“I have also always believed that censorship, when called for, should be based on security issues alone not on whether a news report might embarrass a government.” – CLIVE FRANCIS – Rear-Admiral Nick Wilkinson

Media has always been there to make information available to the common people as far as concerned. All areas of news and details are provided by the media, whether it be through news channels, through social platforms, or any electronic or technological source. It should be kept in mind that all resources are not meant for public access. There is information that needs to be censored or not available easily to the public. The Details include any information which may affect the law and order and peace of the country. The Official Secrets Act, 1923 is one among the Acts which secures and safeguards the confidential official information and details.

WHAT IS OFFICIAL SECRETS ACT?

The Official Secrets Act, 1923 was formed and enacted during the colonial period of the British rule. The Act is also known as the anti-espionage act or the anti-spying Act. It was used by the Britishers against their enemies who used to voice their views via nationalist newspapers. Section 5 of the Act mentions secret information as any code, model, plan, article, document, password or sketch. The very idea of the Act is to keep the public away from certain confidential information which may threaten the security of the country. The punishment under this Act may extend from 3 to 14 years of imprisonment. If a person with or without any intention endangers the security, he will still be prosecuted under this Act. The Act holds all the people liable who handle the official secrets without the position of authority.

The Act also provides provisions for journalists to help to investigate the police forces above the rank of sub-inspector officer and the members of Armed Forces to get to the offender and the source of information. The definition of the word ‘secret’ document or information is not mentioned clearly in the Official Secrets Act and therefore the government authorities use it as when they deem it convenient.

CASES OF REFERENCE:

In this current era, the media acts as a powerful tool to communicate the gap between the government and the common people. The freedom of press or freedom of media is the immunity granted to the media to publish materials and exercise the right freely. Let us go through some of the cases where the right was used wrongly and the primary role was played by media:

• In 2002, Iftikhar Gilani, a journalist of Jammu and Kashmir was charged under the Official Secrets Act for releasing secret documents. After the investigations and procedures, it was found that the published documents were not of secret nature and are easily available in open sources. In 2004, the case was withdrawn by the government and Mr Gilani was released.

• In 2007, General V.K Singh, BJP MLA and former army chief were charged under the Official Secrets Acts for publishing a book titled ‘India’s External Intelligence: Secrets of RAW. His house was also raided in the process

• In 2009, Santanu Saika, a journalist of the Financial Express published an extract from a cabinet note. It was held by the Delhi Court that a publication of a document merely labelling the word ‘secret’ does not make journalists punishable under the Official Secrets Act. The Sama Alana Abdulla vs State of Gujarat and State (NCT of Delhi) vs Jaspal Singh has similar references, “A person cannot be put on trial merely because a document has been marked as secret, as it is necessary to see the nature of the information contained in it, to find out if any offence under the Official Secrets Act is made out or not.”  Again in 2015, Saika was arrested for writing stories from a document which was regarded stolen from the government under section 5 of the Act.

• In 2016, ‘The Hindu’, a news and media platform was claimed to have stolen confidential and secret documents of Rafale agreement from the Ministry of Defense. The documents were published as investigative journalism. Soon the claim was revoked under Section 8(1) (a) and 8 (2) of the Right to Information Act, 2005 which provides the provision to release documents in the public interest.

• In 2018, Nishant Agrawal, an engineer at BrahMos Aerospace Private Limited was prosecuted under The Official Secrets Act to possess secret documents in his personal computer. He also downloaded web-based spyware in his computer system through which some Pakistani agent has stolen the important documents.

The National Crime Records Bureau in its latest data maintained that the cases registered under the Official Secrets Act were 11 in 2014, 9 in 2015 and 30 in 2016.

OFFICIAL SECRETS ACT AND THE RIGHT TO INFORMATION ACT:

The Right to Information Act came into effect in 2005. The Act itself gives the right to information to the people which are considered to be of importance which also includes official data. On the other hand, the Official Secrets Act protects the official secret and confidential information which may or may not be relevant to the public. Therefore it can be said that both the Act contradict each other.

Section 8 (1) (a) of the Right to Information Act, 2005 states that public authority is not under obligation to furnish the information disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the State,  relation with foreign State or lead to incitement of an offence. Also, Section 8 (2) states “Notwithstanding anything in the Official Secrets Act, 1923, nor any of the exemptions permissible in accordance with subsection 8(1) of RTI Act, a public authority may allow access to information, if the public interest in disclosure outweighs the harm to the protected interests.”

In 2006, just after the enactment of Right to Information Act, a report by the Second Administrative Reform Commission was rejected in regard to repeal the Official Secrets Act,1923 as the Right to Information Act overrides it. The commission also suggested to amend the Departmental Security Instructions to make it more powerful but the government denied it saying that the classification of documents with respect to the sections of the Right to Information Act is not possible.  In 2017, a report by the Cabinet Secretariat was submitted to look into the transparency of the Official Secrets Act.

MEDIA AND ITS RIGHTS

The Constitution of India under Article 19 (1) (a) guarantees every citizen the right to freedom of speech and expression and similarly freedom of press availed. The journals, newspapers, as well as any media platform, has the right to voice and express their thoughts which are of public interest. Though Fundamental Right is granted to the media it is limited. The published detail should not pose a threat to the security and integrity of the nation. Morality and law and order should be kept in mind while releasing any kind of official document or information.

OFFICIAL SECRETS ACT IN OTHER COUNTRIES

Many countries like the United Kingdoms, Malaysia, Singapore and New Zealand have Acts to protect the secrecy of the states. In the United States, the official secrets are mentioned under the Espionage Act. Recently, in 2018, two journalists in Myanmar were prosecuted for possessing official documents of the Rohingya Muslims.

CONCLUSION

Day by day technology and media is spreading in every corner of the globe. Everything is at our ease in just one click. In such circumstances, it becomes really very important to protect the official and sensitive secrets from getting vandalised by the public of the nation as well as the unfriendly and enemy nations. The Official Secrets Act has not been amended or reformed even after so many recommendations and reports. The government should make a move to make the colonial law strict and firm. The transparency of the act with respect to the Right to Information Act,2005 is essential. Change is the law of nature and change in the Official Secrets Act is needed at the moment.