Guest Post: Secret Laws and Retrospective Punishment – on the Unconstitutionality of the Official Secrets Act

(Previously on this blog, we have looked at the intersection between the Constitution, and criminal procedure. In this guest post, Abhinav Sekhri examines how the Official Secrets Act is constitutionally suspect by enabling the possibility of retrospective creation of offences. The post first appeared here, on the Proof of Guilt blog, and has been cross-posted with permission.)

Very little intelligent discussion happens concerning the Official Secrets Act [OSA] in India. You could say this lack of discussion is by design, and means the law is doing its job. Perhaps it is. What it also does is perpetuate a culture of secrecy surrounding decision-making by officials. With an increasing intensity surrounding the freedom of information movement, there was a spurt in questions being raised in the Rajya Sabha (see hereherehere and here. I am certain it was discussed in the Lok Sabha as well) about the Official Secrets Act. The tenor of government’s responses seemed consistently non-committal but implying that change is mooted. But this seems to have changed as momentum stilled (see here, and here). In the meanwhile, we had the Right to Information Act bringing its overriding clauses, and the 2nd Administrative Reforms Commission recommending a repeal of the statute altogether. Obviously, that didn’t happen. This post takes up the argument that the criminalisation under the OSA is unconstitutional.
The OSA is acknowledged to be a British legacy, dating back to 1923 (earlier variants existed as well). The statute’s context belie the imposing title. The phrase “official secrets” does not find any definition or mention; the law primarily attends to cases of espionage by using broad definitions of the potentially sensitive information involved. Offences are not designed simply, stating that one who steals “official secrets” shall be punished. Offences (such as Section 3), require individuals to act “prejudicial to the interests” of India, and these acts must be the unauthorised acquisition or dissemination of “secret official code, or password, or any sketch, plan, model or other information” that is useful to the enemy and/or prejudicial to India’s interests. Cases can only begin on a complaint by the authorised officer, and a sanction to prosecute the official must be granted before cognizance can be taken.
The Issue of Knowledge
Two questions become important here, (i) how do persons know that a a code or sketch, plan model etc is potentially useful to the enemy or affects the security and interests of India and  (ii) does it matter whether they know or not? Dealing with the second issue first, all hints point to a position of law that disregards the need for an accused to have knowledge. I argue this on the basis of the two primary offences, Sections 3 and 5. Section 3 was mentioned above, and sub-section (2) therein supports my claims. It allows a conviction simply on the basis of the ‘conduct or known character’ of the accused and allows the court to dispense with a need to specifically prove that the person had some prejudicial purpose. Not only does this go against the basic tenets of treating character evidence (which has been blogged about earlier), but in a unique manner disregards both actus reus and mens rea requirements. Nifty.
Section 3 is prefaced by a mental element (the acts must be “with a purpose prejudicial to the safety or interests of the State“), regardless of how it is rendered nugatory. Section 5 contains no such preface and so makes the knowledge issue more potent. It has three sub-sections, out of which only Section 5(2) uses the words “knowing or have reasonable ground to believe“. Does that mean the other offences do not require any knowledge element? A Constitution Bench of the Supreme Court approves of this logic (seeRanjit Udeshi v. State of Maharashtra, AIR 1964 SC 881). It is nobody’s case that the accused is unconsciously in possession of the documents – possession is conscious. But does the accused need to know that the documents were, to wit, “likely to assist, directly or indirectly, an enemy“?
The statute clearly suggests that knowledge is not essential, nor is lack of knowledge a defence. Interestingly, the U.K. repealed its old statute (contemporary to ours) to insert lack of knowledge as a defence (UK Official Secrets Act, 1989). Thus it is a defence if the person did not know, or did not have reasonable cause to believe, that the material concerned was such that its disclosure was prohibited. This is not unconstitutional strictly speaking, but goes against a the basics of criminal theory that one could argue are part of substantive due process.
(Ed. Interestingly, in a judgment handed down yesterday, the Court of Appeals in the UK held that without an intent requirement as part of the definition of terrorism, the UK Terrorism Act was incompatible with human rights)
Classification and Clearer Unconstitutionality
I’m not a fan of the Article 21 is omnipotent school, and so try and make my case on clearer grounds by answering the first question I posed. The question was how do persons know whether documents are state secrets when the document hasn’t got TOP SECRET on its face. The answer exists, and is in the form of a Ministry of Home Affairs Manual on Departmental Security Instructions. After the RTI a request was made for disclosure of this Manual. This was denied by the Ministry, and contested right up to the Central Information Commission. The Commission upheld that decision to deny disclosure, reasoning that making the classification public would prejudice the safety of the state.
Since nobody but the State knows whether something was secret, and holding secrets is an offence, what stops the State from deciding something is secret after it goes public? Take an example. A journalist, X, gets his hands on a non-public pending legislative bill potentially legalising marijuana and makes it public. The Police arrest X, suspecting him of having secret information, and ask the Government whether such non-public legislative bills form information of the kinds barred by the OSA. Here is the problem. (A) Since I cannot know if the information I have is potentially secret, any determination made now is ex-post-facto and illegal. (B) Since nobody knows what information is secret, nothing stops the State from deciding how to treat papers ex-post-facto, rendering any offences which follow unconstitutional under Article 20(1).
(Ed. There are two issues here. One is the question of whether a secret law, by virtue of being secret, violates Article 20(1), since it enables the State to make (secret) changes to it after the commission of any act, by which that act can be criminalised. Now, it is well-established that the possibility of abuse under an Act is no ground for the Court to hold that the Act is unconstitutional. However, those cases are premised upon the assumption that you can go to Court against the abuse itself, and obtain a remedy. In case of a secret law, there’s no way of even knowing when abuse has taken place, in the form of a post facto modification of the secret law. In such a scenario, it would appear that the logic in Romesh Thappar’s Case – i.e., that a law that enables unconstitutional action is itself unconstitutional – is more apposite.
It seems to me, though, that a better argument would be to invoke vagueness. In Kartar Singh, and then in Shreya Singhal, the Court held that vagueness is a ground for striking down legislation, primarily because it does not allow people to plan their affairs in a manner so that the can comply with the law, and in the case of free speech, casts a chilling effect. A secret law is the vanishing point of vagueness – it’s the point at which you literally don’t know what’s legal or illegal. In such a situation, vagueness should be invoked to strike down the law.)
What’s the Point?
India, along with South Africa, remains the only prominent erstwhile colony to have not reworked its secrecy law in the wake of the freedom of information movement. The point, therefore, is that such a blanket secrecy law curbs journalistic expression and is fundamentally anti-democratic. The arbitrary noose of the OSA may be brought upon any unwitting reporter, making her think thrice about writing that story on Naxal rebels in the heartlands. This is an old, overused point, but it seems silly that we’ve retained a British law that Britain comprehensively repealed. They even make the classification public. If nothing else, Section 5 must go.
(Abhinav Sekhri is a Delhi-based advocate)


Filed under Article 20(1), Criminal Law and the Constitution, Official Secrets Act

2 responses to “Guest Post: Secret Laws and Retrospective Punishment – on the Unconstitutionality of the Official Secrets Act

  1. Ashok Agrwaal

    I agree Abhinav Sekhri. The OSA is an anachronism and must go. This will not happen without a fight. I will support any venture in this regard.

  2. Rishabh Garg

    While I agree that the OSA is somewhat vague and curbs journalistic expression, the fact remains there is no other law which can be invoked to prosecute spies or diplomats (the ones who do not have immunity) handing out confidential information to their sending countries.

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