2019 (6) TMI 621 - SC - Indian Laws

Maintainability of the review petition - three documents unauthorizedly removed from the office of the Ministry of Defence, Government of India - Production of evidences - right to information - claim for privilege - HELD THAT - In this case in fact, the documents in respect of which the privilege is claimed are already on record. Section 123 of the Evidence Act in fact contemplates a situation where party seeks the production of document which is with a public authority and the public authority raises claim for privilege by contending that the document cannot be produced by it. Undoubtedly, the foundation for such a claim is based on public interest and nothing more and nothing less. The documents in question have been published in The Hindu , a national daily as noticed in the order of the learned Chief Justice. It is true that they have not been officially published. The correctness of the contents per se of the documents are not questioned. Lastly, the case does not strictly involve in a sense the claim for privilege as the petitioners have not called upon the respondents to produce the original and as already noted the state does not take objection to the correctness of the contents of the documents. The request of the respondents is to remove the documents from the record. In regard to documents which are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of overriding public interest. In the writ petition out of which the review arises the complaint is that there has been grave wrong doing in the highest echelons of power and the petitioners seek action inter alia under the provisions of Prevention of Corruption Act. The order of the learned Chief Justice upheld.

Issues Involved:
1. Maintainability of the review petition.
2. Unauthorized removal and use of documents.
3. Violation of the Official Secrets Act, 1923.
4. Applicability of the Right to Information Act, 2005.
5. Claim of privilege under Section 123 of the Indian Evidence Act, 1872.
6. Freedom of the press and public interest.

Detailed Analysis:

1. Maintainability of the Review Petition:
The respondents raised a preliminary objection regarding the maintainability of the review petition, arguing that it lacked bona fides due to the inclusion of unauthorizedly removed documents from the Ministry of Defence. The Supreme Court dismissed this objection, asserting that the review petitions must be adjudicated on their merits, considering the relevance of the contents of the three documents in question.

2. Unauthorized Removal and Use of Documents:
The respondents contended that the review petitioners had appended and relied on three documents unauthorizedly removed from the Ministry of Defence. These documents included an eight-page note by the Indian Negotiating Team, Note18 of the Ministry of Defence, and Note10 by S.K. Sharma. The Court acknowledged the publication of these documents in 'The Hindu' newspaper and 'The Wire', emphasizing that their presence in the public domain negated the argument of unauthorized removal affecting the review petition's maintainability.

3. Violation of the Official Secrets Act, 1923:
The respondents argued that the use of these documents violated Sections 3 and 5 of the Official Secrets Act, 1923. However, the Court noted that the documents were already in the public domain and that their publication was in line with the constitutional guarantee of freedom of speech. The Court further highlighted that no law enacted by Parliament specifically barred the publication of such documents, referencing the consistent judicial stance upholding press freedom.

4. Applicability of the Right to Information Act, 2005:
The respondents claimed that the documents could not be accessed under the Right to Information Act due to Section 8(1)(a). The Court, however, referred to Section 8(2) of the RTI Act, which allows access to information if public interest in disclosure outweighs the harm to protected interests. The Court concluded that since the documents were already in the public domain, the protection under Section 8(1)(a) did not serve public interest.

5. Claim of Privilege under Section 123 of the Indian Evidence Act, 1872:
The respondents invoked Section 123 of the Indian Evidence Act to claim privilege and bar the documents' disclosure. The Court clarified that Section 123 pertains to unpublished public records, and since the documents were already published, the claim of privilege was untenable. The Court cited the S.P. Gupta case, emphasizing that claims of immunity must be adjudged on public interest grounds, and in this case, the documents' public availability rendered the privilege claim irrelevant.

6. Freedom of the Press and Public Interest:
The Court reiterated the significance of press freedom, referencing landmark judgments like Romesh Thappar vs. State of Madras and Indian Express Newspapers vs. Union of India. The Court emphasized that the press plays a crucial role in a democratic society by ensuring transparency and accountability. The publication of the documents in 'The Hindu' was seen as consistent with the constitutional guarantee of freedom of speech, and the Court underscored that no law prohibited such publication.

Concurring Judgment by K.M. Joseph, J.:
Justice K.M. Joseph concurred with the Chief Justice's decision, adding that the press has a pivotal role in democracy and must remain unbiased and truthful. He highlighted the importance of transparency and the public's right to know, referencing the Right to Information Act's provisions. Justice Joseph emphasized that the RTI Act allows access to information if public interest outweighs protected interests, reinforcing the Court's stance on the documents' admissibility.

In conclusion, the Supreme Court dismissed the preliminary objections and held that the review petitions should be adjudicated on their merits, considering the relevance and admissibility of the three documents in question. The judgment reinforced the principles of press freedom, transparency, and public interest in the judicial decision-making process.

← Previous Next →