Can Police Arrest Anyone under the Official Secrets Act, 1923?

Abstract

It is assumed that police have inherent power to make an arrest, where matter relates to national security such as in the cases of the Official Secrets Act, 1923 (OS Act). However, in accordance with Anglo-Saxon jurisprudence, the State being the victim cannot investigate its own case. Therefore, lawmakers have brought in the provision of mandatory complaint by the state to the judiciary and submit itself to the judicial oversight. To prevent abuse of law, which can isolate an individual from the society, and police acting in haste, authorization of the complaint process has been built into the OS Act. Therefore, arrest without having such authorization is illegal and unconstitutional. Police cannot presume that it will get such authorization and a complainant on a later date. No authorization can be given without an investigation. Hence it is a ‘Catch 22’ situation. Therefore, lawmakers must recast the Official Secrets Act under new realities of the internet-connected global village, where security does not mean just military matters, but many other aspects form now part of national security, unlike when OS Act was passed between the two world wars.