Supreme Court allows review petition based on leaked documents: Yashwant Sinha vs. CBI (2019)

Date of the Judgment: 10 April 2019
Citation: This judgment does not have an official citation.
Judges: The judgment was delivered by a bench comprising of Chief Justice Ranjan Gogoi and Justice K.M. Joseph. Justice K.M. Joseph wrote a concurring opinion.

Can a court consider documents that were allegedly stolen from the government when deciding a review petition? The Supreme Court of India recently addressed this question, focusing on whether leaked documents related to the Rafale deal could be used as evidence in a review petition, despite objections from the government claiming privilege and violation of the Official Secrets Act. This case explores the balance between transparency, the public’s right to know, and the government’s need to protect sensitive information.

Case Background

The case involves a review petition filed by Yashwant Sinha and others against the Central Bureau of Investigation (CBI) and the Indian government. The petitioners sought a review of a previous judgment related to the Rafale deal, a controversial purchase of fighter jets. The review petition included three documents that were allegedly removed without authorization from the Ministry of Defence. These documents were:

• An eight-page note by three members of the Indian Negotiating Team (INT) concerning the Rafale Deal, dated 01.06.2016.
• Note-18 of the Ministry of Defence, marked secret under the Official Secrets Act.
• Note-10 by S.K. Sharma, Deputy Secretary, MoD, dated 24.11.2015, also marked secret.

The government objected to the use of these documents, arguing they were obtained illegally and their disclosure would violate the Official Secrets Act, 1923, and the Indian Evidence Act, 1872. The government also contended that these documents could not be accessed under the Right to Information Act, 2005.

Timeline

Legal Framework

The Supreme Court considered the following legal provisions:

• Sections 3 and 5 of the Official Secrets Act, 1923: These sections deal with penalties for spying and wrongful communication of information. Section 3(1) states that if any person for any purpose prejudicial to the safety or interests of the State obtains, collects, records, publishes or communicates 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, they shall be punishable with imprisonment. Section 5(1) specifies that if any person having in their 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 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 and 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 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 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 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.
• Section 8(1)(a) and 8(2) of the Right to Information Act, 2005: Section 8(1)(a) exempts from disclosure information that 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. Section 8(2) allows access to information if the public interest in disclosure outweighs the harm to protected interests, notwithstanding the Official Secrets Act or exemptions under Section 8(1).
• Section 123 of the Indian Evidence Act, 1872: This section states that 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.

Arguments

The Attorney General, representing the respondents, raised preliminary objections against the maintainability of the review petition, arguing that:

• The review petition lacked bona fides because it relied on documents that were unauthorizedly removed from the Ministry of Defence.
• The use of these documents violated Sections 3 and 5 of the Official Secrets Act, 1923, which penalize actions prejudicial to the safety or interests of the State, including the communication of secret information.
• The documents could not be accessed under the Right to Information Act, 2005, due to Section 8(1)(a), which exempts information that could affect the sovereignty, integrity, or security of the State.
• Section 123 of the Indian Evidence Act, 1872, bars the disclosure of unpublished official records relating to affairs of State without permission from the head of the concerned department. Privilege was claimed to bar their disclosure in the public domain.
• Certain State actions are outside the purview of judicial review, falling within the political domain.
• Keeping the case alive could threaten the security of every citizen.

The petitioners, on the other hand, contended that:

• The documents were already in the public domain as they had been published in ‘The Hindu’ newspaper.
• The right to publish such documents is protected under the constitutional guarantee of freedom of speech.
• The test of admissibility of evidence lies in its relevancy, and 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.
• The Right to Information Act, 2005, promotes transparency and accountability, and Section 8(2) allows access to information if public interest in disclosure outweighs the harm to protected interests.
• The claim of immunity against disclosure under Section 123 of the Indian Evidence Act, 1872, must be judged on the touchstone of public interest.

The innovativeness of the argument by the petitioners lies in their assertion that the documents, having already been published in the public domain, should be considered admissible despite their allegedly unauthorized removal from government custody. This argument challenges the traditional view of government privilege and emphasizes the public’s right to information.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether the preliminary objections raised by the Union of India questioning the maintainability of the review petitions are tenable?
2. Whether the three documents, the admissibility of which has been questioned by the respondents, can be taken into account while adjudicating the review petitions?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court dismissed the preliminary objections raised by the Union of India, holding that the review petitions would be adjudicated on their own merits. The Court reasoned that the documents, having been published in ‘The Hindu’ newspaper, were already in the public domain and could not be ignored.

The Court also considered how each authority was viewed in its reasoning:

• Romesh Thappar vs. State of Madras, AIR 1950 SC 124 and Brij Bhushan vs. The State of Delhi, AIR 1950 SC 129:* Cited to uphold the freedom of the press.
• Indian Express Newspapers (Bombay) Private Limited vs. Union of India, 1985(1) SCC 641:* Cited to emphasize the importance of freedom of the press in a democratic society.
• Printers (Mysore) Limited vs. Assistant Commercial Tax Officer, 1994 (2) SCC 434:* Cited to highlight the role of the press as the Fourth Estate and its importance in a democracy.
• New York Times Company vs. United States, 403 U.S. 713 (1971):* Cited to support the principle that the executive cannot restrain publication of documents without explicit legal authority.
• S.P. Gupta vs. Union of India, AIR 1982 SC 149:* Cited to emphasize that claims of immunity against disclosure must be judged on the touchstone of public interest.
• Pooran Mal vs. Director of Inspection (Investigation) of Income-Tax, New Delhi, AIR 1974 SC 348:* Cited to support the view that the test of admissibility of evidence lies in its relevancy, not the manner of procurement.
• Chief Information Commissioner vs. State of Manipur, (2011) 15 SCC 1:* Cited to emphasize the object and purpose behind the enactment of the Right to Information Act, 2005.
• Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461:* Cited to reiterate that judicial review must be exercised without being influenced by political ideologies.
• Rajendra Sail v. M.P. High Court Bar Association and Others, 2005 (6) SCC 109:* Cited to highlight the reach of the media.
• Time v. Hill, 385 US 374:* Cited to emphasize that the constitutional guarantee of freedom of speech and press is for the benefit of all the people.
• Dennis v. United States, 341 US 494:* Cited to highlight the importance of free speech in a democracy.
• M/s. Doypack Systems Pvt. Ltd. Vs. Union of India and Others, 1988 (2) SCC 299:* Cited to state that the claim for privilege under Section 123 of the Indian Evidence Act being based on public policy cannot be waived.
• State of U.P. v. Raj Narain, AIR 1975 SC 865:* Cited to state that the Court will proprio motu exclude evidence the production of which is contrary to public interest.
• Sankey v. Whitlam, (1978) 142 CLR 1:* Cited regarding the aspect of publication of documents and the claim of privilege.
• Robinson v. South Australia (No. 2), (1931) AC 704:* Cited to state that the privilege can hardly be asserted in relation to documents the contents of which have already been published.
• Rogers Vs. Home Secretary, 1973 A.C. 388:* Cited to state that 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.

What weighed in the mind of the Court?

The Supreme Court’s decision was significantly influenced by the following factors:

• Public Domain: The fact that the documents were already published in a national newspaper was a major factor. The Court reasoned that once information is in the public domain, it becomes impractical to prevent its use in judicial proceedings.
• Freedom of the Press: The Court emphasized the importance of the freedom of the press as a cornerstone of democracy. The right to publish information was seen as a fundamental aspect of this freedom.
• Relevancy of Evidence: The Court reiterated that the primary test for the admissibility of evidence is its relevance to the case, and not the manner in which it was obtained.
• Public Interest: The Court underscored that claims of privilege and immunity against disclosure must be balanced against the public interest in transparency and accountability.
• Right to Information Act, 2005: The Court acknowledged that the RTI Act promotes transparency and allows access to information if public interest in disclosure outweighs the harm to protected interests.

The sentiment analysis of the reasons given by the Supreme Court indicates a strong emphasis on transparency, public interest, and freedom of the press. The Court’s reasoning reflects a commitment to ensuring that justice is not hindered by the withholding of relevant information.

The ratio of fact to law influencing the court’s decision is as follows:

This indicates that the court was significantly influenced by the factual context of the documents being in the public domain, while also considering the relevant legal provisions.

This flowchart visually represents the court’s logical reasoning process in addressing each issue.

Concurring Opinion by Justice K.M. Joseph

Justice K.M. Joseph wrote a separate concurring opinion, emphasizing the following points:

• Public Interest: He highlighted the importance of public interest in the disclosure of information and the need to balance this with the government’s claim of privilege.
• Freedom of the Press: He supported the view that the freedom of the press is essential for a functioning democracy and that the press should not be unduly restricted in its ability to publish information of public interest.
• Relevance of Documents: He agreed that the relevance of the documents to the case was a crucial factor in determining their admissibility.
• Transparency: He underscored the importance of transparency in government dealings and the public’s right to be informed about matters of national importance.

Justice Joseph’s concurring opinion reinforced the majority view, further emphasizing the significance of transparency and the public’s right to information.

Dissenting Opinion (If Any)

There was no dissenting opinion in this case. Both Justices Ranjan Gogoi and K.M. Joseph agreed on the outcome, although Justice Joseph wrote a separate concurring opinion to highlight additional points.

Conclusion

The Supreme Court’s decision in Yashwant Sinha vs. CBI (2019) is a landmark ruling that reinforces the importance of transparency, the freedom of the press, and the public’s right to information. By allowing the review petition to proceed based on leaked documents, the Court affirmed that information already in the public domain cannot be ignored, even if it was obtained through unauthorized means. The Court’s decision balanced the government’s claim of privilege with the public’s right to know, ensuring that judicial proceedings are not hindered by the withholding of relevant information.

The judgment highlights the delicate balance between government secrecy and public accountability. It underscores that the government’s claim of privilege over official documents is not absolute and must be weighed against the public interest. The ruling also reaffirms the role of the press as a vital watchdog in a democratic society.

In summary, the Supreme Court’s judgment in Yashwant Sinha vs. CBI (2019) has the following implications:

• Admissibility of Leaked Documents: Leaked documents, if already in the public domain, can be considered in judicial proceedings.
• Transparency and Accountability: The judgment emphasizes the importance of transparency in government dealings and the public’s right to be informed.
• Freedom of the Press: The ruling reinforces the role of the press as a watchdog and its right to publish information of public interest.
• Balance of Interests: The Court balanced the government’s claim of privilege with the public’s right to know, ensuring that justice is not hindered by the withholding of relevant information.
• Public Interest: The Court underscored that claims of immunity against disclosure must be judged on the touchstone of public interest.