Saturday, August 16, 2008

Official Secrets Act invalid?

A very interesting article in the Outlook claims that the Official Secrets Act, 1923 was never notified in the Official Gazette and is therefore not law. To quote:

'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continues to be on the statute books as valid but unenforceable law) and the Freedom of Information Act 2002 (which was repealed by the Right to Information Act 2005). This article documents several others suffering a similar fate.

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.

UPDATE -

Arundhati Katju left this comment:
'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.'

Thanks for pointing this out Arundhati. If 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).

I have requested Arundhati for a copy of the notification - will keep everyone posted.

4 comments:

V.Venkatesan said...

All Acts, after they get the assent, do get notified, except those with the specific clause. That is how we have notification for Acts without the specific clause regarding notification. As you say, according to Genl.Clauses Act, notification may not be mandatory, but the Govts do notify them, probably to fulfil the information requirement.

arundhati katju said...

Tarunabh,
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.
Regards,
Arundhati

tarunabh said...

Thanks for letting us know Arundhati.

Unknown said...

Hi, seems like I'm 7 years late to this party. But for future reference, yes the Official Secrets Act was in fact notified in 1923. The confusion in the govt. departments and the archives (although unsurprising) may have been due to the establishment of the Department of Publication in 1924 which involved shifting of responsibilities of publication in the gazette.

Anyway, those interested may find the original published copy of the Official Secrets Act, 1923 here http://lawmin.nic.in/legislative/textofcentralacts/1923.pdf