No secret, nothing official about most misused Act

The Ranchi case is just the latest in a growing list of OSA cases to fall flat, or be thrown out by courts. They have also exposed how the antiquated 1923 legislation has become a tool for harassment in the hands of law agencies.

In the latest instance, the Gujarat police last week filed cases under the OSA against The Indian Express and Gujarati newspapers Gujarat Samachar and Sandesh for carrying transcripts of a conversation between Dawood aide Mammumiyan Saiyeed and former Porbandar SP Rajkumar Pandian. In the transcript, Mammumiyan—who helped land RDX before the Bombay blasts of 1993—had alleged he was touch with Addl DGP (CID) Kuldeep Sharma while on the run. And promptly, Sharma’s department filed cases under the OSA against the newspapers.

The cases continue to be filed despite the fact that courts have been finding holes in many of them. Among the most well-known OSA cases to be thrown out in recent times was that against Iftikhar Geelani, the journalist son-in-law of Kashmiri separatist leader Syed Ali Shah Geelani. He was discharged in 2003, after seven months in prison, on then defence minister George Fernandes’s intervention.

What Delhi Police called a ‘‘highly sensitive’’ document found on his computer was found to be nothing more than an excerpt from a widely circulated Pakistani think-tank publication. Police later even slapped an obscenity case against Geelani on the basis of a dubious e-mail and alleged recovery of porn cassettes.

After the Geelani case, The Indian Express had done a series revealing how in Delhi’s Tihar Jail alone there were 28 undertrials facing OSA charges and that in some cases, trial had been going on for over 15 years. The Delhi Police ordered a review of its cases after that, but nothing much came out of it.

No government has been able to take a firm view to repeal the OSA or amend some of its more draconian provisions, including the sweeping Section 5. While the V P Singh government had started the exercise of recommending amendments, this had died with the change of regime.

However, defence lawyers, politicians, legal experts and even government prosecutors are unanimous that the Act needs urgent amendment. After the Geelani episode, a group of MPs cutting across party lines had met then deputy prime minister L K Advani seeking drastic changes in the Act. But that action too had not brought any results.

Says CPI(M) MP Nilotpal Basu, who was part of this 2003 initiative: ‘‘There is no question that the OSA is retrograde and outrageous. It has overrun its use and in fact is being blatantly misused. It is an issue that needs the Government’s intervention.’’

Criminal lawyer V K Ohri, who has handled around 15 OSA cases including Geelani’s brief, points out that with new technology and the Right To Information Act, ‘‘the OSA has no contemporary relevance. Section 5 of the Act is all-encompassing and, strictly speaking, any journalist who is printing anything but PIB (Press Information Bureau) handouts can be booked under the OSA.’’

Even senior prosecutors like B R Handa, who handled the famous OSA cases against Coomar Narain and the Larkin brothers, has come around to this view. ‘‘The Act dates back to the time of the British but what were secrets then are no longer secrets,’’ he says. ‘‘Everything is commercial information, even minutest details about defence deals. The OSA needs a major overhaul.’’

The CBI (they booked the Ranchi case) and the Special Branch of the Delhi Police have been among the most zealous in enforcing the Act. An example of some of their ‘‘catches’’:

n In at least five OSA cases, the ‘‘incriminating’’ evidence found was hand-drawn maps of Army cantonments in Delhi, Meerut and Agra. In three cases, almost identical sketches of Meerut cantonment were ‘‘recovered’’. These have no strategic value and in most of the cases, trial is still in progress.

• In 1999, ex-officials of the Air Force and Navy were booked under the OSA. The ‘‘evidence’’ recovered was first declared ‘‘clever forgeries’’ by the Air Force and later declared incriminating enough by the Home Ministry to book them. No charge-sheet yet in the case.

• A decade ago, a Kashmiri tourist guide was picked up by the BSF in Srinagar and interrogated for days. A month later, he was ‘‘shown’’ as arrested from outside the Pakistan High Commission with handwritten sheets of paper, and booked under the OSA. He was given seven-year imprisonment.