India’s Best Kept Secret — The Official Secrets Act — An ‘Invalid’ Act ?

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.

In 1923, Bolsheviks could fester unrest in India
directly or indirectly. They have “increased our troubles on the North West
Frontier and Waziristan”. This could “lead to a rupture with Afghanistan”.
Prominent ‘Mussalman’ leaders have shown sympathy with the Afghans. Unwise to
disregard possibility of ‘fanatical Muslims in India’ acting in sympathy with
them. Increased Japanese activity in Burma calls for better means for ‘obtaining
information’, Post- (First World) War enemy powers are out to ferret secrets. In
the event of a war between Japan and America, the former may try to arouse
Indian feelings against the British Empire. There are no existing laws to deal
effectively with such activities.

(From the note prepared by General C. W. Jacob,
Chief of General Staff, in 1921. Document sourced from the National Archives of
India, Delhi.)

“I checked all the dates from 1923 and no such
Notification for the OSA exists.” Maj. Gen. V. K. Singh Ex-Raw.

“It’ll jeopardise any more future prosecutions
under the OSA. Technically, it’ll all be invalid.” Hosbet Suresh, Ex-Judge,
Bombay HC.

“If it has not been notified, the very validity of
the Act can be challenged in Court.” Rajindar Sachar, Ex-CJ, Delhi HC.

“After the RTI Act came into force, the OSA has no
place . . . even its relics cannot remain.” Veerappa Moily, Congress pointsman.

“The law was perpetuated by the bureaucracy, to
insulate itself from public scrutiny.” Aruna Roy, Ex-NAC Member.

In 2007, the Administrative Reforms Commission
(ARC) headed by senior Congress leader Veerappa Moily finally decided to bite
the bullet on the draconian Official Secrets Act (OSA). It put it on record that
an Act “enacted in the colonial era” (1923) had no place in democratic India.
The controversial piece of legislation had to either be amended or scrapped. But
as is wont to happen, a committee of secretaries set up later by the upa
Government examined and rejected the Moily panel recommendation. The status
now : a Cabinet subcommittee is taking a
second look at the suggestions put up by the ARC.

Meanwhile, research into the origins of the OSA has
thrown up a shocker, putting a question mark on the very validity of the Act.
Documents accessed under the RTI Act from the Ministries of Home Affairs (MHA)
and Law and Justice, as well as the National Archives of India (NAI), show the
OSA was never notified in the Gazette of India—a mandatory requirement to make
any Act a law.