The Official Secrets Act, 1923 - Right to Information

← All Right to Information topics Past papers

On this page

1. Origin and scope
2. Key definitions: section 2
3. Penalties for spying: section 3
4. Wrongful communication: section 5
5. Other offences
6. Procedure
7. The Act and the right to information
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Two offences carry the Act: spying (section 3, up to fourteen years) and wrongful communication of official information (section 5, up to three years). Everything else is support: definitions, presumptions, search and trial. Then explain how the RTI Act sits with it: section 22 gives the RTI Act overriding effect, and section 8(2) allows disclosure “notwithstanding anything in the Official Secrets Act”.

1. Origin and scope

The Act (19 of 1923) consolidated the Indian Official Secrets Act, 1889 and its 1904 amendment, on the model of the British Official Secrets Act, 1911. It was substantially amended by Act 24 of 1967, which widened sections 3 and 5 to cover matters affecting the sovereignty and integrity of India, the security of the State and friendly relations with foreign States, and raised several punishments. Under section 1(2), as substituted in 1967, it extends to the whole of India and applies also to servants of the Government and to citizens of India outside India.

2. Key definitions: section 2

Prohibited place, section 2(8): works of defence, arsenals, naval, military or air force establishments, mines, minefields, camps, ships, aircraft, military telegraph and wireless stations, and factories and dockyards for munitions belonging to or occupied by the Government; private places where munitions are made under Government contract; and any other place, including railways, roads, and gas, water or electricity works, declared by the Central Government by notification on the ground that information about it would be useful to an enemy.
Munitions of war, section 2(5): ships, submarines, aircraft, tanks, arms, ammunition, torpedoes, mines and any article intended for use in war.
Communicating or receiving, section 2(2): includes communicating in whole or in part, and communicating only the substance or description of the document.
Office under Government, section 2(6), and document, which includes part of a document, section 2(3).

3. Penalties for spying: section 3

Section 3(1): if any person, for any purpose prejudicial to the safety or interests of the State,

(a) approaches, inspects, passes over, is in the vicinity of, or enters any prohibited place;
(b) makes any sketch, plan, model or note calculated or intended to be directly or indirectly useful to an enemy; or
(c) obtains, collects, records, publishes or communicates any secret official code or password, or any sketch, plan, model, article, note, document or information useful to an enemy, or relating to a matter whose disclosure is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States,

he is punishable with imprisonment up to fourteen years where the offence relates to defence works, arsenals, military establishments and the like, to naval, military or air force affairs, or to a secret official code; and up to three years in other cases.

Section 3(2) lightens the prosecution’s burden: it need not prove any particular act showing a prejudicial purpose; the accused may be convicted if, from the circumstances, his conduct or his known character, his purpose appears prejudicial. Where information about a prohibited place or a secret code is obtained or communicated by a person without lawful authority, it is presumed to have been for a prejudicial purpose unless the contrary is shown.

Section 4 makes communication with a foreign agent relevant evidence of a prejudicial purpose, and presumes such communication from visits to a foreign agent’s address or possession of his name or address.

4. Wrongful communication: section 5

Section 5(1) applies to a person who has in his possession or control any secret code, password, sketch, plan, model, article, note, document or information which relates to a prohibited place, or is likely to assist an enemy, or relates to matters affecting sovereignty, security or foreign relations, or was obtained in breach of the Act, or was entrusted to him in confidence by a Government officer, or which he obtained because of his position as a Government servant or contractor. He commits an offence if he:

(a) wilfully communicates it to any person other than one he is authorised to communicate it to, a court, or a person to whom it is his duty in the interests of the State to communicate it;
(b) uses it for the benefit of a foreign power or in any manner prejudicial to the State;
(c) retains it without right or contrary to his duty, or fails to comply with directions for its return; or
(d) fails to take reasonable care of it.

Section 5(2) makes the receiver liable if he receives the information knowing or having reason to believe it was communicated in breach of the Act. Section 5(3) covers communicating information relating to munitions of war to a foreign power. Punishment under section 5(4): imprisonment up to three years, or fine, or both.

Section 5 is the provision that clashed with open government, because its wording reached any official information obtained by virtue of office, whether or not it had anything to do with security.

5. Other offences

Section 6: unauthorised use of uniforms, false statements, forgery of passes, personation and false documents to gain admission to a prohibited place; up to three years.
Section 7: obstructing police or members of the Armed Forces on guard near a prohibited place; up to three years.
Section 8: duty to give information about an offence under section 3 on demand by a police officer of the specified rank; failure punishable up to three years.
Section 9: attempts and abetment punishable as the offence.
Section 10: harbouring spies; up to three years.
Section 15: offences by companies, making persons in charge liable unless they prove lack of knowledge or due diligence.

6. Procedure

Search warrants, section 11: by a Magistrate on information on oath; in great emergency a Superintendent of Police may give written authority, and must report to the Magistrate.
Pardon, section 12: the provisions on tender of pardon to an accomplice apply to offences under sections 3, 5 and 7 (the reference is to section 337 of the 1898 Code; the provision is now section 343 of the Bharatiya Nagarik Suraksha Sanhita, 2023, formerly section 306 of the CrPC, 1973).
Sanction, section 13(3): no court takes cognizance except on a complaint made by order or authority of the appropriate Government — the State Government for section 5 offences unconnected with a prohibited place or a foreign power, and the Central Government for the rest, section 13(5).
Trial, section 13(1) and (2): not by a court below a specially empowered Magistrate of the first class; the accused may claim trial by a Court of Session.
In camera, section 14: on the prosecution’s application the court may exclude the public, but the sentence must be passed in public.

7. The Act and the right to information

Section 22 of the RTI Act gives it effect notwithstanding anything inconsistent in the Official Secrets Act; and section 8(2) allows a public authority to give access, notwithstanding the Official Secrets Act or the exemptions, where the public interest in disclosure outweighs the harm to protected interests. An officer who discloses under the RTI Act in good faith is protected by section 21. The secrecy interests the 1923 Act guards are now met through the exemption in section 8(1)(a) and the exclusion of intelligence organisations in section 24.

In Yashwant Sinha v. Central Bureau of Investigation, 2019 INSC 505, (2019) 6 SCC 1, the Rafale review petitioners relied on Ministry of Defence documents that had been published in newspapers. The Union raised a preliminary objection that the documents had been removed without authority in breach of sections 3 and 5 of the Official Secrets Act and could not be looked at. The Court rejected the objection and held the documents admissible: no law had been shown that barred their publication or their consideration by the Court, they were already in the public domain, and the claim of privilege could not prevent the Court from considering relevant material. K.M. Joseph J.’s concurring opinion (2019 INSC 507) relied on sections 8(2) and 22 of the RTI Act.

The Second Administrative Reforms Commission recommended in 2006 that the Act be repealed and replaced with provisions in a national security law; that has not been done, and the 1923 Act remains in force.

How this is examined

“Explain the salient features of the Official Secrets Act, 1923” (November 2021, 16 marks) and “Penalties for spying” (December 2020, short note). For the essay, follow sections 2 to 7 of this note. For the short note, give section 3 in full with the two punishment levels and the presumption in section 3(2). Always end with sections 8(2) and 22 of the RTI Act.