The Official Secrets Act 1923 is India's anti-espionage act held over from British colonisation. It states clearly that any action which involves helping an enemy state against India. It also states that one cannot approach, inspect, or even pass over a prohibited government site or area. According to this Act, helping the enemy state can be in the form of communicating a sketch, plan, model of an official secret, or of official codes or passwords, to the enemy. The disclosure of any information that is likely to affect the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States, is punishable by this act.
Prosecution and penalties
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. The Act only empowers persons in positions of authority to handle official secrets, and others who handle it in prohibited areas or outside them are liable for punishment.
In any proceedings against a person for an offence under this Act, the fact that he has been in communication with, or attempted to communicate with a foreign agent, whether within or without India is relevant and enough to necessitate prosecution. Journalists also have to help members of the police forces above the rank of the sub-Inspector and members of the Armed forces with investigation regarding an offence, up to and including revealing his sources of information (If required).
Under the Act, search warrants may be issued at any time if the magistrate feels that based on the evidence in front of them there is enough danger to the security of the state.Uninterested members of the public may be excluded from court proceedings if the prosecutions feels that any information which is going to be passed on during the proceedings is sensitive. This also includes media; so the journalists will not be allowed to cover that particular case.
When a company is seen as the offender under this Act, everyone involved with the management of the company including the board of directors can be liable for punishment. In the case of a newspaper everyone including the editor, publisher and the proprietor can be jailed for an offence.
Case study: Iftikhar Gilani case
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". Even after this, the government denied the opinion of the military and was on the verge of challenging it when the contradictions were exposed in the press.
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 to prevent having two of its ministries having to give contradictory opinions. Gilani was released the same month.