Case: YASHWANT SINHA Vs. CENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIRECTOR

of powers. We do not see how and why the above principle of law will not apply to the facts of the present case. There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.6. Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records. As already noticed, the three documents have been published in different editions of ‘The Hindu? newspaper. That apart, as held in S.P. Gupta vs. Union of India AIR 1982 SC, 149 a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court may even inspect the document in question though the said power has to be sparingly exercised. Such an exercise, however, would not be necessary in the present case as the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value. As the claim of immunity under Section 123 of the Indian Evidence Act is plainly not tenable, we do not consider it necessary to delve into the matter any further.7. An issue has been raised by the learned Attorney with regard to the manner in which the three documents in question had been procured and placed before the Court. In this regard, as already noticed, the documents have been published in ‘The Hindu? newspaper on different dates. That apart, even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court? In Pooran Mal vs. Director of Inspection (Investigation) of Income-Tax, New Delhi AIR 1974 SC 348 this Court has taken the view that the ?test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.?8. Insofar as the Right to Information Act is concerned in Chief Information Commissioner vs. State of Manipur (2011) 15 SCC,1 this Court had occasion to observe the object and purpose behind the enactment of the Act in the following terms: ?The preamble (of the Right to Information Act, 2005) would obviously show that the Act is based on the concept of an open society. As its preamble shows, the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that the Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal.? 9. Section 8(2) of the Right to Information Act (already extracted) contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub-section (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest.10. An omnibus statement has been made by the learned Attorney that there are certain State actions that are outside the purview of judicial review and which lie within the political domain. The present would be such a case. In the final leg of the arguments, the learned Attorney General states that this case, if kept alive, has the potential to threaten the security of each and every citizen residing within our territories. The learned Attorney-General thus exhorts us to dismiss this case, in limine, in light of public policy considerations.11. All that we would like to observe in this regard is a reiteration of what had already been said by this Court in Kesavananda Bharati Sripadagalvaru v. State of Kerala AIR 1973 SC 1461 . ?Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the Aristocracy of the Robe, Covert Legislation, or Judge-Made Law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena. That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.?(Justice Khanna – para 1535)

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents. No question has been raised and, in our considered opinion, very rightly, with regard to the publication of the documents in ‘The Hindu newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech. No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice. In fact, the publication of the said documents in ‘The Hindu? newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions commencing from Romesh Thappar vs. State of Madras AIR 1950 SC 124 and Brij Bhushan vs. The State of Delhi AIR 1950 SC 129 . Though not in issue, the present could very well be an appropriate occasion to recall the views expressed by this Court from time to time.The above views of the Supreme Court of India on the issue of the freedom of the press has been echoed by the U.S. Supreme Court in New York Times Company vs. United States 403 U.S. 713 (1971) wherein Marshall, J. refused to recognize a right in the executive government to seek a restraint order or publication of certain papers titled ?Pentagon Papers? primarily on the ground that the first Amendment guaranteed freedom of the press and 18 U.S. Code § 793 did not contemplate any restriction on publication of items or materials specified in the said Code. By a majority of 6:3 the U.S. Supreme Court declined to pass prohibitory orders on publication of the ?Pentagon Papers? on the ground that the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law making thereby violating the sacred doctrine of separation of powers. We do not see how and why the above principle of law will not apply to the facts of the present case. There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.6. Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records. As already noticed, the three documents have been published in different editions of ‘The Hindu? newspaper. That apart, as held in S.P. Gupta vs. Union of India AIR 1982 SC, 149 a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court may even inspect the document in question though the said power has to be sparingly exercised. Such an exercise, however, would not be necessary in the present case as the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value. As the claim of immunity under Section 123 of the Indian Evidence Act is plainly not tenable, we do not consider it necessary to delve into the matter any further.7. An issue has been raised by the learned Attorney with regard to the manner in which the three documents in question had been procured and placed before the Court. In this regard, as already noticed, the documents have been published in ‘The Hindu? newspaper on different dates.10. An omnibus statement has been made by the learned Attorney that there are certain State actions that are outside the purview of judicial review and which lie within the political domain. The present would be such a case. In the final leg of the arguments, the learned Attorney General states that this case, if kept alive, has the potential to threaten the security of each and every citizen residing within our territories. The learned Attorney-General thus exhorts us to dismiss this case, in limine, in light of public policy considerations.