WhatsApp Chat, Official Secrets Act and National Security

 

Introduction

 

As many of you must have read in the newspapers and in the media reports that in a certain journalist’s Chat Messenger’s transcript which is part of the supplementary charge-sheet in a criminal case, many facts and information relating to matters of national importance and security were found that could be considered to be classified information. In this respect, it has been contended that such disclosure and gathering of information may be a violation of the provisions of the Official Secrets Act, 1923. Let us understand the crux of the Official Secrets Act.

 

Important Provisions of the Official Secrets Act, 1923

 

The Official Secrets Act is divided into 15 sections. With respect to the recent case of a journalist, the pertinent sections are discussed hereinbelow: -

 

1. Section 2 is the Definitions Clause and provides definitions of terms such as ‘munitions of war’, ‘prohibited place’, ‘sketch’, ‘model’ etc.

 

2. Section 3 provides for the penalties of spying. Relevant portions of Section 3 (1) (c) and 3 (2) specifically in relation to the present controversy are as follows: -

 

“3. Penalties for spying.—(1) If any person for any purpose prejudicial to the safety or interests of the State—

(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States;

he shall be punishable with imprisonment for a term which may extend……………. to fourteen years and in other cases to three years

(2) On a prosecution for an offence punishable under this section, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or pass word is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, information, code or pass word shall be presumed to have been made], obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.”

 

According to this provision of law, any sharing or obtaining of information that is sensitive or prejudicial to safety or interest of a country is a punishable offence. Sharing information about potential strikes on enemy territory, attacks on the troops of one’s own country that is otherwise not to be shared or collected or obtained is a punishable offence.

 

Further, section 3 (2) provides that the circumstances of the case or the conduct of such person with respect to the information or knowledge shared or obtained is enough to hold the accused person guilty under this section and the presumption shall be against him. Thus, if information relating to a potential military strike is shared or obtained by any person that is sensitive in nature and if it is found that such person was not authorized to possess such information by virtue of his rank, post or designation, then such person can be held guilty without even looking into other factors.

 

3. Similarly, Section 5 is also pertinent here. In relation to the present controversy, the relevant portion is as follows: -

 

“5. Wrongful communication, etc., of information.—(1) If any person having in his possession or control any secret …… information which relates to or is used in a prohibited place or relates to anything in such a place, or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been made or obtained in contravention of this Act, or which has been entrusted in confidence to him by any person holding office under Government, or which he has obtained or to which he has had access owing to his position as a person who holds or has held office under Government, or as a person who holds or has held a contract made, on behalf of Government, or as a person who is or has been employed under a person who holds or has held such an office or contract—

(a) wilfully communicates the code or pass word, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorised to communicate it or a Court of Justice or a person to whom it is, in the interests of the State his duty to communicate it; or

……

(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of, the sketch, plan, model, article, note, document, secret official code or pass word or information;

he shall be guilty of an offence under this section.

(2) If any person voluntarily receives any secret official code or pass word or any sketch, plan, model, article, note, document or information knowing or having reasonable ground to believe, at the time when he receives it, that the code, pass word, sketch, plan, model, article, note, document or information is communicated in contravention of this Act, he shall be guilty of an offence under this section.”

 

Apart from whatever has been provided in Section 3, if any person has any secret information which relates to any information that may assist an enemy or its disclosure is likely to affect the sovereignty and integrity of India and if such information is wilfully communicated to any other person who is not authorized to communicate it or if such person fails to take reasonable care to protect such secret information, then such a person shall be guilty of an offence under section 5.

 

Concluding Remarks

 

The crimes that have been provided in the Official Secrets Act are generally called as high crimes against the state. Such crimes have ramifications of highest order and have the potential to unleash chaos in a country. Thus, this law is drafted in a manner that the entire burden of proof is on the accused person and all the presumptions are against him. Normally, a person is treated as innocent until proven guilty but in special laws such as the Official Secrets Act, mere possessing or obtaining of secret information is also considered a crime.

 

Though the Official Secrets Act is a relic of colonial past since it is an Act passed in the year 1923 before the independence of India yet it has a lot of significance in today’s context as with the advent of technology, sharing and obtaining information has become ever easier. Technology has made us the humans very powerful but with great power comes great responsibility. Everybody must be cautious when sharing or obtaining any information and if the nature of such information is secretive, it is best not to even look at such information since mere obtaining of such information could lend a person into trouble.