2019 Supreme(SC) 427

SUPREME COURT OF INDIA
RANJAN GOGOI, CJI., SANJAY KISHAN KAUL, JJ.
YASHWANT SINHA & ORS. – Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIECTOR & ANR. – Respondent
REVIEW PETITION (CRIMINAL) NO. 46 OF 2019 IN WRIT PETITION (CRIMINAL) NO. 298 OF 2018 WITH M.A. NO. 58 OF 2019 IN W.P. (CRIMINAL) 225 OF 2018; R.P. (CRIMINAL) NO. 122 OF 2019 IN W.P. (CRIMINAL) 297 OF 2018; M.A. NO. 403 OF 2019 IN W.P. (CRIMINAL) NO. 298 OF 2018; R.P.(C) NO. 719 OF 2019 IN W.P.(C) 1205/2018
Decided on : 10-04-2019

IMPORTANT POINTS
(1) Claim of immunity against disclosure under Section 123 of Indian Evidence Act has to be essentially adjudged on touchstone of public interest.
(2) Rule against bias is an important axiom to be observed by Judges.
(3) Information is not to be given for mere asking.
(4) In regard to documents which are improperly obtained and which are subject to claim for privilege, ordinary rule of relevancy alone may not suffice.

Headnote:Per Ranjan Gogoi, CJI (With Sanjay Kishan Kaul, J.)

       Official Secrets Act, 1923 – Sections 3 and 5 – Right to Information Act, 2005 – Section 8(1)(a) – Indian Evidence Act, 1872 – Section 123 – Constitution of India – Article 137 – Review petition – Maintainability – Rafale controversy – Documents unauthorizedly removed from office of Ministry of Defence, Government of India, have been appended to review petition and relied upon by review petitioners – Three documents had been published in Newspaper and were available in public domain – Right of such publication is in consonance with constitutional guarantee of freedom of speech – No law enacted by Parliament specifically barring or prohibiting publication of such documents on any of grounds mentioned in Article 19(2) of Constitution – There is no provision in Official Secrets Act and no such provision in any other statute by which Parliament has vested any power in executive arm of government either to restrain publication of documents marked as secret or from placing such documents before Court of Law which may have been called upon to adjudicate a legal issue concerning parties – Claim of immunity against disclosure under Section 123 of Indian Evidence Act has to be essentially adjudged on touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure Court may even inspect document in question though said power has to be sparingly exercised – Such an exercise would not be necessary in present case as document(s) being in public domain and within reach and knowledge of entire citizenry – When documents in question are already in public domain, protection under Section 8(1)(a) of RTI Act would not serve public interest – Review petitions will have to be adjudicated on their own merit by taking into account relevance of contents of documents. (Paras 4, 5, 6, 9 and 12)

       Facts of Case:

       Rafale controversy. Preliminary objection with regard to the maintainability of review petition has been raised by Attorney General on behalf of respondents. Attorney General contends that review petition lacks in bona fides inasmuch as three documents unauthorizedly removed from office of Ministry of Defence, Government of India, have been appended to review petition and relied upon by review petitioners.

       Findings of Court:

       we deem it proper to dismiss preliminary objections raised by Union of India questioning maintainability of review petitions and we hold and affirm that review petitions will have to be adjudicated on their own merit by taking into account relevance of contents of three documents, admissibility of which, in judicial decision making process, has been sought to be questioned by respondents in review petitions.

       Per K .M. Joseph, J.(Assenting View)

       (A) Constitution of India – Article 19 – Freedom of Press – Press in India has greatly contributed to strengthening of democracy in country – It will have a pivotal role to play for continued existence of a vibrant democracy in country – Press out of which visual media in particular wields power, reach of which appears to be limitless – No segment of population is impervious to its influence – Freedom involves many elements – A free person must be fearless – Fear can be of losing all or any of things that is held dear by Journalist – A free man cannot be biased – Bias comes in many forms – Bias if it is established as per principles which are applicable is sufficient to vitiate decisions of public authorities – Rule against bias is an important axiom to be observed by Judges – Equally Press including visual media cannot be biased and yet be free – Right of Press in India is no higher than right of citizens under Article 19(1)(a) and is traced to same provision – Ability of truth to be recognised by a discerning public in supposedly free market place of ideas forms much of basis for grant of unquestionable freedom to Press including Media Houses – If freedom is enjoyed by Press without a deep sense of responsibility, it can weaken democracy – Controlling business interests and political allegiances appear to erode duty of dispassionate and impartial purveying of information. (Paras 2 and 3)

       (B) Indian Evidence Act, 1872 – Sections 123, 124 and 162 – Inspection of documents covered by privilege – Section 124 is confined to public officers and decisive aspect even under Section 124 is protection of public interest – Claim for privilege under Section 123 of Indian Evidence Act being based on public policy cannot be waived – Foundation for law relating to privilege is contained in candour principles and also possibility of ill-informed criticism – Section 123 of Evidence Act read with Section 124 and Section 162 does provide for statutory basis for a claim of public interest privilege. (Paras 7, 8, 11 and 13)

       (C) Right to Information Act, 2005 – Section 8 – Right to information – Exemption – Parliament has indeed intended to strengthen democracy and has sought to introduce highest levels of transparency and openness – With passing of Right to Information Act, citizens’ fundamental right of expression under Article 19(1) (a) of Constitution of India which itself has been recognised as encompassing, basket of rights has been given fruitful meaning – There cannot be absolutism even in matter of certain values which were formerly considered to provide unquestionable foundations for power to withhold information – Information is not to be given for mere asking – Applicant must establish that withholding of such information produces greater harm than disclosing it – Right to justice is immutable – It is inalienable – Demands it has made over other interests has been so overwhelming that it forms foundation of all civilized nations – Evolution of law itself is founded upon recognition of right to justice as an indispensable hallmark of a fully evolved nation. (Paras 19, 20 and 21)

       (D) Right to Information Act, 2005 – Sections 8 and 24 – Right to information – Exemption – It is duty of every State to provide for a fair and effective system of administration of justice – Judicial review is recognised as a basic feature of Constitution – Most important aspect in a justice delivery system is ability of a party to successfully establish case based on materials – Subject to exceptions it is settled beyond doubt that any person can set criminal law into motion – It is equally indisputable that among seemingly insuperable obstacles a litigant faces are limitations on ability to prove case with evidence and more importantly relevant evidence – Ability to secure evidence forms the most important aspect in ensuring triumph of truth and justice – It is imperative that Section 8(2) must be viewed in said context – Its impact on operation on shield of privilege is unmistakable. (Para 22)

       (E) Official Secrets Act, 1923 – Sections 3 and 5 – Right to Information Act, 2005 – Section 8(1)(a) – Indian Evidence Act, 1872 – Section 123 – Constitution of India – Article 137 – Review petition – Maintainability – Rafale controversy – Documents in respect of which privilege is claimed are already on record – Foundation for such claim is based on public interest and nothing more and nothing less – 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 court’s decision to act upon same – If a copy is wholly improperly obtained and attempt is made by production thereof to compel State to produce original, question may and has in fact arisen whether Court is bound to order production – Documents in question have been published in a national daily – Correctness of contents per se of documents are not questioned – Case does not strictly involve in a sense claim for privilege as petitioners have not called upon respondents to produce original – State does not take objection to correctness of contents of documents – In regard to documents which are improperly obtained and which are subject to claim for privilege, 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. (Paras 25, 26, 27 and 31)

       Result : Review Petition admitted for adjudication.