First, it is ostensibly against spying and that apparently gives it some legitimacy. Second, it reflects a 1923 mindset and doesn’t recognise advances in technology. For instance, it prevents the taking of photographs at airports (even civilian ones), a provision that no sensible country anywhere in the world has any more. If one intended to use such pictures for anti-national purposes, more efficient ways of accessing such photographs are possible. Third, the OSA doesn’t define what a secret is. So V.K. Singh is absolutely right when he says, “Even a circular for a tea party in RAW is secret. Your TA claim and cheque slip is secret. You take them out and you will be hauled up for it.” Indeed, it gets more bizarre. If something is in the public domain, it can continue to be a secret. No wonder that in the 1986 Ram Swaroop case, the court said, “Secret information is an information which may not be secret but relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of State or friendly relation with foreign State or useful to an enemy.” Even if the secret is not a secret and is known, it can be held to be a secret under the OSA if it ‘adversely affects’ India’s security interests. This sounds like stuff straight out of Alice in Wonderland. A word can mean what I choose it to mean.

As often happens in situations like these, courts aren’t culpable. Notwithstanding our common law tradition and barring constitutional issues, courts don’t create the law. They interpret it, and the problem is with the text of OSA, a problem that might have got solved had the Iftikhar Gilani case gone through its logical conclusion, instead of the government backtracking in 2003. Gilani was imprisoned under the OSA (some IPC sections were thrown in), because he had information on

... contd.