Source: Delhi High Court  

Why in News? 

The Delhi High Court ruled that documents classified as "Top Secret" and "Protected" under the Official Secrets Act, 1923, cannot be produced by an Arbitral Tribunal. This decision followed a plea from the Director General of Project Varsha, who opposed the submission of sensitive documents during arbitration with M/S Navayuga-Van Oord JV over a construction contract, citing national security concerns. 

• Justices Manoj Jain held in the matter of Director General, Project Varsha Ministry of Defence (Navy), Union of India, New Delhi v. M/S Navayuga-van Oord Jv   

What was the Background of the Director General, Project Varsha Ministry of Defence (Navy), Union of India, New Delhi v. M/S Navayuga-van Oord Jv  ? 

• In 2017, the Director General of Project Varsha (part of the Union Ministry of Defence) entered into a contract with M/S Navayuga-Van Oord JV for construction of outer harbor for Project Varsha. 
• Disputes arose between the parties, leading to M/S Navayuga-Van Oord JV invoking arbitration proceedings. 
• During the arbitration, the claimant (M/S Navayuga-Van Oord JV) filed an application seeking inspection and production of certain documents related to the project. 
• The Director General opposed the production of documents, citing national security concerns and applicability of the Official Secrets Act, 1923. 
• It was contended that Project Varsha was classified as "top secret" and the documents sought were protected under the Official Secrets Act. 
• The Arbitral Tribunal passed an order directing the Director General to submit the disputed documents in a sealed cover to the Tribunal. 
• The Director General challenged this order of the Arbitral Tribunal before the Delhi High Court under Article 227 of the Constitution ,1950 . 
• The key issue before the High Court was whether documents classified as "Top Secret" under the Official Secrets Act could be directed to be produced by an Arbitral Tribunal. 

What were the Court’s Observations? 

• The court noted that while both parties should have fair opportunity to present their case in arbitration proceedings, the aspect of National Security is paramount and cannot be compromised. 
• The court observed that the project in question, located on India's Eastern Coast, is highly sensitive and critical to India's defence, a fact that cannot be neglect. 
• The court held that if information is classified as "Top Secret" by the Government of India and directly relates to national defence, due importance must be given to this crucial fact. 
• The court opined that the Arbitral Tribunal should not have insisted on the production of classified documents, even in a sealed cover, as it would be beyond the Tribunal's purview to evaluate whether such documents were rightly classified. 
• The court concluded that once documents are labelled as confidential and classified, that should be the end of the matter, as national security concerns outweigh contractual obligations in such circumstances. 
• The court noted that certain aspects are better left to the wisdom of the Union of India, and neither the Arbitral Tribunal nor the court should venture into scrutinizing or evaluating classified information related to national security. 

Official Secrets Act, 1923 (OSA) 

• The Official Secrets Act, 1923 is a legislation in India that provides for the protection of state secrets and official information, particularly in relation to national security and defense. 
• Documents classified as "Top Secret" represent the highest level of classification under the Act, indicating that unauthorized disclosure would cause exceptionally grave damage to national security. 
• "Protected" documents are safeguarded under the Official Secrets Act, with their disclosure restricted to authorized personnel only. 
• The Act makes it an offense to disclose, obtain, collect, record, publish, or communicate to any unauthorized person any secret official code, password, sketch, plan, model, article, note, document, or information that might be useful to an enemy or adversely affect the interests of the state. 
• The classification of documents as "Top Secret" and "Protected" is typically done by designated government authorities based on the sensitivity and potential impact of the information contained therein. 
• Courts have generally shown deference to the government's classification of documents under the Official Secrets Act, particularly in matters concerning national security, while also maintaining a balance with principles of transparency and justice. 

What is Section 5 of the Official Secrets Act (OSA), 1923 ? 

• Deals with disclosure of secret official information . 
• Covers:  
  • Any person possessing/controlling secret official information 
  • Anyone obtaining information in violation of the Act 
  • Those entrusted with official information in confidence 
  • Those with access due to current/past government positions 
• Both the person communicating and receiving information are guilty. 
• Applies to any "secret" information, though "secret" is not defined in the Act. 
• Punishment: Up to 3 years imprisonment, fine, or both. 

How Does Judicial Review Interact with the Official Secrets Act and the Right to Information Act? 

• Judicial Review and the OSA: 
  • Courts can decide if a person has committed an offense under the Act. 
  • Courts can determine if information is "secret" (jurisdictional issue). 
  • Unclear if courts can rule on "public interest" disclosure. 
  • In Nand Lal More v. The State (1965), court held budget proposals were secrets. 
  • S P Gupta v. President of India case adopted a more lenient stance on disclosure. 
• RTI Act and OSA: 
  • RTI Act (2005) contrasts with OSA's culture of secrecy. 
  • RTI Act hasn't completely replaced OSA. 
  • Section 8(2) of RTI Act: Public interest in disclosure can override OSA. 
  • Section 22 of RTI Act: Its provisions apply despite inconsistencies with OSA.