YASHWANT SINHA & ORS. versus CENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIRECTOR & ANR.
[2019] 5 S.C.R. 638, Supreme Court of India, 2019
Outcome: Unknown
Segment: Ratio
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YASHWANT SINHA & ORS.
v.
CENTRAL BUREAU OF INVESTIGATION THROUGH ITS
DIRECTOR & ANR.
(Review Petition (Criminal) No. 46 of  2019)
In
(Writ Petition (Criminal) No. 298 of  2018)
APRIL 10, 2019
[RANJAN GOGOI, CJI., SANJAY KISHAN KAUL AND
K. M. JOSEPH, JJ.]
Official Secrets Act, 1923: ss.3 and 5 – Review petition –
Preliminary objection raised by the respondent challenging the
maintainability of the review petition on the ground that the three
documents appended to the review petition and relied upon by the
review petitioners were unauthorisedly removed from the office of
the Ministry of Defence and and for the said reason, the review
petition was not maintainable as said act violated the provisions of
ss.3 and 5 of Official Secrets Act – The said three documents were
admittedly published in two newspapers on different dates – Held:
No law enacted by Parliament was brought to notice which
specifically barred or prohibited the publication of such documents
on any of the grounds mentioned in Art.19(2) – Insofar as the claim
of privilege is concerned, on the very face of it, s.123 of the Evidence
Act, 1872 relates to unpublished public records – A claim of immunity
against disclosure under s.123 of the 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 is to be sparingly exercised – Such an
exercise, however, was not necessary in the instant 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 lead to the obvious conclusion that it would be 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 – Preliminary objection questioning maintainability
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of review petitions is dismissed – The review petitions are to be
adjudicated on their own merit by taking into account the relevance
of the contents of the three documents appended to the review petition
– Evidence Act, 1872 – s.123 – Constitution of India – Art.19(2).(Per
Ranjan Gogoi, CJI)
Evidence Act, 1872: s.123 – Claim for privilege, waiver of –
Held: Claim for privilege under s.123 being based on public policy
cannot be waived – The basis for the claim of privilege is and can
only be public interest.  (Per K.M. Joseph, J.)
Press: Freedom of expression – The right of the Press in India
is no higher than the right of the citizens under Art.19(1)(a) and is
traced to the same provision – If freedom is enjoyed by the Press
without a deep sense of responsibility, it can weaken democracy –
Constitution of India – Art.19(1)(a). (Per K.M. Joseph, J.)
Jurisprudence: Crown privilege – Law in India and in
England – Change introduced by the Right to Information Act, 2005
– Discussed – Under the law relating to privilege, there are two
classes of documents which ordinarily form the basis of privilege –
In the first category, the claim for privilege is raised on the basis of
contents of the particular documents – The second head under which
privilege is ordinarily claimed is in case of document which falls in
a class of documents which entitles it to protection from disclosure
and production – When a document falls in such a class, ordinarily
courts are not
required to consider the contents – When privilege
was claimed as for instance in the matter relating to security of the
nation, traditionally, courts both in England and in India have held
that such documents would fall in the class of documents which
entitles it to protection from production – Under s.8(1)(a),
information, the disclosure of which will prejudicially affect the
sovereignty and integrity of India, the security  and  strategic
scientific or economic interests of the State, relation with foreign
State or information leading to incitement of an offence are ordinarily
exempt from the obligation of disclosure but even in respect of such
matters, Parliament has advanced the law in the form of s.8(2) by
giving recognition to the principle that disclosure of information
could be refused only on the foundation of public interest being
jeopardised – In other words, access to information is allowed in
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respect of matters falling even under s.8(1)(a), if case is made out
under s.8(2) – Thus, the RTI Act through s.8(2) has conferred upon
the citizens a priceless right by clothing them with the right to
demand information even in respect of such matters as security of
the country and matters relating to relation with foreign state – In
such case, the applicant has to establish that withholding of such
information produces greater harm than disclosing it – Right to
Information Act, 2005 – ss.8(1)(a), 8(2). (Per K.M. Joseph, J.)
Dismissing the preliminary objections with regard to the
maintainability of the  review petitions, the Court
HELD : PER RANJAN GOGOI, CJI. (For himself and
Sanjay Kishan Kaul, J.)
1. There is no provision in the Official Secrets Act and no
such provision in any other statute has been brought to  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. [Para 5][654-C]
2. 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. The three documents have
been published in different editions of ‘The Hindu’ newspaper.
That apart, 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 instant 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. [Para 6][654-D-F]
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3.  Section 8(2) of the Right to Information Act, 2005
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,  how  the protection
under Section 8(1)(a) of the Act would serve public interest.  The
review petitions will have to be adjudicated on their own merit
by taking into account the relevance of the contents of the three
documents, admissibility of which, in the judicial decision making
process, has been sought to be questioned by the respondents
in the review petitions. [Paras 9, 12][655-F-G; 666-G]
Kesavananda Bharati Sripadagalvaru v. State of Kerala
AIR 1973 SC 1461 : [1973] 0  Suppl.  SCR  1 – followed
Romesh Thappar v. State of Madras AIR 1950 SC
124 : [1950] SCR 594 ; Brij Bhushan v. The State of
Delhi AIR 1950 SC 129 : [1950] SCR 605 ; Indian
Express Newspapers (Bombay) Private Limited v. Union
of India 1985 (1) SCC 641 : [1985] 2 SCR 287 ;
Printers (Mysore) Limited v. Assistant Commercial Tax
Officer 1994 (2) SCC 434 : [1994] 1 SCR 682 ; S.P.
Gupta v. Union of India AIR 1982 SC 149 : [1982]
SCR 365 ; Pooran Mal v. Director of Inspection
(Investigation) of Income-Tax, New Delhi AIR 1974 SC
348 : [1974] 2 SCR 704 ; Chief
Information
Commissioner v. State of Manipur (2011) 15 SCC 1 :
[2011] 13 SCR 505 – relied on
New York Times Company v. United States 403 U.S. 713
(1971) – referred to
PER K.M. JOSEPH, J. (Concurring)
1.  Law in India relating to Crown privilege as it was
originally styled in England is mainly embedded in a statutory
provision namely Section 123 of the Indian Evidence Act. Also
Section 124 of the said Act is relied upon in the affidavit of the
Secretary.  There can be no matter of doubt that Section 124 is
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confined to public officers and the decisive aspect even under
Section 124 is the protection of public interest.  Section 162 deals
with the aspect of inspection of documents covered by privilege.
In England, the law relating to privilege has been entirely court
made.  The claim for privilege under Section 123 of the Indian
Evidence Act being based on public policy cannot be waived. The
basis for the claim of privilege is and can only be public
interest.[Paras 7, 8][660-C-F]
S.P. Gupta v. Union of India 1981 (Suppl) SCC 87 :
[1982] SCR 365 ; M/s. Doypack Systems Pvt. Ltd. v.
Union of India and Others 1988 (2) SCC 299 : [1988]
2 SCR 962 – relied on
Rajendra Sail v. M.P. High Court Br Association and
Others 2005 (6) SCC 109 : [2005] 3 SCR 816 ; Indian
Express Newspapers (Bombay) Private Ltd. And Others
v. Union of India 1985 (1) SCC 641 : [1985] 2 SCR
287 – referred to
2.1  In no unambiguous terms, Parliament has declared that
the Official Secrets Act, a law made in the year 1923 and for that
matter any other law for the time being in force inter alia
notwithstanding the provisions of the RTI Act will hold the field.
The first proviso to Section 24 indeed marks a paradigm shift, in
the perspective of the body polity through its elected
representatives that corruption and human rights violations are
completely incompatible and hence anathema to the very basic
principles of democracy, the rule of law and constitutional
morality.
The proviso declares that even though information available with
intelligence and security organisations are generally outside the
purview of the open disclosure regime contemplated under the
Act, if the information pertains to allegations of corruption or
human rights violations such information is very much available
to be sought for under the Act. [Para 18][668-B-D]
2.2  Parliament has indeed intended to strengthen
democracy and has sought to introduce the highest levels of
transparency and openness. With the passing of the Right to
Information Act, the citizens fundamental right of expression
under Article 19(1)(a) of the Constitution of India, which itself
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has been recognised as encompassing, a basket of rights has
been given fruitful meaning. Section 8(2) of the Act manifests a
legal revolution that has been introduced in that, none of the
exemptions declared under sub-section(1) of Section 8 or the
Official Secrets Act, 1923 can stand in the way of the access to
information if the public interest in disclosure overshadows, the
harm to the protected interests. [Para 19][668-E-G]
2.3  It is true that under Section 8(1)(a), information the
disclosure of which will prejudicially affect the sovereignty and
integrity of India, the security  and strategic security and strategic
scientific or economic interests of the State, relation with foreign
State or information leading to incitement of an offence are
ordinarily exempt from the obligation of disclosure but even in
respect of such matters Parliament has advanced the law in a
manner which can only be described as dramatic by giving
recognition to the principle that disclosure of information could
be refused only on the foundation of public interest being
jeopardised.  Under the law relating to privilege there are two
classes of documents which ordinarily form the basis of privilege.
In the first category, the claim for privilege is raised on the basis
of contents of the particular documents.  The second head under
which privilege is ordinarily claimed is that the document is a
document which falls in a class of documents which entitles it to
protection from
disclosure and production.  When a document
falls in such a class, ordinarily courts are told that it suffices and
the court may not consider the contents.  When privilege was
claimed as for instance in the matter relating to security of the
nation, traditionally, courts both in England and in India have held
that such documents would fall in the class of documents which
entitles it to protection from production.  The RTI Act through
Section 8(2) has conferred upon the citizens a priceless right by
clothing them with the right to demand information even in respect
of such matters as security of the country and matters relating to
relation with foreign state.  No doubt, information is not be given
for the mere asking.  The applicant must establish that withholding
of such information produces greater harm than disclosing it.
[Para 20][668-H; 669-A-B; E-H]
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3.1  An officer of the department is permitted under the
RTI Act to allow access to information under the Act in respect
of matters falling even under Section 8(1)(a) if a case is made out
under Section 8(2).  If an officer does not accede to the request,
a citizen can pursue remedies before higher authorities and finally
the courts. In this case in fact, the documents in respect of which
the privilege is claimed are already on record.  Section 123 of the
Evidence Act in fact contemplates a situation where party seeks
the production of document which is with a public authority and
the public authority raises claim for privilege by contending that
the document cannot be produced by it.  Undoubtedly, the
foundation for such a claim is based on public interest. Under the
common law both in England and in India the context for material
being considered by the court is relevancy.  There can be no
dispute that the manner in which evidence is got namely that it
was procured in an illegal manner would not ordinarily be very
significant in itself in regard to the courts decision to act upon
the same. [Paras 24, 25, 26][670-H; 671-A-C; F-G]
Pooran Mal v. Director of Inspection (Investigation) of
Income-Tax, New Delhi AIR 1974 SC 348 : [1974] 2
SCR 704 ; State of U.P. v. Raj Narain AIR 1975 SC
865 : [1975] 3 SCR  333 – relied on
3.2   The documents in question were published in ‘The
Hindu’, a national daily. It is true that they
have not been officially
published. The correctness of the contents per se of the
documents were not questioned. Lastly, the case does not strictly
involve in a sense the claim for privilege as the petitioners have
not called upon the respondents to produce the original and the
State does not take objection to the correctness of the contents
of the documents. The request of the respondents is to remove
the documents from the record. In  regard to documents which
are improperly obtained and which are subject to a claim for
privilege, undoubtedly the ordinary rule of relevancy alone may
not suffice as larger public interest may warrant in a given case
refusing to legitimise what is forbidden on grounds of overriding
public interest.  [Paras 27, 31][678-B-D]
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Time v. Hill 385 US 374 ; Dennis v. United States 341
US 494 ; Sankey v. Whitlam (1978) 142 CLR 1 ; Rogers
v. Home Secretary 1973 A.C. 388 – referred to
Case law reference
PER RANJAN GOGOI, CJI.
[1950] SCR 594
relied on
Para 4
[1950] SCR 605
relied on
Para 4
[1985] 2 SCR 287
relied on
Para 4
[1994] 1 SCR 682
relied on
Para 4
[1982] SCR 365
relied on
Para 6
[1974] 2 SCR 704
relied on
Para 7
[2011] 13 SCR 505
relied on
Para 8
[1973] 0  Suppl.  SCR  1
followed
Para 11
PER K.M. JOSEPH, J.
[2005] 3 SCR 816
referred to
Para 2
[1985] 2 SCR 287
referred to
Para 5
[1975] 3 SCR  333 
referred to
Para 9
[1982] SCR 365  
relied on
Para 10
[1988]  2  SCR 962
relied on
Para 10
[1975] 3 SCR  333 
relied on
Para 25
[1974] 2 SCR 704
relied on
Para 26
CRIMINAL ORIGINAL JURISDICTION : Review Petition
(Criminal) No. 46 of 2019 in Writ Petition (Criminal) No. 298 of 2018.
Under Article 32 of the Constitution of India
With
M.A. No. 58/2019 in W.P.(Crl.) No. 225/2018, R.P.(Crl.)
No. 122/2019 in W.P.(Crl.) No. 297/2018, M.A. No. 403/2019 in
W.P.(Crl.) No. 298/2018, R.P.(C) No. 719/2019 in W.P.(C) No. 1205/
2018.
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K. K. Venugopal, AG, Tushar Mehta, SG, Vikas Singh, Sr. Adv.,
Dheeraj Kumar Singh, Alok Shukla, Hardik Luthra, Mrinal Kumar, Rushi
Khan, Ms. Suman, Ms. Deepeika Kalia, Kapish Seth, Ms. Srishti
Bannerjee, Ashutosh Garg, Ms. Shraddha Deshmukh, R.
Balasubramanian, Arvind Kumar Sharma, Advs. for the appearing parties.
Prashant Bhushan, Arun Shourie, Yashwant Sinha, Manohar Lal
Sharma, Petitioners-in-person.
The following Judgment and Order of the Court were delivered :
JUDGMENT
RANJAN GOGOI, CJI
1. A preliminary objection with regard to the maintainability of the
review petition has been raised by the Attorney General on behalf of the
respondents.  The learned Attorney General contends that the review
petition lacks in bona fides inasmuch as three documents unauthorizedly
removed from the office of the Ministry of Defence, Government of
India, have been appended to the review petition and relied upon by the
review petitioners.  The three documents in question are:
(a)
An eight-page note written by three members of the Indian
Negotiating Team (‘INT’) charged in reference to the
Rafale Deal (note dated 01.06.2016)
(b)
Note-18 of the Ministry of Defence (Government of India),
F.No. AirHQ/S/96380/3/ASR PC-XXVI (Marked Secret
under the Official Secrets Act)
(c)
Note-10 written by S.K. Sharma (Deputy Secretary, MoD,
Air-III), Note dated 24.11.2015 (Marked Secret under the
Official Secrets Act)
2. It is contented that the
alleged unauthorized removal of the
documents from the custody of the competent authority of the Government
of India and the use thereof to support the pleas urged in the review
petition is in violation of the provisions of Sections 3 and 5 of the Official
Secrets Act, 1923. It is further contended that the documents cannot be
accessed under the Right to Information Act in view of the provisions
contained in Section 8(1)(a) of the said Act.  Additionally, the provisions
contained in Section 123 of the Indian Evidence Act, 1872 have been
pressed into service and privilege has been claimed so as to bar their
disclosure in the public domain.  Section 3, 5(1) of the Official Secrets
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Act; Section 8(1)(a) and 8(2) of the Right to Information Act and Section
123 of the Evidence Act on which the learned Attorney has relied upon
is extracted below.
3. Penalties for spying.- (1) If any person for any purpose
prejudicial to the safety or interests of the State –
(a) approaches, inspects, passes over or is in the vicinity of, or
enters, any prohibited place; or
(b) makes any sketch, plan, model or note which is calculated to
be or might be or is intended to be directly or indirectly, useful
to any enemy; or
(c) obtains, collects, records or publishes or communicates to
any other person any secret official code or password, or
any sketch, plan, model, article or note or other document or
information which is calculated to be or might be or is intended
to be, directly or indirectly, useful to an enemy or which relates
to a matter the disclosure of which is likely to affect the
sovereignty and integrity of India, the security of the State or
friendly relations with foreign States:
he shall be punishable with imprisonment for a term which may
extend, where the offence is committed in relation to any work of
defence, arsenal, naval, military or air force establishment or station,
mine, minefield, factory, dockyard, camp, ship or aircraft or
otherwise in relation to the naval, military or air force affairs of
Government or in relation to any secret official code, to fourteen
years and in other cases to three years.
(2)  On a prosecution for an
offence punishable under this section
it shall not be necessary to show that the accused person was
guilty of any particular act tending to show a purpose prejudicial
to the safety or interests of the State, and, notwithstanding that no
such act is proved against him, he may be convicted if, from the
circumstances of the case or his conduct or his known character
as proved, it appears that his purpose was a purpose prejudicial to
the safety or interests of the State; and if any sketch, plan, model,
article, note, document, or information relating to or used in any
prohibited place, or relating to anything in such a place, or any
secret official code or password is made, obtained, collected,
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recorded, published or communicated by any person other than a
person acting under lawful authority, and from the circumstances
of the case or his conduct or his known character as proved it
appears that his purpose was a purpose prejudicial to the safety
or interests of the State, such sketch, plan, model, article, note,
document, information, code or password shall be presumed to
have been made, obtained, collected, recorded, published or
communicated for a purpose prejudicial to the safety or interests
of the State.
5. Wrongful communication, etc., of information.-(1) If any
person having in his possession or control any secret official code
or password or any sketch, plan, model, article, note, document or
information which relates to or is used in a prohibited place or
relates to anything in such a place, or which is likely to assist,
directly or indirectly, an enemy or which relates to a matter the
disclosure of which is likely to affect the sovereignty and integrity
of India, the security of the State or friendly relations with foreign
States or which has been made or obtained in contravention of
this Act, or which has been entrusted in confidence to  him by any
person holding office under Government, or which he has obtained
or to which he has had access owing to his position as a person
who holds or has held a contract made on behalf of Government,
or as a person who is or has been employed under a person who
holds or has held such an office or contract-
(a) willfully communicates the code or password, sketch, plan,
model, article, note, document or information to any person
other than a person to whom he is authorized to communicate
it, or a Court of Justice or a person to whom it is, in the
interests of the State, his duty to communicate it; or
(b)   uses the information in his possession for the benefit of any
foreign power or in any other manner prejudicial to the safety
of the State; or
(c) retains the sketch, plan, model, article, note or document in
his possession or control when he has no right to retain it, or
when it is contrary to his duty to retain it, or willfully fails to
comply with all directions issued by lawful authority with regard
to the return or disposal thereof; or
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(d) fails to take reasonable care of, or so conducts himself as to
endanger the safety of the sketch, plan, model, article, note,
document, secret official code or password or information;
He shall be guilty of an offence under this section.
(2) xxxx xxxx xxxx xxxx
(3) xxxx xxxx xxxx xxxx
8. Exemption from disclosure of information. – (1)
Notwithstanding anything contained in this Act, there shall be no
obligation to give any citizen, -
(a) information, disclosure of which would prejudicially affect the
sovereignty and integrity of India, the security, strategic,
scientific or economic interests of the State, relation with
foreign State or lead to incitement of an offence;
(b) xxxx   xxxx   xxxx   xxxx
(c) xxxx   xxxx   xxxx   xxxx
(d) xxxx   xxxx   xxxx   xxxx
(e) xxxx   xxxx   xxxx   xxxx
(f) xxxx   xxxx   xxxx   xxxx
(g) xxxx   xxxx   xxxx   xxxx
(h) xxxx   xxxx   xxxx   xxxx
(i) xxxx   xxxx   xxxx   xxxx
Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets Act, 1923
(19 of 1923) nor any of the exemptions permissible in
accordance with sub-section (1), a public authority may allow
access to information, if public interest in disclosure outweighs
the harm to the protected interests.
(3) xxxx   xxxx   xxxx   xxxx
Provided that where any question arises as to the date from
which the said period of twenty years has to be
computed,
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the decision of the Central Government shall be final, subject
to the usual appeals provided for in this Act.
123. Evidence as to affairs of State.- No one shall be permitted
to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the
officer at the head of the department concerned, who shall give
or withhold such permission as he thinks fit.
3. The three documents which are the subject matter of the present
controversy, admittedly, was published in ‘The Hindu’ newspaper on
different dates in the month of February, 2019.  One of the documents
i.e. Note-18 of the Ministry of Defence was also published in ‘The Wire’
a member of the Digital Print Media.
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 Madras1 and Brij
Bhushan vs. The State of Delhi2.  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.  Illustratively and only because of its
comprehensiveness the following observations in Indian Express
Newspapers (Bombay) Private Limited vs.Union of India3 may be
extracted:
“The freedom of press, as one of the members of the Constituent
Assembly said, is one of the items around which the greatest and
the bitterest of constitutional struggles have been waged in all
countries where liberal constitutions prevail. The said freedom is
1AIR 1950 SC 124
2AIR 1950 SC 129
31985(1) SCC 641
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attained at considerable sacrifice and suffering and ultimately it
has come to be incorporated in the various written constitutions.
James Madison when he offered the Bill of Rights to the Congress
in 1789 is reported as having said: “The right of freedom of speech
is secured, the liberty of the press is expressly declared to be
beyond the reach of this Government” (See, 1 Annals of Congress
(1789-96) p. 141). Even where there are no written constitutions,
there are well established constitutional conventions or judicial
pronouncements securing the said freedom for the people. The
basic documents of the United Nations and of some other
international bodies to which reference will be made hereafter
give prominence to the said right.
The leaders of the Indian independence movement attached special
significance to the freedom of speech and expression which
included freedom of press apart from other freedoms. During
their struggle for freedom, they were moved by the American Bill
of Rights containing the First Amendment to the Constitution of
the United States of America which guaranteed the freedom of
the press. Pandit Jawaharlal Nehru in his historic resolution
containing the aims and objects of the Constitution to be enacted
by the Constituent Assembly said that the Constitution should
guarantee and secure to all the people of India among others
freedom of thought and expression. He also stated elsewhere
that “I would rather have a completely free press
with all the
dangers involved in the wrong use of that freedom than a
suppressed or regulated press” [See, D. R Mankekar: The Press
under Pressure (1973) p. 25]. The Constituent Assembly and its
various committees and sub-committees considered freedom of
speech and expression which included freedom of press also as a
precious right. The Preamble to the Constitution says that it is
intended to secure to all citizens among others liberty of thought
expression, and belief. In Romesh Thappar v. State of Madras4
and Brij Bhushan v. The State of Delhi5, this Court firmly expressed
its view that there could not be any kind of restriction on the
freedom of speech and expression other than those mentioned in
Article 19(2) and thereby made it clear that there could not be
any interference with that freedom in the name of public interest.
4AIR 1950 SC 124
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Even when clause (2) of Article 19 was subsequently substituted
under the Constitution (First Amendment) Act, 1951, by a new
clause which permitted the imposition of reasonable restrictions
on the freedom of speech and expression in the interests of
sovereignty and integrity of India the security of the State, friendly
relations with foreign States, public order, decency or morality in
relation to contempt of Court defamation or incitement to an
offence, Parliament did not choose to include a clause enabling
the imposition of reasonable restrictions in the, public interest.”
A later view equally eloquent expressed by this Court in Printers
(Mysore) Limited vs. Assistant Commercial Tax Officer6 may also
be usefully recapitulated.
“Freedom of press has always been a cherished right in all
democratic countries. The newspapers not only purvey news but
also ideas, opinions and ideologies besides much else. They are
supposed to guard public interest by bringing to fore the misdeeds,
failings and lapses of the government and other bodies exercising
governing power. Rightly, therefore, it has been described as the
Fourth Estate. The democratic credentials of a State is judged
today by the extent of freedom the press enjoys in that State.
According to Justice Douglas (An Almanac of Liberty)
“acceptance by government of a dissident press is a measure of
the maturity of the nation”. The learned Judge observed in
Terminiello v.
Chicago, (1949) 93 L.Edn. 1131., that “a function
of free speech under our system of government is to invite dispute.
It may indeed best serve its high purpose when it induces a condition
of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger. Speech is often provocative and
challenging. It may strike at prejudices and preconceptions and
have profound unsettling effect as it presses for acceptance of an
idea. ...There is no room under our Constitution for a more
restrictive view. For the alternative would lead to standardisation
of ideas either by legislatures, courts, “or dominant political or
community ground”. The said observations were of course made
with reference to the First Amendment to the U.S. Constitution
which expressly guarantees freedom of press but they are no less
61994 (2) SCC 434
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relevant in the India context; subject, of course, to clause (2) of
Article 19 of our Constitution. We may be pardoned for quoting
another passage from Hughese, C.J., in De Jonge v. State of
Oregon, (1937) 299 U.S. 353, to emphasise the fundamental
significance of free speech. The learned Chief Justice said: “the
greater the importance of safeguarding the community from
incitements to the overthrow of our institutions by force and
violence, the more imperative is the need to preserve inviolate the
constitutional rights of free speech, ferrets and free assembly in
order to maintain the opportunity for free political discussion, to
the end that Government may be responsive to the will of the
people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very foundation
of constitutional government.”
It is true that very often the press, whether out of commercial
reason or excessive competition, descends to undesirable levels
and may cause positive public mischief but the difficulty lies in the
fact, recognised by Thomas Jefferson, that this freedom “cannot
be limited without being lost”. Thomas Jefferson said, “it is,
however, an evil for which there is no remedy; our liberty depends
on the freedom of the press and that cannot be limited without
being lost”. (In a letter to Dr. J. Currie, 1786). It is evident that
“an able, disinterested, public-spirited press, with trained
intelligence to know the
right and courage to do it, can preserve
that public virtue without which popular government is a sham
and a mockery. A cynical, mercenary, demagogic press will
produce in time a people as base as itself. The power to mould
the future of the Republic will be in the hands of the journalism of
future generations”, as stated by Joseph Pulitzer.”
5. 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 States7 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
7403 U.S. 713 (1971)
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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 India8 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
8AIR 1982 SC, 149
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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 Delhi9 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 Manipur10 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.
9AIR 1974 SC 348
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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 Kerala11
“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)
12. In the light of the above, we deem it proper to dismiss the
preliminary objections raised by the Union of India questioning the
maintainability of the review petitions and we hold and affirm that the
review petitions will have to be adjudicated on their own merit by taking
into account the relevance of the contents of the three documents,
admissibility of which, in the judicial decision making process, has been
sought to be questioned by the respondents in the review petitions.
11AIR 1973 SC 1461
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ORDER
K. M. JOSEPH, J.
1. I have read the order proposed in the matter by the learned
Chief Justice.  While I agree with the decision, I think it fit to give the
following reasons and hence, the concurring order:-
2. I do agree with the observations made by the learned chief
Justice in regard to the importance which has been attached to the
freedom of Press. The Press in India has greatly contributed to the
strengthening of democracy in the country.  It will have a pivotal role to
play for the continued existence of a vibrant democracy in the country.
It is indisputable that the press out of which the visual media in particular
wields power, the reach of which appears to be limitless. No segment of
the population is impervious to its influence.
In Rajendra Sail v. M.P. High Court Br Association and Others
2005 (6) SCC 109, this Court dealing with a case under the Contempt of
Court Act held inter alia as follows:
“31. The reach of the media, in the present times of 24-hour
channels, is to almost ever nook and corner of the world.  Further,
large number of people believe as correct that which appears in
media, print or electronic……”
(emphasis supplied)
It must realise that its consumers are entitled to demand that the
stream of information that flows from it, must remain unpolluted by
considerations other than truth.
3. I would think that freedom involves many elements.  A free
person must be fearless.  Fear can be of losing all or any of the things
that is
held dear by the journalist.  A free man cannot be biased.  Bias
comes in many forms.  Bias if it is established as per the principles
which are applicable is sufficient to vitiate the decisions of public
authorities.  The rule against bias is an important axiom to be observed
by Judges.  Equally the Press including the visual media cannot be biased
and yet be free.  Bias ordinarily implies a pre-disposition towards ideas
or persons, both expressions to be comprehended in the broadest terms.
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It may stem from personal, political or financial considerations.
Transmitting biased information, betrays absence of true freedom.  It is,
in fact, a wholly unjustifiable onslaught on the vital right of the people to
truthful information under Article 19(1)(a) which, in turn, is the bedrock
of many other rights of the citizens also.  In fact, the right of the Press in
India is no higher than the right of the citizens under Article 19(1)(a) and
is traced to the same provision.  The ability of truth to be recognised by
a discerning public in the supposedly free market place of ideas forms
much of the basis for the grant of the unquestionable freedom to the
Press including the Media Houses.  If freedom is enjoyed by the Press
without a deep sense of responsibility, it can weaken democracy.  In
some sections, there appears to be a disturbing trend of bias.  Controlling
business interests and political allegiances appear to erode the duty of
dispassionate and impartial purveying of information.  In this regard in
an article styled ‘the Indian Media’ which is annexed to the Autobiography
under the title “Beyond the Lines” veteran journalist Late Shri Kuldip
Nayyar has voiced the following lament:
“Journalism as a profession has changed a great deal from what
it was in our times.  I feel acute sense of disappointment, not only
because it has deteriorated in quality and direction but also because
I do not see journalist
attempting to revive the values ones
practiced.  The proliferation of newspapers and television channels
has no doubt affected the quality of content, particularly reporting.
Too many individuals are competing for the same space.  What
appals me most is that editorial primacy has been sacrificed at the
alter of commercialism and vested interests.  It hurts to see many
journalists bending backwards to remain handmaidens of the
proprietors, on the one hand, and of the establishment, on the
other.  This is so different from what we were used to.”
4. The exhortation as to who are the true beneficiaries of the
freedom of speech and the Press was articulated in the judgment of the
U.S. Supreme Court in Time v. Hill 385 US 374 in the following words:
“The constitutional guarantee of freedom of speech and press
are not for the benefit of the press so much as for the benefit of
all the people.”
(emphasis supplied)
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5. In Indian Express Newspapers (Bombay) Private Ltd. And
Others  v. Union of India 1985 (1) SCC 641, this Court made the
following observations:
“……………The public  interest in  freedom of discussion (of
which the freedom  of the  press is  one aspect)  stems  from the
requirement that  members of  a democratic society should be
sufficiently informed  that they may influence intelligently the
decisions which may affect ‘themselves.” (Per Lord Simon of
Glaisdale in Attorney-General vs. Times Newspapers Limited
(1973) 3 ALL ER 54).  Freedom   of expression,   as learned
writers have observed, has four  broad  social purposes to serve:
(i) it helps an individual to attain self fulfilment, (ii) it assists in the
discovery of truth, (iii)it  strengthens the capacity of an individual
in participating in  decision making,  and (iv)  it provides  a
mechanism by  which it would be  possible  to establish  a
reasonable balance  between stability and social change. All
members of society should be able to form their own beliefs and
communicate them freely to others.  In  sum, the fundamental
principle involved here is the people’s right to know.…………..”
6. The wise words of Justice Douglas to be found in his dissenting
judgment in Dennis v. United States 341 US 494 reminds one of the
true goal of free speech and consequently the role of a free press.  The
same reads as under:
“Free speech has occupied an exalted position because of the
high service it has given
society.  Its protection is essential to the
very existence of a democracy.  The airing of ideas releases
pressures which otherwise might become destructive.  When idea
compete in the market for acceptance, full and free discussion
exposes the false and they gain few adherents.  Full and free
discussion even of ideas we hate encourages the testing of our
own prejudices and preconceptions.  Full and free discussion keeps
a society from becoming stagnant and unprepared for the stresses
and strains that work to tear all civilzations apart.
Full and free discussion has indeed been the first article of our
faith.  We have founded our political system on it.  It has been the
safeguard of every religious, political, philosophical, economic and
racial group amongst us.  We have counted on it to keep us from
embracing what is cheap and false; we have trusted the common
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sense of our people to choose the doctrine true to our genius and
to reject the rest.  This has been the one single outstanding tenet
that has made our institutions the symbol of freedom and equality.
We have deemed it more costly to liberty to suppress a despised
minority than to let them vent their spleen.  We have above all
else feared the political censor.  We have wanted a land where
our people can be exposed to all the diverse creeds and cultures
of the world.”
7. Law in India relating to Crown privilege as it was originally
styled in England is mainly embedded in a statutory provision namely
Section 123 of the Indian Evidence Act. Also Section 124 of the said Act
is relied upon in the affidavit of the Secretary. Section 124 of the Indian
Evidence Act, 1872 reads as follows:-
“124. Official communications. —No public officer shall be
compelled to disclose communications made to him in official
confidence, when he considers that the public interests would suffer
by the disclosure.”
There can be no matter of doubt that Section 124 is confined to
public officers and the decisive aspect even under Section 124 is the
protection of public interest.
8. Section 162 deals with the aspect of inspection of documents
covered by privilege. In England, the law relating to privilege has been
entirely court made.  It cannot be in dispute that the claim for privilege
under Section 123 of the Indian Evidence Act being based on
public
policy cannot be waived (see in this regard judgment of this Court in M/
s. Doypack Systems Pvt. Ltd. Vs. Union of India and Others 1988
(2) SCC 299 at page 327).  The basis for the claim of privilege is and
can only be public interest.
9. In the judgment of this Court in State of U.P. v. Raj Narain;
AIR 1975 SC 865, Chief Justice A.N. Ray speaking on behalf of the
Constitution Bench observed:-
“The Court will proprio motu exclude evidence the production of
which is contrary to public interest. It is in public interest that
confidentiality shall be safeguarded. The reason is that such
documents become subject to privilege by reason of their contents.
Confidentiality is not a head of privilege. It is a consideration to
bear in mind. It is not that the contents contain material which it
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would be damaging to the national interest to divulge but rather
that the documents would be of class which demand protection.
(See 1973 AC 388 (supra) at p. 40). To illustrate, the
class of documents which would embrace Cabinet papers, Foreign
Office dispatches, papers regarding the security of the State and
high level inter-departmental minutes.”
10. I may also refer to the following discussion contained in S.P.
Gupta vs. Union of India 1981 (Suppl) SCC 87 which has been also
followed by the Bench in M/s. Doypack Systems Pvt. Ltd. Vs. Union
of India and Others 1988 (2) SCC 299.
“45………..”It is settled law and it was so clearly recognised in
Raj Narain’s case 1975 (4) SCC 428 that there may be classes of
documents which public interest requires should not be disclosed,
no matter what the individual documents in those classes may
contain or in other words, the law recognises that there may be
classes of documents which in the public interest should be immune
from disclosure. There is one such class of documents which for
years has been recognised by the law as entitled in the public
interest to be protected against disclosure and that class consists
of documents which it is really necessary for the proper functioning
of the public service to withhold from disclosure. The documents
falling within this class are granted immunity from disclosure not
because of their contents but because of the class to which they
belong. This class includes cabinet minutes,
minutes of discussions
between heads of departments, high level inter-departmental
communications and despatches from ambassadors abroad (vide
Conway v. Rimmer, [1968] Appeal Cases 910 at pp. 952, 973,
979, 987 and 993 and Reg v. Lewes Justices, ex parte Home
Secretary, [1973] A.C. 388 at 412, papers brought into existence
for the purpose of preparing a submission to cabinet (vide Lanyon
Property Ltd. v. Commonwealth, 129 Commonwealth Law
Reports 650) and indeed any documents which relate to the
framing of government policy at a high level (vide Re. Grosvenor
Hotel, London [1964] 3 All E.R. 354 (CA)”.
The Court in Doypack (supra) held as follows:-
“46. Cabinet papers are, therefore, protected from disclosure not
by reason of their contents but because of the class to which they
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belong. It appears to us that Cabinet papers also include papers
brought into existence for the purpose of preparing submission to
the Cabinet. See Geoffrey Wilson cases and Materials on
Constitutional and Administrative Law, 2nd edn., pages 462 to
464.  At page 463 para 187, it was observed:
 “The real damage with which I are concerned would be caused
by the publication of the actual documents of the Cabinet for
consideration and the minutes recording its discussions and its
conclusions. Criminal sanctions should apply to the unauthorised
communication of these papers.”
See in this Connection State of Bihar v. Kripalu Shankar, AIR
1987 SC 1554 at page 1559 and also the decision of Bachittar
Singh v. State of Punjab [1962] Suppl. 3 SCR 713. Reference
may also be made to the observations of Lord Denning in Air
Canada and others v. Secretary of State, [1983] 1 All ER 161
at 180.”
11. In fact, the foundation for the law relating to privilege is
contained in the candour principles and also the possibility of ill-informed
criticism.  Regarding candour forming the premise I find the following
discussion in the decision of this Court in S.P. Gupta’s case (supra).
“We agree with these learned Judges that the need for candour
and frankness cannot justify granting of complete immunity against
disclosure of documents of this class, but as pointed out by Gibbs,
ACJ in Sankey v. Whitlam (1978) 21 Australian LR 505:53, it
would not
be altogether unreal to suppose “that in some matters
at least communications between ministers and servants of the
Crown may be more frank and candid if these concerned believe
that they are protected from disclosure” because not all Crown
servants can be expected to be made of “sterner stuff”. The need
for candour and frankness must therefore certainly be regarded
as a factor to be taken into account in determining whether, on
balance, the public interest lies in favour of disclosure or against it
(vide: the observations of Lord Denning in Neilson v, Lougharne
(1981) 1 All ER 829 at P. 835.”
12. Regarding the other premise for supporting the claim of privilege
namely the possibility that disclosure will occasion ill-informed criticism
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and impair the smooth functioning of the Governmental machine, I notice
the following in S.P. Gupta’s case in paragraph 72 which read as follows:
“72. There was also one other reason suggested by Lord Reid in
Conway v. Rimmer 1968 AC 910 for according protection against
disclosure of documents belonging to this case: “To my mind”,
said the learned Law Lord : “the most important reason is that
such disclosure would create or fan ill-informed or captious public
or political criticism. The business of government is difficult enough
as it is, and no government could contemplate with equanimity the
inner workings of the government machine being exposed to the
gaze of those ready to criticise without adequate knowledge of
the background and perhaps with some axe to grind.” But this
reason does not commend itself to us. The object of granting
immunity to documents of this kind is to ensure the proper working
of the government and not to protect the ministers and other
government servants from criticism however intemperate and
unfairly based. Moreover, this reason can have little validity in a
democratic society which believes in an open government. It is
only through exposure of its functioning that a democratic
government can hope to win the trust of the people. If full
information is made available to the people and every action of
the government is bona fide and actuated only by public interest,
there need be no fear of “ill-informed or captious public or
political
criticism”. But at the same time it must be conceded that even in
a democracy, government at a high level cannot function without
some degree of secrecy. No minister or senior public servant can
effectively discharge the responsibility of his office if every
document prepared to enable policies to be formulated was liable
to be made public. It is therefore in the interest of the State and
necessary for the proper functioning of the public service that
some protection be afforded by law to documents belonging to
this class. What is the measure of this protection is a matter which
we shall immediately proceed to discuss?”
The role of the Court has been set out in para 73:-
“73. We have already pointed out that whenever an objection to
the disclosure of a document under Section 123 is raised, two
questions fall for the determination of the court, namely, whether
the document relates to affairs of State and whether its disclosure
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would, in the particular case before the court, be injurious to public
interest. The court in reaching its decision on these two questions
has to balance two competing aspects of public interest, because
the document being one relating to affairs of State, its disclosure
would cause some injury to the interest of the State or the proper
functioning of the public service and on the other hand if it is not
disclosed, the non-disclosure would thwart the administration of
justice by keeping back from the court a material document. There
are two aspects of public interest clashing with each other out of
which the court has to decide which predominates. The approach
to this problem is admirably set out in a passage from the judgment
of Lord Reid in Conway v. Rimmer 1968 AC 910:
 It is universally recognised that there are two kinds of public
interest which may clash. There is the public interest that harm
shall not be done to the nation or the public service by disclosure
of certain documents, and there is the public interest that the
administration of justice shall not be frustrated by the
withholding of documents  which must be produced if justice is
to be done. There are many cases where the nature of the
injury which would of might be done to the nation, or the public
service is of so grave a character that no other interest, public
or private, can be allowed to prevail over it. With regard to
such cases it would be
proper to say, as Lord Simon did, that to
order production of the document in question, would put the
interest of the State in jeopardy. But there are many other
cases where the possible injury to the public service is much
less and there one would think that it would he proper to balance
the public interests involved.
The court has to balance the detriment to the public interest on
the administrative or executive side which would result from the
disclosure of the document against the detriment to the public
interest on the judicial side which would result from non-disclosure
of the document though relevant to the proceeding. [Vide the
observations of Lord Pearson in Reg, v. Lewes JJ. Ex parte Home
Secy 1973 AC 388 at page 406 of the report]. The court has to
decide which aspect of the public interest predominates or in other
words, whether the public interest which requires that the document
should not be produced, outweighs the public interest that a court
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of justice in performing its function should not be denied access to
relevant evidence. The court has thus to perform a balancing
exercise and after weighing the one competing aspect of public
interest against the other, decide where the balance lies. If the
court comes to the conclusion that, on the balance, the disclosure
of the document would cause greater injury to public interest than
its non-disclosure, the court would uphold the objection and not
allow the document to be disclosed but if, on the other hand, the
court finds that the balance between competing public interests
lies the other way, the court would order the disclosure of the
document. This balancing between two competing aspects of
public interest has to be performed by the court even where an
objection to the disclosure of the document is taken on the ground
that it belongs to a class of documents which are protected
irrespective of their contents, because there is no absolute immunity
for documents belonging to such class.…………………”
(emphasis supplied)
13. I notice that the claim for privilege may arise in the following
situations. The claim for privilege may arise in a system of law where
there is no statutory framework provided for such a claim.  It has been
considered to be the position in the United Kingdom.  In India as already
noticed, Section 123 of the Evidence Act read with Section 124 and
Section 162 does provide for the statutory basis for a claim of public
interest
privilege.  The next aspect relating to the law of compelled
production of documents is the constitutional embargo contained in Article
74(2) of the Constitution.  Article 74(2) reads as follows:
“74(2) The question whether any, and if so what, advice was
tendered by Ministers to the President shall not be inquired into in
any court.”
Therefore, it would be impermissible for a court to inquire into the
advice which is tendered by the cabinet. The objection in this case raised
under the Right to Information Act, is based only on Section 8(1)(a). I
notice Section 8(1)(i) which provides as follows:-
“8(1)(i) cabinet papers including records of deliberations of the
Council of Ministers, Secretaries and other officers;
Provided that the decisions of Council of Ministers, the reasons
thereof, and the material on the basis of which the decisions were
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taken shall be made public after the decision has been taken, and
the matter is complete, or over:
Provided further that those matters which come under the
exemptions specified in this section shall not be disclosed;”.
The said provision having not been pressed into service, neither
its scope nor the ramification of Article 74(2) need be pursued further in
this case.
14. It is at once apposite to notice the change that was introduced
by the Right to Information Act, 2005.
Section 2(i) defines ‘record’ in the following fashion:
“2 (i) “record” includes—
(i) any document, manuscript and file;
(ii) any microfilm, microfiche and facsimile copy of a document;
(iii) any reproduction of image or images embodied in such
microfilm
 (whether enlarged or not); and
(iv) any other material produced by a computer or any other
device;”
The word ‘right to information’ defined in Section 2(j) as follows:
“(j) “right to information” means the right to information accessible
under this Act which is held by or under the control of any public
authority and includes the right to—
(i) inspection of work, documents, records;
(ii) taking notes, extracts, or certified copies of documents or
records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes,
video cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other
device;”
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All citizens are conferred with the right to information subject to
the provisions of the Act under Section 3.
15. Section 8 deals with exemption from disclosure of information.
Section 8(1)(a) which is pressed before us reads as follows:
“8. Exemption from disclosure of information -(1) Notwithstanding
anything contained in this Act, there shall be no obligation to give
any citizen,—
(a)
information, disclosure of which would prejudicially affect
the sovereignty and integrity of India, the security, strategic,
scientific or economic interests of the State, relation with
foreign State or lead to incitement of an offence;”
This is followed by Section 8(2). It reads as follows:
“8(2) Notwithstanding anything in the Official Secrets Act,
1923 nor any of the exemptions permissible in accordance with
sub-section (1), a public authority may allow access to
information, if public interest in disclosure outweighs the harm
to the protected interests.”
16. Before I delve more into Section (8) it is apposite that I also
notice Section 22 which provides as follows:
“22. Act to have overriding effect.- The provisions of this Act
shall have effect notwithstanding anything inconsistent therewith
contained in the Official Secrets Act, 1923, and any other law for
the time being in force or in any instrument having effect by virtue
of any law other than this Act.”
17. I may lastly notice Section 24.
“24(1). Nothing contained in this Act shall apply to the intelligence
and
security organisations specified in the Second Schedule, being
organisations established by the Central Government or any
information furnished by such organisations to that Government:
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded under
this sub section: Provided further that in the case of information
sought for is in respect of allegations of violation of human rights,
the information shall only be provided after the approval of the
Central Information Commission, and notwithstanding anything
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contained in Section 7, such information shall be provided within
forty five days from the date of the receipt of request.”
18. Sections 22 and 24 bring up the rear.  I may highlight their
significance in the new dispensation which has been ushered in by
Parliament.  In no unambiguous terms Parliament has declared that the
Official Secrets Act, a law made in the year 1923 and for that matter
any other law for the time being in force inter alia notwithstanding the
provisions of the RTI Act will hold the field.  The first proviso to Section
24 indeed marks a paradigm shift, in the perspective of the body polity
through its elected representatives that corruption and human rights
violations are completely incompatible and hence anathema to the very
basic principles of democracy, the rule of law and constitutional morality.
The proviso declares that even though information available with
intelligence and security organisations are generally outside the purview
of the open disclosure regime contemplated under the Act, if the
information pertains to allegations of corruption or human rights violations
such information is very much available to be sought for under the Act.
The economic development of a country is closely interconnected with
the attainment of highest levels of probity in public life.  In some of the
poorest countries in the world, poverty is rightfully intricately associated
with corruption.  In fact, human
rights violations are very often the
offsprings of corruption.  However, the law giver has indeed dealt with
corruption and human rights separately.  Hence I say no more on this.
19. Reverting back to Section (8) it is clear that Parliament has
indeed intended to strengthen democracy and has sought to introduce
the highest levels of transparency and openness.  With the passing of
the Right to Information Act, the citizens fundamental right of expression
under Article 19(1)(a) of the Constitution of India, which itself has been
recognised as encompassing, a basket of rights has been given fruitful
meaning.  Section 8(2) of the Act manifests a legal revolution that has
been introduced in that, none of the exemptions declared under sub-
section(1) of Section 8 or the Official Secrets Act, 1923 can stand in the
way of the access to information if the public interest in disclosure
overshadows, the harm to the protected interests.
20. It is true that under Section 8(1)(a), information the disclosure
of which will prejudicially affect the sovereignty and integrity of India,
the security  and strategic security and strategic scientific or economic
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interests of the State, relation with foreign State or information leading
to incitement of an offence are ordinarily exempt from the obligation of
disclosure but even in respect of such matters Parliament has advanced
the law in a manner which can only be described as dramatic by giving
recognition to the principle that disclosure of information could be refused
only on the foundation of public interest being jeopardised. What
interestingly Section 8(2) recognises is that there cannot be absolutism
even in the matter of certain values which were formerly considered to
provide unquestionable foundations for the power to withhold information.
Most significantly, Parliament has appreciated that it may be necessary
to pit one interest against another and to compare the relative harm and
then decide either to disclose or to decline information.  It is not as if
there would be no harm. If, for instance, the information falling under
clause (a) say for instance the security of the nations or relationship
with a foreign state is revealed and is likely to be harmful, under the Act
if higher public interest is established, then it is the will of Parliament
that the greater good should prevail though at the cost of lesser harm
being still occasioned.  I indeed would be failing to recognise the radical
departure in the law which has been articulated in Section 8(2) if I did
not also contrast the law which in fact been laid down by this court in the
decisions of this
Court which I have adverted to.  Under the law relating
to privilege there are two classes of documents which ordinarily form
the basis of privilege.  In the first category, the claim for privilege is
raised on the basis of contents of the particular documents.  The second
head under which privilege is ordinarily claimed is that the document is a
document which falls in a class of documents which entitles it to protection
from disclosure and production.  When a document falls in such a class,
ordinarily courts are told that it suffices and the court may not consider
the contents.  When privilege was claimed as for instance in the matter
relating to security of the nation, traditionally, courts both in England and
in India have held that such documents would fall in the class of documents
which entitles it to protection from production. (See paragraph ‘9’ of this
order). The RTI Act through Section 8(2) has conferred upon the citizens
a priceless right by clothing them with the right to demand information
even in respect of such matters as security of the country and matters
relating to relation with foreign state.  No doubt, information is not be
given for the mere asking.  The applicant must establish that withholding
of such information produces greater harm than disclosing it.
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21. It may be necessary also to consider as to what could be the
premise for disclosure in a matter relating to security and relationship
with foreign state.  The answer is contained in Section 8(2) and that is
public interest.  Right to justice is  immutable.  It is inalienable.  The
demands it has made over other interests has been so overwhelming
that it forms the foundation of all civilised nations.  The evolution of law
itself is founded upon the recognition of right to justice as an indispensable
hallmark of a fully evolved nation.
22. The preamble to the constitution proclaims justice -social,
economic or political, as the goal to be achieved.  It is the duty of every
State to provide for a fair and effective system of administration of
justice.  Judicial review is, in fact, recognised as a basic feature of the
Constitution.  Section 24 of the Act also highlights the importance attached
to the unrelenting crusade against corruption and violation of human
rights.  The most important aspect in a justice delivery system is the
ability of a party to successfully establish the case based on materials.
Subject to exceptions it is settled beyond doubt that any person can set
the criminal law into motion.  It is equally indisputable however that
among the seemingly insuperable obstacles a litigant faces are the
limitations on the ability to prove the case with evidence and more
importantly relevant evidence.  Ability
to secure evidence thus forms
the most important aspect in ensuring the triumph of truth and justice.  It
is imperative therefore that Section 8(2) must be viewed in the said
context. Its impact on the operation on the shield of privilege is
unmistakable.
23. It is clear that under the Right to Information     Act, a citizen
can get a certified copy of a document under Section 8(2) of the RTI
Act even if the matter pertains to security or relationship with a foreign
nation, if a case is made out thereunder.  If such a document is produced
surely a claim for privilege could not lie.
24. Coming to privilege it may be true that Section 123 of the
Evidence Act stands unamended.  It is equally true that there is no
unqualified right to obtain information in respect of matters under Section
8(1)(a) of the RTI Act.  However, the Court cannot be wholly unaffected
by the new regime introduced by Parliament under the RTI Act on the
question regarding a claim for privilege.  It is pertinent to note that an
officer of the department is permitted under the RTI Act to allow access
to information under the Act in respect of matters falling even under
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Section 8(1)(a) if a case is made out under Section 8(2).  If an officer
does not accede to the request, a citizen can pursue remedies before
higher authorities and finally the courts.  Could it be said that what an
officer under the RTI Act can permit, cannot be allowed by a court and
that too superior courts under Section 123 of the Evidence Act.  I would
think that the court indeed can subject no doubt to one exception, namely,
if it is a matter which is tabooed under Article 74(2) of the Constitution.
25. In this case in fact, the documents in respect of which the
privilege is claimed are already on record.  Section 123 of the Evidence
Act in fact contemplates a situation where party seeks the production of
document which is with a public authority and the public authority raises
claim for privilege by contending that the document cannot be produced
by it.  Undoubtedly, the foundation for such a claim is based on public
interest and nothing more and nothing less.  In fact, in State of U.P. VS.
Raj Narain AIR 1975 SC 861 I notice the following paragraph about
the effect of publication in part in the concurring judgment of K.K.
Mathew,J. which reads as under:
“81. I do not think that there is much substance in the contention
that since, the Blue Book had been published in parts, it must be
deemed to have been published as a whole and, therefore, the
document could not be regarded as an unpublished official record
relating to affairs of state. If some
parts of the document which
are innocuous have been published, it does not follow that the
whole document has been published. No authority has been cited
for the proposition that if a severable and innocuous portion of a
document is published, the entire document shall be deemed to
have been published for the purpose of S. 123.”
26. I may also notice another aspect.  Under the common law
both in England and in India the context for material being considered by
the court is relevancy.  There can be no dispute that the manner in
which evidence is got namely that it was procured in an illegal manner
would not ordinarily be very significant in itself in regard to the courts
decision to act upon the same (see in this context judgment of this Court
in Pooran Mal v. Director of Inspection (Investigation) of Income
Tax AIR 1974 SC 348).  Therein I notice the following statements:
“25.  So far as India is concerned its law of evidence is modeled
on the rules of evidence, which prevailed in English law, and courts
in India and in England have consistently refused to exclude
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relevant evidence merely on the ground that it is obtained by illegal
search or seizure. In Barindra Kumar Ghose and others v.
Emperor(1910)ILR 37 Cal 467 the learned Chief Justice Sir
Lawrence Jenkins says at page, 500 :
“Mr. Das has attacked the searches and has urged that, even if
there was jurisdiction to direct the issue of search warrants, as I
hold there was, still the provisions of the Criminal Procedure
Code have been completely disregarded. On this assumption he
has contended that the evidence discovered by the searches is
not admissible, but to this view I cannot accede. For without in
any way countenancing disregard of the provisions prescribed
by the Code, I hold that what would otherwise be relevant does
not become irrelevant because it was discovered in the course of
a search in which those provisions were disregarded. As
Jimutavahana with his shrewd common-sense observes-”a fact
cannot be altered by 100 texts,” and as his commentator quaintly
remarks : “If a Brahmana be slain, the precept ‘slay not a
Brahmana’ does not annul the murder.” But the absence of the
precautions designed. by the legislature lends support to the
argument that the alleged discovery should be carefully scrutinized.
…….
……
…….
It would thus be seen that in India, as in England, where the test
of admissibility of evidence lies in 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.”
(Emphasis supplied)
27.  Now in the context of a claim of privilege raised under Section
123 however, the evidence being requisitioned by a party against the
state or public authority it may happen however that a party may obtain
a copy of the document in an improper manner. A question may arise as
to whether the copy is true copy of the original. If a copy is wholly
improperly obtained and an attempt is made by production thereof to
compel the State to produce the original, a question may and has in fact
arisen whether the Court is bound to order production.  In the landmark
judgment by the High court of Australia in Sankey v. Whitlam (1978)
142 CLR 1, informations were laid against Mr. Whitlam the former Prime
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Minister of Australia and three members of his Ministry alleging offence
under Section 86 of the Crimes Act 1914 and a conspiracy at common
law.  The case also threw up the scope of the claim for privilege.  It was
held inter alia as follows in the judgment rendered by Sir Harry Gibbs,
A.C.J.:
“43. If state papers were absolutely protected from production,
great injustice would be caused in cases in which the documents
were necessary to support the defence of an accused person
whose liberty was at stake in a criminal trial, and it seems to be
accepted that in those circumstances the documents must be
disclosed: Duncan v. Cammell, Laird & Co. [1942] UKHL 3;
(1942) AC 624, at pp 633-634 ; Conway v. Rimmer (1968) AC, at
pp 966-967, 987 ; Reg. v. Lewes Justices; Ex parte Home
Secretary (1973) AC, at pp 407-408. Moreover, a Minister might
produce a document of his own accord if it were necessary to do
so to support a criminal prosecution launched on behalf of the
government. The fact that state papers may come to light in some
circumstances is impossible to reconcile with the view that they
enjoy absolute protection from disclosure.
48. In Robinson v. South Australia (No. 2) (1931) AC, at p 718 , it
was said that “the privilege, the reason for it being what it is, can
hardly be asserted in relation to documents the contents of which
have already been published”. Other cases support that view: see
Marconi’s Wireless Telegraph Co. Ltd. v. The Commonwealth
(No.
2) (1913) 16 CLR, at pp 188, 195, 199 ; Christie v. Ford
(1957) 2 FLR 202, at p 209 . However the submission made by
counsel for Mr. Whitlam was that the position is different when
the exclusion of a document is sought not because of its contents
but because of the class to which it belongs. In such a case the
document is withheld irrespective of its contents; therefore, it was
said, it is immaterial that the contents are known. That is not so;
for the reasons I have suggested, it may be necessary for the
proper functioning of the public service to keep secret a document
of a particular class, but once the document has been published to
the world there no longer exists any reason to deny to the court
access to that document, if it provides evidence that is relevant
and otherwise admissible. It was further submitted that if one
document forming part of a series of cabinet papers has been
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published, but others have not, it would be unfair and unjust to
produce one document and withhold the rest. That may indeed be
so, and where one such document has been published it becomes
necessary for the court to consider whether that circumstance
strengthens the case for the disclosure of the connected
documents. However even if other related documents should not
be produced, it seems to me that once a document has been
published it becomes impossible, and indeed absurd, to say that
the public interest requires that it should not be produced or given
in evidence.”
28. No doubt regarding publication by an unauthorised person and
it being unauthenticated, the learned Judge had this to say:
“49. What I have just said applies to cases where it is established
that a true copy of the document sought to be produced has in
fact been published. The publication by an unauthorized person of
something claimed to be a copy of an official document, but
unauthenticated and not proved to be correct, would not in itself
lend any support to a claim that the document in question ought to
be produced. In such a case it would remain uncertain whether
the contents of the document had in truth been disclosed. In some
cases the court might resolve the problem by looking at the
document for the purpose of seeing whether the published copy
was a true one, but it would not take that course if the alleged
publication was simply a device to
assist in procuring disclosure,
and it might be reluctant to do so if the copy had been stolen or
improperly obtained.”
29. In the same case in the judgment rendered by Stephen. J., the
learned Judge observes: -
“26. The character of the proceedings has a triple significance.
First, it makes it very likely that, for the prosecution to be successful,
its evidence must include documents of a class hitherto regarded
as undoubtedly the subject of Crown privilege. But, then, to accord
privilege to such documents as a matter of course is to come
close to conferring immunity from conviction upon those who may
occupy or may have occupied high offices of State if proceeded
against in relation to their conduct in those offices. Those in whom
resides the power ultimately to decide whether or not to claim
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privilege will in fact be exercising a far more potent power: by a
decision to claim privilege dismissal of the charge will be well-
nigh ensured. Secondly, and assuming for the moment that there
should prove to be any substance in the present charges, their
character must raise doubts about the reasons customarily given
as justifying a claim to Crown privilege for classes of documents,
being the reasons in fact relied upon in this case. Those reasons,
the need to safeguard the proper functioning of the executive arm
of government and of the public service, seem curiously
inappropriate when to uphold the claim is to prevent successful
prosecution of the charges: inappropriate because what is charged
is itself the grossly improper functioning of that very arm of
government and of the public service which assists it. Thirdly, the
high offices which were occupied by those charged and the nature
of the conspiracies sought to be attributed to them in those offices
must make it a matter of more than usual public interest that in
the disposition of the charges the course of justice be in no way
unnecessarily impeded. For such charges to have remained
pending and unresolved for as long as they have is bad enough; if
they are now to be met with a claim to Crown privilege, invoked
for the protection of the proper functioning of the executive
government, some high degree of public interest in non-disclosure
should be shown before his privilege should be accorded. “
“31. What are now equally well established are the respective
roles of the court and of those, usually the Crown, who assert
Crown privilege. A claim to Crown privilege has no automatic
operation; it always remains the function of the court to determine
upon that claim. The claim, supported by whatever material may
be thought appropriate to the occasion, does no more than draw
to the court’s attention what is said to be the entitlement to the
privilege and provide the court with material which may assist it
in determining whether or not Crown privilege should be accorded.
A claim to the privilege is not essential to the invoking of Crown
privilege. In cases of defence secrets, matters of diplomacy or
affairs of government at the highest level, it will often appear
readily enough that the balance of public interest is against
disclosure. It is in these areas that, even in the absence of any
claim to Crown privilege (perhaps because the Crown is not a
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party and may be unaware of what is afoot), a court, readily
recognizing the proffered evidence for what it is, can, as many
authorities establish, of its own motion enjoin its disclosure in court.
Just as a claim is not essential, neither is it ever conclusive,
although, in the areas which I have instanced, the court’s
acceptance of the claim may often be no more than a matter of
form. It is not conclusive because the function of the court, once
it becomes aware of the existence of material to which Crown
privilege may apply, is always to determine what shall be done in
the light of how best the public interest may be served, how least
it will be injured. ”
“38. Those who urge Crown privilege for classes of documents,
regardless of particular contents, carry a heavy burden. As Lord
Reid said in Rogers v. Home Secretary (1973) AC, at p 400 the
speeches in Conway v. Rimmer[1968] UKHL 2; (1968) AC 910
have made it clear “that there is a heavy burden of proof” on
those who make class claims. Sometimes class claims are
supported by reference to the need to encourage candour on the
part of public servants in their advice to Ministers, the immunity
from subsequent disclosure which privilege affords being said to
promote such candour. The affidavits in this case make reference
to this aspect. Recent authorities have disposed of this ground as
a tenable basis for privilege. Lord Radcliffe in the Glasgow
Corporation Case
remarked 1956 SC (HL), at p 20 that he would
have supposed Crown servants to be “made of sterner stuff”, a
view shared by Harman L.J. in the Grosvenor Hotel Case (1965)
Ch, at p 1255 : then, in Conway v. Rimmer (1968) AC 901 , Lord
Reid dismissed the “candour” argument but found the true basis
for the public interest in secrecy, in the case of cabinet minutes
and the like, to lie in the fact that were they to be disclosed this
would “create or fan ill-informed or captious public or political
criticism. . . . the inner workings of the government machine being
exposed to the gaze of those ready to criticize without adequate
knowledge of the background and perhaps with some axe to grind”
(1968) AC, at p 952 and see as to the ground of “candour” per
Lord Morris (1968) AC, at p 959 , Lord Pearce (1968) AC, at pp
987-988 and Lord Upjohn (1968) AC, at pp 933-934 . In Rogers
v. Home Secretary (1973) AC, at p 413 Lord Salmon spoke of the
“candour” argument as “the old fallacy”.
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“41. There is, moreover, a further factor pointing in the same
direction. The public interest in non-disclosure will be much reduced
in weight if the document or information in question has already
been published to the world at large. There is much authority to
this effect, going back at least as far as Robinson v. South Australia
(No. 2) (1931) AC 704, at p 718 per Lord Blanesburgh. In 1949
Kriewaldt J., sitting in the Supreme Court of the Northern Territory,
had occasion to review the relevant authorities in his judgment in
Christie v. Ford (1957) 2 FLR 202, at p 209 . The reason of the
thing necessarily tends to deny privilege to information which is
already public knowledge. As Lord Blanesburgh observed (25)
“the privilege, the reason for it being what it is, can hardly be
asserted in relation to documents the contents of which have
already been published”. In Whitehall v. Whitehall 1957 SC 30, at
p 38 the Lord President (Clyde) in referring to a document already
the subject of some quite limited prior publicity observed that “The
necessity for secrecy, which is the primary purpose of the
certificate, then no longer operates…”
“44. In Rogers v. Home Secretary Lord Reid had occasion to
distinguish between documents lawfully published and those which,
as a result of “some wrongful means”, have become public (1973)
AC, at p 402 . That case was, however, concerned with a quite
special class of document, confidential reports on applicants for
licences to
run gaming establishments, a class to which must apply
considerations very similar to those which affect the reports of,
or information about, police informers. There is, in those cases,
the clearest public interest in preserving the flow of information
by ensuring confidentiality and by not countenancing in any way
breach of promised confidentiality. Those quite special
considerations do not, I think, apply in the present case.”
(Emphasis Supplied)
30. In Rogers Vs. Home Secretary 1973 A.C. 388, the request to
produce a letter written by the Police Officer to the Gaming Board by
way of response to the Gaming Board request for information in regard
to applications by the appellant for certificates of consent, was not
countenanced by the House of Lords. The appellant had commenced an
action for criminal libel in regard to the information. Lord Reid in the
course of his judgment held:-
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SUPREME COURT REPORTS
[2019] 5 S.C.R.
“In my judgment on balance the public interest clearly requires
that documents of this kind should not be disclosed, and that public
interest is not affected by the fact that by some wrongful means
a copy of such a document has been obtained and published by
some person. I would therefore dismiss the appellant’s appeal.”
31. In this case however as I have already noticed there are the
following aspects.  The documents in question have been published in
‘The Hindu’, a national daily as noticed in the order of the learned Chief
Justice. It is true that they have not been officially published. The
correctness of the contents per se of the documents are not questioned.
Lastly, the case does not strictly involve in a sense the claim for privilege
as the petitioners have not called upon the respondents to produce the
original and as already noted the state does not take objection to the
correctness of the contents of the documents. The request of the
respondents is to remove the documents from the record. I would observe
that in regard to documents which are improperly obtained and which
are subject to a claim for privilege, undoubtedly the ordinary rule of
relevancy alone may not suffice as larger public interest may warrant in
a given case refusing to legitimise what is forbidden on grounds of
overriding public interest. In the writ petition out of which the review
arises the complaint is that there has been grave wrong
doing in the
highest echelons of power and the petitioners seek action inter alia
under the provisions of Prevention of Corruption Act.  The observations
made by Stephen,J. in para 26 of his judgment and extracted by me in
para 29 of my order may not be out of place.
32. I agree with the order of the learned Chief Justice.
Devika Gujral
Review petitions be adjudicated on merits.