Should The Official Secrets Act Be Repealed Now?

Much ink has been spilt on the dire need to repeal now the colonial era Official Secrets Act (OSA) as many feel that it has far outlived its utility. Before drawing any definite conclusion on such an important issue, we need to certainly analyse this issue dispassionately from a close angle. Only then should we conclude on it as to what should be done. But there can be no denying or disputing that this serious issue cannot be left unaddressed anymore!

At the outset, it must be first and foremost mentioned explicitly that this Official Secrets Act which is basically a 1923 anti-espionage law enacted by Britishers that was designed primarily to prevent all such actions that could help in any way the enemy states. It is often alleged that this archaic law is often resorted to by the Government in a bid to clamp down on all such attempts that could expose official impropriety. Just recently, we all saw how the Editors Guild of India and other media bodies severely criticized the government's threats of using this draconian Act in the Rafale deal reportage.

As it turned out, journalists organizations have strongly and unequivocally condemned the Attorney General's statements on The Hindu's publication of documents as part of its investigative reporting on the Rafale deal, terming the government's 'threats' as an effort to intimidate the news media. They also called for a re-examination of the Official Secrets Act, 1923. The Editors Guild of India has said in a strongly worded statement that, 'Any attempt to use the Official Secrets Act against the media is as reprehensible as asking the journalists to disclose their sources.' It minced no words in saying that, 'Such threats would intimidate the media, in general, and curb its freedom to report and comment on the Rafale deal in particular.'

Not stopping here, the statement further added that, 'The Guild denounces these threats and urges the government to refrain from initiating any action that might undermine the media's freedom and independence.' It may be recalled that the Attorney General KK Venugopal on March 6 had told the Supreme Court that the 'secret' documents published by 'The Hindu' on the purchase of Rafale jets were 'stolen' from the Ministry of employees. Venugopal also disclosed that, 'The government was thinking of taking 'criminal action' under the OSA as the publication of the secret defence documents had put national security at risk'.

Review Secrets Act

As anticipated, in a joint statement, the Press Club of India, Indian Women's Press Corps and Press Association said the Attorney General's statements had the potential of sending out a chilling effect to one and all in the media and had ramifications for the sources of information that journalists rely on. The journalist bodies called for a re-examination of the Official Secrets Act and the law on defamation, given the potential for their misuse against the news media. It also sought to send a loud and clear message that, 'The Fourth Estate is bound by its dual responsibility of reporting what is in public interest as well as raising questions, irrespective of the government in power, which is part of its moral responsibility. It is deeply unfortunate that it is the discharge of this responsibility that is being sought to be stymied by top ranking officials of the government.'

Not to be left behind, even political leaders came out with their views on this. Mamata Banerjee who is West Bengal Chief Minister minced no words in saying bluntly and boldly that, 'I strongly condemn threats by BJP government to one of India's most senior and respected editors, N. Ram. Invoking Official Secrets Act to threaten journalists is a shame. They cannot curb freedom and rights of the press as per their convenience.' Andhra Pradesh Chief Minister Chandrababu Naidu also expressed his dislike and disquiet over Centre's threat to invoke the OSA, condemning it as a move to muzzle the media. He tweeted that, 'Instead of coming clean on the alleged irregularities of the Rafale deal brought out by The Hindu and Mr. N. Ram, the Modi government is trying to silence the press through unconstitutional means by creating a climate of fear. It signals an imminent possibility of the breakdown of democracy.'

Why talk about politicians alone? Even eminent personalities across different fields too staged a protest in Bengaluru and criticized the Central government for threatening to act against N Ram who is Chairman of prestigious 'The Hindu' group of publications and 'The Hindu' newspaper for publishing investigative stories surrounding the controversies over the Rafale deal. The Centre had recently threatened to book 'The Hindu' and others under the Official Secrets Act for publishing stories based on Defence Ministry documents. Actor Prakash Raj, who is contesting the Lok Sabha election from Bengaluru called this an attempt to intimidate Mr Ram. He warned the Central government and said that people were watching these events closely and said 'the cat would be out of the bag' referring to the stories on the Rafale deal.

Going ahead, freedom fighter and veteran Gandhian HS Doreswamy said that there was no need for Mr Ram to reveal who his sources were or how he got access to the documents as it was against the ethics of the profession. Film maker B Suresh said the threat of being called anti-national hung over anyone who questioned the policies of the BJP-led Centre. He said that, 'The Constitution states that democracy is where people should participate in discussion of policies brought out by the government. This is being curbed today.' He condemned the trolling and censorship of journalists and cartoonists and compared the current scenario to Indira Gandhi's 1975 Emergency.

While certainly to me it seems that it would be an exaggeration to compare the current scenario with that of Emergency but certainly there can be no two views that the Centre must be more transparent and should refrain from issuing threats to use Official Secrets Act against N Ram who is world famous for his fearless journalism and writing! Journalists must be given the freedom to protect their sources and not compelled to disclose them. Whistle blowers must certainly not be discouraged.

Even former Vice-President Hamid Ansari has said that like so many other colonial era laws, the Official Secrets Act too needs a relook in light of modern realities and the norms that are prevailing today. In 2018, Official Secrets Act (OSA), 1923 invoked in five cases and the Ministry of home Affairs issued five prosecution sanction orders. As per the latest data available with the National Crime Records Bureau, the number of cases registered under the OSA was 11, 9 and 30 in 2014, 2015 and 2016 respectively. What is most intriguing is that ever since its inception in 1923, the OSA has been amended only once in 1967 and made more stricter.

To put things in perspective, N Ram who is the Chairman of prestigious 'The Hindu' publishing group responded strongly and swiftly to Attorney General KK Venugopal's argument in the Supreme Court that the documents on the Rafale deal were 'stolen' and those publishing them were guilty under the Official Secrets Act. N Ram said very calmly, confidently and courageously that, 'We did not steal the documents from the Ministry of Defence, we got them from confidential sources and no force on earth can make me or us reveal the source of the documents, because we have given our words. Secondly, we have published this information obtained through investigative journalism in the public interest, significant information that was withheld or suppressed despite repeated demands made in Parliament and outside. Thirdly, an unintended consequence of alleging that we have published ‘stolen documents' has been authentication of the documents by the government itself; you need no further evidence than this is the real thing, the real deal.'

What's more, N Ram then asserted that, 'We are fully protected by Article 19(1) of the Indian Constitution, the fundamental right of freedom of speech and expression and also by the Right to Information Act, specifically 8(1)(i) and 8(2), which overrides the Official Secrets Act and that there is no question of any national security interest being compromised by it.' Mr Ram also called for democratic India to do away with the Official Secrets Act, 1923, saying, 'The OSA is an obnoxious piece of colonial legislation which is anti-democratic and has rarely been used against publications in independent India. If there was espionage or something like that, it's a different matter. Here, it is material that should have gone into the public realm and - information that wants to be free - and it should have been freely available to readers.'

Bluntly put: Why should Centre want a blanket of silence to be imposed on publications when it has nothing to hide? Why should there be an overarching fear in the media ecosystem? When Supreme Court has earlier approved Centre on Rafale deal then why should it be so jittery that it wants nothing to be published on it by any publication? Centre must come clean on this by allowing for full transparency.

It would be relevant to mention here that N Ram also explained that 'The Hindu' had exercised due diligence in its ongoing investigation and it was not as though everything that came to hand was unloaded in the public realm in the name of investigative journalism. He also stated that, 'For example, during the course of our independent Rafale investigation, we had access to information on the 13 India specific enhancements but in the newspaper's judgment there was no need to publish this, because it was not strictly relevant to the investigative articles being published and also because the government was saying this technical information was highly sensitive, it may help the interest of adversaries and may cause harm. I don't accept that argument necessarily, but still we felt that there was no need to publish this technical information.'

Be it noted, Fali S Nariman who is one of India's most eminent jurist and one of the most senior lawyers in the Supreme Court very elegantly points out in his enlightening editorial titled 'To serve the governed' in 'The Hindu' dated March 13, 2019 that, 'The constitutional freedom to use and publicise information is directly affected by the provisions of the Official Secrets Act, 1923, which as with most of British India enactments followed the Official Secrets Act, 1920, passed by the British Parliament. It was strict enough then but after Independence in ‘free India' we amended it and made it 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'). Whenever I think about the Officials Secrets Act, 1923, I recall a scene from the son et lumiere (sound and light show) at the Red Fort enacted almost every evening where 100 years of Indian history is brilliantly encapsulated in a one-hour show: in it the Emperor Aurangzeb (who reigned for 60 years) asks his courtiers, 'What is this noise, that is troubling us from outside?' Ant he courtiers reply: 'Your Majesty, it is music.' And Aurangzeb's majestic response is: 'Then bury it deep into the bowels of the earth.' I always thought - un-majestically, but seriously - that this should have been the fate of the Official Secrets Act, 1923, which has been so frequently misused, that it ought to have been repealed when India got independence. In fact when the Janata government which came to power at the end of the Internal Emergency, and set up what was then known (and is now forgotten) as the Second Press Commission, it was chaired by a great and good judge, Justice Goswami of the Supreme Court of India, whose common sense approach to all subjects greatly attracted me to him. L.K. Advani, then Minister for Information and Broadcasting, requested me to be a member of the Commission, and I agreed. The Commission proceeded in great earnestness for months, and ultimately, when its report was ready in December 1979, a report that implored the government of the day to immediately repeal the Official Secrets Act, 1923, it never saw the light of day, Indira Gandhi, who came back to power in January 1980, wrote to the members a polite letter of thanks for our deliberations and promptly dissolved and disbanded the Justice Goswami Commission. It was replaced by the now officially known Second Press Commission presided over by Justice K.K. Mathew. The Goswami Commission and all its deliberations had been obliterated by a stroke of the pen. If Mrs. Gandhi had returned to power a few months later and our report had been accepted by the previous government, concerns in the context of The Hindu's expose on the Rafale deal would probably not have arisen over what the Attorney General of India ought to have said or done. The Official Second Press Commission (the Mathew Commission) did not recommend the repeal of the Official Secrets Act of 1923.'

It is most hurting to read what India's most brightest jewel in legal field - Fali S Nariman who also happens to be the father of one of most eminent Supreme Court Judge - Rohinton Fali Nariman and who is respected all over has written so frankly from his heart and has not hidden anything! Can there be a bigger proof required than this that the Official Secrets Act should have no place in democracy? Fali S Nariman then further rightly pointed out in this same editorial that, 'Fortunately, the modern trend in today's world is towards less secrecy and more information. 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'. The Janata government signed and ratified the Covenant in 1979, but none of the later Governments has lived up to its ideals. We have enacted Article 19(1)(a) in our 1950 Constitution with extremely limited restrictions - in Article 19(2) - but again only paid lip service to freedom of speech and expression. I am proud that The Hindu has not just preached but stuck its neck out in support of this cardinal freedom of ours. Bravo.'

While it is nobody's case that all information ought to be made public but there must be transparency in most of the information which the people are entitled to know as of right. It is a no-brainer that the OSA empowers the State to withheld information of any kind from citizens simply by stating that certain documents are secret under the OSA and simultaneously also declaring that draconian powers would be used to punish any person in case any attempt is made to breach it no matter what public interest may be involved in it!

More significantly, it must be mentioned here that Section 22 of the Right to Information (RTI) Act explicitly states that it overrides the OSA. In other words, this RTI Acts clearly forbids the Government to deny access to a document demanded through an RTI question just on the sole ground that it has been marked secret under the OSA. There has to be strong and cogent justification to withhold information under the arguably narrower exception clauses of the RTI Act.

Why can't this colonial era OSA, 1923 be amended after nearly 96 years in 2019? Why can't more protection be extended to journalists? Why can't there be more transparency? Why should only Government be entitled to decide what should be disclosed and what should not be disclosed? Why should there not be an independent Committee for deciding this or why should Lokpal formed recently not be empowered to decide this? Why Government does not appreciate that the OSA is ominously omnibus in nature and so has to be amended suitably?

We all know too well how S Nambi Narayan who is an eminent ISRO scientist was falsely implicated in the ISRO spy case and had faced a criminal trial under OSA and after now being acquitted after 24 long years was finally awarded Padma Bhushan by the Centre! Who can restore his lost years in jail and in fighting a long and tardy legal battle? 50 lakh rupees compensation can't make him young again to live his normal life to which he was fully entitled!

No more excuses! No more delays! Prompt and earnest action right now is what is required to address the deficiencies on this score! Centre must implement now itself what the eminent jurist Fali S Nariman who is respected all over the world for his legal acumen has recommended so exceptionally and so elegantly by repealing the OSA or at least amending it considerably to meet the present circumstances! It is Centre which will cover itself with full glory by doing so! Centre must take media also into full confidence in doing so and seriously consider its useful and practical suggestions in this regard! This is the crying need of the hour also! The OSA was brought in especially by the Britishers with the sole objective of muzzling and throttling the free voice of a large number of newspapers that had started opposing the repressive policies of Britishers. The original version was The Indian Official Secrets Act (Act XIV), 1889. It was amended and made more stringent in 1904 and most stringent it was made in 1923 by The Indian Official Secrets Act (Act No XIX of 1923) and was extended to all matters of secrecy and confidentiality in governance in the country! Why was it endorsed in an independent India? How can it be allowed to continue nearly 100 years later in 2019 in virtually the same form? Should it not be amended even now? We all know the simple obvious answer!