Consideration of published but secret documents

Review of judgement in Rafale case:

The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents. No question has been raised and, in our considered opinion, very rightly, with regard to the publication of the documents in ‘The Hindu’ newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech.

No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice.

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 (AIR 1950 SC 124 ) and Brij Bhushan vs. The State of Delhi (AIR 1950 SC 129) 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 (1985(1) SCC 641 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 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 belief. In Romesh Thappar v. State of Madras4 and Brij Bhushan v. The State of Delhi5, 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.”

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.

Claim of privilege:

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.

Concurring judgement by K.M. Joseph, J.:

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 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 to information if the public interest in disclosure overshadows, the harm to the protected interests.

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 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 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.

[Source: Manohar Lal Sharma vs Narendra Damodardas Modi decided by SC on 10 April, 2019]

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