Official Secrets Act


  • On 14th September, 2020, a Delhi based journalist was arrested under Official Secrets Act for passing on information such as the deployment of Indian troops on the border to Chinese intelligence officers.

About Official Secrets Act (OSA)

  • The first Indian official secrets act was enacted in 1889 to suppress the voice of nationalist publications, which were opposing the British Government’s policies.
  • It was amended during the time of Lord Curzon(1899-1904) in 1904.
  • Finally, 1904 act was replaced by The Indian Official Secrets Act of 1923 which brought within its ambit all matters of secrecy and confidentiality in governance in the country.

Scope of OSA

It broadly deals with two aspects:

  • Spying or espionage, covered under Section 3.
  • Disclosure of other secret information of the government, under Section 5.(The information could be any reference to a place belonging to or occupied by the government, documents, photographs, sketches, maps, plans, models, official codes or passwords).

Prosecution and Penalties

  • If found guilty, a person may get up to 14 years’ imprisonment, a fine, or both.
  • 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.

Significance

  • The law, applicable to government servants and citizens, provides the framework for dealing with espionage, sedition, and other potential threats to the integrity of the nation.

Criticism of OSA

In Contravention with Right to Information Act (2005)

  • For classifying a document, a government Ministry or Department follows the Manual of Departmental Security Instructions, 1994, not under OSA.
  • Also, OSA itself does not say what a “secret” document is. It is the government’s discretion to decide what falls under the ambit of a “secret” document to be charged under OSA.
  • It has often been argued that the law is in direct conflict with the Right to Information Act, 2005.

Misuse by Authorities

  • Due to its unclear definition of “secret” documents or information, government authorities can misuse the Act by branding certain information or documents as official secrets as they deem fit.

Suggestions for Amending OSA

  • In 2006, the Second Administrative Reforms Commission (ARC) recommended that OSA be repealed, and replaced with a chapter in the National Security Act containing provisions relating to official secrets.
  • Further, in 2015, the government had set up a committee to look into provisions of the OSA in light of the RTI Act.
  • It submitted its report to the Cabinet Secretariat on June 16, 2017, recommending that OSA be made more transparent and in line with the RTI Act.

Recent Cases where OSA has been invoked

  • The most recent conviction under the Act came in 2018, when a Delhi court held former diplomat Madhuri Gupta, who had served at the Indian High Commission in Islamabad, guilty under the OSA. She was sentenced to jail for passing on sensitive information to Pakistan’s intelligence.

Jammu & Kashmir Public Safety Act


  • Recently, the Former Jammu & Kashmir Chief Minister Dr. Farooq Abdullah was detained under the State’s Public Safety Act.
  • The law was introduced by Sheikh Abdullah (Farooq Abdullah’s father) in 1978 to prevent timber smuggling, and keep the smugglers in prison.

About Public Safety Act (PSA)

  • Definition: The Jammu & Kashmir Public Safety Actempowers the government to detain a person up to two years without a trial in order to prevent him or her from acting in any manner that is prejudicial to the security of the state or the maintenance of the public order.
  • Way of Enforcement:It comes into force by an administrative order passed either by Divisional Commissioner or the District Magistrate or not by any detention order by police based on specific allegations or for specific violation of laws.
  • Scope of Detention:It can be slapped on a person already in police custody; on someone immediately after being granted bail by a court; or even on a person acquitted by the court.
  • Limitations: A person who is detained under the PSA need not be produced before a magistrate within 24 hours of the detention and the detained person does not have the right to move a bail application before a criminal court, and cannot engage any lawyer to represent him or her before the detaining authority.

Challenge against Detention

  • It can be challenged is through a habeas corpus petition filed by relatives of the detained person
  • The Supreme Court and the High Court have the jurisdiction to hear such petitions and pass a final order seeking quashing of the PSA.
  • In case, if the order is quashed, the government can pass another detention order under the PSA and detain the person again.

Habeas Corpus

  • It is issued under the Article 32(2) by the Supreme Court for the enforcement of any of the rights conferred by Part III of the Constitution.
  • It is the most valuable writ for personal liberty which means, “Let us have the body”.
  • It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise.
  • If the Court is convinced that the person is illegally detained, it can issue orders for his release.
  • The writ can be issued against both the State and private individual or organizations.
Purpose
  • The writ has only one purpose, to set at liberty a person who is confined without legal justification.

Constitutional Provisions against Preventive Detention

  • Article 22 of the constitution provides safeguard against preventive detention.
  • The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:
    • Right to be informed of the grounds of arrest
    • Right to consult and be defended by a legal practitioner
    • Right to be produced before a magistrate within 24 hours, excluding the journey time
    • Right to be released after 24 hours unless the magistrate authorizes further detention
  • The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes:
    • The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a High Court.
    • The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.

Preventive detention laws made by the Parliament:

  • Preventive Detention Act, 1950. Expired in 1969.
  • Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.
  • Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.
  • National Security Act (NASA), 1980.
  • Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980.
  • Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.
  • Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.
  • Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.

Way Forward

  • India is one of the few countries in the world whose Constitution allows for preventive detention during peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights.
  • Preventive detention as enshrined under Article 22 strikes a devastating blow to personal liberties. It also runs afoul of international standards. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) - which India has ratified admittedly permits derogation from guaranteeing certain personal liberties during a state of emergency.

Liberation Tigers Of Tamil Eelam (LTTE)


Why is it in News?

The Union government on 14th May renewed its 2014 notification for another 5 years to declare the Liberation Tigers of Tamil Eelam (LTTE) as an “unlawful association” for violent and disruptive activities that are detrimental to the integrity and sovereignty of the nation.

About the Organisation:

  • LTTE continues to escalate the anti-India feeling amongst the Sri Lankan Tamils by blaming the Government of India for the defeat of the LTTE which is likely to affect VVIP security negatively in India, through articles in the internet portals,
  • In May 1991, former Prime Minister Rajiv Gandhi was assassinated by an LTTE suicide bomber during an election rally in Sriperumbudur in Tamil Nadu.
  • In May 2009, after its military defeat in Sri Lanka, the LTTE had not renounced the concept of ‘Eelam’ (separate land for Tamils) and had been secretly and illicitly working towards it by undertaking fund-raising and propaganda activities.
  • The LTTE’s objective for a separate homeland (Tamil Eelam) for all Tamils threatened the sovereignty and territorial integrity of India and amounted to cession and secession of a part of the territory of India from the Union and thus fell within the bounds of unlawful activities.

National Security Act


Why is it in News?

The National Security Act was invoked by the State Government of MP, not very long back in February 2018 against three men accused of killing a cow.

Origin of NSA:

  • Preventive detention laws in India date back to early days of the colonial era when the Bengal Regulation III of 1818 was enacted to empower the government to arrest anyone for defense or maintenance of public order without giving the person recourse to judicial proceedings. A century later, the British government enacted the Rowlatt Acts of 1919 that allowed confinement of a suspect without trial.
  • Post-independence India got its first preventive detention rule when the Government of Prime Minister Jawaharlal Nehru enacted the Preventive Detention Act of 1950.

Provisions of NSA:

  • The NSA empowers the Centre or a State government to detain a person to prevent him from acting in any manner prejudicial to national security.
  • The government can also detain a person to prevent him from disrupting public order or for maintenance of supplies and services essential to the community.
  • The maximum period for which one may be detained is 12 months but the term can be extended if the government finds fresh evidence.
Under the provisions of NSA, no legal representation is allowed through lawyers and the person can be detained without communicating the grounds for detention till 10 days.