Official Secrets Act: How easy is its implementation?

In the month of December 2014, the Government of India had made its intentions clear and no violation under the Official Secrets Act would be tolerated.

While in the month of December, a trap had been laid to track the corporate espionage case, on October 13 2014 Ajit Doval had shot off a strong letter against a news channel alleging that it had violated the Officials Secret Act.

After he took over as the National Security Advisor, he has been extremely particular that documents that are classified ought not to be leaked. He has also made it clear that it is the responsibility of the media not to beam images or information that is "Classified" in nature.

There are enough and more indications that the ongoing investigations into the corporate espionage case would end up with the provisions of the Official Secrets Act being slapped. The government and the NSA in particular would want to send a strong message that no violation of this act will be tolerated.

The case against a television channel

In a letter dated October 13 2014, the National Security Advisor had written to the Cabinet Secretary pointing out that a television channel had broadcast a report relating to INS Arihant, India's nuclear submarine. He further pointed out that it had become a regular occurrence especially in the media to violate secrecy laws with impunity and hence stringest action needs to be taken.

"It has been observed that in the last few years, it has become a regular practice, particularly in the media, to violate secrecy laws with impunity. Firm action need to be taken in such cases that undermine the national security of the country, the note to the Cabinet secretary also read.

Corporate espionage case could set the bar

The Delhi police have told the court that they would be trying the accused under the Official Secrets Act. They maintain that classified information has been leaked and it is an issue of national security that is involved in this case.

The government had following the NSA's note issued a memorandum in which it was said that to prevent any leakage of information from government establishments, the provisions/instructions and guidelines of the Official Secrets Act and the manual of department of security instructions should be scrupulously followed by the ministry/department dealing with classified documents.

Sources in the government say that the in the past several violations under the Official Secrets Act have not reached the logical conclusion. There is a need to conduct a thorough trial and bring the accused to book and this could act as a deterrent in the future.

What is the Official Secrets Act?

The Official Secrets Act of 1923 broadly means gaining access or passing on information that is marked classified. The Delhi police would however have to put up a strong case to justify the act of the accused in the corporate espionage case under the Official Secrets Act.

The OSA is normally slapped on persons who undermine national security and Section 3 of the Act states that a person is liable to be punished only if information obtained by him is intended to be useful to an enemy or relates to a matter that is likely to affect the integrity of India.

This would mean that the Delhi police would have to prove that the actions of the accused in this case have security repercussions. Santanu Saikia, the former journalist arrested in connection with this was discharged in the year 2009 in a case slapped under the OSA.

He had published a cabinet note marked ‘secret' relating to disinvestment. However the prosecution could not prove there was a security threat which led to him being discharged.

In the 1998 Reliance case involving a corporate lobbyist, charges had been framed but the trial is yet to commence since it was challenged by Reliance. 17 years on the case is still pending.

History in similar cases would show that the Delhi police are most likely not to succeed if they proceed with a case under OSA. Their best bet may be the Indian Penal Code and slapping of Section 457 dealing with trespass and breaking into a house by night. This section prescribes a punishment of 14 years.