The Official Secrets Act, 1923

The Official Secrets Act, 1923 (Act No. 19 of 1923) dated 10th May, 1923, was enacted with the view to consolidate and amend the law relating to official secrets. The Act extends to whole of India and should apply to servants of the Government and to all citizen of India whether inland citizen or outside India.

So far as the historical aspect of this legislation is concerned, the first and foremost piece of regulation can be seen is that of Notification issued by Foreign Department of the Government of India in the year 1843 which was connected with matter of prohibition of making of Official documents public. The British Colony of Gibraltar issued an Ordinance in the year 1887 dealing with such prohibition including making of sketch, drawing or taking photograph of fortification in the garrison. As such in the year 1888 the Indian Fortification Bill was introduced in British Parliament  and on 1889 the Official Secrets Act (Act No. 16 of 1889) was passed. However, looking to the drawbacks in application of this Act, the Army Authorities asked for certain changes in the law, and in the 1902 the Amendment Bill was finally drafted and finally, the Indian Official Secrets (Amendment) Act, 1904 was passed. Besides this there was another enactment dealing with same topic i.e. The Defence of India (Criminal Law Amendment) Act, 1915. Finally, this Act of 1923 was enacted by accepting the Bill on 21st March, 1923 and on 2nd April, 1923 the Act was received the assent of Governor General and on 14th April of the same it was published in the Gazette of India and it has its effect force ever since.

Section 2 of the Act dealt with certain definitions, which are used for interpreting the provisions of the Act. Moreover, Section 3 is more important so far as it is connected with the object of making provision of this Act more effective. This section provides for penalties for spying, where if any one approached, inspected, etc. any vicinity or place for making any sketch, plan, model, etc. which possibly to be useful to any enemy should be liable to be punished under this provision with imprisonment which is maximum 15 years as provided under this provisions. The Section 4 of the Act makes the act of communicating or even attempting to communicate with foreign agents, is to be treated as relevant evidence for proving that such person communicating or attempting communication is against the safety or interests of State.

Similarly, Section 5 says that, if the person having possession of any secret official code, etc. used such secret stuff in prohibited place or otherwise in the manner which is likely to assist an enemy or otherwise is hazard to sovereignty and integrity of India then such person to be held guilty under this Act. Similarly, for all other acts relating to such secret official information which are provided under this provision of Section 5 of the Act are prohibited and if done, then persons doing this are liable to punishment which should include imprisonment and fine. Section 6 is important so far as it is connected with unauthorized use of uniforms, making false reports, etc. The Section provides that, when any person uses any naval, army or air force or any other official uniforms or make any false statement or forges or alters, etc. the passports or otherwise similar document or even represent himself as such officer or do all other acts which are contemplated under this provision, for having admission into any prohibited place for hurting safety of the State, then such person to held guilty of offence under this Act. Further, sub Section (2) also provides for certain situations where such persons is guilty under this Act, including retaining of official document, allowing other persons to take possession of such official documents, etc. Sub Section (3) of the Act says that such persons to be punished with imprisonment up to 3 years or with fine or both. The Section 7 of the Act provides last situation where such persons breaching the provisions of this Act are to be punished. This provision specifies that, any interferences with Police Officers or member of Armed forces of Union by misleading them or otherwise, should be punished with imprisonment can be extended to 3 years or with fine or both simultaneously. Section 8 requires every persons to give information as to commission of offences on it is so required by concerned officers. And if such persons fails in giving such required information, then such persons should be imprisoned with extension up to 3 years or fined or punish with both. Section 9 deals with attempts of commission of offences under the provisions of this Act and persons thereof should be held guilty and liable to be punished in the same manner if such offence would have been committed by him.

Further, section 10 of the act makes penal provisions as to harbouring to spies by the persons even though have knowledge that this will result in commission of offence. Such persons are liable to be imprisoned up to the period of 3 years or with fine of both. Moreover, section 11 makes provisions of search warrants by Magistrate or Presidency Magistrate in case of reasonable suspicion. And Section 13 of the Act imposes restriction on trial of offences under this Act, where the Court empowered by the Central Government, other than that of Magistrate of First Class, should have jurisdiction to try such proceedings. Section 15 deals with offences by company and person liable thereof.

After India got independence the Act was sought to be amended by introducing the Bill on 23th June 1967 and it was passed by Lok Sabha on 12th August, 1967. As such the Indian Official Secrets (Amendment) Act, 1967 made the Act much more draconian than it was under British rule.

by Faim Khalilkhan Pathan.