Yashwant Sinha And Others v. Central Bureau Of Investigation Through Its Director And Another

Per Gogoi, C.J. and Kaul, J.

No question had been raised and very rightly, with regard to the publication of the three documents in The Hindu and thus availability of those documents in public domain. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech and Press. 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 has been brought to the Court's notice. There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to the Court's 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.

(Paras 5 and 7)

New York Times Co. v. United States, 1971 SCC OnLine US SC 147 : 29 L Ed 2d 822 : 403 US 713 (1971), applied

Romesh Thappar v. State of Madras, AIR 1950 SC 124 : (1950) 51 Cri LJ 1514; Brij Bhushan v. State (UT of Delhi), AIR 1950 SC 129 : (1950) 51 Cri LJ 1525; Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121, relied on

Printers (Mysore) Ltd. v. CTO, (1994) 2 SCC 434, affirmed

Terminiello v. City of Chicago, 1949 SCC OnLine US SC 59 : 93 L Ed 1131 : 337 US 1 (1949); De Jonge v. State of Oregon, 1937 SCC OnLine US SC 2 : 81 L Ed 278 : 299 US 353 (1937), cited

Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Evidence Act, 1872 relates to unpublished public records and is, therefore, not available in the present case as the three documents have been published in different editions of The Hindu newspaper. That apart, a claim of immunity against disclosure under Section 123 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. Thus, the claim of immunity under Section 123 is plainly not tenable.

(Para 8)

S.P. Gupta v. Union of India, 1981 Supp SCC 87, relied on

When the documents in question are already in the public domain, the protection under Section 8(1)(a) of the RTI Act would also not serve any public purpose.

(Para 11)

Even assuming that the documents have not been procured in a proper manner, the same should not be shut out of consideration by the Court.

(Para 9)

Pooran Mal v. Director of Inspection, (1974) 1 SCC 345 : 1974 SCC (Tax) 114, relied on

Chief Information Commr. v. State of Manipur, (2011) 15 SCC 1, affirmed

Section 8(2) of the Right to Information Act 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.

(Para 11)

There is no substance in the argument of the Attorney General that the present case pertains to certain State actions which fall within political domain and are outside the purview of judicial review and that this case, if kept alive, has the potential to threaten the security of each and every citizen residing within our territories. As aptly observed by Khanna, J. in Kesavananda Bharati, (1973) 4 SCC 225 the primary duty of the Judges “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”.

(Paras 12 and 13)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, relied on

In the light of the above, it is deemed proper to dismiss the preliminary objections raised by the Union of India questioning the maintainability of the review petitions and to 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.

(Para 14)

Per K.M. Joseph, J. (concurring)

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. The reach of the Press out of which the visual media in particular wields power, appears to be limitless. No segment of the population is impervious to its influence. Media's consumers are entitled to demand that the stream of information that flows from it, must remain unpolluted by considerations other than truth. 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. 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 marketplace 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.

(Paras 16, 17 and 18)

Dennis v. United States, 1951 SCC OnLine US SC 68 : 95 L Ed 1137 : 341 US 494 (1951); Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121; Attorney General v. Times Newspapers Ltd., 1974 AC 273 : (1973) 3 WLR 298 (HL), relied on

Rajendra Sail v. M.P. High Court Bar Assn., (2005) 6 SCC 109 : 2005 SCC (Cri) 1401, affirmed

The foundation for the law relating to privilege is contained in the candour principles and also the possibility of ill-informed criticism. The need for candour and frankness cannot justify granting of complete immunity against disclosure of documents of this class. 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. As regards 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, 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. But in India, Section 123 read with Section 124 and Section 162 of the Evidence Act does provide for the statutory basis for a claim of public interest privilege.

(Paras 27, 28 and 30)

S.P. Gupta v. Union of India, 1981 Supp SCC 87, relied on

Neilson v. Laugharne, 1981 QB 736 : (1981) 2 WLR 537 : (1981) 1 All ER 829 (CA); Conway v. Rimmer, 1968 AC 910 : (1968) 2 WLR 998 (HL); Rogers v. Home Secy., 1973 AC 388 : (1972) 3 WLR 279 (HL), cited

Law in India relating to Crown privilege as it was originally styled in England is mainly embedded in Section 123 of the Evidence Act. It cannot be denied that the claim for privilege under Section 123, being based on public policy, cannot be waived. Section 124 is confined to public officers and the decisive aspect even under Section 124 is the protection of public interest. Thus, basis for the claim of privilege is and can only be public interest.

(Paras 22 and 23)

State of U.P. v. Raj Narain, (1975) 4 SCC 428; S.P. Gupta v. Union of India, 1981 Supp SCC 87, relied on

Doypack Systems (P) Ltd. v. Union of India, (1988) 2 SCC 299, affirmed

Rogers v. Home Secy., 1973 AC 388 : (1972) 3 WLR 279 (HL); Lanyon Pty. Ltd. v. Commonwealth, (1974) 129 CLR 650; Conway v. Rimmer, 1968 AC 910 : (1968) 2 WLR 998 (HL); State of Bihar v. Kripalu Shankar, (1987) 3 SCC 34 : 1987 SCC (Cri) 442; Bachhittar Singh v. State of Punjab, 1962 Supp (3) SCR 713 : AIR 1963 SC 395; Air Canada v. Secy. of State for Trade, (1983) 2 AC 394 : (1983) 2 WLR 494 : (1983) 1 All ER 161 (HL); Time Inc. v. J. Hill, 1967 SCC OnLine US SC 1 : 17 L Ed 2d 456 : 385 US 374 (1967); Grosvenor Hotel (No. 2), In re, 1965 Ch 1210 : (1964) 3 WLR 992 (CA), cited

The next aspect relating to the law of compelled production of documents is the constitutional embargo contained in Article 74(2) of the Constitution. It would be impermissible for a court to inquire into the advice which is tendered by the Cabinet. But the objection in this case raised under the Right to Information Act, is based only on Section 8(1)(a). Section 8(1)(i) having not been pressed into service, neither its scope nor the ramification of Article 74(2) need be pursued further in this case.

(Paras 30 and 31)

It is apposite to notice the change that was introduced by the Right to Information Act, 2005. Under Sections 22 and 24 of the Act, 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. It 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. Corruption and human rights violations are completely incompatible and hence an anathema to the very basic principles of democracy, the rule of law and constitutional morality. 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 offspring of corruption. However, the lawgiver has indeed dealt with corruption and human rights separately.

(Para 37)

Further, it is clear from Section 8 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 citizen's 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. What 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. The RTI Act through Section 8(2) has conferred upon the citizens a priceless right by clothing them with the right to 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. Information is not to be given for the mere asking. The applicant must establish that withholding of such information produces greater harm than disclosing it. The premise for disclosure in a matter relating to security and relationship with foreign State 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.

(Paras 38 to 42)

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.

(Para 41)

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. 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. What an officer under the RTI Act can permit, can also be allowed by a court and that too superior courts under Section 123 of the Evidence Act, subject to one exception, namely, if it is a matter which is tabooed under Article 74(2) of the Constitution.

(Para 43)

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 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.

(Para 44)

State of U.P. v. Raj Narain, (1975) 4 SCC 428, relied on

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 court's decision to act upon the same.

(Para 45)

Pooran Mal v. Director of Inspection, (1974) 1 SCC 345 : 1974 SCC (Tax) 114, relied on

Barindra Kumar Ghose v. Emperor, 1909 SCC OnLine Cal 115 : ILR (1910) 37 Cal 467, cited

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 arise whether the Court is bound to order production.

(Para 46)

Sankey v. Whitlam, (1978) 21 Aus LR 505 : (1978) 142 CLR 1 : (1978) 53 ALJR 11; Rogers v. Home Secy., 1973 AC 388 : (1972) 3 WLR 279 (HL), referred to

Conway v. Rimmer, 1968 AC 910 : (1968) 2 WLR 998 (HL); Duncan v. Cammell, Laird & Co. Ltd., 1942 UKHL 3 : 1942 AC 624 (HL); Robinson v. State of South Australia (No.2), 1931 AC 704 (PC); Marconi's Wireless Telegraph Co. Ltd. v. Commonwealth, (1913) 16 CLR 178; Christie v. Ford, (1957) 2 FLR 202; Glasgow Corpn. v. Central Land Board, 1956 SC (HL) 1 : 1956 SLT 41; Whitehall v. Whitehall, 1957 SC 30, cited

In this case however, there are the following aspects. The documents in question have been 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 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 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. In the writ petition out of which the review arises, the complaint is that there has been grave wrongdoing in the highest echelons of power and the petitioners seek action inter alia under the provisions of the Prevention of Corruption Act.

(Para 51)

Sankey v. Whitlam, (1978) 21 Aus LR 505 : (1978) 142 CLR 1 : (1978) 53 ALJR 11, referred to

R-D/62243/C