Supreme Court Allows Review Petition Documents Despite Official Secrets Act Objections: Yashwant Sinha vs. CBI (2019)

Introduction

Date of the Judgment: 10 April 2019

Citation: 2019 INSC 328

Judges: Ranjan Gogoi, CJI, and Justices Sanjay Kishan Kaul and K.M. Joseph

Can the judiciary consider documents that have been leaked and are in the public domain, even if they are marked as secret under the Official Secrets Act, 1923? The Supreme Court of India addressed this crucial question in a review petition concerning the Rafale deal. The court had to decide whether to allow the petitioners to rely on certain documents, which were allegedly removed without authorization from the Ministry of Defence, to support their review petition. This case highlights the tension between the government’s need to maintain confidentiality and the public’s right to information and justice.

The judgment was delivered by a three-judge bench consisting of Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul, and Justice K.M. Joseph. The majority opinion was authored by Chief Justice Ranjan Gogoi, with a concurring opinion by Justice K.M. Joseph.

Case Background

The case arose from a review petition filed against the Supreme Court’s earlier judgment on the Rafale deal. The petitioners, including Yashwant Sinha, sought a review based on certain documents that they claimed revealed irregularities in the deal. These documents, marked as secret by the Ministry of Defence, were allegedly removed without authorization and were published in “The Hindu” newspaper in February 2019. The respondents, including the Central Bureau of Investigation (CBI), objected to the maintainability of the review petition, arguing that the documents were obtained illegally and could not be considered by the court.

The Attorney General, representing the respondents, argued that the use of these documents violated the Official Secrets Act, 1923, and that the documents could not be accessed under the Right to Information Act, 2005, due to the exemptions provided under Section 8(1)(a). Furthermore, they claimed privilege under Section 123 of the Indian Evidence Act, 1872, to bar their disclosure.

Timeline

Course of Proceedings

The Supreme Court was directly approached by way of a Writ Petition, which was subsequently reviewed. The respondents raised a preliminary objection to the maintainability of the review petition, arguing that the documents relied upon by the petitioners were obtained illegally and could not be considered by the court. The Attorney General contended that the documents were removed without authorization from the Ministry of Defence and that their use violated the Official Secrets Act, 1923. The respondents also claimed privilege under Section 123 of the Indian Evidence Act, 1872, to bar their disclosure.

Legal Framework

The Supreme Court considered the following legal provisions:

• Section 3 of the Official Secrets Act, 1923: This section outlines penalties for spying, including obtaining, collecting, recording, publishing, or communicating any secret official code, document, or information that could be useful to an enemy or affect the sovereignty and integrity of India.

  “If any person for any purpose prejudicial to the safety or interests of the State…obtains, collects, records or publishes or communicates to any other person 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…he shall be punishable…”

• Section 5(1) of the Official Secrets Act, 1923: This section deals with the wrongful communication of information, stating that any person having possession or control of any secret official code, document, or information, who willfully communicates it to an unauthorized person, uses it for the benefit of a foreign power, or fails to take reasonable care of it, is guilty of an offense.

  “If any person having in his 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…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…He shall be guilty of an offence under this section.”

• Section 8(1)(a) of the Right to Information Act, 2005: This section exempts from disclosure any information that would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific, or economic interests of the State, relations with foreign states, or lead to incitement of an offense.

  “Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which 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) of the Right to Information Act, 2005: This section allows access to information even if it falls under the exemptions of Section 8(1), if the public interest in disclosure outweighs the harm to the protected interests.

  “Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”

• 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.

  “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, who shall give or withhold such permission as he thinks fit.”

The Court also discussed the constitutional guarantee of freedom of speech and expression under Article 19(1)(a) of the Constitution, emphasizing the importance of a free press in a democratic society.

Arguments

Arguments by the Respondents (Union of India):

• The Attorney General contended that the review petition lacked bona fides because the petitioners relied on three documents that were unauthorizedly removed from the Ministry of Defence.
• It was argued that the use of these documents violated Sections 3 and 5 of the Official Secrets Act, 1923, and that the documents could not be accessed under the Right to Information Act, 2005, due to Section 8(1)(a).
• The respondents claimed privilege under Section 123 of the Indian Evidence Act, 1872, arguing that the documents were unpublished official records relating to affairs of State and their disclosure would harm public interest.
• The Attorney General also argued that there are certain State actions that are outside the purview of judicial review and that the present case fell within that category.
• The Attorney General argued that keeping the case alive would threaten the security of the citizens of the country.

Arguments by the Petitioners (Yashwant Sinha & Ors.):

• The petitioners argued that the documents were already in the public domain, having been published in “The Hindu” newspaper.
• They contended that the publication of the documents was in line with the constitutional guarantee of freedom of speech and expression and that there was no law specifically barring such publication.
• The petitioners relied on the Right to Information Act, 2005, particularly Section 8(2), which allows for the disclosure of information if public interest outweighs the harm to protected interests.
• They argued that the public interest in transparency and accountability outweighed the concerns about the confidentiality of the documents.

Innovation in the Arguments: The petitioners innovatively used the fact that the documents were already published in the public domain to counter the arguments of the respondents. They argued that the documents being in the public domain made the claim of privilege under Section 123 of the Indian Evidence Act, 1872, untenable and that the court should consider the documents in the interest of justice.

Issues Framed by the Supreme Court

The Supreme Court did not frame specific issues in a separate section. However, the core issue before the court was:

1. Whether the review petition was maintainable given that it relied on documents that were allegedly removed without authorization from the Ministry of Defence and were marked as secret under the Official Secrets Act, 1923.

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 and held that the review petitions would be adjudicated on their merits. The court concluded that the documents, having been published in “The Hindu” newspaper, were already in the public domain and could not be ignored. The court emphasized the importance of freedom of the press and the public’s right to information and justice.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Romesh Thappar vs. State of Madras [CITATION] and Brij Bhushan vs. The State of Delhi [CITATION]: The court relied on these cases to emphasize the importance of freedom of the press and speech, stating that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19(2).
• Indian Express Newspapers (Bombay) Private Limited vs. Union of India [CITATION]: The court quoted this case to underscore that the freedom of the press is essential for an informed citizenry and to help in the discovery of truth.
• Printers (Mysore) Limited vs. Assistant Commercial Tax Officer [CITATION]: The court reiterated that the freedom of the press is a cherished right in all democratic countries and that newspapers play a crucial role in guarding public interest.
• New York Times Company vs. United States [CITATION]: The court cited this case to highlight that the executive government cannot restrain the publication of documents, especially when the legislature has not vested such power in the executive.
• S.P. Gupta vs. Union of India [CITATION]: The court referred to this case to state that a claim of immunity against disclosure under Section 123 of the Indian Evidence Act, 1872, has to be judged on the touchstone of public interest.
• Pooran Mal vs. Director of Inspection (Investigation) of Income-Tax, New Delhi [CITATION]: The court relied on this case to state that the test of admissibility of evidence lies in its relevancy, even if the evidence was obtained illegally.
• Chief Information Commissioner vs. State of Manipur [CITATION]: The court referred to this case to highlight the object of the Right to Information Act, 2005, which is to promote transparency and accountability.
• Kesavananda Bharati Sripadagalvaru v. State of Kerala [CITATION]: The court cited this case to reiterate that judicial review is not intended to create a judicial oligarchy and that the primary duty of the court is to uphold the Constitution and the laws without fear or favor.
• Rajendra Sail v. M.P. High Court Bar Association and Others [CITATION]: The court referred to this case to highlight the reach of the media.
• Time v. Hill [CITATION]: The court cited this case to underscore that freedom of speech and press are for the benefit of the people.
• Dennis v. United States [CITATION]: The court referred to this case to highlight the importance of free speech in a democracy.
• M/s. Doypack Systems Pvt. Ltd. Vs. Union of India and Others [CITATION]: The court referred to this case to highlight that the claim of privilege under Section 123 of the Indian Evidence Act, 1872, cannot be waived.
• State of U.P. v. Raj Narain [CITATION]: The court referred to this case to highlight that the court will exclude evidence contrary to public interest.
• Sankey v. Whitlam [CITATION]: The court referred to this case to highlight the public interest and the scope of privilege.
• Rogers Vs. Home Secretary [CITATION]: The court referred to this case to highlight the documents obtained by wrongful means.

What weighed in the mind of the Court?

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

• Public Interest: The Court emphasized that the public interest in transparency and accountability outweighed the concerns about the confidentiality of the documents. The Court recognized the importance of an informed citizenry in a democratic society.
• Freedom of the Press: The Court underscored the vital role of a free press in a democracy and the importance of the public’s right to know. The Court noted that there was no law in place that barred the publication of the documents by the press.
• Documents in the Public Domain: The fact that the documents were already published in “The Hindu” newspaper and were available to the public was a key factor in the Court’s decision. The Court reasoned that since the documents were already in the public domain, there was no reason to prevent their consideration.
• Right to Information Act, 2005: The Court emphasized Section 8(2) of the Right to Information Act, 2005, which allows for the disclosure of information if the public interest in disclosure outweighs the harm to protected interests.
• Relevancy of Evidence: The Court reiterated 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.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio:

The Court’s reasoning was a blend of factual considerations, such as the documents being in the public domain, and legal considerations, such as the interpretation of the Right to Information Act, 2005, and the Official Secrets Act, 1923. The court’s emphasis on the public interest and the freedom of the press indicates a strong inclination towards transparency and accountability.

Logical Reasoning

The following flowchart demonstrates the court’s logical reasoning for the issue of whether the review petition was maintainable:

Key Takeaways

• Public Interest Prevails: The Supreme Court prioritized public interest in transparency and accountability over concerns about confidentiality, especially when the documents were already in the public domain.
• Freedom of the Press: The judgment reinforces the importance of a free press in a democratic society and its role in holding the government accountable.
• Right to Information: The court emphasized the significance of Section 8(2) of the Right to Information Act, 2005, which allows for the disclosure of information when it serves the public interest.
• Admissibility of Evidence: The court reiterated that the test of admissibility of evidence lies in its relevancy, even if the evidence was obtained through irregular means.

Directions

The Supreme Court did not issue any specific directions in this judgment. The court dismissed the preliminary objections raised by the Union of India and directed that the review petitions would be adjudicated on their merits. The court did not give any specific directions on the documents, other than observing that the documents were in the public domain and could be considered.

Conclusion

The Supreme Court’s judgment in the Yashwant Sinha vs. CBI case is a landmark decision that highlights the tension between the government’s need to maintain confidentiality and the public’s right to information and justice. The Court’s decision to allow the review petition to proceed based on documents that were already in the public domain underscores the importance of transparency and accountability in a democratic society. The judgment reinforces the significance of a free press and the public’s right to know, and it serves as a reminder that the courts must uphold the Constitution and the laws without fear or favor.