Context: Recently, the Delhi police has arrested a strategic affairs analyst and two others a 30- year old Chinese woman and her “Nepalese accomplice” under the Official Secrets Act (OSA).
Background of Officials Secrets Act

• The OSA has its roots in the British colonial era with the Indian Official Secrets Act (Act XIV), 1889 being the original version.
• It was brought in with the main objective of muzzling the voice of a large number of newspapers that had come up in several languages and were opposing the British Raj’s policies.
• It was amended and made more stringent in the form of Indian Official Secrets Act, 1904, during Lord Curzon’s tenure as Viceroy of India.

Key Features of the Officials Secrets Act

• The Indian Official Secrets Act (Act No XIX of 1923) was extended to all matters of secrecy and confidentiality in governance in the country.
• It broadly deals with two aspects i.e. spying or espionage, covered under Section 3, and disclosure of other secret information of the government, under Section 5.
• The secret information can be any official code, password, sketch, plan, model, article, note, document, or information.
• Under Section 5, both the person communicating the information and the person receiving the information can be punished.
• The OSA itself does not say what a “secret” document is but the Ministry or Department follows the Manual of Departmental Security Instructions, 1994 for classifying the document.
• It is the government’s discretion to decide what falls under the ambit of a “secret” document to be charged under OSA.
• The law, applicable to government servants and citizens, provides the framework for dealing with espionage, sedition, and other potential threats to the integrity of the nation.

Primacy between Right to Information (RTI) and Official Secrets Act (OSA)

• Section 22 of the RTI Act provides for its primacy vis-a-vis provisions of other laws, including OSA which gives the RTI Act an overriding effect, notwithstanding anything inconsistent with the provisions of OSA.
• If there is any inconsistency in OSA with regard to furnishing of information, it will be superseded by the RTI Act.
• If the government classifies a document as “secret” under OSA Clause 6, that document can be kept outside the ambit of the RTI Act, and the government can invoke Sections 8 or 9.

Effort to Change Provisions of OSA
Law Commission

• In 1971, the Law Commission became the first official body to make an observation regarding OSA.
• The report on ‘Offences Against National Security’ observed that “it agrees 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”.

Second Administrative Reforms Commission (ARC)

• In 2006, the Second Administrative Reforms Commission (ARC) recommended that OSA be repealed, and replaced with a chapter in the National Security Act containing provisions relating to official secrets.
• It observed that OSA was incongruous with the regime of transparency in a democratic society.
• The ARC referred to the 1971 Law Commission report that had called for an “Umbrella Act” to be passed to bring together all laws relating to national security.