Official secret

What is Official Secrets?

The definition of "official secret" is typically not universal and is instead interpreted in accordance with the legal frameworks of the various nations that have laws governing classified information and state secrets. What is considered an "official secret" in the context of state interests and national security is defined functionally by Official Secrets Acts, 1923.

The 11th edition of the Black Law dictionary does not explictily define the term ‘official secret’ but it does define related terms including state secret, confidential information, classified information and privileged information

Official definitions of ‘Official Secret’

‘Official secret’ as defined in legislation(s)

The primary legislation pertaining to state secrets in India is the Official Secrets Act, 1923, although it does not provide a clear definition of what is meant by "official secrets." Rather, it outlines behaviours and data that are considered illegal under the law, like handling confidential government data that could jeopardise national security or communicating without authorisation.

Other statutes that provide for information pertaining to national security or defence or other related topics include the following.

Section 8(1)(a) of the Right to Information Act, 2005 provides for exemption against disclosure of information pertaining to the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence.

Section 4(1)(b) of the Whistle Blowers Protection Act, 2014, protects individuals who disclose corruption or misconduct in the government but prohibits disclosures that causes prejudice the sovereignty, integrity, and security of India or involves information covered under the Official Secrets Act.

The Unlawful Activities (Prevention) Act, 1967 also deals with activities threatening the sovereignty and security of India. Although it doesn't specifically refer to "official secrets," it does cover espionage and the illegal use of confidential material.

Official secrets in digital communication are implicitly protected by Section 69 of the Information Technology Act, 2000, which gives the government the authority to intercept, monitor, or decrypt information if it relates to public order or national security.

‘Official Secrets’ as defined in Legal Provisions

Penalties for attempts, abetment, or incitement to commit offences under the Official Secrets Act, 1923, are covered in Section 13. It states that anyone who tries to commit or conspires to commit crimes like espionage, unlawful communication, or getting sensitive information would be punished to the same extent as the primary offence. This section emphasises how dangerous plots and preliminary actions that endanger national security are. It emphasises that collecting or disseminating classified information is not the only thing that is illegal; any intention or planning to do so is equally illegal. The clause serves as a warning to anybody who might try to jeopardise India's defence interests or sovereignty.

‘Official secret’ as defined in other government reports

Second Administrative Reforms Commission (ARC) - Fourth Report (2007) titled ‘Ethics in Governance’

Examining the Official Secrets Act of 1923, the report suggests changes to bring it into compliance with the Right to Information Act of 2005. It promotes openness in governance and proposes restricting the Act's application to issues of national security and defence. The paper highlights how needless secrecy erodes public confidence and offers a reasonable framework to protect private data without impeding accountability. Ultimately, the Commission recommended the absolute scrapping off of the Act.

179th Law Commission Report

The dispute between whistleblower protections and the Official Secrets Act is highlighted in the report. In order to protect those who expose corruption or wrongdoing from punishment, it proposes redefining the OSA to exclude disclosures made in the public interest. The paper advocates for protections for whistleblowers against reprisals and emphasises the need for legislation that maintains transparency while safeguarding vital national security information.

‘Official Secret’ as defined in case law

Shankarlal Ghaneshyam v. Union of India

Article 19(1)(a) of the Constitution, which protects the right to freedom of speech and expression, was invoked in this case to contest the constitutionality of the Official Secrets Act, 1923. The petitioner contended that the Act unnecessarily restricted the public's ability to get information. As long as the limitations were reasonable and required, the Supreme Court maintained the Act, holding that national security considerations warranted them. The ruling established a fundamental precedent for interpreting state secrecy laws by emphasising that freedom of speech is not unqualified and may be restricted to safeguard national security and public order.

People's Union for Civil Liberties v. Union of India

The case started out of concerns that whistleblowers who revealed corruption and poor administration were being singled out under the Official Secrets Act. PUCL claimed that the Act violated constitutional rights by being used to stifle free speech and transparency. The Supreme Court made it clear that unless a whistleblower's actions were a real threat to national security, the Act shouldn't stop them from acting in the public good. This decision served as a crucial step in acknowledging whistleblower protections within the larger framework of transparency in governance and reaffirmed the necessity of striking a balance between state secrecy and accountability.

Types of ‘Official Secrets'

Classified material safeguarded by governments to maintain public safety, national security, and diplomatic or economic stability is referred to as an official secret. This covers sophisticated technology research, military plans, information gathering, and delicate diplomatic correspondence. The Official Secrets Act of 1923 in India makes it illegal to obtain, reveal, or distribute such information without authorisation. These rules are criticised for being unduly broad and possibly stifling openness and whistleblowing, although being crucial for deterring espionage and protecting state interests. Periodically reviewing such laws is necessary to maintain a balance between responsibility and secrecy, especially when dealing with contemporary issues like cyberthreats and information breaches.

International Experience

UK

State secrets are protected in the UK by the Official Secrets Act 1989. Unauthorised revelation of intelligence, security, and national defense-related information is illegal. Additionally covered by the Act are government contractors, public workers, and anybody with access to sensitive information. Critics have pointed out that the law restricts whistleblower rights and transparency, particularly when it comes to instances of misbehaviour or corruption. Laws protecting whistleblowers have been proposed to solve some of these issues.

USA

In the United States, official secrets are protected by the Espionage Act, 1917 and the Classified Information Procedures Act, 1980. Unauthorised transmission or possession of national defence secrets is illegal under the Espionage Act. Notably, it has been applied in leak-related cases like the Pentagon Papers and the Edward Snowden revelations. These rules safeguard national security, but they also spark discussions about how to strike a balance between public disclosure and government secrecy.

France

The Defence Secret Protection Act, 2015 governs the categorisation and safeguarding of official secrets in France. It broadens the definition of sensitive information to include industrial and economic secrets that are vital to national security. The law is intended to accommodate contemporary concerns, such as cyberattacks and terrorism, and penalises the unapproved sharing of such information. Particularly in judicial and parliamentary scrutiny, French law places a strong emphasis on striking a balance between secrecy and transparency.

Germany

The handling of classified state information in Germany is governed by the Official Secrets Act (Staatsgeheimnisgesetz). Information pertaining to defence, intelligence, and foreign policy is protected by law, and any unauthorised disclosure may be punished criminally. Strong privacy rules in Germany also overlap with laws pertaining to official secrets, particularly in regards to data protection in intelligence and surveillance operations. To maintain openness and safeguard national security, the nation places a strong emphasis on stringent supervision procedures.

Appearance of ‘Official Secret’ in database

The term "official secret" does not explicitly appear in government records or databases maintained by entities such as the Ministry of Law and Justice. While these records comprehensively document laws, policies, and administrative actions, they do not specifically categorize or reference the term "official secret" as a distinct entry. Similar to how certain legal or policy matters are embedded within broader categories, references to "official secrets" are often subsumed under general classifications like national security or classified information. This lack of explicit labeling makes it difficult to identify instances where the term "official secret" is directly addressed in official government records. As per the Ministry of Home Affairs, there is no central repository for the overall number of cases filed under the Official Secrets Act of 1923, the number of individuals charged, and the number of convictions obtained in all of these instances.

Research that engages with the term 'Official Secrets'

Is it time for India to re-examine the need for Official Secrets Act in 2019? (ThePrint)

With a focus on its colonial roots and possible inconsistencies with contemporary transparency legislation such as the Right to Information (RTI) Act, the article from ThePrint explores the applicability of India's Official Secrets Act (OSA) in 2019. The OSA's expansive criteria, according to critics, have the potential to stifle public access to information and press freedom. The article cites previous cases in which the government contemplated using the OSA against media organisations, igniting discussions on its suitability in a democracy. Reformers argue that the Act should be re-examined to make sure it doesn't interfere with journalistic endeavours or the public's right to know, as well as to bring it into line with modern democratic ideals. The conflict between preserving national security and promoting openness and freedom of speech is highlighted in the article.

An Analysis of the Official Secrets Act, 1923 vis-à-vis Right to Information Act, 2005 (Journal of Positive School Psychology)

The article compares India's Official Secrets Act (OSA) of 1923, which restricts disclosure of government secrets for national security, with the Right to Information Act (RTI) of 2005, aimed at promoting transparency. While OSA focuses on protecting state secrets, it has been criticized for limiting democratic values. The piece advocates for reforms to ensure the balance between national security and public access to information, suggesting that OSA should evolve to better align with the principles of transparency and accountability in a democratic society.

What is so secret about the information even India's enemies know? (Observer Research Foundation)

The intricacies of state secrecy are examined in the piece, with a focus on military operations such as India's "surgical strikes" across the Line of Control. It emphasises how opponents are frequently aware of these operations even though they are kept secret from the public to preserve political narratives and strategic advantage. The article highlights the necessity for a contemporary framework to categorise, protect, and declassify national security material while criticising the antiquated Official Secrets Act of 1923. Through laws like the Public Records Act and the Right to Information Act, which promote a balance between required secrecy and public access to official records, it also emphasises the significance of transparency.

Espionage with Modern Technology- The Legal Implications (National Law School Journal)

Dr. U.V. Kadam's article "Espionage with Modern Technology—The Legal Implications" explores the legal issues raised by modern espionage techniques. It makes a distinction between international laws that regulate state behaviour and domestic laws that criminalise unauthorised access to sensitive material, such as India's Official Secrets Act of 1923. When evaluating the legality of intelligence operations, the article highlights the importance of distinguishing between territorial and extraterritorial actions. Dr. Kadam acknowledges that cutting-edge espionage technology could help fight global problems like drug trafficking and terrorism, but he is sceptical, arguing that countries are more likely to use these tools for their own purposes than for the sake of collective security.

Challenges

The Official Secrets Act (OSA) of 1923 makes striking a balance between democratic transparency and national security extremely difficult. The Act's broad breadth and ambiguous language, according to critics, limit the public's access to government information, undermining the Right to Information (RTI) Act of 2005. Limited accountability arises from the tension between governmental secrecy and the demand for transparency, particularly when information on public policies, governance, and corruption is suppressed under the pretence of national security. In order to protect whistleblowers, promote media freedom, and bring the OSA into line with modern democratic ideals, reform calls call for more precise exemptions. Furthermore, it is maintained that the OSA needs to be re-examined to make sure it doesn't compromise essential state interests while limiting individuals' rights to know. This balancing act is made more difficult by contemporary issues like espionage, information breaches, and cyber threats.

Way Ahead

Finding a balance between the public's right to information and state security is the first step in resolving the issues raised by the Official Secrets Act (OSA). To align the OSA with modern democratic principles and transparency legislation, such as the Right to Information Act (RTI), reforms are required. A more precise and limited definition of "official secrets" would stop the Act from being abused to suppress journalistic freedom and public accountability. Furthermore, in order to promote the reporting of wrongdoing and corruption without fear of reprisal, whistleblower protections must to be reinforced. The law must change to address contemporary issues like cyberthreats, espionage, and information breaches while maintaining the fundamental idea of national security.

Better governance would be encouraged by a structure that permits prompt examination of confidential materials and eliminates needless secrecy. Furthermore, in order to guarantee that transparency does not endanger state interests, legal safeguards against the abuse of national security provisions in the OSA are crucial. While keeping the required protections to protect sensitive data, public debate and legislative reform can help the OSA become more responsive to the demands of a contemporary, democratic society.