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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

REVIEW PETITION (CRIMINAL) NO. 46 OF 2019

IN

WRIT PETITION (CRIMINAL) NO. 298 OF 2018

 YASHWANT SINHA & ORS.  …PETITIONER(S)

   VERSUS

CENTRAL BUREAU OF INVESTIGATION THROUGH  ITS DIECTOR & ANR. … RESPONDENT(S)

WITH M.A.NO. 58/2019 in W.P. (CRL.) 225/2018

R.P. (CRL.) NO. 122/2019 IN W.P. (CRL.) 297/2018 M.A. NO. 403/2019 IN W.P. (CRL.) NO. 298/2018

R.P.(C) No. 719/2019 in W.P.(C) 1205/2018

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

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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 eight­page note written by three  members of the Indian Negotiating Team  (‘INT’) charged  in reference  to the Rafale Deal (note dated 01.06.2016)

(b) Note­18 of the Ministry of Defence (Government of India), F.No.  AirHQ/S/96380/3/ASR  PC­XXVI (Marked  Secret under the Official Secrets Act)  

(c) Note­10 written by S.K. Sharma (Deputy Secretary, MoD, Air­III), 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

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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 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,

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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, 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

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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

(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, ­

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(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 sub­section (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, the decision of the Central Government shall

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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. Note­18 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

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the publication of such documents on any of the grounds

mentioned in Article 19(2) of the Constitution has been brought to

our notice.   In fact, the publication of the said documents in ‘The

Hindu’ newspaper reminds the Court of the consistent views of this

Court upholding the freedom of the press in a long line of decisions

commencing from  Romesh Thappar vs.  State  of  Madras   1  and

Brij Bhushan vs. The State of Delhi   2.   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 India   3 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 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

1  AIR 1950 SC 124 2 AIR 1950 SC 129 3 1985(1) SCC 641

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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 (1789­96) 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

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belief. In  Romesh Thappar v. State of Madras   4  and Brij Bhushan v. The State of Delhi   5, 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. 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

Officer   6 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

4 AIR 1950 SC 124 5 AIR 1950 SC 129

6  1994 (2) SCC 434

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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 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

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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, public­spirited 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 States   7 wherein

Marshall, J. refused to recognize a right in the executive

7  403 U.S. 713 (1971)

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government to seek a restraint order or publication of certain

papers titled “Pentagon Papers” primarily on the ground that the

first Amendment guaranteed freedom of the press and 18 U.S. Code

§ 793 did not contemplate any restriction on publication of items or

materials specified in the said Code.  By a majority of 6:3 the U.S.

Supreme Court declined to pass prohibitory orders on publication

of the “Pentagon Papers” on the ground that the Congress itself not

having vested any such power in the executive, which it could have

so done, the courts  cannot  carve out such a  jurisdiction as  the

same  may  amount to  unauthorized judicial law  making thereby

violating the sacred doctrine of separation of powers.  We do not see

how and why the above principle of law will not apply to the facts of

the present case.   There is no provision in the Official Secrets Act

and no such provision in any other statute has been brought to our

notice by which Parliament has vested any power in the executive

arm of the government either to restrain publication of documents

marked as secret or from placing such documents before a Court of

Law which may have been called upon to adjudicate a legal issue

concerning the parties.  

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6. Insofar as the claim of privilege is concerned, on the very face

of it, Section 123 of the Indian Evidence Act, 1872 relates to

unpublished public records. As already noticed, the three

documents have been published in different editions of ‘The Hindu’

newspaper.  That apart, as held in S.P. Gupta vs. Union of India   8

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

8 AIR 1982 SC, 149

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Act is plainly not tenable, we do not consider it necessary to delve

into the matter any further.  

7. An issue has been raised by the learned Attorney with regard

to the manner in which the three documents in question had been

procured and placed before the Court.   In this regard, as already

noticed, the documents have been published in ‘The Hindu’

newspaper on different dates.  That apart, even assuming that the

documents have not been procured in a proper manner should the

same be shut out of consideration by the Court?   In  Pooran Mal

vs.  Director of Inspection  (Investigation)  of Income­Tax, New

Delhi   9 this Court has taken the view that the “test of admissibility

of evidence lies in its relevancy,  unless there is an express or

necessarily implied prohibition in the  Constitution or other law

evidence obtained as a result of illegal search or seizure is not liable

to be shut out.”    

8. Insofar as the Right to Information Act is concerned in Chief

Information Commissioner vs. State of Manipur   10 this Court had

9 AIR 1974 SC 348 10 (2011) 15 SCC,1

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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 sub­section (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.

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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 Attorney­General thus exhorts us

to dismiss this case,  in limine,  in light of  public policy

considerations.  

11.  All that we would like to observe in this regard is a reiteration

of  what  had  already  been said  by this  Court in  Kesavananda

Bharati Sripadagalvaru v. State of Kerala   11  

“Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the Aristocracy of the Robe, Covert Legislation, or Judge­Made 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

11 AIR 1973 SC 1461  

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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.

..…………………………., CJI [RANJAN GOGOI]

..…………………………….,J. [SANJAY KISHAN KAUL]

NEW DELHI APRIL 10, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISIDICTION

REVIEW PETITION (CRIMINAL) NO. 46 OF 2019 IN

WRIT PETITION(CRIMINAL) No.298 of 2018

YASHWANT SINHA & ORS.     ….PETITIONERS

VERSUS

CENTRAL BUREAU OF INVESTIGATION  THROUGH ITS DIRECTOR & ANR. …RESPONDSENTS

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

O R D E R

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

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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

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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. 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

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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

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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)

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. …………..”

5

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 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.”

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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

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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  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

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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

9

which they 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

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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 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

11

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  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

12

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-

13

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 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

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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 taken shall be made public after the decision has been taken, and the matter is complete, or over:

15

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—

16

(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;”

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

17

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  contained  in  Section  7,  such information  shall  be  provided  within forty-five  days  from  the  date  of  the receipt of request.”

18

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

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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

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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  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

21

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

22

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.

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

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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

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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

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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 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

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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

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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  Minister  of

Australia and three members of his Ministry alleging

offence under Section 86 of the Crimes Act 1914 and a

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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 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

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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 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

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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

33

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".

“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

35

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:-  

“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

36

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

37

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.  

   ……………………………………………J. [K.M. JOSEPH]

NEW DELHI DATED; APRIL 10, 2019

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