Introduction:

The alleged irregularities in the Rafale aircraft deal between India and France was published in ‘The Hindu’ Newspaper. The Attorney General raised an objection in court seeking dismissal of the review petitions. This was on the ground that the reports cited documents “stolen” from the defence ministry. The Official Secrets Act was used as a shield against allegations of wrongdoing in the Rafale deal.

Body:

Official Secrets Act, a colonial-era law meant for ensuring secrecy and confidentiality in governance, mostly on national security and espionage issues, has often been cited by authorities for refusing to divulge information. Governments have also faced criticism for misusing the law against journalists and whistleblowers.

Key features of OSA:

• The Official Secrets Act was first enacted in 1923 and was retained after Independence.
• 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.
• The law makes spying, sharing ‘secret’ information, unauthorised use of uniforms, withholding information, interference with the armed forces in prohibited/restricted areas, among others, punishable offences.
• If guilty, a person may get up to 14 years’ imprisonment, a fine, or both.
• The information could be any reference to a place belonging to or occupied by the government, documents, photographs, sketches, maps, plans, models, official codes or passwords.
• OSA was amended and made stricter in 1967, widening the scope of Section 5 (“Wrongful communication. etc., of information”) and enlarging the scope of Section 8 (“Duty of giving information as to commission of offences”).

The notable convictions so far:

• The most recent conviction under the Official Secrets Act came in 2018.
• The Delhi court held former diplomat Madhuri Gupta, who had served at the Indian High Commission in Islamabad, guilty under the OSA.
• She was sentenced to 3 years in jail for passing on sensitive information to Pakistan’s ISI.
• In 2017, journalist Poonam Agrawal was charged under OSA for conducting a sting operation on an Army official who criticised the sahayak system in the Army.
• Journalist Tarakant Dwivedi alias Akela was booked for criminal trespass under the Official Secrets Act on May 17, 2011, 11 months after he wrote an article in Mid-Day about how sophisticated weapons bought after 26/11 were being stored in a room with a leaking roof at the Chhatrapati Shivaji Terminus in Mumbai.
• In 2002, the then Kashmir Times journalist Iftikhar Gilani was arrested and charged under the OSA. The case was in relation with allegedly possessing secret documents relating to the deployment of troops in the Valley. The state later withdrew the case.

OSA in other contemporary democracies:

• Several countries including the United Kingdom, Malaysia, Singapore, and New Zealand continue to use the legislation to protect state secrets.
• In 2001, Canada replaced its OSA with a Security of Information Act.
• The “official secrets” come under the Espionage Act in the U.S.A
• In 2018, a Myanmar court awarded seven years’ jail to two Reuters journalists for illegally possessing official documents on the military’s alleged human rights abuses against Rohingya Muslims.
• Malaysia has also been accused of using the OSA to silence dissidence.

Conclusion:

The International Covenant on Civil and Political Rights (ICCPR), adopted by the General Assembly of the United Nations way back in 1966, specifically includes the right to freedom of expression, defined as “the freedom to seek, receive and impart the information and ideas of all kinds”. India being a signatory to ICCPR makes it necessary to repeal the archaic OSA as suggested by Goswami Commission had suggested in the late 1970s as well as the Second ARC.