[RP No. 46/2019, decided on 10.04.2019]
In the present case, the Supreme Court held that Official Secrets Act (OSA) will not bar the court from getting documents covered under the Act as evidence in the court.
A bench headed by then Chief Justice of India Ranjan Gogoi had dismissed the preliminary objections raised by the Centre pertaining to usage of privileged documents as evidence in the court. The Attorney General had raised objections against Court relying on documents from the Ministry of Defense in order to decide the case related to the Rafale aircrafts. The contentions were also raised regarding the unauthorised publication by the media of such documents.
The bench comprised of then CJI Ranjan Gogoi, Justices S.K. Kaul and K.M. Joseph. The CJI observed that the executive arm of the government lacked any kind of power which can prevent the placing of such documents before a Court of Law, which may have been called upon to adjudicate a legal issue concerning the parties. Neither any power rests with the executives to restrain the publication of documents designated as secret or privileged. The OSA does not contain such provisions which provides the government with any such powers. The CJI noted that no other such provision of any statute was brought to the notice of the bench.
CJI further observed that the publication is covered under the Right to Free Speech:
“The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents. No question has been raised and, in our considered opinion, very rightly, with regard to the publication of the documents in ‘The Hindu’ newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech. No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice”.
Section 123 of the Indian Evidence Act, 1872: Dealing with the unpublished records
“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as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records.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 a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court may even inspect the document in question though the said power has to be sparingly exercised. Such an exercise, however, would not be necessary in the present case as the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value. As the claim of immunity under Section 123 of the Indian Evidence Act is plainly not tenable, we do not consider it necessary to delve into the matter any further”.
Cannot be kept out of consideration
“Even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court? In Pooran Mal vs. Director of Inspection (Investigation) of Income Tax, New Delhi 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”.
RTI v Official Secrets Act
“Section 8(2) of the Right to Information Act (already extracted) contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub-section (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest”.
The contention of security threat
The bench also dealt with the contentions of the Attorney General (AG) that certain actions of the political executives are beyond judicial scrutiny. AG submitted that the present case has the potential of threatening the security of the Indian citizens if kept alive. To which the bench responded with Justice H.R. Khanna’s observations in Kesavananda Bharti case.
“That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision”.