AUTHOR: TRIPTI ROHILLA, UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES
TO THE POINT
India, a key player in global geopolitics, faces a persistent threat from foreign espionage. Foreign espionage in India is not a relic of the Cold War but a persistent, evolving threat. Agencies from neighboring countries mainly, Pakistan and China, as well as global powers, actively target India’s defence, political, and economic infrastructure. Their methods have diversified from classic human intelligence (HUMINT) and signals intelligence (SIGINT) to sophisticated cyber espionage, hacking, and social engineering. Foreign espionage targeting India is pervasive and increasingly sophisticated, with state and non-state actors exploiting technological advancements and legal ambiguities to conduct convert operations. The technological advancements like AI, is one of the major helper in foreign espionage. The artificial intelligence is revolutionizing both offensive and defensive aspects of espionage, enabling rapid data analysis, automated attacks, and enhanced surveillance capabilities. The India’s one and only statute against espionage is, Official Secrets Act, 1923, (OSA) – the act which criminalizes the activities that are against the nation security, it is a colonial era law which makes it little old according to the changing needs. The OSA is sweeping in its language, covering not only traditional espionage but also a wide range of activities that could, even indirectly, aid an “enemy”. However, the Act’s broad definition and lack of specificity have led to its application cases far removed from classic spycraft, ensnaring journalists, whistleblowers, and even ordinary citizens. This overreach is compounded by the fact that India has yet to enact a comprehensive, modern law specifically tailored to address the complexities of foreign espionage in the 21st century.
The Indian Penal Code (IPC) now largely replaced by the Bharatiya Nyaya Sanhita (BNS) 2023, provides for severe penalties for waging war against the state, conspiracy, and acts prejudicial to national security. The Information Technology Act, 2000, is invoking in cases of cyber-espionage or data theft. Yet, none of these laws were designed with the full spectrum of modern espionage in mind, particularly the sophisticated tactics employed by state-sponsored actors operating on a diplomatic cover, through cyber networks, or via proxies in the corporate world. The absence of a dedicated espionage laws is mirrored by the legal status of India’s intelligence agencies themselves. The Research and Analysis Wing (RAW), Intelligence Bureau (IB) and other specialised agencies are the state’s primary tools for counter-espionage, yet they operate without explicit statutory recognition of parliamentary oversight. Their mandates, powers, and limits are defined by executive orders and internal protocols rather than by law, creating a shadowy zone of operation that is both effective and opaque. This lack of transparency raises fundamental questions about accountability, the rights of the accused, and the balance between national security and civil liberties.
USE OF LEGAL JARGON
The legal jargon surrounding espionage in India is dominated by terms such as “enemy”, “prejudicial to the safety and interests of the state,” and “unauthorized communication.” Section 3 of the OSA criminalizes acts of “obtaining, collecting, recording, and publishing” any official secret that could be directly or indirectly useful to an enemy. The term “enemy” is left undefined, granting authorities significant discretion in determining the scope of the law’s application. Espionage is classified as a cognizable and non-bailable offense, allowing law enforcement agencies to arrest suspects without a warrant and to deny bail in the interest of national security. The Bharatiya Nyaya Sanhita, 2023, which has replaced the IPC in many respects, continues this approach. Section 152 criminalizes acts that threaten the sovereignty, unity, or integrity of India, explicitly including espionage, sabotage, and cyber intrusions. Intelligence agencies like RAW and IB despite being the state’s primary counter-espionage arms, operating legal grey zone. Indian agencies lack explicit statutory recognition.
THE PROOF
The reality of foreign espionage in India is underscored by a steady stream of arrests, prosecutions, and diplomatic incidents. Over the decades, Indian authorities have apprehended operatives linked to Pakistan’s Inter-Service Intelligence (ISI), China’s Ministry of State Security (MSS) and even western agencies. These cases often involve theft of military secrets, infiltration of government offices, or the compromise of sensitive research and development projects. The OSA has been involved in a wide range of cases, from the infamous ISRO Spy Scandal of the 1990s to more recent incidents involving defence personnel, scientist, and even journalist accused of passing information to foreign handlers. The ISRO spy case, which saw the arrest and subsequent exoneration of scientists S. Nambi Narayana, highlighted the dangers of overzealous application of the OSA and the need for procedural safeguards. The case becomes a cause celebre, with the Supreme Court eventually awarding compensation to Narayana for the trauma and reputation damage caused by a flawed investigation. The episode exposed the potential for misuse of espionage laws, especially in the absence of clear guidelines and oversight. Intelligence agencies like RAW and IB, despite being the state’s primary counter espionage arms, operate in a legal grey zone. Unlike the counterparts in the United States (CIA, FBI), United Kingdom (MI5, MI6), or even Pakistan (ISI), Indian agencies lack explicit statutory recognition. Their existence is implied in the Union List of the Constitution, which grants a central government the power to maintain internal and external security, but there is no parliamentary act that establishes their legal status, defines their powers, or prescribed oversight mechanism. This anomaly has been the subject of debate among legal scholars, former officials, and civil society, who argue that it undermine both accountability and the rule of law. International law adds another layer of complexity. The Vienna Convention on Consular Relation, 1963, guarantees consular access to foreign nationals detained in another country, including those accused of espionage. However, in practise, compliance is inconsistent, especially in high-profile cases where national security is at stake. The Geneva Convention, which govern the treatment of prisoners of war, explicitly deny the protection of lawful commitment to spies capture during arm conflict, leaving their fate to the discretion of the detaining state. In peacetime, there is no comprehensive international treaty that criminalizes espionage or prescribes uniform procedure for the treatment of captured spies, leaving states to rely on their own domestic laws and diplomatic practises.
In other cases, the prosecution of foreign spies has been shaped as much by diplomatic consideration as by legal imperatives. The arrest of Kulbhushan Jadhav, an Indian national accused of espionage by Pakistan, triggered a high-profile international dispute, with both countries invoking the Vienna Convention appealing to the International Court of Justice. In India, the fate of foreign spies often depends on the broader context of bilateral relation, with some being prosecuted to the full extent of the law and others quietly deported or exchanged as part of diplomatic negotiation.
The lack of a dedicated espionage statute has practical consequences for law enforcement and the judiciary. Prosecutors must rely on a combination of the OSA, IPC/BNS, and the IT Act, each with its own definitions, procedures, and evidentiary standards. This fragmented approach can lead to inconsistent outcomes, with penalties varying widely depending on the specific charges involved and the discretion of the authorities. The absence of clear prosecutorial guidelines also makes it difficult to address new firms of espionage, such as cyber intrusions, or the theft of intellectual property by state sponsored actors operating two proxies in the corporate world. The absence of statutory oversight for intelligence agencies compounds these challenges without a clear legal mandate, the procedures for investigation, detention, interrogation, and prosecution of foreign spies are often ad hoc, driven more by executive discretion than by law. This lack of transparency raises concern about due process, the right of the accused, and the potential for abuse, especially in cases involving prolonged detention, restricted access to council, and the use of classified evidence that is not disclosed to the defense.
ABSTRACT
India’s legal approach to foreign espionage is marked by significant grey zones both in statutory law and in the operational practises of its intelligence agencies. The Official Secrets Act, 1923, and related statutes provide a punitive framework for prosecuting espionage, but their broad language in colonial origins has led to overreach and inconsistency. The absence of a comprehensive, modern espionage law and the lack of statutory oversight for intelligence agencies create ambiguity in the detection, prosecution, and diplomatic handling of foreign spies. This article examines the statutory landscape, relevant case laws, and the practical challenges posed by these legal grey zones, and suggests reforms for a more robust and transparent legal regimes.
CASE LAWS
The jurisprudence surrounding espionage in India is as complex and contested as the statutes themselves.
S. Nambi Narayana v. Silby Mathews & Ors.,- is a ISRO spy case that stands as a cautionary tale about the dangers of investigative overreach and the need for procedural safeguards. In this case, Supreme Court criticized the conduct of the police and intelligence agencies because Narayana had been falsely implicated and subjected to torture and humiliation. The Court later awarded him with monetary compensation for the loss he had suffered.
NCT of Delhi v. Navjot Sandhu alias Afsan Guru (2005)- the case dealt with the issue of admissibility of evidence and the balance between state interests and individual rights in the context of terrorism and espionage. The SC held that national security is a paramount but one cannot neglects the rights of the accused and evidence obtained in violation of procedural safeguards may be inadmissible. This judgement emphasised the need for clear legal standards and adherence to constitutional principles, even in cases involving threat to state.
The famous case of Kulbhushan Jadhav, an Indian national sentenced to death by a Pakistani military court for alleged espionage, brought into sharp focus the diplomatic and legal complexities of handling foreign spies. India challenged the verdict at the International Court of Justice, invoking the Vienna Convention’s provisions on consular access. The ICJ ruled in India’s favour, ordering Pakistan to grant consular access and to review and reconsider the conviction and sentence.
CONCLUSION
The legal grey zones surrounding foreign espionage in India are not merely academic; they have real-world consequences for national security, individual rights, and the rule of law. The reliance on the Official Secrets Act, general criminal statutes, coupled with the absence of a dedicated aspirant law and statutory oversight for intelligence agencies, creates a system that is effective in some respects but arbitrary and opaque in others. The fragmented legal framework makes it difficult to address the full spectrum of modern espionage, from traditional spycraft to cyber-intrusions and economic espionage. As espionage evolves to include new forms of threat, India must enact comprehensive legislation that defines espionage all its forms, establishes clear procedures for investigation and prosecution, and provides for parliamentary oversight of intelligence agencies. Such a law should draw on best practices from other democracies, balancing the need for operational secrecy with the principles of accountability and due process. Parliamentary oversight, in particular, would enhance public trust and prevent abuses, ensuring that intelligence agencies operate within the bounds of law.
Ultimately, the ghosts among us- the foreign spies who operate in the shadows are a reminder of the enduring realities of statecraft and the perpetual contest for information and advantage. India’s challenge is to confront this reality with a equal framework that is clear, fair, and effective, protecting national security without sacrificing the principle of justice and accountability. Until such reforms are enacted, the legal grey zones will persist, leaving the country vulnerable to both external threats and internal abuses.
FAQs
Q1. What law primarily governs espionage in India?
The principle statute governing espionage in India is the Official Secrets Act, 1923. This law criminalizes the unauthorized possession, sharing or transmission of information that could be prejudicial to the safety or interests of the state. The OSA is often supplemented by provisions of the Indian Penal Code (IPC), now largely replaced by the Bharatiya Nyaya Sanhita (BNS), 2023, and the Information Technology Act, 2000, especially in cases involving cyber-espionage or data theft.
Q2. What happens to foreign spies caught in India?
Foreign spies apprehended in India are prosecuted under the OSA and related statutes, but the outcomes often depend on diplomatic considerations. Some are tired and sentenced to long prison terms, while others are quietly deported or exchanged as part of diplomatic negotiations. The absence of clear legal guidelines and the influence of political factors can lead to inconsistent outcomes.
Q3. Are Indian Intelligence agencies governed by statute?
No, Indian intelligence agencies such as the Research and Analysis Wing (RAW) and the Intelligence Bureau (IB) do not have explicit statutory recognition of parliamentary oversight. They operate under executive orders and internal protocols, with the mandates and powers defined by the central government. This lack of statutory clarity has been criticised for undermining accountability and transparency.
Q4. Has the Supreme Court addressed the misuse of espionage laws?
Yes, the Supreme Court has addressed the misuse of espionage laws in many cases, the most famous ISRO spy S. Nambi case 2018. The Court criticised investigative lapses and awarded compensation to a falsely accused scientist, highlighting the need for procedural safeguards and accountability in the application of espionage laws.
Q5. How does international law view espionage?
International law does not have a comprehensive treaty criminalising espionage, but it recognises the rights of states to protect the sovereignty and national security. The Vienna Convention Consular Relations guarantee consular access to detained foreign nationals, including those accused of accused of espionage. The Geneva Convention denied the protections of lawful combatants to spies captured during armed conflict. In peacetime, the treatment of foreign spies is governed by domestic law and diplomatic practise.
Q6. What are the challenges in prosecuting cyber-espionage?
Prosecuting cyber-espionage poses unique challenges, including the attribution of attacks, the collection of digital evidence, and the involvement of actors operating from abroad. The Information Technology Act, 2000, provide some legal tools, but there is no dedicated statute addressing the full range of cyber espionage activities. International cooperation is often necessary, but legal and diplomatic hurdles can impede effective prosecution.
Q7. Can journalists or whistleblowers be prosecuted under espionage laws?
Yes, the broad language of the OSA has led to its application in cases involving journalists, whistleblowers, and activities accused of processing or publishing information deemed sensitive. This has raised concern about press freedom and the public’s right to know, highlighting the need for clear definitions and safeguards to prevent misuse of espionage laws against legitimate dissent or investigative reporting.
Q8. What reforms are needed to address the issue of grey zones?
Proposed reforms include the enactment of a comprehensive espionage law that clearly defines offences, procedures, and penalties; the establishment of statutory oversight for intelligence agencies; the creation of specialised courts for spy cases and the adoption of safeguards to protect the rights of the accused. These reforms would bring India’s legal framework in line with international best practises and enhance both security and accountability.
