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| | The Legal Needs Network is not currently active and cannot accept new posts | | OFFICIAL SECRETS ACT - A LEGACY OF THE BRITISH RAJ | Views: 1473 | | Jul 30, 2008 2:45 pm | | OFFICIAL SECRETS ACT - A LEGACY OF THE BRITISH RAJ | # | 
vinay singh | | The Official Secrets Act, 1923 is still in force in India. It is a draconian law that was enacted by the British to put away Indians with anti British leanings. According to the Act, almost anyone can be put behind bars, even if there is no evidence. - mere suspicion is enough. Anyone who has the number of a foreigner in his diary or mobile can be arrested, on suspicion of passing information to a foreign agent. Why the Act was not scrapped in 1947 is a mystery. Hundreds of innocent persons have suffered and are stiil suffering because of this. Some prominent cases in which the Act has been misused in the past are the Samba Spy Scandal; the BK Subbarao case: the ISRO case; the Iftikhar Gilani case and so on. All of them underwent varying terms of imprisonment but were later found to be innocent. In France, a similar instance of miscarriage of justice occurred more than a hundred years ago, when Captain Dreyfus was falsely implicated as a spy. Prominent intellectuals such as Emile Zola and Anatole France rose in his defence. He was exonerated after a re-trial after 12 years and all those who had implicated him were punsihed.
The Administrative Reforms Commission chaired by Veerappa Moily had recommended that the Act be repealed about two years ago. But the bureaucrats in the Ministry of Home Affairs have scuttled it, as I have been informed in resposne to an RTI appication.
But there is another mystery. It appears that the Act was not notified in the Gazette. At least the Law Minsitry, Home Ministry and the National Archives have not been able to tell me whetehr it was notified and if so when. If this is indeed true, then all the prosecutions carried out under this Axct would be illegal.
Can anyone tell me if the Act has been notified in the Gazette? From the Archives I have been able to glean that the Bill was passed by the Legislative Assembly on 21st March 1923. The Governor General gave his assent on 2nd April 1923. It was then sent by the Governor General to the Secretary of State in London on 19th April 1923. But there is no record of it being notified in the Gazette, which is a pre-requisite for the Act to come into force.
Vinay Singh
Private Reply to vinay singh | | Aug 19, 2008 9:53 am | | re: OFFICIAL SECRETS ACT - A LEGACY OF THE BRITISH RAJ | # | 
Vijay Nair | | Vinay ji,
I am posting below an article which I read on a Blog. Hope this helps. It is about an article posted in the Outlook Magazine.
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'Here's the untold story of the Official Secrets Act (OSA) 1923:
It was passed in April 1923 by the Legislative Council.
The Act was never notified in the Gazette of India. To become law, every Act must be notified in the Gazette of India. The National Archives of India, ministries of Home and Law say they are not in possession of any such notification. None exists in the 1923 Gazette of India either.
The OSA was amended twice, in 1951 and 1967, and made more stringent. But only the amendments were notified in the 'Extraordinary Gazette of India'. Legal luminaries say that if an Act is not notified, it is an "invalid" law.'
I am not sure where the requirement of notification in the official gazette comes from. It is understandable if an Act itself provides, as it often does, that it shall come into force on such a date as notified by the government in the official gazette. In such cases, sometimes governments fail to notify the Act and the legal position is that although the law is 'valid', till such notification, it is 'unenforceable'.
In AK Roy v Union of India the duly enacted 44th Constitution Amendment Act 1978 provided that it shall come into force when notified. The government notified all but Section 3 of the Amending Act which sought to amend Article 22 of the Constitution dealing with preventive detention. The Supreme Court held that it could not issue a mandamus asking the government to notify it and bring it into force. If this is true of a constitutional amendment, it is definitely true of a mere legislation.
Many other duly enacted laws which had similar provisions granting discretion of notification to the Executive have not been brought into force, including the Hire Purchase Act, 1972 (which I think continues to be on the statute books as valid but unenforceable law) and the Freedom of Information Act 2002 (which was repealed by the Right to Information Act 2005).
But the Official Secrets Act 1923 does not have any comparable clause which allows the government the discretion to fix a date of its enforcement by notification. Indeed, it has no clause that specifies when it will come into force. Thus, Section 5 of the General Clauses Act, 1897 must apply:
'5. Coming into operation of enactments.- (1) Where any Central Act is not expressed to come into operation on particular day, then it shall come into operation on the day on which it receives the assent.
In the case of a Central Act made before the commencement of the Constitution, of the governor-general, and in the case of an Act of Parliament, of the President. Unless the contrary is expressed, (Central Act) or Regulation shall be construed as coming into operation immediately on the expiration of the proceeding its commencement.'
I could not find any requirement anywhere that if the Act itself does not require it, a notification is essential for its validity or enforcement. If someone knows of a law or constitutional provision which provides this, please enlighten.
This, of course, may not be the end of the argument. One of the central requirements of rule of law is that a law is publicised. Without official publication, citizens have no means of finding out what the law is, and therefore cannot be expected to obey it. The Supreme Court has often relied upon the rule of law as a significant constitutional value, underpinning Article 14. This line of argument may be pursued to say that the Official Secrets Act 1923 is unconstitutional because of non-publication.
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One reader commented about the article as under:
'The Official Secrets Act was notified in the Gazette of India, 14th April 1923, after receiving the assent of the Governor General on 02.04.1923. The article was somewhat surprising. I would be happy to supply a copy of the notification on request.'
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If this is true, the response of the National Archive to an RTI application that it did not have a copy of the Gazette notification is surprisingly incompetent (The letter from National Archive is documented in the Outlook story).
Vijay Nair, Partner
KNM & Partners, Law Offices
http://www.knm.in/Private Reply to Vijay Nair | | Aug 19, 2008 3:31 pm | | re: re: OFFICIAL SECRETS ACT - A LEGACY OF THE BRITISH RAJ | # |
charuhasan | |
I am of opinion that the Official Secrets Act is both redundant and repugnant to actual practice. Everybody knows that Hon. Mr. Sibu Soren and his J.M.M. members of parliament received 50 Lakh rupees each which is chickenfeed, even taking into account the inflation of these days.
We believe him as he gave evidence under oath either in the name of Almighty whom the ministers of the government at the time of trial believed in or solemnly affirming which was my practice when I gave evidence in which I was obliged get into the box including a case of murder for gain. I was the PW 1 in the murder case as I reported the murder to the police during actor days. The trial judge was little upset when he heard me solemnly affirming while taking oath. He even cross examined me as to what made me an atheist. I told him that under American Law I could have said “I refuse to answer the question on the ground it would incriminate me.” But I told him that it was my lack of knowledge.
Later Supreme Court took a very correct Legal stand that it had no jurisdiction to give a finding on the things that happened in Parliament. I do not know if any murder cases were already pending against Hon. Sibu Soren. There was one where the alleged motive was Hon. Sibu Soren was charged with murder of his own private secretary who wanted more than the 14 lakhs that he got as his share out of the 50 lakhs admitted to have received by Honourable Mr. Sibu Soran. If somebody had provided those 50 lakhs deposited in court we do not know who did that. The council of Ministers who were part of the parliament did not choose to proceed against Sibu Soren who admitted receiving illegal gratification under oath. Whether this oath was a solemn affirmation or in the name of Almighty is still an official secret which to day we can find out under Right Information Act. I would like to know if there is a need to repeal Official Secrets Act?
Private Reply to charuhasan | | Aug 19, 2008 3:31 pm | | re: re: OFFICIAL SECRETS ACT - A LEGACY OF THE BRITISH RAJ | # | 
Ritu | | Vinay , you could've as well written the article in the outlook cos it pretty much summed up & confirmed what you posted on this thread.
Vijay, link to the blog please. The commentor on the blog seems to have crucial info that is eluding everybody...but notified or not OSA doesn't have relevance after the enactment of RTI (or so I gathered from the article in the Outlook).Private Reply to Ritu | | |
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