Yashwant Sinha and others v. CBI and others ((2019) 6 SCC 1)
Yashwant Sinha and others v. CBI and others
(2019) 6 SCC 1
Supreme Court of India
Division Bench - Hon’ble Justice Sanjay Kishan Kaul and Hon’ble Justice K.M. Joseph
ALSO KNOWN AS
Rafale Deal Case
POINT OF CONSIDERATION
Right to Information and Freedom of Press vis-a-vis the Official Secrets Act of 1923
In 2018, the court in a unanimous judgment decided not to order a court monitored investigation of the Union government's purchase of Rafale fighter aircraft. In 2019, it rejected to review its judgment.
The case pertained to three documents that provided evidence in the political controversy surrounding the Rafale arms deal: a 7.8 billion euro weapons deal to purchase 36 Rafale fighter planes from France.
There was a controversy concerning the Indian Prime Minister’s decision during a 2015 visit to Paris to purchase the planes, manufactured by Dassault Aviation.
Questions arose with respect to the Indian Prime Minister’s approval of the purchase at such a high cost.
The CBI on March 6, 2019, informed the Supreme Court that documents relating to the Rafale were stolen from the Defence Ministry.
The Indian Central Bureau of Investigation (CBI) has brought up the objection that a review on the basis of stolen documents was inadmissible.
The three-Judge Bench dismissed the objection asserting that there was no violation of the Official Secrets Act 1923, or any other law which prevented placing documents marked as a secret before a Court of Law. The court here also stated that Section 123 of the Indian Evidence Act, 1872 which is pertaining to unpublished records, had no applicability here.
‘The Hindu’ newspaper had already published the documents, which indicated that the documents were already in the public domain. Hence the court stated that it would be “an exercise in utter futility for the Court to refrain from reading and considering the said document.”
The CBI had also criticized The Hindu newspaper based on the Official Secrets Act for publishing articles that were related to stolen classified information.
ISSUES RAISED & RATIO
Whether the disclosure of a matter relating to security and relationship with foreign state a violation of Official Secrets Act?
The answer is contained in Section 8(2) and that is public interest. Right to justice is immutable. 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. It is imperative therefore that Section 8(2) must be viewed in the said context. 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. 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.
Section 123 of the Evidence Act in fact contemplates a situation where a party seeks the production of a document which is with a public authority and the public authority raises a 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. The court quoted the following from State of U.P. v. Raj Narain AIR 1975 SC 865 -
“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…”
The documents in question have been published in ‘The Hindu’, a national daily. 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 Court observed 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.
IMPORTANT CASES REFERRED
Rajendra Sail v. M.P. High Court Bar Association and Others 2005 (6) SCC 109
State of U.P. v. Raj Narain AIR 1975 SC 865
Pooran Mal v. Director of Inspection (Investigation) of Income Tax AIR 1974 SC 348)
Indian Express Newspaper (Bombay) Private Ltd. And Others v. Union of India 1985 (1) SCC 641
Dennis v. United States 341 US 494
The author is a law graduate from University School of Law and Legal Studies, GGS IP University, New Delhi.