemented made it into a catch-all legal provision that converted practically every issue of governance into a confidential matter. This tendency was buttressed, the report says, by the Civil Service Conduct Rules, 1964, which prohibit communication of an official document to anyone without authorisation. Section 123 of the Indian Evidence Act, enacted in 1872, prohibits the giving of evidence from unpublished official records without the permission of the head of the department, who has abundant discretion in the matter. Even the instructions issued for classification of documents for security purposes and the official procedures displayed this tendency of holding back information.

The report recognised that the OSA would not come in the way of disclosure of information if it was otherwise permissible under the RTI Act. But the OSA, along with other rules and instructions, may impinge on the regime of freedom of information as together they have historically nurtured a culture of secrecy and non-disclosure.

The OSA does not define the word “secret” or the phrase “official secrets”. Therefore, public servants enjoy the discretion to classify anything as “secret”. The Supreme Court in Sama Alana Abdulla vs State of Gujarat [(1996) 1 SCC 427] held that the word “secret” in Clause (c) of Sub-section (1) of Section 3 of the OSA qualified official code or password and not any sketch, plan, model, article or note or other document or information, unless the latter was classified as an “official secret”.

The Law Commission, in its 43rd report (1971), summarised the difficulties encountered with the all-inclusive nature of Section 5 of the OSA in the absence of a clear and concise definition of what constitutes “official secret”. It, therefore, recommended the adoption of a drafting device separately defining “official secret” as including the enumerated classes of documents and information.

What is an official secret?

The OSA includes the following offences in its purview.

“Spying” or entry into a prohibited place, transmission or collection of secret information and the like; wrongful communication of, or receiving secret information of the specified type; harbouring spies; unauthorised use of uniforms, falsification of reports, and so on, in order to enter a prohibited place, or for a purpose prejudicial to the safety of the state; and interference with the police or military near a prohibited place.

The SARC recommended that a new chapter needed to be added to the National Security Act, 1980, incorporating relevant provisions of the OSA and other laws dealing with national security, consistent with the Law Commission’s recommendation made in 1971. The SARC further recommended the repeal of the OSA in order to send a strong signal about the change and for the sake of effective implementation of the RTIA. “Basic change and lazy legislation do not go together,” it observed. It also recommended that the equivalent of Section 5(1) of the OSA in the new chapter, to be added to NSA, be suitably changed to make the penal provision applicable only to violations affecting national security.

However, the SARC’s recommendation has not found favour with the government, which is concerned about the need for a strong legal framework to deal with offences against the State. However, the “leakgate” scandal appears to have forced the government to review the OSA and weigh the possibility of making available more information—including the Cabinet notes—in the public domain to make it more amenable to the information needs in a new economy, and making changes in the security apparatus of government buildings to track visitors and control their access more strictly.

It has been pointed out by top bureaucrats, according to this report, that the majority of the notes prepared for the Cabinet need not be “secret” and could be released on the official websites.

Although the Delhi Police is likely to invoke the OSA’s draconian provisions against the accused in the leakgate, the outcome of the case in which Santanu Saikia, the journalist who is currently one of the accused in the leakgate, was an accused earlier could be an eye-opener. The CBI booked a case against him in 1998 under the OSA for publishing the contents of a Cabinet note on divestment policy. In 2009, the case was disposed of by a Delhi court, which held that the test of whether a certain disclosure compromised a secret depended on whether an “official code” or “password” had been divulged in terms of Section 5 of the OSA.

Relying on the Supreme Court’s judgment in Sama Alana Abdulla vs State of Gujarat , the court of the Additional Sessions Judge, Inder Jeet Singh, said that the qualifying word “secret” in Section 5 should be read in respect of an official code or password for the OSA to be applicable and not just because the document was labelled as “secret”.

The court acquitted Saikia on the grounds that the publication of the disinvestment document, though marked “secret”, was unlikely to affect the sovereignty and integrity of India or the security of the state or friendly relations with foreign states.

More significantly, the court’s order shows that the CBI, which probed the case, could make no recovery from Saikia or unravel how he had leaked the document a day before a Cabinet meeting. Saikia, who argued the case himself, convinced the judge that a news report on divestment could in no way be seen as an offence inviting penalties as strict as those prescribed under the OSA, especially when the courts are broadening the ambit of official documents accessible to citizens.

Although Saikia succeeded in getting relief in the 1998 case, the Delhi Police probably has far stronger evidence against him in leakgate. Whether the Delhi Police will succeed in its resort to the OSA in this case, therefore, will be watched with interest.