The country needs a new OSA

The archaic Official Secrets Act (OSA) of 1923 needs to be abolished. When the Narendra Modi government removed nearly 3,500 redundant, archaic and bizarre laws from the statute book, it was expected that the OSA would be reviewed.

The travails of brilliant brains like Dr Buddhi Kota Subbarao, Dr Narayan Waman Nerurkar and S Nambi Narayanan of the Indian Space Research Organisation (ISRO), were examples enough to prompt a re-examination of the OSA and the potential of its abuse. 

Dr Subbarao, an Indian Navy captain, who had rendered 25 years of distinguished service, was  incarcerated under the OSA and had to spend 20 months in prison. He was acquitted after a five-year- long battle in court. 

Subbarao was awarded a Ph.D. in 1985 by the IIT, Bombay, for his thesis “Nuclear Power Plant Modelling and Design Multivariable Control Approach”. 

Around this time, Gopi Krishan Arora, then Secretary Information and Broadcasting, sounded Subbarao with a fine offer. Prime Minister Rajiv Gandhi, he said, wanted him to become the technical head of the nuclear submarine project. 

It was decided that Subbarao’s appointment order would be issued once he returned from a trip to the USA. Instead, as he arrived at the Sahar International Airport on May 30, 1988, he was detained by the Maharashtra Police.

The former navy officer was charged with trying to smuggle secret documents out of the country. Police claimed that he was caught with atomic and defence secrets of the country on board a foreign flight. As it later dawned, he was carrying with him his Ph.D thesis approved by IIT Bombay, and other literature on nuclear technology freely available and  accessed from various universities and research centres in the world.  

Subbarao used his period of incarceration to study law in jail, appearing in-person at the Sessions Court, Bombay High Court and the Supreme Court. 

Finally, on October 1991, the Bombay High Court passed his acquittal orders. The appeal against the acquittal was dismissed by the Supreme Court in 1993. 

Subbarao was awarded a pittance of Rs 25,000 as ‘costs for his mental suffering and financial loss’, but those responsible for his anguish, went scot-free.

The case of Dr Nerurkar, then advisor in the Department of Electronics, makes for another sordid story. He had to suffer for 14 years, including incarceration for two-and-a-half years. 

His ignominy of being labelled as a spy ended when the Delhi High Court finally quashed proceedings against him on May 30, 2001. The CBI had registered a case against him on the basis of a complaint filed by the regional manager of a courier company. 

The courier company had reported that some letters addressed abroad contained a photo copy of User Evaluation Trial report on R.A.T.AC-S Battlefield Surveillance Radar, BFSR Phase-I. 

The other cover addressed to a person in Netherland, contained a 13-page draft letter that had details of some radar fly catchers for detection and tracking of low-level enemy aircraft.

Even after his discharge, a fresh complain was filed by the CBI against him - for a record third time.

Dr Nerurkar filed an application, pleading for a hearing before cognisance is taken, as proceedings against him had been pending for over 12 years and there was bleak possibility of his conviction. 

The CMM rejected the application and summoned all the accused on September 23, 1999. Dr Nerukar was booked was three years, but he suffered the agony of facing proceedings for more than 14 years!  

It later turned out that the user evaluation trial report on RATACS-S Battle Field Surveillance Radar (BFSR) Phase-1 was rejected by the government and the army had not gone ahead with the purchase. 

Overzealous intelligence and police officials have launched prosecution against countless innocents on the basis of alleged recoveries of Annual Reports of various ministries, a public document.  

A decade ago, I met in Tihar Jail a certain Ahmed Mian Siddiqui, an assistant with a deputy secretary in Parliament House. 

Siddiqui’s offence — he had supplied 15 Annual Reports of various ministries to one Riaz, a Pakistani national. 

Siddiqui told the police that he met Riaz at a mosque near Parliament House and was asked for help, since he (Riaz) wanted a permanent job at a leading TV outlet.  The OSA is draconian in the sense that it lacks any safeguard against misuse. Being a relatively sparsely-used legislation, it has escaped public scrutiny. 

Says Journalist Chanchal Sarkar in his book “Challenges and Stagnation, “the language of the Act is wide enough to make it a criminal offense for a messenger at the Home Office to inform a reporter that the under secretary is in the habit of taking six lumps of sugar in his tea.” 

Much-maligned Lt General B M Kaul, in his “Confrontation with Pakistan”, queries: “The British had to hide a great deal from our people. But, what has our government to hide from us, for long anyhow.” 

The clause regarding secrecy is an anachronism in a democracy, which also has a Right to Information Act. It would be reasonable to conclude that the secrecy clause is a relic of the colonial days.

A few years ago, a group of newly- elected village sarpanchs in Rajasthan had refused to take the usual oath of secrecy and insisted, instead, on an oath of “transparency”. 

Their contention was they could not  hide their official work from the electorate who had elected them to their offices! 

Every country needs to protect some secrets, which can be well defined and incorporated in the Indian Penal Code or the National Security Act, rather letting this vague law burden the statute book. 

Author is Chief of National Bureau, DNA