An "Invalid" Act?
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.
- 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
"I checked all the dates from 1923 and no such notification for the OSA exists."
Maj Gen V.K. Singh Ex-Raw
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.
Incredible as this may seem, the MHA, law ministry and NAI have stated in writing that they have no record of such a notification. While the two ministries have stated that they are not in possession of the notification number of the OSA, the National Archives, which maintains all records, has stated unequivocally that "the gazette notification of the OSA is not available with the library".
This startling revelation came after Major General V.K. Singh (retd)—author of India’s External Intelligence, the controversial book exposing corruption in raw—had a case slapped against him under the OSA last year. He was charged with making public what was alleged to be secret information in the form of documents pertaining to the functioning of the agency. Singh immediately filed several RTI applications with the MHA and the ministry of law and justice to try and track the origins of this colonial Act. Says Singh: "The reply from the MHA was very interesting. It stated that after going through their old files, records and libraries, they found that the Act was probably notified on April 2, 1923, and asked me to check with the national archives."
But Singh, who is a registered research scholar with NAI, was surprised to discover that no such notification exists in the Gazette of India of 1923. "I was shocked and therefore I immediately filed an RTI application with the national archives to confirm my findings. I thought, what if it was published somewhere else or in the extraordinary gazette?" he says.
Open lines The communiques from the ministries to Maj Gen Singh’s requests; Dr Meena Gautam’s reply from the NAI
The reply from Dr Meena Gautam, the chief public information officer, was categorical: "The gazette notification for OSA in 1923 is not available with the library." Neither does any notification on April 2, 1923, exist in the national archives nor does the OSA figure in the gazette of 1923 on any other date. "I checked all the dates from the year and no such notification exists. The reply from the national archives is self-explanatory," notes Singh.
This discovery puts a serious question mark over an Act that has drawn flak from rights activists as well as legal luminaries. Rajindar Sachar, ex-chief justice of the Delhi High Court, told Outlook, "If it has not been notified, the very validity of the Act can be challenged in court." Agrees Justice Hosbet Suresh, former judge of the Bombay HC: "If this is the case, then it could jeopardise any future prosecution under this Act. Technically, anything done under the Act therefore becomes invalid. And anyway, with the passage of the RTI Act, the OSA should have been abolished."
Post-Independence, the OSA has seen two major amendments. The first was in 1951 when it was amended to delete all references to Great Britain. In 1967, a second set of changes took place when it was turned into an even more severe law than the one laid down by the British. It was no longer incumbent upon the police or any investigating agency to "prove the guilt" of a person accused of spying. It was enough to judge his/her character and the circumstances of the case to be prosecuted and and awarded life imprisonment. Even here, crucially, only the amendments were notified, not the original Act!
So today, under the OSA the government can accuse anyone of spying and keep him in custody for months together. Little wonder then that the Act has been roundly criticised by advocates of the RTI Act. Former National Advisory Council member and Magsaysay award winner Aruna Roy, an ardent advocate of measures to ensure transparency and accountability in governance, says the OSA is "an imperial act". The archaic law "has been perpetuated by the bureaucracy. It stems partly out of its need to insulate itself from public scrutiny".
"Every government has perpetuated it, purely out of self-interest. We need secrecy in government, but only for a few documents and that too in a time-bound sense. You cannot have an all-pervasive secrecy in perpetuity. This issue must be examined from the perspective of the people of India," she adds.
The OSA and its misuse is startling. Like the case of retired nuclear scientist Capt B.K. Subba Rao, who was picked up from Mumbai airport in 1988. He was charged with sharing the country’s nuclear secrets. When he was finally produced in court, all the prosecution had by way of evidence was his doctoral thesis. After 20 months of incarceration and five long years of litigation, Capt Rao was finally acquitted. But by then, his life was in a shambles. Arrests under the Act can be effected for even possessing the number of a foreigner. Innocuous documents from one’s office table can serve as evidence. One judge in Delhi found it strange that four persons arrested under the OSA from different locations as militants all possessed a map of Meerut Cantonment. They seemed to have been photocopied by the police!
In fact, while deliberating over the RTI Act, Parliament’s standing committee for law and justice passed adverse remarks against the OSA and its blatant misuse. "We pointed out that the Act has no place in a democracy. Only those agencies exempted under the RTI Act can be categorised as secret," Sudarshan Nacchiappan, chairman of the parliamentary committee, told Outlook. "However, it must be noted that if it’s a corruption or rights violation case, even the exempted agencies have to share information," he added.
Moily is unequivocal in his demand that the Act be repealed. As he puts it, "After the RTI Act came into force, the OSA has no place...even its relics may no longer remain." In fact, upset with the secretaries’ panel for rejecting his proposal, Moily says he will take up the matter with PM Manmohan Singh.
The colonial nature of the OSA can be gauged from documents accessed from the national archives. An April 30, 1921, opinion of the then chief of general staff, General C.W. Jacob, clearly states that the Act is essential to curb "Bolshevik activity" and the show of "open sympathy from prominent Muhammadan leaders" towards Afghans. Jacob’s note also lists the threats from the Japanese and other enemies "inimical to the British race" in India. This was the kind of rationale that gave birth to the OSA. As Aruna Roy says, "The OSA should have been scrapped in 1947 itself, when we gained Independence."
Senior advocate and constitutional expert Rajeev Dhawan, who has criticised the Act on several occasions, has written that the OSA of Great Britain (enacted in 1889) was "replicated in one day in India in 1923". Ironically, in Great Britain the Act has seen three revisions, the last time in 1989 after civil society groups raised a ruckus over its validity in a democracy.
Major General Singh’s research and efforts through the RTI Act has brought to light a significant flaw in an archaic law that has no place in this day and age. Will the cabinet subcommittee have the vision to consign it to the dustbin? As of now, its deliberations continue to be a state secret.