1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

REVIEW PETITION (CRIMINAL) NO. 46 OF 2019

IN

WRIT PETITION (CRIMINAL) NO. 298 OF 2018

YASHWANT SINHA & ORS.  …PETITIONER(S)

VERSUS

CENTRAL BUREAU OF INVESTIGATION THROUGH 

ITS DIECTOR & ANR. … RESPONDENT(S)

WITH

M.A.NO. 58/2019 in W.P. (CRL.) 225/2018

R.P. (CRL.) NO. 122/2019 IN W.P. (CRL.) 297/2018

M.A. NO. 403/2019 IN W.P. (CRL.) NO. 298/2018

R.P.(C) No. 719/2019 in W.P.(C) 1205/2018

JUDGMENT

RANJAN GOGOI, CJI

1.A preliminary objection with regard to the maintainability of

the review petition has been raised by the Attorney General on

behalf of the respondents.  The learned Attorney General contends

2

that the review petition lacks in bona fides inasmuch as three

documents unauthorizedly removed from the office of the Ministry

of Defence, Government of India, have been appended to the review

petition   and   relied   upon   by   the   review   petitioners.     The   three

documents in question are:

(a)An   eight­page   note   written   by   three   members   of   the

Indian Negotiating Team (‘INT’) charged in reference to

the Rafale Deal (note dated 01.06.2016)

(b)Note­18 of the Ministry of Defence (Government of India),

F.No. AirHQ/S/96380/3/ASR PC­XXVI (Marked Secret

under the Official Secrets Act) 

(c)Note­10 written by S.K. Sharma (Deputy Secretary, MoD,

Air­III), Note dated 24.11.2015 (Marked Secret under the

Official Secrets Act)

2.It is contented that the alleged unauthorized removal of the

documents from the custody of the competent authority of the

Government of India and the use thereof to support the pleas urged

in the review petition is in violation of the provisions of Sections 3

and 5 of the Official Secrets Act, 1923.   It is further contended that

the documents cannot be accessed under the Right to Information

Act in view of the provisions contained in Section 8(1)(a) of the said

3

Act.   Additionally, the provisions contained in Section 123 of the

Indian Evidence  Act,  1872  have  been pressed  into service  and

privilege has been claimed so as to bar their disclosure in the public

domain.  Section 3, 5(1) of the Official Secrets Act; Section 8(1)(a)

and 8(2) of the Right to Information Act and Section 123 of the

Evidence Act on which the learned Attorney has relied upon is

extracted below.

3. Penalties for spying.­ (1) If any person for any purpose

prejudicial to the safety or interests of the State –

(a)approaches, inspects, passes over or is in the vicinity of,

or enters, any prohibited place; or

(b) makes   any   sketch,   plan,   model   or   note   which   is

calculated to be or might be or is intended to be directly

or indirectly, useful to any enemy; or

(c)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 with imprisonment for a term which

may extend, where the offence is committed in relation to any

work   of   defence,   arsenal,   naval,   military   or   air   force

establishment or station, mine, minefield, factory, dockyard,

camp, ship or aircraft or otherwise in relation to the naval,

4

military or air force affairs of Government or in relation to any

secret official code, to fourteen years and in other cases to

three years.

(2)   On a prosecution for an offence punishable under this

section it shall not be necessary to show that the accused

person was guilty of any particular act tending to show a

purpose prejudicial to the safety or interests of the State, and,

notwithstanding that no such act is proved against him, he

may be convicted if, from the circumstances of the case or his

conduct or his known character as proved, it appears that his

purpose was a purpose prejudicial to the safety or interests of

the   State;   and   if   any   sketch,   plan,   model,   article,   note,

document, or information relating to or used in any prohibited

place, or relating to anything in such a place, or any secret

official   code   or   password   is   made,   obtained,   collected,

recorded, published or communicated by any person other

than a person acting under lawful authority, and from the

circumstances   of   the   case   or   his   conduct   or   his   known

character as proved it appears that his purpose was a purpose

prejudicial to the safety or interests of the State, such sketch,

plan,   model,   article,   note,   document,   information,   code   or

password shall be presumed to have been made, obtained,

collected, recorded, published or communicated for a purpose

prejudicial to the safety or interests of the State.  

5. Wrongful communication, etc., of information. ­(1) 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, or which

has   been  entrusted  in   confidence   to    him   by   any   person

5

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

(a)     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 

(b)    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

(c) 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

(d)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.

(2) xxxx xxxx xxxx xxxx

(3) xxxx xxxx xxxx xxxx 

8.   Exemption   from   disclosure   of   information.  –   (1)

Notwithstanding anything contained in this Act, there shall be

no obligation to give any citizen, ­ 

6

(a) 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;

(b)  xxxx   xxxx   xxxx   xxxx

(c)xxxx   xxxx   xxxx   xxxx

(d) xxxx   xxxx   xxxx   xxxx

(e)xxxx   xxxx   xxxx   xxxx

(f)xxxx   xxxx   xxxx   xxxx

(g)xxxx   xxxx   xxxx   xxxx

(h)xxxx   xxxx   xxxx   xxxx

(i)xxxx   xxxx   xxxx   xxxx

Provided that the information which cannot be denied to the

Parliament or a State Legislature shall not be denied to any

person.

 (2) Notwithstanding   anything   in   the   Official   Secrets   Act,

1923 (19 of 1923) nor any of the exemptions permissible

in accordance with sub­section (1), a public authority

may allow access to information, if public interest in

disclosure outweighs the harm to the protected interests.

(3)xxxx   xxxx   xxxx   xxxx

Provided that where any question arises as to the date

from which the said period of twenty years has to be

computed, the decision of the Central Government shall

7

be final, subject to the usual appeals provided for in this

Act.  

123.Evidence   as   to   affairs   of   State.­   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.

3.The three documents which are the subject matter of the

present   controversy,   admittedly,   was   published   in   ‘The   Hindu’

newspaper on different dates in the month of February, 2019.  One

of the documents i.e. Note­18 of the Ministry of Defence was also

published in ‘The Wire’ a member of the Digital Print Media. 

4.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

8

the   publication   of   such   documents   on   any   of   the   grounds

mentioned in Article 19(2) of the Constitution has been brought to

our notice.  In fact, the publication of the said documents in ‘The

Hindu’ newspaper reminds the Court of the consistent views of this

Court upholding the freedom of the press in a long line of decisions

commencing from  Romesh Thappar vs. State of Madras   

1

  and

Brij Bhushan vs. The State of Delhi   

2

.  Though not in issue, the

present could very well be an appropriate occasion to recall the

views expressed by this Court from time to time.  Illustratively and

only because of its comprehensiveness the following observations in

Indian Express Newspapers (Bombay) Private Limited vs.Union

of India   

3

 may be extracted:

“The freedom of press, as one of the members of the

Constituent   Assembly   said,   is   one   of   the   items

around   which   the   greatest   and   the   bitterest   of

constitutional   struggles   have   been   waged   in   all

countries where  liberal constitutions prevail. The

said freedom is attained at considerable sacrifice

and   suffering   and   ultimately   it   has   come   to   be

incorporated in the various written constitutions.

James Madison when he offered the Bill of Rights to

1 AIR 1950 SC 124

2 AIR 1950 SC 129

3 1985(1) SCC 641

9

the Congress in 1789 is reported as having said:

“The   right   of   freedom   of   speech   is   secured,   the

liberty   of   the   press   is   expressly   declared   to   be

beyond   the   reach   of   this   Government”   (See,   1

Annals of Congress (1789­96) p. 141). Even where

there are no written constitutions, there are well

established   constitutional   conventions   or   judicial

pronouncements securing the said freedom for the

people. The basic documents of the United Nations

and of some other international bodies to which

reference will be made hereafter give prominence to

the said right.

The leaders of the Indian independence movement

attached   special   significance   to   the   freedom   of

speech and expression which included freedom of

press   apart   from   other   freedoms.   During   their

struggle   for   freedom,   they   were   moved   by   the

American   Bill   of   Rights   containing   the   First

Amendment to the Constitution of the United States

of America which guaranteed the freedom of the

press.   Pandit   Jawaharlal   Nehru   in   his   historic

resolution containing the aims and objects of the

Constitution   to   be   enacted   by   the   Constituent

Assembly   said   that   the   Constitution   should

guarantee   and   secure   to   all   the   people   of   India

among others freedom of thought and expression.

He also stated elsewhere that “I would rather have a

completely free press with all the dangers involved

in the wrong use of that freedom than a suppressed

or regulated press” [See, D. R Mankekar: The Press

under   Pressure   (1973)   p.   25].   The   Constituent

Assembly   and   its   various   committees   and   sub­

committees   considered   freedom   of   speech   and

expression which included freedom of press also as

a precious right. The Preamble to the Constitution

says that it is intended to secure to all citizens

among   others   liberty   of   thought   expression,   and

10

belief. In Romesh Thappar v. State of Madras   

4

 and

Brij   Bhushan   v.   The   State   of   Delhi   

5

,   this   Court

firmly expressed its view that there could not be any

kind of restriction on the freedom of speech and

expression other than those mentioned in Article

19(2) and thereby made it clear that there could not

be any interference with that freedom in the name

of public interest. Even when clause (2) of Article 19

was   subsequently   substituted   under   the

Constitution (First Amendment) Act, 1951, by a new

clause which permitted the imposition of reasonable

restrictions   on   the   freedom   of   speech   and

expression   in   the   interests   of   sovereignty   and

integrity of India the security of the State, friendly

relations with foreign States, public order, decency

or   morality   in   relation   to   contempt   of   Court

defamation or incitement to an offence, Parliament

did not choose to include a clause enabling the

imposition of reasonable restrictions in the, public

interest.”

A   later   view   equally   eloquent   expressed   by   this   Court   in

Printers   (Mysore)   Limited   vs.   Assistant   Commercial   Tax

Officer   

6

 may also be usefully recapitulated.

“Freedom   of   press   has   always   been   a   cherished

right in all democratic countries. The newspapers

not only purvey news but also ideas, opinions and

ideologies besides much else. They are supposed to

guard   public   interest   by   bringing   to   fore   the

4 AIR 1950 SC 124

5 AIR 1950 SC 129

6 1994 (2) SCC 434

11

misdeeds, failings and lapses of the government and

other   bodies   exercising   governing   power.   Rightly,

therefore,   it   has   been   described   as   the   Fourth

Estate.   The   democratic   credentials   of   a   State   is

judged today by the extent of freedom the press

enjoys in that State. According to Justice Douglas

(An Almanac of Liberty) “acceptance by government

of a dissident press is a measure of the maturity of

the   nation”.   The   learned   Judge   observed   in

Terminiello v. Chicago, (1949) 93 L.Edn. 1131., that

“a   function   of   free   speech   under   our   system   of

government is to invite dispute. It may indeed best

serve its high purpose when it induces a condition

of unrest, creates dissatisfaction with conditions as

they are, or even stirs people to anger. Speech is

often provocative and challenging. It may strike at

prejudices and preconceptions and have profound

unsettling effect as it presses for acceptance of an

idea. ...There is no room under our Constitution for

a more restrictive view. For the alternative would

lead   to   standardisation   of   ideas   either   by

legislatures,   courts,   “or   dominant   political   or

community ground”. The said observations were of

course made with reference to the First Amendment

to the U.S. Constitution which expressly guarantees

freedom of press but they are no less relevant in the

India context; subject, of course, to clause (2) of

Article 19 of our Constitution. We may be pardoned

for quoting another passage from Hughese, C.J., in

De Jonge v. State of Oregon, (1937) 299 U.S. 353, to

emphasise   the   fundamental   significance   of   free

speech. The learned Chief Justice said: “the greater

the importance of safeguarding the community from

incitements to the overthrow of our institutions by

force and violence, the more imperative is the need

to preserve inviolate the constitutional rights of free

speech,   ferrets   and   free   assembly   in   order   to

maintain   the   opportunity   for   free   political

12

discussion,   to the  end  that  Government  may  be

responsive   to   the   will   of   the   people   and   that

changes, if desired, may be obtained by peaceful

means. Therein lies the security of the Republic, the

very foundation of constitutional government.”

It is true that very often the press, whether out of

commercial   reason   or   excessive   competition,

descends   to   undesirable   levels   and   may   cause

positive public mischief but the difficulty lies in the

fact,   recognised   by   Thomas   Jefferson,   that   this

freedom   “cannot   be   limited   without   being   lost”.

Thomas Jefferson said, “it is, however, an evil for

which there is no remedy; our liberty depends on

the freedom of the press and that cannot be limited

without being lost”. (In a letter to Dr. J. Currie,

1786).   It   is   evident   that   “an   able,   disinterested,

public­spirited   press,   with   trained   intelligence   to

know the right and courage to do it, can preserve

that   public   virtue   without   which   popular

government is a sham and a mockery. A cynical,

mercenary, demagogic press will produce in time a

people as base as itself. The power to mould the

future of the Republic will be in the hands of the

journalism   of   future   generations”,   as   stated   by

Joseph Pulitzer.”

5.The above views of the Supreme Court of India on the issue of

the freedom of the press has been echoed by the U.S. Supreme

Court in New York Times Company vs. United States   

7

 wherein

Marshall,   J.   refused   to   recognize   a   right   in   the   executive

7 403 U.S. 713 (1971)

13

government   to   seek   a   restraint   order   or   publication   of   certain

papers titled “Pentagon Papers” primarily on the ground that the

first Amendment guaranteed freedom of the press and 18 U.S. Code

§ 793 did not contemplate any restriction on publication of items or

materials specified in the said Code.  By a majority of 6:3 the U.S.

Supreme Court declined to pass prohibitory orders on publication

of the “Pentagon Papers” on the ground that the Congress itself not

having vested any such power in the executive, which it could have

so done, the courts cannot carve out such a jurisdiction as the

same may amount to unauthorized judicial law making thereby

violating the sacred doctrine of separation of powers.  We do not see

how and why the above principle of law will not apply to the facts of

the present case.  There is no provision in the Official Secrets Act

and no such provision in any other statute has been brought to our

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.  

14

6.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   

8

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

8 AIR 1982 SC, 149

15

Act is plainly not tenable, we do not consider it necessary to delve

into the matter any further. 

7.An issue has been raised by the learned Attorney with regard

to the manner in which the three documents in question had been

procured and placed before the Court.  In this regard, as already

noticed,   the   documents   have   been   published   in   ‘The   Hindu’

newspaper on different dates.  That apart, 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 Income­Tax, New

Delhi   

9

 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.”   

8.Insofar as the Right to Information Act is concerned in Chief

Information Commissioner vs. State of Manipur   

10

 this Court had

9 AIR 1974 SC 348

10 (2011) 15 SCC,1

16

occasion to observe the object and purpose behind the enactment of

the Act in the following terms:

  “The preamble (of the Right to Information Act, 2005)

would obviously show that the Act is based on the concept

of an open society. As its preamble shows,  the Act was

enacted to promote transparency and accountability in the

working of every public authority in order to strengthen

the core constitutional values of a democratic republic. It

is clear that the Parliament enacted the said Act keeping in

mind   the   rights   of   an   informed   citizenry   in   which

transparency of information is vital in curbing corruption

and   making   the   Government   and   its   instrumentalities

accountable. The Act is meant to harmonise the conflicting

interests of Government to preserve the confidentiality of

sensitive information with the right of citizens to know the

functioning of the governmental process in such a way as

to preserve the paramountcy of the democratic ideal.” 

9.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 sub­section (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.

17

10.An omnibus statement has been made by the learned Attorney

that there are certain State actions that are outside the purview of

judicial review and which lie within the political domain.   The

present would be such a case.  In the final leg of the arguments, the

learned Attorney General states that this case, if kept alive, has the

potential to threaten the security of each and every citizen residing

within our territories. The learned Attorney­General thus exhorts us

to   dismiss   this   case,  in   limine, in   light   of  public   policy

considerations. 

11. All that we would like to observe in this regard is a reiteration

of what had already been said by this Court in   Kesavananda

Bharati Sripadagalvaru v. State of Kerala   

11

“Judicial review is not intended to create what is sometimes

called   Judicial   Oligarchy,   the   Aristocracy   of   the   Robe,

Covert Legislation, or Judge­Made Law. The proper forum to

fight for the wise use of the legislative authority is that of

public   opinion   and   legislative   assemblies.   Such   contest

cannot   be   transferred   to   the   judicial   arena.  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

11 AIR 1973 SC 1461  

18

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.”

(Justice Khanna – para 1535)

12. In the light of the above, we deem it proper to dismiss the

preliminary objections raised by the Union of India questioning the

maintainability of the review petitions and we 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.

..………………………….,  CJI

[RANJAN GOGOI]

..…………………………….,J.

[SANJAY KISHAN KAUL]

NEW DELHI

APRIL 10, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISIDICTION

REVIEW PETITION (CRIMINAL) NO. 46 OF 2019

IN

WRIT PETITION(CRIMINAL) No.298 of 2018

YASHWANT SINHA & ORS. ….PETITIONERS

VERSUS

CENTRAL BUREAU OF INVESTIGATION

THROUGH ITS DIRECTOR & ANR. …RESPONDSENTS

WITH

M.A.NO.58/2019 IN W.P.(CRL.)NO.225/2018

R.P.(CRL.)NO.122/2019 IN W.P.(CRL.)NO.297/2018

M.A.NO.403/2019 IN W.P.(CRL.)NO.298/2018

R.P.(C)No.719/2019 IN W.P.(C)NO.1205/2018

O R D E R

K.M. JOSEPH,J.

1. I have read the order proposed in the matter

by the learned Chief Justice. While I agree with the

decision, I think it fit to give the following

reasons and hence, the concurring order:-

2. I do agree with the observations made by the

learned chief Justice in regard to the importance

which has been attached to the freedom of Press. The

1

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. It

is indisputable that the press out of which the

visual media in particular wields power, the reach of

which appears to be limitless. No segment of the

population is impervious to its influence.

In Rajendra Sail v. M.P. High Court Br

Association and Others 2005 (6) SCC 109, this Court

dealing with a case under the Contempt of Court Act

held inter alia as follows:

“31. The reach of the media, in the present

times of 24-hour channels, is to almost

ever nook and corner of the world.

Further, large number of people believe as

correct that which appears in media, print

or electronic……”

(emphasis supplied)

It must realise that its consumers are entitled to

demand that the stream of information that flows from

it, must remain unpolluted by considerations other

than truth.

3. I would think that freedom involves many

elements. A free person must be fearless. Fear can

be of losing all or any of the things that is held

2

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 market place of ideas forms much of

the basis for the grant of the unquestionable freedom

3

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. In this

regard in an article styled ‘the Indian Media’ which

is annexed to the Autobiography under the title

“Beyond the Lines” veteran journalist Late Shri Kuldip

Nayyar has voiced the following lament:

“Journalism as a profession has changed a

great deal from what it was in our times. I

feel acute sense of disappointment, not only

because it has deteriorated in quality and

direction but also because I do not see

journalist attempting to revive the values

ones practiced. The proliferation of

newspapers and television channels has no

doubt affected the quality of content,

particularly reporting. Too many

individuals are competing for the same

space. What appals me most is that

editorial primacy has been sacrificed at the

alter of commercialism and vested interests.

It hurts to see many journalists bending

backwards to remain handmaidens of the

proprietors, on the one hand, and of the

establishment, on the other. This is so

different from what we were used to.”

4. The exhortation as to who are the true

beneficiaries of the freedom of speech and the Press

4

was articulated in the judgment of the U.S. Supreme

Court in Time v. Hill 385 US 374 in the following

words:

“The constitutional guarantee of freedom of

speech and press are not for the benefit of

the press so much as for the benefit of all

the people.”

(emphasis supplied)

5. In Indian Express Newspapers (Bombay) Private

Ltd. And Others v. Union of India 1985 (1) SCC 641,

this Court made the following observations:

“……………The public interest in freedom of

discussion (of which the freedom of the

press is one aspect) stems from the

requirement that members of a democratic

society should be sufficiently informed

that they may influence intelligently the

decisions which may affect 'themselves.”

(Per Lord Simon of Glaisdale in Attorney-

General vs. Times Newspapers Limited (1973)

3 ALL ER 54). Freedom of expression, as

learned writers have observed, has four

broad social purposes to serve: (i) it

helps an individual to attain self

fulfilment, (ii) it assists in the discovery

of truth, (iii)it strengthens the capacity

of an individual in participating in

decision making, and (iv) it provides a

mechanism by which it would be possible

to establish a reasonable balance between

stability and social change. All members of

society should be able to form their own

beliefs and communicate them freely to

others. In sum, the fundamental principle

involved here is the people's right to know.

…………..”

5

6. The wise words of Justice Douglas to be found

in his dissenting judgment in Dennis v. United States

341 US 494 reminds one of the true goal of free speech

and consequently the role of a free press. The same

reads as under:

“Free speech has occupied an exalted

position because of the high service it has

given society. Its protection is essential

to the very existence of a democracy. The

airing of ideas releases pressures which

otherwise might become destructive. When

idea compete in the market for acceptance,

full and free discussion exposes the false

and they gain few adherents. Full and free

discussion even of ideas we hate encourages

the testing of our own prejudices and

preconceptions. Full and free discussion

keeps a society from becoming stagnant and

unprepared for the stresses and strains

that work to tear all civilzations apart.

Full and free discussion has indeed been

the first article of our faith. We have

founded our political system on it. It has

been the safeguard of every religious,

political, philosophical, economic and

racial group amongst us. We have counted

on it to keep us from embracing what is

cheap and false; we have trusted the common

sense of our people to choose the doctrine

true to our genius and to reject the rest.

This has been the one single outstanding

tenet that has made our institutions the

symbol of freedom and equality. We have

deemed it more costly to liberty to

suppress a despised minority than to let

them vent their spleen. We have above all

else feared the political censor. We have

wanted a land where our people can be

exposed to all the diverse creeds and

cultures of the world.”

6

7. Law in India relating to Crown privilege as

it was originally styled in England is mainly

embedded in a statutory provision namely Section 123

of the Indian Evidence Act. Also Section 124 of the

said Act is relied upon in the affidavit of the

Secretary. Section 124 of the Indian Evidence Act,

1872 reads as follows:-

“124. Official communications. —No public

officer shall be compelled to disclose

communications made to him in official

confidence, when he considers that the

public interests would suffer by the

disclosure.”

There can be no matter of doubt that Section 124 is

confined to public officers and the decisive aspect

even under Section 124 is the protection of public

interest.

8. Section 162 deals with the aspect of

inspection of documents covered by privilege. In

England, the law relating to privilege has been

entirely court made. It cannot be in dispute that

the claim for privilege under Section 123 of the

Indian Evidence Act being based on public policy

cannot be waived (see in this regard judgment of this

7

Court in M/s. Doypack Systems Pvt. Ltd. Vs. Union of

India and Others 1988 (2) SCC 299 at page 327). The

basis for the claim of privilege is and can only be

public interest.

9. In the judgment of this Court in State of

U.P. v. Raj Narain; AIR 1975 SC 865, Chief Justice

A.N. Ray speaking on behalf of the Constitution Bench

observed:-

“The Court will proprio motu exclude

evidence the production of which is

contrary to public interest. It is in

public interest that confidentiality

shall be safeguarded. The reason is that

such documents become subject to

privilege by reason of their contents.

Confidentiality is not a head of

privilege. It is a consideration to bear

in mind. It is not that the contents

contain material which it would be

damaging to the national interest to

divulge but rather that the documents

would be of class which demand

protection. (See 1973 AC 388 (supra) at

p. 40). To illustrate, the

class of documents which would embrace

Cabinet papers, Foreign Office

dispatches, papers regarding the security

of the State and high level inter-

departmental minutes.”

10. I may also refer to the following discussion

contained in S.P. Gupta vs. Union of India 1981

(Suppl) SCC 87 which has been also followed by the

8

Bench in M/s. Doypack Systems Pvt. Ltd. Vs. Union of

India and Others 1988 (2) SCC 299.

“45……….."It is settled law and it was so

clearly recognised in Raj Narain's case

1975 (4) SCC 428 that there may be classes

of documents which public interest requires

should not be disclosed, no matter what the

individual documents in those classes may

contain or in other words, the law

recognises that there may be classes of

documents which in the public interest

should be immune from disclosure. There is

one such class of documents which for years

has been recognised by the law as entitled

in the public interest to be protected

against disclosure and that class consists

of documents which it is really necessary

for the proper functioning of the public

service to withhold from disclosure. The

documents falling within this class are

granted immunity from disclosure not

because of their contents but because of

the class to which they belong. This class

includes cabinet minutes, minutes of

discussions between heads of departments,

high level inter-departmental

communications and despatches from

ambassadors abroad (vide Conway v. Rimmer,

[1968] Appeal Cases 910 at pp. 952, 973,

979, 987 and 993 and Reg v. Lewes Justices ,

ex parte Home Secretary, [1973] A.C. 388 at

412, papers brought into existence for the

purpose of preparing a submission to

cabinet (vide Lanyon Property Ltd. v.

Commonwealth, 129 Commonwealth Law Reports

650) and indeed any documents which relate

to the framing of government policy at a

high level (vide R e. Grosvenor Hotel,

London [1964] 3 All E.R. 354 (CA)".

The Court in Doypack (supra) held as follows:-

“46. Cabinet papers are, therefore,

protected from disclosure not by reason of

their contents but because of the class to

9

which they belong. It appears to us that

Cabinet papers also include papers brought

into existence for the purpose of preparing

submission to the Cabinet. See Geoffrey

Wilson cases and Materials on

Constitutional and Administrative Law , 2nd

edn., pages 462 to 464. At page 463 para

187, it was observed:

"The real damage with which I are

concerned would be caused by the

publication of the actual documents of the

Cabinet for consideration and the minutes

recording its discussions and its

conclusions. Criminal sanctions should

apply to the unauthorised communication of

these papers."

See in this Connection State of Bihar v.

Kripalu Shankar, AIR 1987 SC 1554 at page

1559 and also the decision of Bachittar

Singh v. State of Punjab [1962] Suppl. 3

SCR 713. Reference may also be made to the

observations of Lord Denning in Air Canada

and others v. Secretary of State , [1983] 1

All ER 161 at 180.”

11. In fact, the foundation for the law relating

to privilege is contained in the candour principles

and also the possibility of ill-informed criticism.

Regarding candour forming the premise I find the

following discussion in the decision of this Court in

S.P. Gupta’s case (supra).

“We agree with these learned Judges that

the need for candour and frankness cannot

justify granting of complete immunity

against disclosure of documents of this

class, but as pointed out by Gibbs, ACJ in

10

Sankey v. Whitlam ( 1978) 21 Australian LR

505:53, it would not be altogether unreal

to suppose "that in some matters at least

communications between ministers and

servants of the Crown may be more frank and

candid if these concerned believe that they

are protected from disclosure" because not

all Crown servants can be expected to be

made of "sterner stuff". 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 (vide:

the observations of Lord Denning in Neilson

v, Lougharne (1981) 1 All ER 829 at P.

835.”

12. Regarding 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, I notice the following in S.P. Gupta’s case

in paragraph 72 which read as follows:

“72. There was also one other reason

suggested by Lord Reid in Conway v. Rimmer

1968 AC 910 for according protection

against disclosure of documents belonging

to this case: "To my mind", said the

learned Law Lord : "the most important

reason is that such disclosure would create

or fan ill-informed or captious public or

political criticism. The business of

government is difficult enough as it is,

and no government could contemplate with

equanimity the inner workings of the

government machine being exposed to the

gaze of those ready to criticise without

adequate knowledge of the background and

perhaps with some axe to grind." But this

reason does not commend itself to us. The

11

object of granting immunity to documents of

this kind is to ensure the proper working

of the government and not to protect the

ministers and other government servants

from criticism however intemperate and

unfairly based. Moreover, this reason can

have little validity in a democratic

society which believes in an open

government. It is only through exposure of

its functioning that a democratic

government can hope to win the trust of the

people. If full information is made

available to the people and every action of

the government is bona fide and actuated

only by public interest, there need be no

fear of "ill-informed or captious public or

political criticism". But at the same time

it must be conceded that even in a

democracy, government at a high level

cannot function without some degree of

secrecy. No minister or senior public

servant can effectively discharge the

responsibility of his office if every

document prepared to enable policies to be

formulated was liable to be made public. It

is therefore in the interest of the State

and necessary for the proper functioning of

the public service that some protection be

afforded by law to documents belonging to

this class. What is the measure of this

protection is a matter which we shall

immediately proceed to discuss?”

The role of the Court has been set out in para

73:-

“73. We have already pointed out that

whenever an objection to the disclosure of

a document under Section 123 is raised, two

questions fall for the determination of the

court, namely, whether the document relates

to affairs of State and whether its

disclosure would, in the particular case

before the court, be injurious to public

interest. The court in reaching its

decision on these two questions has to

balance two competing aspects of public

interest, because the document being one

relating to affairs of State, its

12

disclosure would cause some injury to the

interest of the State or the proper

functioning of the public service and on

the other hand if it is not disclosed, the

non-disclosure would thwart the

administration of justice by keeping back

from the court a material document. There

are two aspects of public interest clashing

with each other out of which the court has

to decide which predominates. The approach

to this problem is admirably set out in a

passage from the judgment of Lord Reid in

Conway v. Rimmer 1968 AC 910:

It is universally recognised that

there are two kinds of public

interest which may clash. There is

the public interest that harm shall

not be done to the nation or the

public service by disclosure of

certain documents, and there is the

public interest that the

administration of justice shall not

be frustrated by the withholding of

documents which must be produced if

justice is to be done. There are many

cases where the nature of the injury

which would of might be done to the

nation, or the public service is of

so grave a character that no other

interest, public or private, can be

allowed to prevail over it. With

regard to such cases it would be

proper to say, as Lord Simon did,

that to order production of the

document in question, would put the

interest of the State in jeopardy.

But there are many other cases where

the possible injury to the public

service is much less and there one

would think that it would he proper

to balance the public interests

involved.

The court has to balance the detriment to

the public interest on the administrative

or executive side which would result from

the disclosure of the document against the

detriment to the public interest on the

judicial side which would result from non-

13

disclosure of the document though relevant

to the proceeding. [Vide the observations

of Lord Pearson in Reg, v. Lewes JJ. Ex

parte Home Secy 1973 AC 388 at page 406 of

the report]. The court has to decide which

aspect of the public interest predominates

or in other words, whether the public

interest which requires that the document

should not be produced, outweighs the

public interest that a court of justice in

performing its function should not be

denied access to relevant evidence. The

court has thus to perform a balancing

exercise and after weighing the one

competing aspect of public interest against

the other, decide where the balance lies.

If the court comes to the conclusion that,

on the balance, the disclosure of the

document would cause greater injury to

public interest than its non-disclosure,

the court would uphold the objection and

not allow the document to be disclosed but

if, on the other hand, the court finds that

the balance between competing public

interests lies the other way, the court

would order the disclosure of the document.

This balancing between two competing

aspects of public interest has to be

performed by the court even where an

objection to the disclosure of the document

is taken on the ground that it belongs to a

class of documents which are protected

irrespective of their contents, because

there is no absolute immunity for documents

belonging to such class .…………………”

(emphasis supplied)

13. I notice that 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

14

Kingdom. In India as already noticed, Section 123 of

the Evidence Act read with Section 124 and Section

162 does provide for the statutory basis for a claim

of public interest privilege. The next aspect

relating to the law of compelled production of

documents is the constitutional embargo contained in

Article 74(2) of the Constitution. Article 74(2)

reads as follows:

“74(2)The question whether any, and if so

what, advice was tendered by Ministers to the

President shall not be inquired into in any

court.”

Therefore, it would be impermissible for a court to

inquire into the advice which is tendered by the

cabinet. The objection in this case raised under the

Right to Information Act, is based only on Section

8(1)(a). I notice Section 8(1)(i) which provides as

follows:-

“8(1)(i) cabinet papers including records

of deliberations of the Council of

Ministers, Secretaries and other officers;

Provided that the decisions of Council of

Ministers, the reasons thereof, and the

material on the basis of which the

decisions were taken shall be made public

after the decision has been taken, and the

matter is complete, or over:

15

Provided further that those matters which

come under the exemptions specified in this

section shall not be disclosed;”.

The said provision having not been pressed into

service, neither its scope nor the ramification of

Article 74(2) need be pursued further in this case.

14. It is at once apposite to notice the change

that was introduced by the Right to Information Act,

2005.

Section 2(i) defines ‘record’ in the following

fashion:

“2 (i) "record" includes—

(i) any document, manuscript and file;

(ii) any microfilm, microfiche and

facsimile copy of a document;

(iii) any reproduction of image or images

embodied in such microfilm

(whether enlarged or not); and

(iv) any other material produced by a

computer or any other device;”

The word ‘right to information’ defined in

Section 2(j) as follows:

“(j) “right to information” means the right

to information accessible under this Act

which is held by or under the control of any

public authority and includes the right to—

16

(i) inspection of work, documents, records;

(ii) taking notes, extracts, or certified

copies of documents or records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of

diskettes, floppies, tapes, video cassettes

or in any other electronic mode or through

printouts where such information is stored in

a computer or in any other device;”

All citizens are conferred with the right to

information subject to the provisions of the Act

under Section 3.

15. Section 8 deals with exemption from

disclosure of information. Section 8(1)(a) which is

pressed before us reads as follows:

“8. Exemption from disclosure of

information -(1) Notwithstanding anything

contained in this Act, there shall be no

obligation to give any citizen,—

(a)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;”

This is followed by Section 8(2). It reads as

follows:

“8(2) Notwithstanding anything in the

Official Secrets Act, 1923 nor any of the

exemptions permissible in accordance with

sub-section (1), a public authority may

17

allow access to information, if public

interest in disclosure outweighs the harm

to the protected interests.”

16. Before I delve more into Section (8) it is

apposite that I also notice Section 22 which provides

as follows:

“22. Act to have overriding effect.- The

provisions of this Act shall have effect

notwithstanding anything inconsistent

therewith contained in the Official Secrets

Act, 1923, and any other law for the time

being in force or in any instrument having

effect by virtue of any law other than this

Act.”

17. I may lastly notice Section 24.

“24(1). Nothing contained in this Act shall

apply to the intelligence and security

organisations specified in the Second

Schedule, being organisations established

by the Central Government or any

information furnished by such organisations

to that Government: Provided that the

information pertaining to the allegations

of corruption and human rights violations

shall not be excluded under this

sub - section: Provided further that in the

case of information sought for is in

respect of allegations of violation of

human rights, the information shall only be

provided after the approval of the Central

Information Commission, and notwithstanding

anything contained in Section 7, such

information shall be provided within

forty-five days from the date of the

receipt of request.”

18

18. Sections 22 and 24 bring up the rear. I may

highlight their significance in the new dispensation

which has been ushered in by Parliament. In no

unambiguous terms 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, in the

perspective of the body polity through its elected

representatives that corruption and human rights

violations are completely incompatible and hence

anathema to the very basic principles of democracy,

the rule of law and constitutional morality. The

proviso 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. The economic development of a country

19

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

offsprings of corruption. However, the law giver has

indeed dealt with corruption and human rights

separately. Hence I say no more on this.

19. Reverting back to Section (8) it is clear

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 citizens

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

20

to information if the public interest in disclosure

overshadows, the harm to the protected interests.

20. It is true that under Section 8(1)(a),

information the disclosure of which will

prejudicially affect the sovereignty and integrity of

India, the security and strategic security and

strategic scientific or economic interests of the

State, relation with foreign State or information

leading to incitement of an offence are ordinarily

exempt from the obligation of disclosure but even in

respect of such matters Parliament has advanced the

law in a manner which can only be described as

dramatic by giving recognition to the principle that

disclosure of information could be refused only on

the foundation of public interest being jeopardised.

What interestingly 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

21

harm and then decide either to disclose or to decline

information. It is not as if there would be no harm.

If, for instance, the information falling under

clause (a) say for instance the security of the

nations or relationship with a foreign state is

revealed and is likely to be harmful, under the Act

if higher public interest is established, then it is

the will of Parliament that the greater good should

prevail though at the cost of lesser harm being still

occasioned. I indeed would be failing to recognise

the radical departure in the law which has been

articulated in Section 8(2) if I did not also

contrast the law which in fact been laid down by this

court in the decisions of this Court which I have

adverted to. Under the law relating to privilege

there are two classes of documents which ordinarily

form the basis of privilege. In the first category,

the claim for privilege is raised on the basis of

contents of the particular documents. The second

head under which privilege is ordinarily claimed is

that the document is a document which falls in a

class of documents which entitles it to protection

22

from disclosure and production. When a document

falls in such a class, ordinarily courts are told

that it suffices and the court may not consider the

contents. When privilege was claimed as for instance

in the matter relating to security of the nation,

traditionally, courts both in England and in India

have held that such documents would fall in the class

of documents which entitles it to protection from

production. (See paragraph ‘9’ of this order). The

RTI Act through Section 8(2) has conferred upon the

citizens a priceless right by clothing them with the

right to demand information even in respect of such

matters as security of the country and matters

relating to relation with foreign state. No doubt,

information is not be given for the mere asking. The

applicant must establish that withholding of such

information produces greater harm than disclosing it.

21. It may be necessary also to consider as to

what could be the premise for disclosure in a matter

relating to security and relationship with foreign

state. The answer is contained in Section 8(2) and

that is public interest. Right to justice is

23

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.

22. 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

24

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.

23. It is clear that under the Right to

Information Act, a citizen can 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.

24. Coming to privilege 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

25

question regarding a claim for privilege. It is

pertinent to note that 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.

Could it be said that what an officer under the RTI

Act can permit, cannot be allowed by a court and that

too superior courts under Section 123 of the Evidence

Act. I would think that the court indeed can subject

no doubt to one exception, namely, if it is a matter

which is tabooed under Article 74(2) of the

Constitution.

25. 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

26

produced by it. Undoubtedly, the foundation for such

a claim is based on public interest and nothing more

and nothing less. In fact, in State of U.P. VS. Raj

Narain AIR 1975 SC 861 I notice the following

paragraph about the effect of publication in part in

the concurring judgment of K.K. Mathew,J. which reads

as under:

“81. I do not think that there is much

substance in the contention that since, the

Blue Book had been published in parts, it

must be deemed to have been published as a

whole and, therefore, the document could

not be regarded as an unpublished official

record relating to affairs of state. If

some parts of the document which are

innocuous have been published, it does not

follow that the whole document has been

published. No authority has been cited for

the proposition that if a severable and

innocuous portion of a document is

published, the entire document shall be

deemed to have been published for the

purpose of S. 123.”

26. I may also notice another aspect. 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 courts

27

decision to act upon the same (see in this context

judgment of this Court in Pooran Mal v. Director of

Inspection (Investigation) of Income Tax AIR 1974 SC

348). Therein I notice the following statements:

“25. So far as India is concerned its law

of evidence is modeled on the rules of

evidence, which prevailed in English law,

and courts in India and in England have

consistently refused to exclude relevant

evidence merely on the ground that it is

obtained by illegal search or seizure. In

Barindra Kumar Ghose and others v.

Emperor(1910)ILR 37 Cal 467 the learned

Chief Justice Sir Lawrence Jenkins says at

page, 500 :

"Mr. Das has attacked the searches and has

urged that, even if there was jurisdiction

to direct the issue of search warrants, as

I hold there was, still the provisions of

the Criminal Procedure Code have been

completely disregarded. On this assumption

he has contended that the evidence

discovered by the searches is not

admissible, but to this view I cannot

accede. For without in any way

countenancing disregard of the provisions

prescribed by the Code, I hold that what

would otherwise be relevant does not become

irrelevant because it was discovered in the

course of a search in which those

provisions were disregarded. As

Jimutavahana with his shrewd common-sense

observes-"a fact cannot be altered by 100

texts," and as his commentator quaintly

remarks : "If a Brahmana be slain, the

precept 'slay not a Brahmana' does not

annul the murder." But the absence of the

precautions designed. by the legislature

lends support to the argument that the

alleged discovery should be carefully

scrutinized.

……. …… …….

28

It would thus be seen that in India, as in

England, where the test of admissibility of

evidence lies in 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.”

(Emphasis supplied)

27. Now 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 and has in fact arisen whether the Court

is bound to order production. In the landmark

judgment by the High court of Australia in Sankey v.

Whitlam (1978) 142 CLR 1, informations were laid

against Mr. Whitlam the former Prime Minister of

Australia and three members of his Ministry alleging

offence under Section 86 of the Crimes Act 1914 and a

29

conspiracy at common law. The case also threw up the

scope of the claim for privilege. It was held inter

alia as follows in the judgment rendered by Sir Harry

Gibbs, A.C.J.:

“43. If state papers were absolutely

protected from production, great injustice

would be caused in cases in which the

documents were necessary to support the

defence of an accused person whose liberty

was at stake in a criminal trial, and it

seems to be accepted that in those

circumstances the documents must be

disclosed: Duncan v. Cammell, Laird &

Co. [1942] UKHL 3 ; (1942) AC 624, at pp

633-634 ; Conway v. Rimmer (1968) AC, at pp

966-967, 987 ; Reg. v. Lewes Justices; Ex

parte Home Secretary (1973) AC, at pp 407-

408. Moreover, a Minister might produce a

document of his own accord if it were

necessary to do so to support a criminal

prosecution launched on behalf of the

government. The fact that state papers may

come to light in some circumstances is

impossible to reconcile with the view that

they enjoy absolute protection from

disclosure.

48. In Robinson v. South Australia (No. 2)

(1931) AC, at p 718 , it was said that "the

privilege, the reason for it being what it

is, can hardly be asserted in relation to

documents the contents of which have

already been published ". Other cases

support that view: see Marconi's Wireless

Telegraph Co. Ltd. v. The Commonwealth (No.

2) (1913) 16 CLR, at pp 188, 195, 199 ;

Christie v. Ford (1957) 2 FLR 202, at p 209

. However the submission made by counsel

30

for Mr. Whitlam was that the position is

different when the exclusion of a document

is sought not because of its contents but

because of the class to which it belongs.

In such a case the document is withheld

irrespective of its contents; therefore, it

was said, it is immaterial that the

contents are known. That is not so; for the

reasons I have suggested, it may be

necessary for the proper functioning of the

public service to keep secret a document of

a particular class, but once the document

has been published to the world there no

longer exists any reason to deny to the

court access to that document, if it

provides evidence that is relevant and

otherwise admissible. It was further

submitted that if one document forming part

of a series of cabinet papers has been

published, but others have not, it would be

unfair and unjust to produce one document

and withhold the rest. That may indeed be

so, and where one such document has been

published it becomes necessary for the

court to consider whether that circumstance

strengthens the case for the disclosure of

the connected documents. However even if

other related documents should not be

produced, it seems to me that once a

document has been published it becomes

impossible, and indeed absurd, to say that

the public interest requires that it should

not be produced or given in evidence.”

28. No doubt regarding publication by an

unauthorised person and it being unauthenticated, the

learned Judge had this to say:

“49. What I have just said applies to cases

where it is established that a true copy of

31

the document sought to be produced has in

fact been published. The publication by an

unauthorized person of something claimed to

be a copy of an official document, but

unauthenticated and not proved to be

correct, would not in itself lend any

support to a claim that the document in

question ought to be produced. In such a

case it would remain uncertain whether the

contents of the document had in truth been

disclosed. In some cases the court might

resolve the problem by looking at the

document for the purpose of seeing whether

the published copy was a true one, but it

would not take that course if the alleged

publication was simply a device to assist

in procuring disclosure, and it might be

reluctant to do so if the copy had been

stolen or improperly obtained. ”

29. In the same case in the judgment rendered by

Stephen. J., the learned Judge observes: -

“26. The character of the proceedings has a

triple significance. First, it makes it

very likely that, for the prosecution to be

successful, its evidence must include

documents of a class hitherto regarded as

undoubtedly the subject of Crown privilege.

But, then, to accord privilege to such

documents as a matter of course is to come

close to conferring immunity from

conviction upon those who may occupy or may

have occupied high offices of State if

proceeded against in relation to their

conduct in those offices. Those in whom

resides the power ultimately to decide

whether or not to claim privilege will in

fact be exercising a far more potent power:

by a decision to claim privilege dismissal

of the charge will be well-nigh ensured.

Secondly, and assuming for the moment that

there should prove to be any substance in

32

the present charges, their character must

raise doubts about the reasons customarily

given as justifying a claim to Crown

privilege for classes of documents, being

the reasons in fact relied upon in this

case. Those reasons, the need to safeguard

the proper functioning of the executive arm

of government and of the public service,

seem curiously inappropriate when to uphold

the claim is to prevent successful

prosecution of the charges: inappropriate

because what is charged is itself the

grossly improper functioning of that very

arm of government and of the public service

which assists it. Thirdly, the high offices

which were occupied by those charged and

the nature of the conspiracies sought to be

attributed to them in those offices must

make it a matter of more than usual public

interest that in the disposition of the

charges the course of justice be in no way

unnecessarily impeded. For such charges to

have remained pending and unresolved for as

long as they have is bad enough; if they

are now to be met with a claim to Crown

privilege, invoked for the protection of

the proper functioning of the executive

government, some high degree of public

interest in non-disclosure should be shown

before his privilege should be accorded. “

“31. What are now equally well established

are the respective roles of the court and

of those, usually the Crown, who assert

Crown privilege. A claim to Crown privilege

has no automatic operation; it always

remains the function of the court to

determine upon that claim. The claim,

supported by whatever material may be

thought appropriate to the occasion, does

no more than draw to the court's attention

what is said to be the entitlement to the

privilege and provide the court with

material which may assist it in determining

whether or not Crown privilege should be

accorded. A claim to the privilege is not

essential to the invoking of Crown

privilege. In cases of defence secrets,

matters of diplomacy or affairs of

government at the highest level, it will

often appear readily enough that the

33

balance of public interest is against

disclosure. It is in these areas that, even

in the absence of any claim to Crown

privilege (perhaps because the Crown is not

a party and may be unaware of what is

afoot), a court, readily recognizing the

proffered evidence for what it is, can, as

many authorities establish, of its own

motion enjoin its disclosure in court. Just

as a claim is not essential, neither is it

ever conclusive, although, in the areas

which I have instanced, the court's

acceptance of the claim may often be no

more than a matter of form. It is not

conclusive because the function of the

court, once it becomes aware of the

existence of material to which Crown

privilege may apply, is always to determine

what shall be done in the light of how best

the public interest may be served, how

least it will be injured. “

“38. Those who urge Crown privilege for

classes of documents, regardless of

particular contents, carry a heavy burden.

As Lord Reid said in Rogers v. Home

Secretary (1973) AC, at p 400 the speeches

in Conway v. Rimmer[1968] UKHL 2; (1968) AC

910 have made it clear "that there is a

heavy burden of proof" on those who make

class claims. Sometimes class claims are

supported by reference to the need to

encourage candour on the part of public

servants in their advice to Ministers, the

immunity from subsequent disclosure which

privilege affords being said to promote

such candour. The affidavits in this case

make reference to this aspect. Recent

authorities have disposed of this ground as

a tenable basis for privilege. Lord

Radcliffe in the Glasgow Corporation Case

remarked 1956 SC (HL), at p 20 that he

would have supposed Crown servants to be

"made of sterner stuff", a view shared by

Harman L.J. in the Grosvenor Hotel Case

(1965) Ch, at p 1255 : then, in Conway v.

Rimmer (1968) AC 901 , Lord Reid dismissed

the "candour" argument but found the true

basis for the public interest in secrecy,

in the case of cabinet minutes and the

like, to lie in the fact that were they to

34

be disclosed this would "create or fan ill-

informed or captious public or political

criticism. . . . the inner workings of the

government machine being exposed to the

gaze of those ready to criticize without

adequate knowledge of the background and

perhaps with some axe to grind" (1968) AC,

at p 952 and see as to the ground of

"candour" per Lord Morris (1968) AC, at p

959 , Lord Pearce (1968) AC, at pp 987-988

and Lord Upjohn (1968) AC, at pp 933-934 .

In Rogers v. Home Secretary (1973) AC, at p

413 Lord Salmon spoke of the "candour"

argument as "the old fallacy" .

“41. There is, moreover, a further factor

pointing in the same direction. The public

interest in non-disclosure will be much

reduced in weight if the document or

information in question has already been

published to the world at large. There is

much authority to this effect, going back

at least as far as Robinson v. South

Australia (No. 2) (1931) AC 704, at p 718

per Lord Blanesburgh. In 1949 Kriewaldt J.,

sitting in the Supreme Court of the

Northern Territory, had occasion to review

the relevant authorities in his judgment in

Christie v. Ford (1957) 2 FLR 202, at p 209

. The reason of the thing necessarily tends

to deny privilege to information which is

already public knowledge. As Lord

Blanesburgh observed (25) "the privilege,

the reason for it being what it is, can

hardly be asserted in relation to documents

the contents of which have already been

published". In Whitehall v. Whitehall 1957

SC 30, at p 38 the Lord President (Clyde)

in referring to a document already the

subject of some quite limited prior

publicity observed that "The necessity for

secrecy, which is the primary purpose of

the certificate, then no longer operates…”

“44. In Rogers v. Home Secretary Lord Reid

had occasion to distinguish between

documents lawfully published and those

which, as a result of "some wrongful

means", have become public (1973) AC, at p

402 . That case was, however, concerned

with a quite special class of document,

confidential reports on applicants for

35

licences to run gaming establishments, a

class to which must apply considerations

very similar to those which affect the

reports of, or information about, police

informers. There is, in those cases, the

clearest public interest in preserving the

flow of information by ensuring

confidentiality and by not countenancing in

any way breach of promised confidentiality.

Those quite special considerations do not,

I think, apply in the present case.”

(Emphasis Supplied)

30. In Rogers Vs. Home Secretary 1973 A.C. 388,

the request to produce a letter written by the Police

Officer to the Gaming Board by way of response to the

Gaming Board request for information in regard to

applications by the appellant for certificates of

consent, was not countenanced by the House of Lords. The

appellant had commenced an action for criminal libel in

regard to the information. Lord Reid in the course of his

judgment held:-

“In my judgment on balance 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. I would

therefore dismiss the appellant’s

appeal.”

31. In this case however as I have already

noticed there are the following aspects. The

36

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. I would observe

that 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

37

provisions of Prevention of Corruption Act. The

observations made by Stephen,J. in para 26 of his

judgment and extracted by me in para 29 of my order

may not be out of place.

32. I agree with the order of the learned Chief

Justice.

……………………………………………J.

[K.M. JOSEPH]

NEW DELHI

DATED; APRIL 10, 2019

38