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– Insofar as the claim of privilege is concerned, on the very face of it, s.123 of the Evidence Act, 1872 relates to unpublished public records – A claim of immunity against disclosure under s.123 of the Evidence Act has to be essentially adjudged on the touchstone of public interest and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 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 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]
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 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 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]
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]
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
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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