The Official Secrets

Act
MEDIA LAW SERIES

Introduction

The Official Secrets Act is for the

protection of official information, mainly
related to national security
Its an anti-espionage Act
Transparency Vs Secrecy

Classified Documents

Classified information is sensitive information

to which access is restricted by law or regulation
to particular classes of people.
A formal security clearance is required to handle
classified documents or access classified data.
Certain non-government organizations and
corporations also have classified information,
normally rather referred to as trade secrets

Government classification of Classified

Documents

Top Secret (TS)

The highest level of classification of material on a national level.
Such material would cause "exceptionally grave damage" to
national security if publicly available.
Secret
Such material would cause "serious damage" to national security
if publicly available.
Confidential
Such material would cause "damage" or be "prejudicial" to
national security if publicly available.
Restricted
Such material would cause "undesirable effects" if publicly
available. Some countries do not have such a classification.
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The Official Secrets Acts

The Official Secrets Act, 1889

The Official Secrets (Amendment) Act,
1904.
The Official Secrets Act, 1911
The Official Secrets Act,1923
1963, slightly amended with greater
sentences, and made most of the offences in
this Act under cognizable offences
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The Official Secrets Act,1923

16 sections
Punishments under the Act range from three
to fourteen years imprisonment.
A person prosecuted under this Act can be
charged with the crime even if the action was
unintentional and not intended to endanger
the security of the state

Main Features

Broadly has two parts

Spying for the enemy upto 14 yrs
imprisonment
Unauthorized communication of official
secrets.

s.1-Short title, extent and

application

This Act may be called the Official Secrets

Act, 1923
It extends to the whole of India and applies
also to servants of the Government and to
citizens of India outside India.

s.2 Definitions

Government Places means all government

departments
Document means any sort of communication,
whether in whole or in part, also includes sketch,
plan, model, article, note, war munitions etc.
Photographs includes both developed and under
developed films
Prohibited places Listed in official gazette
Superintendent of Police" includes any police officer
of a like or superior rank

s.3. Penalties for spying

Meaning of Spying
a) approaches, inspects, passes over or is in the
vicinity of, or enters, any prohibited place; or
(b) makes any sketch, plan, model, or note which is
calculated to be or might be or is intended to be,
directly or indirectly, useful to an enemy; or
(c) obtains, collects, records or publishes or
communicates to any other person any official
secrets which affect the sovereignty and integrity of
India,

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s.3. Penalties for spying

Penalties
(2) On a prosecution for an offence
punishable under this section it shall not be
necessary to show that the accused person
was guilty.
Circumstances will be considered, and
punishment will be based on the degree of
the crime.

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s.4.

Communications with foreign

agents to be evidence of commission of
certain offences

a) a person may be presumed to have been in

communication with a foreign agent if
(i) he has, either within or without India visited
the address of a foreign agent or consorted
or associated with a foreign agent, or
(ii) either within or without India, the name or
address of, or any other information
regarding, a foreign agent has been found in
his possession, or has been obtained by him
from any other person;
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s.5. Wrongful
communication, etc., of
(a) willfully communicates the code or pass word, sketch, plan,
information
model, article, note, document or information to any person other

than a person to whom he is authorized to communicate it

(b) uses the information in his possession for the benefit of any
foreign power
(c) retains the sketch, plan, model, article, note or document in
his possession or control when he has no right to retain it,
(d) fails to take reasonable care of, or so conducts himself as to
endanger the safety of the sketch, plan, model, article, note,
document, secret official code or pass word or information, he
shall be guilty of an offence under this section.

A person guilty of an offence under this section shall be

punishable with imprisonment for a term which may
extend to three years, or with fine, or with both.
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s.6. Unauthorized use of uniforms,

falsification of reports, forgery,
personation and false documents

(a) uses or wears, without lawful authority, any naval, military, air force,
police or other official uniform, or any uniform so nearly resembling the
same
(b) orally, or in writing in any declaration or application, or in any
document signed by him or on his behalf, knowingly makes or connives
at the making of any false statement or any omission; or
(c) forges, alters, or tampers with any passport or any naval, military, air
force, police, or official pass, permit, certificate, license, or other
document of a similar character
(d) personates, or falsely represents himself to be, a person holding, or
in the employment of a person holding, office under Government.
e) uses, or has in his possession or under his control, without the
authority of the department of the Government or the authority
concerned, any die, seal or stamp of or belonging to, or used, made or
provided by any department of the Government

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s.6. Unauthorized use of uniforms,

falsification of reports, forgery,
personation and false documents

(3) A person guilty of an offence under this

section shall be punishable with
imprisonment for a term which may extend to
three years, or with fine, or with both.

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s.7. Interfering with officers of the

police or members of the Armed Forces
of the Union

(1) No person in the vicinity of any prohibited place

shall obstruct, knowingly mislead or otherwise
interfere with or impede, any police officer, or any
member of the Armed Forces of the Union engaged
on guard, sentry, patrol or other similar duty in
relation to the prohibited place.
(2) If any person acts in contravention of the
provisions of this section, he shall be punishable
with imprisonment which may extend to three years,
or with fine, or with both.

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s.8. Duty of giving information as to

commission of offences

(1) It shall be the duty of every person to give on demand to a

Superintendent of Police, or the police officer not below the rank
of Inspector, empowered by an Inspector-General or
Commissioner of Police in this behalf, or to any member of the
Armed Forces of the Union engaged on guard, sentry, patrol or
other similar duty, any information in his power relating to an
offence or suspected offence,
(2) If any person fails to give any such information or to attend as
aforesaid, he shall be punishable with imprisonment which may
extend to three years or with fine, or with both.

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s.9. Attempts,
incitements, etc

Any person who attempts to commit or abets

the commission of an offence under this Act
shall be punishable with the same
punishment, and be liable to be proceeded
against in the same manner as if he had
committed such offence.

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s.10. Penalty for

harbouring spies

If any person knowingly harbours any spies

or a person who has committed any crime
under section 3 or 5 shall be guilty
Its a duty of every citizen to provide
information regarding this type of offence,
failing which he shall be guilty
Punishment : imprisonment which may extend
to three years or with fine, or with both.

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s.11 Search Warrant

In case suspicion, Presidency Magistrate , First

class Magistrate or Sub- Divisional Magistrate can
issue a search warrant
In case of emergency, police officer not being below
the rank of superintendent can issue the warrant.
But report of action should be submitted to the
concerned officials.
Authorizing any police officer, to enter at anytime,
any premises or place named in the warrant.
If necessary by force and to search the premises or
place and every person found therein and to seize
any document.
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s.12 Power to Arrest

The provisions of section 337 of the Code of

Criminal Procedure, 1898 shall apply in
relation to an offence punishable under
section 3 or section 5 or section 7 or under
any of the said sections 3, 5 and 7 read with
section 9,

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s.13 Restriction on Trial of

Offence

No court lower than the status of a First Class

Magistrate, shall try any offence under this Act .
Unless upon complaint made by order, or under
authority from, appropriate government or some
officers empowered by the appropriate government
in his behalf.
Appropriate Government
State Government any offences connected with
s.5,not connected with prohibited area or foreign
power.
Central Government in relation to any other
offences
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s.14 Exclusion of Public from

proceedings

The court has the powers to exclude the

public from any proceedings if it affects
security of the state

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s. 15 Offences by
companies

If the person committing an offence under

this Act is a company, every person
responsible in the company for the conduct of
business of the company, shall be deemed to
be guilty.
exception :he proves that the offence was
committed without his knowledge
"Company" means body corporate and
includes a firm or other association of
individuals.
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Important sections from a

journalistic point of view

Section 3 penalty for spying

Section 5 wrongful Communication
Section 7- interfering with officers concerned
Section 9 attempts, incitements

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Case Study Ifthikar Gilani

In June 2002, journalist Iftikhar Gilani was, arrested for violating

the OSA 1923.
He was charged under the OSA, with a case under the Obscenity
Act added to it.
The first military report suggested that the information he was
accused of holding was "secret" despite being publicly available.
The second military intelligence report contradicted this, stating
that there was no "official secret".
The military reported that, "the information contained in the
document is easily available" and "the documents carries no
security classified information and the information seems to have
been gathered from open sources".
On January 13, 2003, the government withdrew its case against
him. Gilani was released the same month.
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Why Official Secrets Act needs

a review

Transparency Vs Accountability
During the war with Argentina over the Falklands in
1982, a British ship sank a ship of the Argentinian
Navy called "General Belgrano" causing a number
of Argentine fatalities.
then prime minister Margaret Thatcher claimed that
the ship had to be sunk because it posed a threat to
the British ship and its personnel
The Argentine ship was actually fleeing the battle
when it was sunk. A public servant (Clive Ponting),
who had access to this document which was
marked top secret exposed it to press.
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