TMI Blog2019 (6) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 provisions of Prevention of Corruption Act. The order of the learned Chief Justice upheld. - R. P. (Crl. ) No. 46/2019 in W. P. (Crl. ) No. 298/2018 WITH M. A. No. 58/2019 in W. P. (Crl. ) No. 225/2018 (PIL-W)R. P. (Crl. ) No. 122/2019 in W. P. (Crl. ) No. 297/2018 (PIL-W) M. A. No. 403/2019 in W. P. (Crl. ) No. 298/2018 (PIL-W) R. P. (C) - - - Dated:- 10-4-2019 - MR RANJAN GOGOI, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reedom 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 Madras AIR 1950 SC 124 and Brij Bhushan v. The State of Delh i AIR 1950 SC 129 , 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 equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 AIR 1974 SC 348 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 seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 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 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of losing all or any of the things that is held 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 to the Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, 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. .. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interdepartmental 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 Bench in M/s. Doypack Systems Pvt. Ltd. Vs. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 Secret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislature lends support to the argument that the alleged discovery should be carefully scrutinized. . . 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 balance of public interest is against disclosure. It is in these areas that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
