The 2016 Rafale jet deal between India and France has been making headlines for a while now. But after a report in The Hindu by N Ram, Chairperson of The Hindu Publishing Group, the controversy has blown up even further. The documents revealed that the Indian government had waived off anti-corruption clauses while making the Rafale deal. And also that the deal was 41% more expensive than the one negotiated by the UPA government earlier.
The Indian government meanwhile, has said that documents related to the Rafale deal were stolen from the Defence Ministry. Arguing the same before the Supreme Court on Wednesday, the counsel for the government, KK Venugopal alleged that The Hindu and N Ram using these “secret documents” was in breach of the Official Secrets Act.
What is the Official Secrets Act?
Enacted under British rule in 1923, the Official Secrets Act (OSA) provides the framework pertaining to handling cases of espionage, sedition and any other threat to the unity and sovereignty of the country.
The law applies to anyone who is found to be indulging in spying, sharing “secret” documents or information, unauthorised use of uniforms, communicating with “foreign agents”, harbouring spies, interfering with armed forces in restricted or prohibited areas and so on. The punishment under the Act involves fine or imprisonment from three to 14 years or both.
Section 5 of OSA, deals with sharing of information that can be in the form of “any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place”. Not just sharing this information, a person can be found guilty under the Act even for retaining such information in their possession.
Trajectory of debates around OSA
Many have called OSA a draconian law. One argument is that due to its unclear definition of “secret” documents or information, the Act can be misused with government authorities branding information or documents as official secrets as they deem fit.
Further, many have criticised the law for being in contravention of the Right to Information (RTI) Act that came into effect in 2005.
In 2006, the Second Administrative Reforms Commission (ARC) Report recommended that the OSA be repealed and a chapter replacing it be added to the National Security Act 1980 instead. This, it said, would help in better implementation of the RTI as well. The ARC report also suggested that an equivalent of Section 5(1) of the OSA be added to the new chapter in NSA to make its ambit clear and to make it applicable to violations compromising national security. However, the government at the time did not accept these recommendations.
In 2008 however, a group of ministers (GoM) accepted 62 recommendations from the ARC report, but did not allow for the OSA to be repealed. At the same time, it sought to make amendments to the Act to remove ambiguities in terms of punishments.
Even in 2017, the Home Ministry submitted a report to the Cabinet secretariat, after reviewing OSA to make it more compatible with India’s democratic setup. It pointed out that the law came into being in the 20th century which was an era of colonialism and secrecy.
Presently, section 22 of the RTI Act states that it can override the OSA.
Usage of OSA against journalists
In 2011, senior reporter Tarakant Dwivedi alias Akela, was arrested under the OSA for reporting in Mumbai Mirror that the leaking roof in the RPF armory was damaging expensive weapons that were bought after the 26/11 terror attack at Taj in Mumbai.
Earlier in 2002, Iftikhar Gilani, a journalist from Jammu and Kashmir was arrested for violating the OSA. He was accused of having in his possession secret documents relating to deployment of military in the Kashmir valley. However, it was found later that the documents he had were not secret, and were easily available. The state withdrew the case against him in 2004 and he was released.
Meanwhile, the latest conviction under the OSA came in 2018. Former diplomat Madhuri Gupta was convicted by a Delhi court over spying for Pakistan’s Inter-Services Intelligence (ISI) when she was posted in Islamabad in 2010. She was sentenced to three years in prison.