Insights into Editorial: Probing the press
Attorney General KK Venugopal kicked up a storm by telling the Supreme Court that the government was considering criminal action against journalists and the petitioners against the judgement of 18 December 2018 for revealing top secret information about the controversial Rafale deal.
According to the attorney general, these documents, revealed by journalists and submitted to the Supreme Court with the Rafale review petitions, were “stolen” from the Defence Ministry, and disclosing them was a threat to national security.
He said the government was investigating how the documents were leaked, and that those who’d published them as well as those who’d submitted them to the court were guilty of offences under the Official Secrets Act 1923.
Attorney General also demanded to know the source behind the leak of the documents.
These statements immediately caused consternation in the courtroom, and were the subject of outrage on social media and among journalists for the underlying threat they posed to the free press.
The Editors Guild of India issued a statement, in which they condemned the A-G’s comments as “threats” and urged the government “to refrain from initiating any action that might undermine the media’s freedom and independence.”
What is Official Secrets Act, 1923 about?
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.
Has there been any effort to change provisions of OSA?
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.
In 1971, the Law Commission became the first official body to make an observation regarding OSA.
In its report on ‘Offences Against National Security’, it 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”.
The Law Commission, however, did not recommend any changes to the Act.
However, the Second Administrative Reforms Commission (SARC) Report, 2006, suggested that the Act should be substituted by a chapter in the National Security Act that incorporates the necessary provisions.
The reason: it had become a contentious issue after the implementation of the Right to Information Act.
Contentious Issues with Official Secrets Act (OSA), 1923:
The Official Secrets Act (OSA), 1923 doesn’t undergone any changes over the years even after Independence also.
The OSA does not define “secret” or “official secrets”. Public servants could deny any information terming it a “secret” when asked under the RTI Act.
The SARC report stated that as the OSA’s background is the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, it created a culture of secrecy.
It said that Confidentiality became the norm and disclosure the exception. This tendency was challenged when the Right to Information Act came into existence.
Do other nations have similar laws?
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.
On September 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.
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.
In 2015, the Central government formed a high-level panel to look into the provisions of the OSA in the light of the RTI Act. No action has been taken on the panel’s report, which was submitted in 2017.
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.
Way Forward with respect to Official Secrets Act (OSA), 1923:
There is undoubtedly a case for distinguishing between an act that helps the enemy or affects national security, and one that advances legitimate public interest.
In times when information freedom is seen as salutary for democracy, laws such as the OSA should yield to the moral imperative behind the Right to Information Act.
This reasoning is embedded in Section 8(2) of the RTI Act, which says that notwithstanding the provisions of the OSA, “a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”
The government should refrain from using its secrecy laws to contend with embarrassing media revelations. It would do well instead to respond responsibly to questions thrown up by the revelations.
Journalists must be able to protect their sources. Whistle-blowers must not be discouraged. Plus, corruption in defence deals fester in the darkened labyrinths of officialdom.
Investigative journalism can shine a valuable light here. Government should look to reduce the scope of OSA, which would also be congruent with the stated goal of ‘minimum government, maximum governance’.