Official Secrets Act (India)

The Official Secrets Act 1923 is India's anti-espionage act held over from British colonisation.
It states clearly that any action which involves helping an enemy state against India. It also states
that one cannot approach, inspect, or even pass over a prohibited government site or area.
According to this Act, helping the enemy state can be in the form of communicating a sketch,
plan, model of an official secret, or of official codes or passwords, to the enemy. The disclosure
of any information that is likely to affect the sovereignty and integrity of India, the security of
the State, or friendly relations with foreign States, is punishable by this act.

Contents
• 1 Prosecution and penalties
• 2 Criticism
o 2.1 Conflict with right to information

o 2.2 Iftikhar Gilani case

• 3 Boost to Press Freedom

• 4 See also
• 5 References
• 6 External links

Prosecution and penalties

Punishments under the Act range from three to fourteen years imprisonment. A person
prosecuted under this Act can be charged with the crime even if the action was unintentional and
not intended to endanger the security of the state. The Act only empowers persons in positions of
authority to handle official secrets, and others who handle it in prohibited areas or outside them
are liable for punishment.
In any proceedings against a person for an offence under this Act, the fact that he has been in
communication with, or attempted to communicate with a foreign agent, whether within or
without India is relevant and enough to necessitate prosecution. Journalists also have to help
members of the police forces above the rank of the sub-Inspector and members of the Armed
forces with investigation regarding an offence, up to and including revealing his sources of
information (If required).
Under the Act, search warrants may be issued at any time if the magistrate feels that based on the
evidence in front of them there is enough danger to the security of the state.
Uninterested members of the public may be excluded from court proceedings if the prosecutions
feels that any information which is going to be passed on during the proceedings is sensitive.
This also includes media; so the journalists will not be allowed to cover that particular case.
When a company is seen as the offender under this Act, everyone involved with the management
of the company including the board of directors can be liable for punishment. In the case of a
newspaper everyone including the editor, publisher and the proprietor can be jailed for an
offence.

Criticism
Conflict with right to information
In the OSA clause 6, information from any governmental office is considered official
information, hence it can be used to override freedom of information requests. This has drawn
harsh criticism.

Iftikhar Gilani case

In June 2002, journalist Iftikhar Gilani was, arrested for violating the OSA 1923. He was charged
under the OSA, with a case under the Obscenity Act added to it. The first military report
suggested that the information he was accused of holding was "secret" despite being publicly
available. The second military intelligence report contradicted this, stating that there was no
"official secret". Even after this, the government denied the opinion of the military and was on
the verge of challenging it when the contradictions were exposed in the press.
The military reported that, "the information contained in the document is easily available" and
"the documents carries no security classified information and the information seems to have been
gathered from open sources".
On January 13, 2003, the government withdrew its case against him to prevent having two of its
ministries having to give contradictory opinions. Gilani was released the same month.

E.G. 1)
On the 10th of March 2003, 50 MPs (Members of Parliament) wrote a petition to the (then)
deputy Prime Minister, Shri. L.K.Advani, directing his attention to the unwarranted arrest and
detention of Iftikar Gilani, the Chief of Bureau of Kashmir Times under the ‘draconian’ Official
Secrets Act, 1923. The journalist had been unjustly imprisoned for 7 months without any
substantial proof until finally released when the court ruled that there was no case against him.
The petition also highlighted the large number of cases registered under the same Act (there were
31 cases in Delhi alone that year) and the expressed a concern over the Act being misused by
Government officials.
And they were right. This is only one of the numerous instances of the power of the Official
Secrets Act falling into injudicious hands. In 1988, an award winning naval scientist, Dr. Buddhi
Kota Subbarao was kept in prison for 5 years on the charge of smuggling important documents
containing the defence and atomic secrets of India out of the country under the Official Secrets
Act. After long drawn out sojourns in and out of the Courts, the scientist was released as it was
finally found that the documents really were his Ph.D thesis. His only crime had been that he had
dared to stand against a few powerful personalities of the scientific world by proposing a
Selection Committee to overlook the BARC (give full form to the abbreviation) to Rajiv Gandhi.
Similarly in 1988, the Gujarat Government clamped the Official Secrets Act in 12 villages for
almost 5 months due to the rising upheaval against the Sardar Sarovar Dam. The leader of the
Narmada Bachao Aandolan, Medha Patkar, claimed that the Government was quietly raising the
height of the dam, hence endangering the homes and livelihood of the surrounding villagers. She
was immediately booked under the Official Secrets Act for having leaked State secrets to the
public. This outrageous action by the Gujarat Government drove the media into a frenzy
resulting in her release the subsequent day.
As the British left India in 1947, they left behind a legacy of laws that had been introduced only
to suppress the voice of the Indian people, the most controversial being the Official Secrets Act
of 1923. Ironically, as India took its governance into it own hands and became a democracy, the
same Act was kept intact-the Act that violates the very principles of democracy. Even though the
Government justifies the Act by maintaining that it is required to safeguard the secrets of the
State, many argue that it is just being used as a cover-up for illegal activities, blocking the people
of the country and, more importantly, the media out.
What is ironical is the fact that even though the British introduced the law, they amended it in
1989 to bring more accountability and transparency into the governance. India and Pakistan,
however, still adhere to the outdated law and there doesn’t seem to be any possibility of its
amendment in near future. All is not lost, however. The judiciary is fast taking matters into its
own hands and is examining cases lodged under the OSA very closely. In fact, in February 2009,
a Delhi High Court ruled that making public a document merely labelled ‘secret’ will not make a
journalist guilty of violating the Act which serves as a huge boost for the freedom of press and
expression.
As the law is in direct contrast to the RTI (Right to Information) Act, there is an immediate need
to repeal the law or amend it so that it only safeguards the information that could put the security
of the country in jeopardy. Currently, the OSA can hold an RTI application null and void, which
needs to change quickly. Only then will democracy and accountability move forward.

E.G. 2)

Computer case: Army Major to be booked

under Official Secrets Act
NEW DELHI: An Army Major, who is being questioned in connection with the transfer of
sensitive files from his personal computer to a Pakistani ISI operative, will be booked under the
Official Secrets Act (OSA) even as a joint team of Military Intelligence and National
Investigation Agency (NIA) is trying to solve the mystery as to how some of the files from his
computer got deleted when it was in custody of the authorities for probe.

Suspecting that somebody might have deliberately deleted the files after the Major's computer
was seized to skirt the entire probe, the joint team will question others as well who are believed
to have passed certain top-secret files to the officer over a period of time.

"The Major could not have got such files without the help of his colleagues and seniors in
different wings. One or more of them might have tried to fiddle with his computer when it was
seized for probe," said a senior home ministry official.

He said that the forensic report of the CFSL, Hyderabad, had clearly pointed out that certain files
got deleted after the seizure of the Major's computer. "The files cannot vanish on their own when
the computer was not connected to any external link," said the official.

The NIA may book the Major -- posted in the Andaman and Nicobar Tri-Service Command --
under the National Security Act (NSA) or the Unlawful Activities (Prevention) Act if it gets
some details about the possibility of his being part of a `spy ring'.

"The government has already asked the NIA to widen the ambit of the ongoing probe," said the
officer adding the entire episode certainly does not look like a simple case of hacking at this
stage.

An Army officer, meanwhile, said: "It is a joint interrogation and probe. Let the final report
come. We do not know anything about any deletion from the computer hard disc."

The Indian authorities were alerted about the episode by the United States after some intercepts
showed the picture of a brigadier, on a training course in the US, being dispatched to Pakistan
from the computer of a user based in A&N Islands.

The computer was traced to the Army Major who during his questioning said that it could have
been hacked as he was using the internet. He was then let off and sent back to his post. Later the
probe raised questions as to how a Major could have got such information in his computer. He
was then asked to report back to Delhi where he is now being questioned by a team of NIA and
Military Intelligence officials.

E.G.3)
Court summons top Reliance officials in OSA case
Onkar Singh in New Delhi
A Delhi court on Friday took cognizance of the Central Bureau of Investigation complaint
against Reliance Industries and three of its top officials, including group President V
Balasubramaniam, under the Official Secrets Act and issued summons to them for April 29.
Chief Metropolitan Magistrate Sangita Dhingra Sehgal summoned Balasubramaniam, group
Vice-President A N Sethuraman and Corporate Affairs General Manager Shekhar Adawal to
appear before the court on April 29, CBI sources said.
The court's direction came after a marathon in-camera hearing which virtually ran the whole day.
The court took cognizance of the complaint filed by the CBI after the agency counsel clarified
that the case was not time-barred.
Meanwhile, when contacted, a Reliance spokesperson declined to comment on the development.
The CBI had started probe into the matter after Delhi police recovered four sensitive documents
pertaining to internal decisions of the Cabinet from a Reliance office in October 1998 while
investigating the Romesh Sharma case, they said.
The CBI claimed the secret documents were recovered from a 'locked office table drawer' of the
group's office located at a five-star hotel in New Delhi, which could help the industrial group in
its business.
"The initial searches were conducted by the Delhi police at the Reliance offices in Hotel Le
Meridien in New Delhi on October 28, 1998 during which certain important documents were
seized. On the basis of those documents a case under the Official Secrets Act was registered
against the three accused. The case was then handed over to the CBI which conducted raids on
November 13, 1998 at six places in Delhi and Mumbai, searched the offices and residential
premises of the accused and recovered some more documents," CBI spokesman S M Khan had
said on April 2.
The agency alleged that the said documents were 'crucial to the company's business interest' and
they were 'used' by them, the sources said.
The CBI has charged Reliance and its officials under Sections 5(4) and 5(2) of Official Secrets
Act and section 120-B (Criminal Conspiracy) of the Indian Penal Code for allegedly possessing
secret Cabinet papers, they said.
The case had led to questions being asked on whether Reliance can now bid for the government's
stake in any of the public sector units that are up for divestment. The guidelines for disqualifying
a company from bidding for buying government stake in a PSU require that "for disqualification
on the ground of non-security related offences, there must in fact be, inter alia, a conviction by a
country of law."
However, the divestment ministry had said on April 3 that Reliance would not be disqualified
from bidding for public sector undertakings, including Indian Petrochemicals Corporation Ltd,
on the basis of the CBI charges.
"We have examined the matter. Reliance would not be disqualified as the charges against it do
not relate to national security. As per guidelines for divestment, in the case of non-security
related matters, a charge-sheet is not enough to disqualify the bidder," Divestment Minister Arun
Shourie had told reporters in New Delhi.
"If the charges relate to security, then a charge-sheet is enough, but in non-security related
matters, conviction by court is necessary for disqualification," he said.
The minister said Reliance has been charged under the Official Secrets Act for possessing
documents pertaining to classification of excise duty rates, India's response to economic
sanctions and government's view on monopoly clause in divestment.
Reliance officials are charged under Sections 5(2) and 5(4) for possession of secret official
documents and not under Section 5(3) pertaining to espionage and passing on of national secrets
to the enemy, Shourie said.
Shourie's statement had cleared the mist around Reliance's bid for acquiring 26 per cent
government stake in IPCL in which state-run refiner Indian Oil is also in race.
However, the court's summons on Friday has given a new twist to the case.
Earlier on Friday, reports said that Attorney General Soli Sorabjee is understood to have told the
government that Reliance could not be disqualified from bidding for public sector units as a CBI
complaint was different from a CBI charge-sheet.
The divestment ministry has said in an internal note, prepared after consultation with the attorney
general, that "to the extent that the complaint relates to offences that are not related to the
security and integrity of the country, the complaint itself would not have the effect of
disqualifying a company."
The secretary's note on the issue of Central Bureau of Investigation filing complaint against
Reliance and three of its officials under the Official Secrets Act, said: "The attorney general also
drew my attention to a distinction that has been obscured in our guidelines. He pointed out that a
'complaint' - whether by an individual or by an organ of the government, is strictly speaking,
different from a charge-sheet."
Unlike a complaint, a charge-sheet is one that has been framed by a court of law and judicial
mind has been exercised.
"This is an ambiguity which we will have to deal with at some stage," sources quoting the note
said.
Additional inputs: PTI, UNI
E.G.4)
Sacked Haj panel chief to be tried under Official Secrets Act

Utkarsh Anand
Posted: Apr 27, 2008 at 0329 hrs IST
New Dehi, April 26 Sacked Udaipur’s Haj Committee chief Moinuddin Rizvi is set to face trial along with a Pakistan
national in connection with an espionage case as a Delhi court has framed penal charges against the duo under the
Official Secrets Act.

Additional Sessions Judge H S Sharma recently ordered for initiating the trial of the accused by starting the recording
of the prosecution witnesses in the case from August 4.

Rizvi, a former UP PWD official based at Udaipur in Rajasthan, and Mohd Yusuf, a Pakistan national, have been
charged for their alleged offences of spying and executing a criminal conspiracy prejudicial to the safety and interests
of India.

On May 25 last year, the Special Cell had arrested 62-year-old Rizvi on charges of handing over sensitive maps of
military installations to the Pakistani agent Yusuf.

Rizvi was arrested from hotel Romana near Jama Masjid here when he was allegedly handing over the maps to
Yusuf. His son, Ghulam Dastgir, was also present with him.
Three days after his arrest, he was removed from his post by the Rajasthan Haj Committee.After a series of raids at
Rizvi’s residence in Gujarat and Hyderabad, the police had also arrested Rizvi’s son Dastgir, claiming there were
sufficient evidence pointing to his complicity in the espionage network as well.

Dastgir was, however, exonerated of all the charges by the court on March 28 for want of evidence. As per the police,
during his visit to Pakistan in 2006, Rizvi had met a few persons in Karachi, who convinced him to hand over the
maps of military installations in Udaipur and Bikaner. Meanwhile, Rizvi, who has been in custody since his arrest, and
his son Dastgir moved applications in the court for returning their personal articles recovered during their searches.

ASJ Sharma then directed the Station Officer (SHO) of the Special Cell to return their articles to them on the next
date as the same were not required for investigation anymore.

E.G.5)
I am being framed, says Madhuri Gupta
New Delhi: Embassy staffer turned alleged Pakistan spy Madhuri Gupta has been sent to 14 days in
judicial custody. She was produced in the Tis Hazari court here Saturday morning as her police
custody ended Saturday.
Gupta has been booked under Sections 3, 6, and 5 of the Official Secrets Act and charged with
divulging important information to enemy country. The maximum punishment under this is 14 years.
She was arrested last week for allegedly passing on information to the ISI. She told investigators she
did this not for money but to teach the IFS a lesson and because ISI agent Rana was her friend.
Police are verifying her claim by going through her bank accounts in both countries.
Madhuri claimed the ISI agent Rana was not her only handler. She says a man named Jamshed
was also in close touch with her. Rana and Jamshed both reportedly tried tap her through two
Pakistani journalists before 2007 but finally succeeded towards the end of 2008.
Gupta's confessions will be shared with the Ministry of External Affairs to verify importance of the
information she passed on. Her computer records will also be examined. She has been sent to 14
days of judicial custody till May 15.
Madhuri's lawyer Joginder Dahia said she had told him that she is innocent and is being framed in
the espionage case. "I have been framed in this case and I am innocent," she told the lawyer.
The police wanted custody of two days more on the grounds that they want to confront her with the
report which has been brought from Pakistan but the court declined, added the lawyer. The police
told the court that they need to verify what Madhuri had said earlier that she got no money.
Who is Madhuri Gupta
Madhuri Gupta was working for the Indian High Commission in Islamabad. She was recently
promoted from Urdu interpreter to Second Secretary in Press and Information department. She was
called back to India on pretext of discussing ongoing SAARC summit in Bhutan. After interrogation,
she was handed over to the Delhi Police.
She partially leaked India's strategic plans in Afghanistan to her Pakistan aides. Gupta was meeting
Pakistani ISI officers, also sent emails to her Pakistani handlers from fake accounts. Earlier she had
postings in Baghdad, Kuala Lumpur and UN mission in Africa.
E.G.6)
Attacks on the Press 2003: India
Although India is the world's largest democracy, with a diverse and expanding media,
government authorities remained sensitive to criticism in the press in 2003. Officials harassed
journalists through lawsuits, using restrictive laws governing criminal defamation, contempt of
court, and national security to silence reporters' accounts of corruption. Meanwhile, violence in
the disputed state of Kashmir continued to endanger journalists.

In the southern state of Tamil Nadu, the respected English-language daily The Hindu faced a
slew of lawsuits from the state's chief minister, a former actress known by her first name,
Jayalalitha. In April, the minister expelled 43 opposition members from the state legislature and
briefly jailed them. When The Hindu ran two articles and an editorial lambasting her actions,
Jayalalitha responded by filing as many as 17 separate criminal defamation cases against The
Hindu, according to the paper's editor, Narasimhan Ram, known as N. Ram. Another editor and
the publisher are named in all the cases, along with eight staff members who are cited in different
individual cases against the paper. If they are convicted, the journalists face up to 17 two-year
sentences each, which could be served either concurrently or consecutively.

Further pressuring the paper, on November 7, the Tamil Nadu legislature ordered The Hindu's
five senior editors, as well as an editor from the Tamil-language newspaper Murasoli, jailed for
15 days each. The lawmakers passed a resolution formally charging the journalists with breach
of privilege and "gross contempt" of the legislature because their articles "cast a slur on the chief
minister's actions." India's Supreme Court halted the order on November 10, but the defamation
cases against The Hindu continued. On December 15, The Hindu mounted a legal challenge
against the criminal defamation law in the Supreme Court, arguing that the law violates the free
speech provisions in the Indian Constitution. By year's end, Jayalalitha had filed three additional
criminal defamation cases against The Hindu.

In the southeastern state of Karnataka, 30 journalists from 11 newspapers were charged on

March 17 with contempt of court for reporting on an alleged sex scandal that occurred in
November 2002 involving three judges from the state's High Court. Although the Karnataka
High Court ruled on October 23 that each journalist would be tried separately, the Supreme
Court temporarily suspended proceedings against the journalists on November 18.

The Prevention of Terrorism Act (POTA), which is designed to protect India's national security,
was enacted in April 2002. The law allows police to demand any information they believe could
help to curb terrorism, and local journalists remain concerned that it could infringe on their
rights. Although the act was meant specifically to fight Islamic militants in areas like Kashmir, it
has mainly been used in other states, including Tamil Nadu. R.R. Gopal, editor of the Tamil-
language magazine Nakkheeran, became the first journalist to be arrested under POTA on April
11, 2003, when he was accused of aiding a banned Tamil militant group because he allegedly
possessed some of the group's leaflets at the time of his arrest. Gopal denies the charges and
accuses Tamil Nadu Chief Minister Jayalalitha of trying to punish him for his articles exposing
corruption in her administration. The Madras High Court ordered Gopal released on bail on
December 20. A Judicial Committee is scheduled to meet in January 2004 to review the legality
of the Tamil Nadu government's use of POTA against Gopal.
On July 27, 2003, a group of journalists from the now defunct online news agency Tehelka.com
were charged under the Official Secrets Act, a draconian, colonial-era law, for possessing "secret
documents" deemed harmful to the state. The charges stemmed from a story titled "Are Dutch
Innocent?" that ran on the Web site on October 9, 2000. India's Home Ministry claimed that the
story contained information from secret government file number 11011/40/99, titled "Dutch
Interest in India's Fringe Politics," which included the minutes of a confidential government
meeting with the Dutch ambassador. The government alleged that Tehelka.com reprinted the
minutes almost verbatim from the secret file. At year's end, the case against the Web site had not
been heard in court. That was not the first time Indian officials had targeted Tehelka.com. In
2001, the site made headlines when it obtained a video of senior politicians from the ruling
Bharatiya Janata Party (BJP) accepting bribes. Revenge from officials came in 2002, when two
journalists from the site were arrested and later released on bail.

Iftikhar Gilani, the New Delhi bureau chief for the Jammu-based newspaper Kashmir Times, was
also charged under the Official Secrets Act. He was arrested in June 2002 and jailed for seven
months for allegedly possessing classified documents. The documents in Gilani's possession,
which were about military operations, were actually readily available to the public on the
Internet. The charges against him were eventually dropped, and he was released on January 13,
2003.

Despite peace efforts in Kashmir, which both India and Pakistan claim, violence increased in the
disputed territory. Journalists have long been vulnerable to attack, and 2003 was no exception. In
April, when the prime ministers of India and Pakistan made a conditional agreement to hold
peace talks, a surge of violence killed at least 30 people in 10 days. On April 26, separatist
militants detonated a car bomb in front of the offices of the state broadcasters Doordarshan
Television and Radio Kashmir, which the militants view as mouthpieces for the Indian
government. Five people, including three separatist gunmen and two security guards, were killed
in an ensuing gunfight. Four days later, on April 29, a local news service reported a threat from
the militant group Tehrik-ul-Mujahideen, which accuses local journalists of being on the payroll
of Indian intelligence agencies. The militants wrote, "We inform such journalists that they will
be killed if they fail to mend their ways."

Two journalists were killed in India in 2003, one of them in Kashmir. On January 31, Parvaz
Mohammed Sultan, editor of the independent wire service News and Feature Alliance (NAFA),
based in Srinagar, the summer capital of Jammu and Kashmir State, was shot and killed at his
office by unidentified gunmen. Sultan's colleagues believe that he was targeted because of his
work, although he had received no known threats before his killing and no one has claimed
responsibility for the murder. Wire services like NAFA are frequently under pressure from both
sides of the conflict. Since the fighting in Kashmir erupted into a civil war in 1989, ten
journalists have been killed there, according to CPJ research. No one has been brought to justice
in any of these cases.

The other journalist killed in India in 2003, Parmanand Goyal, was shot dead in his home north
of the capital, Delhi. The Tribune newspaper reported that Goyal's son claims to have overheard
men threatening his father to stop writing about a local political figure and the police, but the
motive behind the murder has not yet been determined.

The deep-rooted tensions between India's Hindu majority and Muslim minority populations are
exploited by local leaders for political gain. In February 2002, sectarian riots swept through the
western state of Gujarat and killed hundreds, but the attacks remained a controversial subject for
the Indian media in 2003. Journalists, diplomats, and human rights groups have reported that
much of the violence was actually organized and encouraged by political leaders and groups
associated with the ruling BJP. Journalists who covered the violence were vulnerable to attack by
the unruly mobs, as well as to harassment and assault by police who did not want evidence of
their complicity in the attacks publicized.

In 2003, officials continued their efforts to silence stories about the riots. In March, India's
Central Board of Film Certification, which has the authority to alter or ban movies it deems
controversial, censored a Hindu-language documentary called "Aakrosh" (Cry of Anguish),
which featured interviews with survivors of the communal violence. In the letter denying
certification to the film's producers, the board wrote that "the film depicts violence and reminds
the people about the Gujarat riots last year. It shows the Government and Police in a bad light.
The overall impact of the film is negative as it leads to communal hatred."

With its population of 1 billion people and low literacy rate, India increasingly gets its news
from a wide variety of satellite and cable television channels. According to the ratings service
TAM Media Research, India's television news audience has grown 80 percent in the last two
years. As many as six new 24-hour cable news channels were scheduled to be on the air by the
end of 2003, in addition to the existing news channels TV Today, NDTV, BBC, and CNN. The
Indian government still controls most nonsatellite television and radio stations through the public
broadcaster Prasar Bharati.

International media companies, including Rupert Murdoch's News Corporation, covet access to
India's expanding news audience. The Hong Kong-based Star Group, a subsidiary of News
Corporation and Asia's largest broadcaster, was planning to launch its own satellite news
channel, Star News, in India in April. But on March 18, the Cabinet voted to tighten restrictions
on foreign access to news channels, capping ownership at 26 percent. By year's end, Indian
officials had worked out a deal to facilitate the channel's launch after Star News partnered with
an Indian company, but the Information and Broadcasting Ministry continued to delay final
approval for the project.
E.G.7)
Sanction delay in ‘spy’ case
ANANYA SENGUPTA
Madhuri Gupta outside a New Delhi court on Saturday. (PTI)

New Delhi, May 15: The foreign ministry is yet to send the mandatory sanction for the prosecution of “spy” Madhuri
Gupta three weeks after her arrest, Delhi police today told a magistrate.

Following this, the court extended Gupta’s judicial remand for another 14 days.

Gupta, 53, a middle-level diplomat posted at India’s Islamabad mission, has been in Tihar jail since her arrest in the
last week of April for allegedly passing on information to Pakistani intelligence.

Under Section 197 of the Criminal Procedure Code, public servants accused of committing an offence in the
discharge of their official duties cannot be prosecuted except with the sanction of “competent authorities”. Without a
sanction, no chargesheet can be filed and no court can take cognisance of such offence.

The “competent authority” in Gupta’s case is the secretary, ministry of external affairs.

It’s not clear whether the foreign ministry or the police are to blame for the delay. Police sources claimed that the
force’s special cell had sent an application to the ministry but did not say when.

If the police cannot file a chargesheet within 90 days of her arrest, the court is likely to grant bail.

The sanction rule is meant to protect judges, magistrates and public servants from frivolous prosecution, or to avoid
prosecution if that is deemed not to be in the public interest — as may well happen in the case of an alleged mole.

In case the foreign ministry decides it is too risky to prosecute Gupta, whose remand hearings are being held behind
closed doors, it has to let her off with, perhaps, a “punishment posting” following a departmental inquiry. So far, the
ministry has not suspended her or taken any other action.

Last year, then Chief Justice of India K.G. Balakrishnan had said the system of sanctions had obstructed the course
of justice in some cases and given public servants a sense of “impunity”.

“The legislative intent behind the requirement for such a prior sanction was to discourage frivolous complaints and
vexatious litigation against public servants. However, it is perceived in many quarters that these provisions contribute
to a climate of impunity where the requisite sanction is either delayed or denied by higher executive authorities,”
Justice Balakrishnan had told a seminar on the fight against corruption.

Gupta’s lawyer Joginder Dahiya said: “Delhi police today informed the court they had filed an application under
Section 197 of the CrPC seeking sanction for the prosecution of the woman officer.”
He added that Gupta, booked under the Official Secrets Act, had sought a copy of the first information report
registered against her

E.G.8)